REMEDIAL LAW

BAGUIO MARKET VENDORS V. HON. CABATO-CORTESG.R. NO. 165922FEBRUARY 26, 2010

J. CARPIORULE MAKING POWER OF THE SUPREME COURTFACTS:Petitioner is a credit cooperative organized under Republic Act No. 6938 or the Cooperative Code of the Philippines. Article 62(6) of RA 6938 exempts cooperatives from the payment of all court and sheriff's fees payable to the Philippine Government for and in connection with all actions brought under this Code, or where such action is brought by the Cooperative Development Authority before the court, to enforce the payment of obligations contracted in favor of the cooperative.In 2004, petitioner, as mortgagee, filed with the Clerk of Court of the RTC Baguio a petition to extrajudicially foreclose a mortgage under Act 3135, as amended.Under Section 7(c) of Rule 141, as amended, petitions for extrajudicial foreclosure are subject to legal fees based on the value of the mortgagees claim. Invoking Article 62 (6) of RA 6938, petitioner sought exemption from payment of the fees.ISSUE:Whether petitioners application for extrajudicial foreclosure is exempt from legal fees under Article 62(6) of RA 6938.HELD:No. The payment of legal fees is a vital component of the rules promulgated by this Court concerning pleading, practice and procedure, it cannot be validly annulled, changed or modified by Congress. As one of the safeguards of this Courts institutional independence, the power to promulgate rules of pleading, practice and procedure is now the Courts exclusive domain.The Supreme Court En Banc has recently ruled in Re: Petition for Recognition of the Exemption of the Government Service Insurance System from Payment of Legal Feeson the issue of legislative exemptions from court fees. The rule making power of this Court was expanded.The power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive.Petitioner is not the Cooperative Development Authority which can claim exemption only in actions to enforce payments of obligations on behalf of cooperatives. The scope of the legal fees exemption Article 62(6) of RA 6938 grants to cooperatives is limited to two types of actions, namely: (1) actions brought under RA 6938; and (2) actions brought by the Cooperative Development Authority to enforce the payment of obligations contracted in favor of cooperatives.

PACIFIC ACE V. YANAGISAWAG.R. NO. 175303APRIL 11, 2012

J. DEL CASTILLODOCTRINE OF NON-INTERFERENCE; DOCTRINE OF JUDICIAL STABILITYFACTS:Evelyn purchased a townhouse unit located at Paraaque. Eiji filed a complaint for the declaration of nullity of his marriage with Evelyn on the ground of bigamy. The complaint was raffled to Makati RTC Branch 149. During the pendency of the case, Eiji filed a Motion for the Issuance of a Restraining Order against Evelyn and an Application for a Writ of a Preliminary Injunction. He asked that Evelyn be enjoined from disposing or encumbering all of the properties registered in her name. Evelyn and her lawyer voluntarily undertook not to dispose of the properties registered in her name during the pendency of the case, thus rendering Eijis application and motion moot. On the basis of said commitment, the Makati RTC rendered the Order dated October 2, 1996.Sometime in March 1997, Evelyn obtained a loan ofP500,000.00 from Pacific Ace. To secure the loan, Evelyn executed a real estate mortgage in favour of Pacific Ace over the Paraaque townhouse unit.At the time of the mortgage, Eijis appeal in the nullity of marriage case was pending before the CA. The Makati RTC had dissolved Eiji and Evelyns marriage,and had ordered the liquidation of their registered properties, including the Paraaque townhouse unit, with its proceeds to be divided between the parties.Deeming the mortgage as a violation of the Makati RTCs October 2, 1996 Order, Eiji filed a complaint for the annulment of REM against Evelyn and Pacific Ace. The complaint was raffled to Paraaque RTC Branch 258.The Paraaque RTC determined that the only issue before it is "whether Eiji has a cause of action against the defendants and is entitled to the reliefs prayed for despite the fact that he is not the registered owner of the property being a Japanese national." The Paraaque RTC explained that Eiji, as a foreign national, cannot possibly own the mortgaged property.Eiji appealed the trial courts decision. He emphasized that Evelyn had made a commitment to him and to the Makati RTC that she would not dispose of, alienate, or encumber the properties registered in her name while the case was pending. The CA annulled the REM executed by Evelyn in favor of Pacific Ace.ISSUE:Whether the Paraaque RTC can rule on the issue of ownership, even as the same issue was already ruled upon by the Makati RTC and is pending appeal in the CA.HELD:No. The issue of ownership and liquidation of properties acquired during the cohabitation of Eiji and Evelyn has been submitted for the resolution of the Makati RTC, and is pending appeal before the CA. The doctrine of judicial stability or non-interference dictates that the assumption by the Makati RTC over the issue operates as an "insurmountable barrier" to the subsequent assumption by the Paraaque RTC. By insisting on ruling on the same issue, the Paraaque RTC effectively interfered with the Makati RTCs resolution of the issue and created the possibility of conflicting decisions.In addition, it is a familiar principle that when a court of competent jurisdiction acquires jurisdiction over the subject matter of a case, its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of, and that no court of co-ordinate authority is at liberty to interfere with its action. This doctrine is applicable to civil cases, to criminal prosecutions, and to courts-martial. The principle is essential to the proper and orderly administration of the laws; and while its observance might be required on the grounds of judicial comity and courtesy, it does not rest upon such considerations exclusively, but is enforced to prevent unseemly, expensive, and dangerous conflicts of jurisdiction and of the process.

