MUNICIPALITY OF BIÑAN, PETITIONER, VS. HON. JOSE MAR GARCIA, JUDGE OF THE REGIONAL TRIAL COURT AT BIñAN, LAGUNA (BRANCH XXIV, REGION IV), AND ERLINDA FRANCISCO, RESPONDENTS.

Three (3) questions are resolved in the action of certiorari at bar.  The first is whether the special civil action
of eminent domain under Rule 67 of the Rules of Court is a case “wherein
multiple appeals are allowed,”^[1]
as regards which “the period of appeal shall be thirty [30] days,”^[2]
instead of fifteen (15) days.^[3]
The second is whether or not the Trial Court may treat the “motion to
dismiss” filed by one of the defendants in the action of eminent domain as
a motion to dismiss under Rule 16 of the Rules of Court, reverse the sequence
of trial in order and hear and determine said motion to dismiss, and thereafter
dismiss the expropriation suit as against the movant.  And the third is whether or not a “locational clearance” issued by the Human Settlement
Regulatory Commission relative to use of land is a bar to an expropriation suit
involving that land.

The expropriation suit involved in this certiorari proceeding was commenced by
complaint of the Municipality of Biñan, Laguna,^[4]
filed in the Regional Trial Court of Laguna and City of San
Pablo, presided over by respondent Judge Jose Mar
Garcia.  The complaint named as
defendants the owners of eleven (11) adjacent parcels of land in Biñan with an aggregate area of about eleven and a half
(11-1/2) hectares.  The land sought to be
expropriated was intended for use as the new site of a modern public market and
the acquisition was authorized by a resolution of the Sangguniang
Bayan of Biñan approved on April 11, 1983.

One of the defendants was Erlinda
Francisco.  She filed a “Motion to
Dismiss” dated August 26, 1983, on the following grounds:  (a) the allegations of the complaint are
vague and conjectural; (b) the complaint violates the constitutional
limitations of law and jurisprudence on eminent domain; (c) it is oppressive;
(d) it is barred by prior decision and disposition on the subject matter; and
(e) it states no cause of action.1 Now, her “motion to
dismiss” was filed pursuant to Section 3, Rule 67 of the Rules of Court:

“SEC.
3.  Defenses and objections.  – Within the time specified in the summons, each
defendant, in lieu of an answer, shall present in a single motion to dismiss or
for other appropriate relief, all of his objections and defenses to the right
of the plaintiff to take his property for the use or purpose specified in the
complaint.  All such objections and
defenses not so presented are waived.  A
copy of the motion shall be served on the plaintiff’s attorney of record and
filed with the court with the proof of service.”

Her “motion to dismiss” was
thus actually a pleading, taking the place of an answer in an ordinary civil
action;2 it
was not an ordinary motion governed by Rule 15, or a “motion to
dismiss” within the contemplation of Rule 16 of the Rules of Court.

On October 23, 1983,
respondent Judge issued a writ of possession in favor of the plaintiff
Municipality.

On February 3, 1984,
Erlinda Francisco filed a “Motion for Separate
Trial,” invoking Section 2, Rule 31.3 She alleged that there had already
been no little delay in bringing all the defendants within the court’s
jurisdiction, and some of the defendants seemed “nonchalant or without
special interest in the case” if not mere “free riders;” and
“while the cause of action and defenses are basically the same,” she
had, among other defenses, “a constitutional defense of vested right via a
pre-existing approved Locational Clearance from the
H.S.R.C.4”
Until this clearance was revoked, Francisco contended, or the Municipality had
submitted and obtained approval of a “rezoning of the lots in question,”
it was premature for it to
“file a case for expropriation.”5 The Court granted the motion.  By Order dated March 2, 1984, it directed
that “a separate trial be held for defendant Erlinda
Francisco regarding her special defenses mentioned in her ** Motion for
Separate Trial and in her Motion to Dismiss, distinct from and separate from
the defenses commonly raised by all the defendants in their respective motions to dismiss.”

