394715385- Civpro- Digests PDF

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#113 KKK Foundation Inv. v Hon. Bargas, et.al GR NO. 163785 December 27, 2007 Topic: Motions Petitioners: KKK Foundation, Inc. Respondents: Hon. Adelina Calderon-Bargas Ponente: Quisumbing, J FACTS: •

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Petitioner KKK Foundation, Inc. filed a complaint for Annulment of Extra-judicial Foreclosure of Real Estate Mortgage and/or Nullification of Sheriffs Auction Sale and Damages with Prayer for the Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction Petitioner alleged that o (1) the auction sale was made with fraud and/or bad faith since there was no public bidding; o (2) the sheriff did not post the requisite Notice of Sheriffs Sale; o (3) the petition for extrajudicial foreclosure was fatally defective since it sought to foreclose properties of two different entities; o (4) the foreclosed properties were awarded and sold to Imelda A. Angeles for an inadequate bid of only P4,181,450; and o (5) the auction sale involved eight parcels of land covered by individual titles but the same were sold en masse Judge Adelina Calderon-Bargas issued a temporary restraining order preventing Angeles from consolidating her ownership to the foreclosed properties Petitioner and Angeles executed a Compromise Agreement wherein petitioner agreed to pay Angeles the bid price of the eight parcels of land within 20 days. The parties then filed a Motion to Approve Compromise Agreement On April 1, 2002, petitioner filed an Urgent Ex-Parte Motion to Recall Compromise Agreement since the other property owner and other trustees of petitioner were not consulted prior to the signing of the agreement. Angeles opposed the motion Judge Bargas issued an order stating that Urgent Ex-Parte Motion to Recall Compromise Agreement and Motion to Approve Compromise Agreement failed to comply with Sec[s]. 4 and 5, Rule 15 of the Civil Procedure for having no specific date of hearing. The Compromise agreement was approved by TC on June 28, 2002 Angeles then moved for the issuance of a writ of execution. On September 9, 2002, the trial court required petitioner to comment on the motion within ten (10) days On October 3, 2002, the trial court directed the Clerk of Court to issue a writ of execution. On the same date, the trial court received petitioners Motion for Extension of Time to File Comment with Entry of Appearance which was denied on October 10, 2002. Petitioner with certiorari appealed to CA, stating that Hon Bargas commited grave abuse of discretion amounting to lack or excess of jurisdiction by granting Motion for Issuance of Writ of Execution although it lacked the requisite notice of hearing. CA denied the appeal

ISSUE(s): W/N the trial court erred in granting the Motion for Issuance of Writ of Execution although it lacked the requisite notice of hearing (NO) HELD: • •

Petitioner was not denied due process Service of a copy of a motion containing a notice of the time and the place of hearing of that motion is a mandatory requirement, and the failure of movants to comply with these requirements renders their motions fatally defective. However, there are exceptions to the strict application of this rule. These exceptions are:

(1) where a rigid application will result in a manifest failure or miscarriage of justice especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein; o (2) where the interest of substantial justice will be served; o (3) where the resolution of the motion is addressed solely to the sound and judicious discretion of the court; and o (4) where the injustice to the adverse party is not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. A notice of hearing is an integral component of procedural due process to afford the adverse parties a chance to be heard before a motion is resolved by the court. Through such notice, the adverse party is given time to study and answer the arguments in the motion Records show that while Angeles’ Motion for Issuance of Writ of Execution contained a notice of hearing, it did not particularly state the date and time of the hearing. However, we still find that petitioner was not denied procedural due process. Upon receiving the Motion for Issuance of Writ of Execution, the trial court issued an Order dated September 9, 2002 giving petitioner ten (10) days to file its comment. The trial court ruled on the motion only after the reglementary period to file comment lapsed. Clearly, petitioner was given time to study and comment on the motion for which reason, the very purpose of a notice of hearing had been achieved The notice requirement is not a ritual to be followed blindly. Procedural due process is not based solely on a mechanical and literal application that renders any deviation inexorably fatal. Instead, procedural rules are liberally construed to promote their objective and to assist in obtaining a just, speedy and inexpensive determination of any action and proceeding o