SPOUSES DACUDAO V. SECRETARY OF JUSTICEG.R. NO. 188056JANUARY 8, 2013

J. BERSAMINJUDICIAL HIERARCHY OF COURTSFACTS:Petitioners were among the investors whom Celso G. Delos Angeles, Jr. and his associates in the Legacy Group allegedly defrauded through the Legacy Group's "buy back agreement" that earned them check payments that were dishonored. After their written demands for the return of their investments went unheeded, they initiated a number of charges for syndicated estafa against Delos Angeles, Jr., et al. in the Office of the City Prosecutor of Davao City.On March 18, 2009, the Secretary of Justice issued DOJ Order No. 182, directing all Regional State Prosecutors, Provincial Prosecutors, and City Prosecutors to forward all cases already filed against Delos Angeles, Jr., et al. to the Secretariat of the DOJ Special Panel in Manila for appropriate action.Aggrieved by such turn of events, petitioners have directly come to the Court via petition for certiorari, prohibition and mandamus, ascribing to respondent Secretary of Justice grave abuse of discretion in issuing DO No. 182. They claim that DO No. 182 violated their right to due process, their right to the equal protection of the laws, and their right to the speedy disposition of cases. They insist that DO No. 182 was an obstruction of justice and a violation of the rule against enactment of laws with retroactive effect.ISSUE:Did petitioners properly bring their petition for certiorari, prohibition and mandamus directly to the Court?HELD:No. Petitioners have unduly disregarded the hierarchy of courts by coming directly to the Court with their petition for certiorari, prohibition and mandamus without tendering therein any special, important or compelling reason to justify the direct filing of the petition.We emphasize that the concurrence of jurisdiction among the Supreme Court, Court of Appeals and the Regional Trial Courts to issue the writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction did not give petitioners the unrestricted freedom of choice of court forum.An undue disregard of this policy against direct resort to the Court will cause the dismissal of the recourse.The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not to be ignored without serious consequences. The strictness of the policy is designed to shield the Court from having to deal with causes that are also well within the competence of the lower courts, and thus leave time to the Court to deal with the more fundamental and more essential tasks that the Constitution has assigned to it. The Court may act on petitions for the extraordinary writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and important reasons exist to justify an exception to the policy.