At the separate trial, the Fiscal, in representation of the
Municipality called the Trial Court’s attention to the irregularity of allowing
Francisco to present her evidence ahead of the plaintiff, “putting the
cart before the horse, as it were.” He argued that the motion to dismiss
was in truth an answer, citing Rural Progress Administration v. Judge de
Guzman, and its filing did “not mean that the order of presentation of
evidence will be reversed,” but the usual procedure should be followed; and the evidence adduced should be
deemed “evidence only for the motion for reconsideration of the writ of
possession.”1

Nevertheless, at the hearings of March 5, and March 26, 1984, the Court directed
Francisco to commence the presentation of evidence.  Francisco presented the testimony of Atty. Josue L. Jorvina, Jr. and certain
exhibits — the Land Use Map of the Municipality of Biñan, the Locational
Clearance and Development Permit issued by the HSRC in favor of “Erlinda Francisco c/o Ferlins
Realty &
Development Corporation, and Executive Order No. 648 and Letter of
Instructions No. 729, etc.  Thereafter,
the respondent Judge issued an Order dated July 24, 1984 dismissing the
complaint “as against defendant ERLINDA FRANCISCO,” and amending the
Writ of Possession dated October 18, 1983 so as to “exclude therefrom and from its force and effects said defendant **
and her property **.” His Honor found that –

1) a Locational
Clearance had been issued on May 4,
1983 by the Human Settlements Regulatory Commission to the “Ferlin’s Realty ** owned by defendant Erlinda
Francisco to convert ** (her) lot to a commercial complex;”

2) according to the testimony of Atty. Jorvina of the HSRC, “a grantee of a locational clearance acquires a vested right over the
subject property in the sense that * * said property may not be subject of an
application for locational clearance by another
applicant while said locational clearance is
subsisting;”

3) such a clearance should be
“considered as a decision and disposition of private property co-equal
with or in parity with a disposition of private property through eminent
domain;”

4)  the
clearance was therefore “a legal bar against the right of plaintiff
Municipality * * to expropriate the
said property.”

The Municipality filed on August
17, 1984 a Motion for Reconsideration.  Therein it (a) reiterated its contention respecting
the irregularity of the reversal of the order of trial, supra,2 (b) decried the act of the Court in considering the case
submitted for decision after the presentation of evidence by Francisco without
setting the case for further hearing for the reception of the plaintiff’s own
proofs, (c) pointed out that as admitted by Atty. Jorvina,
the locational clearance did not “mean that
other persons are already prevented from filing locational
clearance for the same project, and so could not be considered a bar to
expropriation, (d) argued that the locational
clearance, issued on May 4, 1983, became a “worthless sheet of paper”
one year later, on May 4, 1984 in accordance with the explicit condition in the
clearance that it “shall be considered automatically revoked it not used
within a period of one (1) year from date of issue,” the required
municipal permits to put up the commercial complex never having been obtained
by Francisco; and (e) alleged that all legal requirements for the expropriation
of the property had been duly complied with by the Municipality.1

The Municipality set its motion for reconsideration for hearing
on August 28, 1984 after
furnishing Francisco’s counsel with copy thereof.  The Court however re-scheduled the hearing
more than two (2) months later, on November
20, 1984.2 Why the hearing was reset to such a
remote date is not explained.

On September 13, 1984, Francisco filed an “Ex-Parte Motion for Execution and/or Finality of Order,”
contending that the Order of July 27, 1984 had become “final and executory on August 12, 1984″ for failure of the
Municipality “to file a motion for reconsideration and/or appeal within
the reglementary period,”3
i.e., “fifteen (15) days counted from the notice of the final order **
appealed from.”4

On October 10, 1984, the Court issued an Order declaring the
Municipality’s motion for reconsideration dated August 15, 1984 to have been
“filed out of time,” on account of which the Court “could not
give due course to and/or act ** (thereon) except to dismiss (as it did thereby
dismiss) the same.”5 It drew attention to the fact that
notice of its Order of July 24, 1984
(dismissing the complaint as against Francisco) was served on plaintiff
Municipality on July 27, 1984, but its motion for
reconsideration was not presented until August
17, 1984, beyond the fifteen-day period for appeal prescribed by
law.  And on October 15, 1985, His Honor promulgated another
Order directing the issuance of (1) a writ of execution of the Order of July 24, 1984, and (2) a
“certificate of finality” of said order.6