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DISPOSITION: WHEREFORE, the instant petition is PARTIALLY GRANTED. The Decision dated November 28, 2003 and the Resolution dated May 26, 2004 of the Court of Appeals in CA-G.R. SP No. 73965 are MODIFIED such that the writ of execution issued on October 11, 2002 by Judge Adelina Calderon-Bargas is declared NULL and VOID. Let this case be REMANDED to the Regional Trial Court of Morong, Rizal, Branch 78, which is hereby ORDERED to issue another writ of execution against petitioner KKK Foundation, Inc., in conformity with the Decision dated June 28, 2002 of the trial court. This is without prejudice to filing a new motion for consolidation by respondent Angeles.

114.

Camarines Corp. v. Aquino G.R. No. 167691 September 23, 2008

Topic: Hearing Petitioners: CAMARINES SUR IV ELECTRIC COOPERATIVE, INC. Respondents: EXPEDITA L. AQUINO Ponente: J. Corona

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RTC denied Aquino’s MR on Feb 3, 2004. However, it was silent on the motion's non- compliance with the 3-day rule.

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Aquino filed an appeal in the CA on February 5, 2004, insisting that the complaint sufficiently stated a cause of action for damages. Petitioner reiterated its stand on the issue. It also called the CA's attention to the alleged flaw in respondent's motion for reconsideration in the RTC. It argued that the motion was a pro forma motion (since it violated the 3-day rule) which should have been dismissed outright by the trial court. Furthermore, it did not stop the running of the 15-day period for respondent to appeal which should have been reckoned from her receipt of the second RTC order on December 23, 2003. Consequently, her February 5, 2004 notice of appeal (which was filed 44 days after she received a copy of the second RTC order) was filed late.

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The CA held that the RTC erred in dismissing the complaint as indeed a cause of action existed. However, it did not pass upon the issue relative to the timeliness of respondent's appeal. Petitioner filed for MR – denied. Hence this petition.

Doctrine: Time and again, we have held that non-compliance with Section 4 of Rule 15 of the Rules of Court is a fatal defect. A motion which fails to comply with said Rule is a mere scrap of paper. If filed, such motion is not entitled to judicial cognizance. The fact that the RTC took cognizance of a defective motion, such as requiring the parties to set it for hearing and denying the same for lack of merit, did not cure the defect of said motion. It did not suspend the running of the period to appeal. FACTS: •

Expedita Aquino purchased several computers and leased a building in TIgaon, Camarines Sur, for gaming business. She had the electrical service in the building restored because the former tenant, a certain Mrs. Paglinawan, had it disconnected when she gave up the occupancy thereof.

ISSUE : (W/N the complaint states a cause of action (YES)) Main Issue: W/N Aquino's appeal in the CA was filed on time. (NO)

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Aquino paid the reconnection fee and the electric consumption fee for April 17, 2002 to May 16, 2002 to the Petitioner. However, there were no payments made on succeeding months.

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Petitioner inspected the electrical wiring of the building and made a report of pilferage of electricity with the notation: "Disconnected w/light/illegal tapping.

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Petitioner alleged alleged that respondent violated RA 7832 and required her to pay the differential billing and penalty within 48 hours; otherwise, the electric service would be disconnected. A conciliatory conference between the parties was held where petitioner presented Aquino with two options: deposit the differential billing of P3,367.00 to avoid disconnection during the pendency of the criminal action to be filed by petitioner or pay the amount of the differential billing and the penalty of P15,000.00, in which case the matter would be considered closed and the filing of a criminal case dispensed with.

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Aquino refused to choose between the option as it is tantamount to her guilt. Her electrical service was permanently disconnected. She filed a complaint for damages against petitioner in the Regional Trial Court (RTC). She alleged that due to the disconnection of electrical services, her business operation was interrupted causing her damages in the form of unrealized income, rentals paid for the premises she was unable to use and renovation costs of the leased building.

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Petitioner filed an answer with affirmative defenses. It alleged, among others, that the complaint failed to state a cause of action. According to petitioner, no contract to supply electricity was entered into between them. Respondent subsequently amended her complaint. Petitioner still insisted that the complaint stated no cause of action.