ALABANG CORPORATION V. ALABANG HILLS VILLAGE ASSOCIATIONG.R. NO. 187456JUNE 2, 2014

J. PERALTALEGAL CAPACITY TO SUEFACTS:On October 19, 2006, petitioner Alabang Corporation (ADC) filed a complaint for injunction and damages against respondent (AHVAI). The complaint alleged that ADC is the developer of Alabang Hills Village and owns parcels of land that are yet to be sold. ADC learned that AHVAI started the construction of a multi-purpose hall and a swimming pool without ADCs approval. Despite demand, AHVAI failed to desist from constructing the improvements.In its answer with compulsory counterclaim, AHVAI claimed that ADC has no legal capacity to sue since its existence as a registered corporate entity was revoked by the SEC on May 26, 2003. The RTC dismissed ADCs complaint on the ground that the latter has no personality to file the same among others.ISSUE:Whether or not ADC has the legal capacity to sue. HELD:No, petitioner lacks capacity to sue. It no longer possesses juridical personality by reason of its dissolution and lapse of the three-year grace period provided under Section 122 of the Corporation Code.SEC. 122. Corporate liquidation. Every corporation whose charter expires by its own limitation or is annulled by forfeiture or otherwise, or whose corporate existence for other purposes is terminated in any other manner, shall nevertheless be continued as a body corporate for three (3) years after the time when it would have been so dissolved, for the purpose of prosecuting and defending suits by or against it and enabling it to settle and close its affairs, to dispose of and convey its property and to distribute its assets, but not for the purpose of continuing the business for which it was established.

At any time during said three (3) years, said corporation is authorized and empowered to convey all of its property to trustees for the benefit of stockholders, members, creditors, and other persons in interest. From and after any such conveyance by the corporation of its property in trust for the benefit of its stockholders, members, creditors and others in interest, all interest which the corporation had in the property terminates, the legal interest vests in the trustees, and the beneficial interest in the stockholders, members, creditors or other persons in interest.x x xThere is no dispute that petitioner's corporate registration was revoked on May 26, 2003. Based on the above-quoted provision of law, it had three years, or until May 26, 2006, to prosecute or defend any suit by or against it. The subject complaint, however, was filed only on October 19, 2006, more than three years after such revocation.In the present case, petitioner filed its complaint not only after its corporate existence was terminated but also beyond the three-year period allowed by Section 122 of the Corporation Code. Thus, it is clear that at the time of the filing of the subject complaint petitioner lacks the capacity to sue as a corporation. To allow petitioner to initiate the subject complaint and pursue it until final judgment, on the ground that such complaint was filed for the sole purpose of liquidating its assets, would be to circumvent the provisions of Section 122 of the Corporation Code.

ASSOCIATION OF FLOOD VICTIMS V. COMELECG.R. NO. 203775AUGUST 5, 2014

J. CARPIOLEGAL CAPACITY TO SUEFACTS:On 28 August 2012, the Supreme Court affirmed COMELEC Resolution cancelling the certificate of registration of ABC Party-List which won in the party-list elections in the 2010 national elections. The disqualification of the ABC Party-List resulted in the re-computation of the party-list allocations in the House of Representatives, in which the COMELEC followed the formula outlined in the case of BANAT v. COMELEC.The COMELEC then issued Minute Resolution No. 12-0859, in which it resolved:x x x5. TO PROCLAIM Alay Buhay Party-List as a winning party-list group in the May 10, 2010 Automated National and Local Elections; and6. TO DECLARE the First (1st) NOMINEE of Alay Buhay Party-List, as the FIRST (1st) SITTING REPRESENTATIVE in the Party-List System of Representation in the House of Representatives in accordance with the Order of Nominees.Petitioners Association of Flood Victims, a non-profit and non-partisan organization in the process of formal incorporation, and Hernandez filed with this Court a special civil action for certiorari and/or mandamus under Rule 65 of the Rules of Court. Petitioners assert that the COMELEC committed grave abuse of discretion when it issued Minute Resolution No. 12-0859. Furthermore, petitioners pray for the issuance of a writ of mandamus to compel publication of the COMELEC Minute Resolution No. 12-0859.ISSUE:Whether or not petitioners have the legal capacity to sue.HELD:No. Petitioners do not have legal capacity to sue. Under Sections 1 and 2 of Rule 3, only natural or juridical persons, or entities authorized by law may be parties in a civil action, which must be prosecuted or defended in the name of the real party in interest.Petitioner Association of Flood Victims is an unincorporated association not endowed with a distinct personality of its own. An unincorporated association, in the absence of an enabling law, has no juridical personality and thus, cannot sue in the name of the association.Such unincorporated association is not a legal entity distinct from its members. If an association, like petitioner Association of Flood Victims, has no juridical personality, then all members of the association must be made parties in the civil action.In this case, other than his bare allegation that he is the lead convenor of the Association of Flood Victims, petitioner Hernandez showed no proof that he was authorized by said association.