The Municipality attempted to have the respondent Court
reconsider both said Orders of October 10, and October 15, 1984. 
To this end it submitted a motion contending that:7

1) “multiple appeals are allowed by
law” in actions of eminent domain, and hence the period of appeal is
thirty (30), not fifteen (15) days;

2) moreover, the grant of a separate
trial at Francisco’s instance had given rise “ipso facto to a
situation where multiple appeals became available (Sections 4 and 5, Rule 36,
**; Santos v. Pecson,
79 Phil. 261);”

3) it was wrong for the Trial Court to
have acted ex parte on the motion for execution, the
motion being “litigable in character;” and

4) it (the Municipality) was denied due
process when the Court, after receiving Francisco’s evidence and admitting her
exhibits, immediately resolved the case on the merits as regards Francisco,
without setting the case “for further hearing for reception of evidence
for the plaintiff.”

The motion was denied, by Order dated October 18, 1984; hence, the special civil
action of certiorari at bar.

1. There are two (2) stages in every action of
expropriation.  The first is concerned
with a determination of the authority of the plaintiff to exercise the power of
eminent domain and the propriety of its exercise in the context of the facts
involved in the suit.1 It ends with an order, if not of dismissal of the action,
“of condemnation declaring that the plaintiff has a lawful right to take
the property sought to be condemned, for the public use or purpose described in
the complaint, upon the payment of just compensation to be determined as of the
date of the filing of the complaint.”2 An order of dismissal, if this be
ordained, would be a final one, of course, since it finally disposes of the
action and leaves nothing more to be done by the Court on the merits.3
So, too, would an order of condemnation be a final one, for thereafter, as the
Rules expressly state, in the proceedings before the Trial Court, “no
objection to the exercise of the right of condemnation (or the propriety
thereof) shall be filed or heard.”4

The second phase of the eminent domain action is concerned with
the determination by the Court of “the just compensation for the property
sought to be taken.” This is done by the Court with the assistance of not
more than three (3) commissioners.5 The order fixing the just
compensation on the basis of the evidence before, and findings of, the commissioners
would be final, too.  It would finally
dispose of the second stage of the suit, and leave nothing more to be done by
the Court regarding the issue. 
Obviously, one or another of the parties may believe the order to be
erroneous in its appreciation of the evidence or findings of fact or
otherwise.  Obviously, too, such a dissatisfied party may seek reversal of the order by taking
an appeal therefrom.

A similar two-phase feature is found in the special civil action
of partition and accounting under Rule 69 of the Rules of Court.6

The first phase of a partition and/or accounting suit is taken up
with the determination of whether or not a co-ownership in fact exists, and a
partition is proper (i.e., not otherwise legally proscribed) and may be made by
voluntary agreement of all the parties interested in the property.7
This phase may end with a declaration that plaintiff is not entitled to have a
partition either because a co-ownership does not exist, or partition is legally
prohibited.8
It may end, on the other hand, with an adjudgment
that a co-ownership does in truth exist, partition is proper in the premises
and an accounting of rents and profits received by the defendant from the real
estate in question is in order.1 In the latter case, “the
parties may, if they are able to agree, make partition among themselves by
proper instruments of conveyance, and the court shall confirm the partition so
agreed upon.”2 In either case — i.e., either the
action is dismissed or partition and/or accounting is decreed — the order is a
final one, and may be appealed by any party aggrieved thereby.3

The second phase commences when it appears that “the parties
are unable to agree upon the partition” directed by the Court.  In that event partition shall be done for the
parties by the Court with the assistance of not more than three (3)
commissioners.4
This second stage may well also deal with the rendition of the accounting
itself and its approval by the Court after the parties have been accorded
opportunity to be heard thereon, and an award for the recovery by the party or
parties thereto entitled of their just share in the rents and profits of the
real estate in question.”5 Such an order is, to be sure, final
and appealable.