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July 10, 2003 - RTC denied the motion to dismiss as it held that Aquino as in possession of the premises to which petitioner supplied electricity, there was, in a way, a contract between the parties.

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Petitioner filed for MR, RTC ruled in its favor in an order dated Dec. 22, 2003. Aquino received the copy the following day and filed an MR on Jan 5, 2004. She mailed a copy of her motion for reconsideration (with notice of hearing) to petitioner's counsel only on the same date. The notice of hearing indicated that the hearing of the motion was set on January 9, 2004. Petitioner filed an opposition thereto, alleging, among others, that the motion should be denied as respondent did not comply with the 3-day rule (as provided in the Rules of Court).

1st Issue: There is cause of action as Respondent was in possession of the property supplied with electricity by petitioner when the electric service was disconnected. This resulted in the alleged injury complained of which can be threshed out in a trial on the merits. There is a cause of action when the following elements are present: (1) the legal right of the plaintiff; (2) the correlative obligation of the defendant and (3) the act or omission of the defendant in violation of said legal right. Main Issue: In its petition in this Court, petitioner insisted that Aquino mailed a copy of her motion for reconsideration (with notice of hearing) to its (petitioner's) counsel only on January 5, 2004, although the motion was already scheduled for hearing on January 9, 2004. Aquino should have foreseen that the registered mail, which originated from Naga City, would not be able to reach the law office of petitioner's counsel in Manila at least 3 days before said date. Thus, respondent's motion for reconsideration was fatally flawed for failure to comply with the 3-day rule under Section 4, Rule 15 of the Rules of Court. It did not toll the reglementary period for respondent to appeal the RTC's decision. Section 4, Rule 15 of the Rules of Court provides: Sec. 4. Hearing of Motion. — Except for motions which the court may act upon without prejudicing the rights of the adverse party, every motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. Time and again, we have held that non-compliance with Section 4 of Rule 15 of the Rules of Court is a fatal defect. A motion which fails to comply with said Rule is a mere scrap of paper. If filed, such motion is not entitled to judicial cognizance. The fact that the RTC took cognizance of a defective motion, such as requiring the parties to set it for hearing and denying the same for lack of merit, did not cure the defect of said motion. It did not suspend the running of the period to appeal.

115. Romulo V. Peralta G.R. 165665 January 31, 2007 Topic: Motions; Service; Rule 15(6) Petitioners: Hon. Alberto Romulo, Department of Transportation and Communication & Civil Aeronautics Board Chairman Respondents: Hon. Judge Eduardo B. Peralta, PAL Employees, National Labor Union & National Federation of Labor Union Ponente: J. Sandoval-Gutierrez DOCTRINE: It is upon the one who executed the affidavit to mail such motion and the failure to do so will make such sending non-existent FACTS -

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President GMA executed E.O. 253 which provides for an open skies policy in the aviation industry As a result, the Diosdado Macapagal International Airport and the Subic Bay International Airport were opened to international air cargo transportation providers and foreign airlines PAL Employees Assosciation (PALEA), National Labor Union (NLU) and the National Federation of Labor Unions (NAFLU) filed before the RTC of Manila a petition for certiorari, prohibition and injunction assailing the constitutionality of E.O. 253 Such argument alleged that E.O. 253 breached the power of the congress since such declaration can only be done by the congress only and not the executive OSG filed a motion to dismiss for lack of cause of action April 6, 2004, the OSG served a copy of such motion by registered mail upon Atty. Bacungan who is the counsel for the respondents RTC denied such motion based on the absence of proof of transmittal by registered mail of a copy of the motion to dismiss OSG then filed a motion for reconsideration and attached a photocopy of registry return but the same motion was denied by the RTC OSG filed another motion for reconsideration and attached a certified photocopy of the OSG’s original registry, certified photocopy of page 374 of the Offical Records Book of the OSG Docket Division and affidavit of Josephine S. Masangkay-Bayongan who was the Records Officer III of the OSG Docket Division which stated that the mail was sent to Atty. Bacungan on April 6,2004 but was in fact a copy of the motion to dismiss dated on April 5,2004 RTC still denied the second motion for reconsideration due to its judicial admission Hence, this petition before the Supreme Court by the petitioner alleging that the RTC committed a grave abuse of discretion in deciding upon such matters