PRUDENTIAL BANK V. MAGDAMITG.R. NO. 183795NOVEMBER 12, 2014

J. PEREZJURISDICTION OVER THE DEFENDANTFACTS:This is a case of unlawful detainer filed by petitioner Prudential Bank in its capacity as administrator of the Estate of Juliana Diez Vda. De Gabriel (Estate). It is based on the ground of respondents failure to pay rentals and refusal to vacate the subject property, which is allegedly part of the Estate.In the Original Complaintfiled before the MeTC, petitioner impleaded Amador A. Magdamit Jr. as respondent.Instead of filing an Answer, Magdamit, Jr. filed a Notice of Special Appearance with Motion to Dismiss. Among others, Magdamit, Jr. argued that (1) petitioner was not duly authorized through a Board Resolution to institute the complaint, (2) he was not the occupant of the subject property but instead, his parents, as grantees or awardees of Juliana Diez Vda. De Gabriel, and (3) the MeTC did not acquire jurisdiction over his person because the summons was served at his former address in Paco, Manila.The MeTC ruled in favor of petitioner. On appeal, the RTC set aside the decision of the MeTC and dismissed the case for lack of jurisdiction over the person of the respondents. Aggrieved, petitioner filed an appeal via a petition for review under Rule 42 of the Rules of Court before the CA but the CA denied the petition.ISSUE:Whether or not the MeTC acquired jurisdiction over the person of the respondents.HELD:No. Contrary to petitioners contention, respondents are not deemed to have voluntarily submitted to the courts jurisdiction by virtue of filing an Answer or other appropriate responsive pleadings and by participating in the case.The mandate under the Rules on Summary Proceedings that govern ejectment cases, is expeditious administration of justice such that the filing of an Answer is mandatory. To give effect to the mandatory character and speedy disposition of cases, the defendant is required to file an answer within 10 days from service of summons, otherwise, the court, motu proprio, or upon motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint, limited to the relief prayed for by the petitioner.The respondents act of filing their respective Answers with express reservation should not be construed as a waiver of the lack of jurisdiction of the MeTC over their person because of non-service/defective/improper service of summons and for lack of jurisdiction over the subject matter. Hence, sans voluntary submission to the courts jurisdiction, filing an answer in compliance with the rules on summary procedure in lieu of obtaining an adverse summary judgment does not amount to voluntary submission.