Now, this Court has settled the question of the finality and appealability of a decision or order decreeing partition or
recovery of property and/or accounting. 
In Miranda v. Court of Appeals, decided on June 18, 1986,6
the Court resolved the question affirmatively, and expressly revoked the
rulings in Zaldarriaga v.
Enriquez7 — that a decision or order of
partition is not final because it leaves something more to be done in the trial
court for the complete disposition of the case, i.e., the appointment of
commissioners, the proceedings for the determination by said commissioners of
just compensation, the submission of their reports, the hearing thereon, and
the approval of the partition — and in Fuentebella v.
Carrascoso8 — that a judgment for recovery of
property with accounting is not final, but merely interlocutory and hence not appealable until the accounting is made and passed
upon.  As pointed out in Miranda, imperative
considerations of public policy, of sound practice and adherence to the
constitutional mandate of simplified, just, speedy and inexpensive
determination of every action require that judgments for recovery (or
partition) of property with accounting be considered as final judgments,
duly appealable. 
This, notwithstanding that further proceedings will still have to take
place in the Court, i.e., the accounting will still have to be rendered by the
party required to do so, it will be ventilated
and discussed by the parties, and will eventually be passed upon by the
Court.  It is of course entirely possible
that the Court’s disposition may not sit well with either the party in whose
favor the accounting is made, or the party rendering it.  In either case, the Court’s adjudication on
the accounting is without doubt a final one, for it would finally terminate the
proceedings thereon and leave nothing more to be done by the Court on the
merits of the issue.  And it goes without
saying that any party feeling aggrieved by that ultimate action of the Court on
the accounting may seek reversal or modification thereof by the Court of
Appeals or the Supreme Court.1

The Miranda doctrine was reiterated in de Guzman v. C.A.;2 Valdez v. Bagaso;3 Lagunzad
v. Gonzales;4
Cease v. C.A.;5 Macadangdang v. C.A.;6 and Hernandez
v. C.A.;7
Gabor v. C.A.,8 Fabrica
v. C.A.9

No reason presents itself for a different disposition as regards
cases of eminent domain.  On the
contrary, the close analogy between the special actions of eminent domain and
partition already pointed out, argues for the application of the same rule to both proceedings.

The Court therefore holds that in actions of eminent domain, as
in actions for partition, since no less than two (2) appeals are allowed by
law, the period for appeal from an order of condemnation10 is thirty (30) days counted from
notice of said order, and not the ordinary period of fifteen (15) days
prescribed for actions in general, conformably with the provisions of Section
39 of Batas Pambansa
Bilang 129, in relation to paragraph 19 (b)
of the Implementing Rules to the effect that in “appeals in special
proceedings in accordance with Rule 109 of the Rules of Court and other
cases wherein multiple appeals are allowed, the period of appeal shall be thirty
(30) days, a record of appeal being required.11

The Municipality’s motion for reconsideration filed on August 17, 1984 was therefore timely
presented, well within the thirty-day period laid down by law therefor; and it was error for the Trial Court to have
ruled otherwise and to have declared that the order sought to be reconsidered
had become final and executory.

2.  As already observed, the
Municipality’s complaint for expropriation impleaded
eleven (11) defendants.  A separate trial
was held on motion of one of them, Erlinda Francisco,12
it appearing that she had asserted a defense personal and peculiar to her, and
inapplicable to the other defendants, supra.  Subsequently,
and on the basis of the evidence presented by her, the Trial Court promulgated
a separate Order dismissing the action as to her, in accordance with Section 4,
Rule 36 of the Rules of Court, reading as follows:

SEC. 4. 
Several judgments.  — In an action against several
defendants, the court may, when a several judgment is proper, render judgment
against one or more of them, leaving the action to proceed against the others.

It is now claimed by the Municipality that the issuance of such a
separate, final order or judgment had given rise “ipso facto to a
situation where multiple appeals became available.” The Municipality is
right.