ISSUE Whether the petitioners herewith correctly sent the mail HELD No! RATIO

The Supreme Court held that Atty. Bacungan only received the April 5,2004 letter on April 20, 2004 or 4 days after it was set for hearing. The service of pleading by registered mail provides that such proof of service requires an affidavit of the person mailing the pleading containing the full statement of the date, place and manner of service and the registry receipt issued by the mailing office. Hence, by citing the case of Cayetano V. Cayetano, the actual knowledge of a decision cannot be attributed to the addressee of a registered matter where there is no showing that the registry notice itself contains any indication that the registered matter is a copy of the decision or that the registry notice refers to the case being ventilated. Unfortunately in this case, Ms. Bayongan merely directed the motion be served by registered mail but what was required for her to do was that she was supposed to be the one to mail it. Therefore, such mailing of motion was not done properly by the person who was indicated in the affidavit and that by doing so, the petitioner herewith failed to follow the proper procedure in doing so which resulted in the proper dismissal of the RTC. DISPOSITIVE PORTION WHEREFORE, we DISMISS the petition and AFFIRM the assailed Orders of the Regional Trial Court, Branch 17, Manila in Civil Case No. 04-109201. No costs.

116. Sarmiento v. Zaratan, G.R. 167471, 05 February 2007 TOPIC: Motions Petitioners: Gliceria Sarmiento Respondent: Emerita Zaratan Ponente: Chico-Nazario, J.

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Petitioner moved for reconsideration of the said Order, while respondent sought clarification on whether the 31 July 2003 Order dismissing the appeal was anchored on Section (b), Rule 40 or Section 7(c) of the same Rule.

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On 27 August 2003, the RTC reconsidered its previous Order by granting petitioners motion for Immediate Execution, but denied respondents Motion for Clarification

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respondent filed a Petition for Certiorari in the Court of Appeals, which was granted in a decision dated 17 August 2004.

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The appellate court nullified and set aside the 19 June 2003 and 31 July 2003 Orders of the RTC and ordered the reinstatement of respondents appeal. Consequently, respondents appeal memorandum was admitted and the case remanded to the RTC for further proceedings.

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Petitioner filed a motion for reconsideration on 13 September 2004, followed by a Motion for Inhibition

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On 2 September 2002, petitioner Gliceria Sarmiento filed an ejectment case against respondent Emerita Zaratan, in the Metropolitan Trial Court (MeTC) of Quezon City Respondent filed her notice of appeal In the Notice of Appealed Case, the RTC directed respondent to submit her memorandum in accordance with the provisions of Section 7(b) of Rule 40 of the Rules of Court and petitioner to file a reply memorandum within 15 days from receipt. Respondents counsel having received the notice on 19 May 2003, he had until 3 June 2003 within which to file the requisite memorandum. But on 3 June 2003, he filed a Motion for Extension of Time of five days due to his failure to finish the draft of the said Memorandum. He cited as reasons for the delay of filing his illness for one week, lack of staff to do the work due to storm and flood compounded by the grounding of the computers because the wirings got wet. But the motion remained unacted. On 9 June 2003, respondent filed her Memorandum. On 19 June 2003, the RTC dismissed the appeal as follows: Record shows that defendant-appellant received the Notice of Appealed Case, through counsel, on May 19, 2003 (Registry Return Receipt dated May 12, 2003, Record, back of p. 298). Thus, under Section 7(b), Rule 40 of the 1997 Rules of Civil Procedure, she had fifteen (15) days or until June 3, 2003 within which to submit a memorandum on appeal. As further appears on record, however, the required Memorandum was filed by defendant-appellant only on June 9, 2003 (Record, p. 623), or six (6) days beyond the expiration of the aforesaid fifteen day period. It should be stressed that while the rules should be liberally construed, the provisions on reglemenatry periods are strictly applied as they are deemed indispensable to the prevention of needless delays and necessary to the orderly and speedy discharge of judicial business (Legaspi-Santos vs. Court of Appeals, G.R. No. 60577, October 11, 1983) and strict compliance therewith is mandatory and imperative (FJR Garments ...