CHU V. MACH ASIAG.R. NO. 184333APRIL 1, 2013

J. PERALTAJURISDICTION OVER THE DEFENDANTFACTS:Petitioner Chu purchased on installment a Hitachi Excavator worthP900,000.00 from the respondent. He initially paidP180,000.00 with the balance ofP720,000.00 to be paid in installments through postdated checks. On March 29, 1999, petitioner again purchased 2 heavy equipments from the respondent on installment basis in the sum ofP1,000,000.00. Petitioner made a down payment with the balance payable in installments through postdated checks. However, upon presentment of the checks for encashment, they were dishonored by the bank either by reason of "closed account," "drawn against insufficient funds," or "payment stopped."Respondent filed a complaint before the RTC Cebu for sum of money, replevin, attorneys fees and damages against the petitioner.The RTC issued an Orderallowing the issuance of a writ of replevin on the subject heavy equipments.The sheriff proceeded at petitioners given address for the purpose of serving the summons, together with the complaint, writ of replevin and bond. However, the latter was not there. The Sheriff then resorted to substituted service by having the summons and the complaint received by a certain Rolando Bonayon, a security guard of the petitioner.Petitioner failed to file any responsive pleading, which prompted respondent to move for the declaration of defendant in default. On January 12, 2000, the RTC issued an Order declaring defendant in default and, thereafter, allowed respondent to present its evidence ex parte. The RTC rendered a Decision against the petitioner.ISSUE:Whether the court of appeals committed a serious error in finding that the trial court acquired jurisdiction over the person of the defendant.HELD:Yes. Courts acquire jurisdiction over the plaintiffs upon the filing of the complaint. On the other hand, jurisdiction over the defendants in a civil case is acquired either through the service of summons upon them or through their voluntary appearance in court and their submission to its authority. It is to be noted that in case of substituted service, there should be a report indicating that the person who received the summons in the defendant's behalf was one with whom the defendant had a relation of confidence, ensuring that the latter would actually receive the summons.In the case at bar, the Sheriffs Return provides:Respectfully returned to the Honorable Regional Trial Court, Branch 17, Cebu City, the Summons and writ issued in the above-entitled case with the following information, to wit:1. That the Summons, together with the complaint, writ of replevin and bond was received on December 7, 1999, by Rolando Bonayon, a security guard on defendant Sixto Chu at his given address who received and signed receipt thereof.x x xClearly, it was not shown that the security guard who received the summons in behalf of the petitioner was authorized and possessed a relation of confidence that petitioner would definitely receive the summons. This is not the kind of service contemplated by law. Thus, service on the security guard could not be considered as substantial compliance with the requirements of substituted service.

MONSANTO V. LIMG.R. NO. 178911SEPTEMBER 17, 2014

J. DEL CASTILLOJURISDICTION OVER THE SUBJECT MATTERFACTS:In a letter, Flordelis B. Menzon, Regional Director of Pag-IBIG, requested the intervention of Executive Judge Monsanto of the RTC on the alleged anomalous auction sale. Executive Judge Monsanto refrained from acting on the letter considering that Eduardo, the mortgagor, is his relative. Instead he re-assigned Judge Usman of Branch 28.In an Order dated May 3, 2004 and captioned In the Matter of the Extra-judicial Foreclosure of Mortgage Filed by the Home Development Mutual Fund (Pag-IBIG Fund), Judge Usman declared that on even date, RTC-Branch 28 conducted a hearing; that Atty. Cesar Lee argued on behalf of Pag-IBIG; and that Pascual Monsanto appeared on behalf of Eduardo. However, Judge Usman noted that no formal petition or complaint was actually filed which presents a judicial issue; moreover, the acts complained of partake of administrative matter. Consequently, Judge Usman referred the matter to the Office of the Court Administrator (OCA) for further action.ISSUE:Whether or not Branch 28 acquired jurisdiction over the subject matter.HELD:No. There is no proper initiatory pleading filed. In this case, records show that no formal complaint or petition was filed in court. The case was supposedly commenced through a letter of Pag-IBIG asking the intervention of Executive Judge Monsanto on the alleged anomalous foreclosure sale conducted by De Guzman. However, said letter could not in any way be considered as a pleading. Section 1, Rule 6 of the Rules of Court defines pleadings as written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. To stress, Pag-IBIGs letter could not be considered as a formal complaint or petition. First, the parties to the case were not identified pursuant to Section 1, Rule 3 and Section 1, Rule 7. Second, the so-called claim or cause of action was not properly mentioned or specified. Third, the letter miserably failed to comply with the requirements of Rule 7, Rules of Court. The letter bore no caption; it was not even assigned a docket number; the parties were not properly identified; the allegations were not properly set forth; no particular relief is sought; in fact, only the intervention of Executive Judge Monsanto is requested; it was not signed by a counsel; and most of all, there is no verification or certification against forum-shopping.We have also noted that no docket fees were paid before the trial court. Section 1, Rule 141 of the Rules of Court mandates that upon the filing of the pleading or other application which initiates an action or proceeding, the fees prescribed therefor shall be paid in full.