In the case at bar, where a single complaint was filed against
several defendants having individual, separate interests, and a separate trial
was held relative to one of said defendants after which a final order or
judgment was rendered on the merits of the plaintiff’s claim against that particular
defendant, it is obvious that in the event of an appeal from that separate
judgment, the original record cannot and should not be sent up to the appellate
tribunal.  The record will have to stay
with the trial court because it will still try the case as regards the other
defendants.  As the rule above quoted
states, “In an action against several defendants, the court may, when a
several judgment is proper, render judgment against one or more of them, leaving
the action to proceed against the others.”1 In lieu of the original record, a record on appeal will
perforce have to be prepared and transmitted to the appellate court.  More than one appeal being permitted in this
case, therefore, “the period of appeal shall be thirty (30) days, a record
of appeal being required,” as provided by the Implementing Rules in
relation to Section 39 of B.P. Blg. 129, supra.2

3. Erlinda Francisco filed a
“motion to dismiss” in traverse of the averments of the
Municipality’s complaint for expropriation. 
That “motion to dismiss” was in fact the indicated responsive
pleading to the complaint, “in lieu of an answer.”3

Now, the Trial Court conducted a separate trial to determine
whether or not, as alleged by Francisco in her “motion to dismiss,”
she had a “vested right via a pre-existing approved Locational
Clearance from the HSRC,” making the expropriation suit premature.4
While such a separate trial was not improper in the premises,5
and was not put at issue by the Municipality, the latter did protest against
the Trial Court’s (a) reversing the order of trial and receiving first, the
evidence of defendant Francisco, and (b) subsequently rendering its order
sustaining Francisco’s defense and dismissing the action as to her, solely on
the basis of said Francisco’s evidence and without giving the plaintiff an
opportunity to present its own evidence on the issue.  The Trial Court was clearly wrong on both
counts.  The Court will have to sustain
the Municipality on these points.

Nothing in the record reveals any valid cause to reverse the
order of trial.  What the Trial Court
might have had in mind was the provision of Section 5, Rule 16 of the Rules of
Court allowing “any of the grounds for dismissal” in Rule 16 to
“be pleaded as an affirmative defense,” and authorizing the holding
of a “preliminary hearing ** thereon as if a motion to dismiss had been
filed.” Assuming this to be the fact, the reception of Francisco’s
evidence first was wrong, because obviously, her asserted objection or defense
— that the locational clearance issued in her favor
by the HSRC was a legal bar to the expropriation suit — was not a ground for
dismissal under Rule 16.  She evidently
meant to prove the Municipality’s lack of cause of action; but lack of cause of
action is not a ground for dismissal of an action under Rule 16; the ground is
the failure of the complaint to state a cause of action, which is obviously not
the same as plaintiff’s not having a cause of action.

Nothing in the record, moreover, discloses any circumstance from
which a waiver by the Municipality of the right to present contrary proofs may
be inferred.  So, in deciding the issue
without according the Municipality that right to present contrary evidence, the
Trial court had effectively denied the Municipality due process and thus
incurred in another reversible error.

4. Turning now to the locational
clearance issued by the HSRC in Francisco’s favor on May 4, 1983, it seems
evident that said clearance did become a “worthless sheet of paper,”
as averred by the Municipality, upon the lapse of one (1) year from said date
in light of the explicit condition in the clearance that it “shall be
considered automatically revoked if not used within a period of one (1) year
from date of issue,” and the unrebutted fact
that Fancisco had not really made use of it within
that period.  The failure of the Court to
consider these facts, despite its attention having been drawn to them, is yet
another error which must be corrected.

WHEREFORE, the challenged Order issued by His Honor on
July 24, 1984 in Civil Case No. 8-1960 is ANNULLED AND SET ASIDE, and the case
is remanded to the Trial Court for the reception of the evidence of the
plaintiff Municipality of Biñan as against defendant Erlinda Francisco, and for subsequent proceedings and
judgment in accordance with the Rules of Court and the law.  Costs against private
respondent.

SO ORDERED.

Cruz, Gancayco, Griño-Aquino,
and Medialdea,
JJ., concur.

^[1] Sec. 39, BP 129

^[2] Par. 19 (b), Interim Rules of the Supreme
Court en banc dated Jan. 11, 1987 in
implementation of the Judiciary Reorganization Act of 1981 (B.P. Blg. 129)

^[3] Par. 19 (a), id.

^[4] Docketed as Civil Case No. 8-1960

1
Rollo, pp. 34 et seq.

2
Moran, Comments on the Rules, 1980 ed.,
Vol. 3, p. 248, citing Rural Progress Adm. v. Judge de Guzman, L-3224, Aug. 15,
1951

3
Which reads as follows: 
“The court, in furtherance of convenience or to avoid prejudice,
may order a separate trial of any claim, cross-claim, counterclaim or third-party
claim, or of any separate issue or of any number of claims, cross-claims,
counterclaims, third-party claims or issues.”

4
Human Settlements Regulatory Commission

5
Rollo, pp. 40-44

1 Id., pp.
53-54

2 Ibid.

1 Rollo., pp. 54-61

2 Id., p. 62 (Minutes of the session of September
28, 1984)

3 Rollo, pp. 63-65

4 Sec. 39, B.P. Blg. 129;
par. 19 (a), Interim Rules of the Supreme Court in Implementation of the
Judiciary Reorganization Act of 1981

5 Rollo, p. 67

6 Id., p. 66

7 Id., pp. 68-73

1 SEE Secs. 1, 2 and 3, Rule 67 of the Rules of Court

2 Sec. 4, Rule
67; See Nieto v. Isip, 97 Phil. 31; Benguet Consolidated v.
Republic, 143 SCRA 466

3 SEE
Investments, Inc. v. C.A., et al., 147 SCRA 334, 339-341

4 Ibid.

5 Secs. 5 to 8, Rule 67

6 SEE Miranda v. C.A., 71 SCRA 295 (1976); Roque
v. I.A.C., 165 SCRA 118,
125-126; Fabrica v. C.A., 148 SCRA 250; Garbo v. C.A., 129 SCRA 616; Valdez v. Bagaso, 82 SCRA
22

7 Secs. 1 and 2, Rule 69, Rules
of Court

8 Roque v.
I.A.C., supra

1 Sec. 8, Rule
69

2 Sec. 2, Rule
69

3 SEE footnote
3, at page 5, supra

4 Secs. 3-7, Rule 69

5 Sec. 8, Rule
69, supra

6 71 SCRA 295;
73 O.G. 11646

7 111 Phil.
829; 1 SCRA 1188 (1966)

8 G.R. No.
48102, May 27, 1942
(unpublished), 14 L.J. 305 (1949)

1 Mr. Justice
Jose Y. Feria (ret.) in his annotations on B.P. Blg. 129 and the Interim Rules and Guidelines, Rules of
Court (Philippine Legal Studies, Series No. 1, 1983 ed., Central Lawbook) (at p. 52) pointed out that under Miranda, supra, and de Guzman, infra, “a judgment for recovery of property is final and appealable without awaiting the accounting; and an order of
partition is final and appealable without awaiting the actual partition.  Hence the accounting or the partition may
continue pending the appeal, and a second appeal may be taken from the judgment
on the accounting or the partition.”

2 71 SCRA 195
(1976)

3 82 SCRA 22
(1978)

4 92 SCRA 476
(1979)

5 93 SCRA 483
(1981)

6 108 SCRA 314
(1981)

7 120 SCRA 856
(1983)

8 129 SCRA 616

9 148 SCRA 250

10 The first
final order

11 Emphasis
supplied

12 Pursuant to
Sec. 2 of Rule 31 already quoted: 
footnote 3 on page 2, supra

1 Italics supplied

2 SEE Santos v. Pecson, et al., 79 Phil.
261, 265, 270, Dissenting Opinion, distinguishing between the situation of
defendants having separate or severable interest, and that of defendants having
solidary or joint or common interest.

3 See footnote 2 at page 2, supra

4 SEE footnote 5 and related text, at page 2, supra

5 SEE footnote 3, at page 2, supra