HEIRS OF MESINA V. HEIRS OF FIANG.R. NO. 201816APRIL 8, 2013

J. VELASCONON-JOINDER OF INDISPENSABLE PARTIESFACTS:The late spouses Faustino and Genoveva Mesina, during their lifetime, bought from the spouses Fian two parcels of land on installment.Upon the death of the spouses Fian, their heirswhose names do not appear on the records, claiming ownership of the parcels of land and taking possession of themrefused to acknowledge the payments for the lots and denied that their late parents sold the property to the spouses Mesina. Meanwhile, the spouses Mesina passed away. Notwithstanding repeated demands, the Heirs of Fian refused to vacate the lots and to turn possession over to the heirs of the spouses Mesina.The allegations of the Complaint on the parties read:1. Plaintiffs are the HEIRS OF SPS. FAUSTINO S. MESINO and GENOVEVA S. MESINA, and represented in this instance by NORMAN MESINA as shown by the Special Power of Attorneys x x x, of legal age, married, Filipino, and a resident of Poblacion Albuera, Leyte, where he may be served with court orders, notices, and other processes, while defendants are the HEIRS OF DOMINGO FIAN, SR., likewise of legal ages, Filipinos, and residents of Poblacion Albuera, Leyte, and respresented in this instance of THERESA FIAN YRAY, where she may be served with summons, court orders, notices, and other processes.Thereafter, or on September 5, 2005, respondent Theresa filed a Motion to Dismiss the complaint, arguing that the complaint states no cause of action and that the case should be dismissed for gross violation of Sections 1 and 2, Rule 3 of the Rules of Court.ISSUE:Whetherthe CA erred in affirming the order and resolution of the RTC in dismissing the case on the ground that the complaint states no cause of action.HELD:Yes. The non-joinder of indispensable parties is not a ground for the dismissal of an action. If the plaintiff refuses to implead an indispensable party despite the order of the court, that court may dismiss the complaint for the plaintiffs failure to comply with the order. The remedy is to implead the non-party claimed to be indispensable. Non-joinder means the "failure to bring a person who is a necessary party or in this case an indispensable party into a lawsuit."An indispensable party, on the other hand, is a party-in-interest without whom no final determination can be had of the action, and who shall be joined either as plaintiff or defendant.As such, this is properly a non-joinder of indispensable party, the indispensable parties who were not included in the complaint being the other heirs of Fian, and not a failure of the complaint to state a cause of action.Thus, the dismissal of the case for failure to state a cause of action is improper. What the trial court should have done is to direct petitioner Norman Mesina to implead all the heirs of Domingo Fian, Sr. as defendants within a reasonable time from notice with a warning that his failure to do so shall mean dismissal of the complaint.

LIVING SENSE V. MALAYAN INSURANCE COMPANYG.R. NO. 193753SEPTEMBER 26, 2012

J. PERLAS-BERNABEINDISPENSABLE PARTIESFACTS:Petitioner was the main contractor of the FOC Network Project of Globe Telecom in Mindanao. In connection with the project, petitioner entered into a Sub-Contract Agreement with DMI, under which the latter was tasked to undertake an underground open-trench work. Petitioner required DMI to give a bond, in the event that DMI fails to perform its obligations under the Agreement. Thus, DMI secured suretyand performance bonds, from respondent to answer: (1) for the unliquidated portion of the downpayment, and (2) for the loss and damage that petitioner may suffer, respectively, should DMI fail to perform its obligations under the Agreement. Under the bonds, respondent bound itself jointly and severally liable with DMI.During the course of excavation and restoration works, the DPWH issued a work-stoppage order against DMI after finding the latters work unsatisfactory.However, respondent effectively denied petitioners claim on the ground that the liability of its principal, DMI, should first be ascertained before its own liability as a surety attaches. Hence, the instant complaint, premised on respondents liability under the surety and performance bonds secured by DMI.The RTC dismissed the complaint without prejudice, for failure to implead DMI as a party defendant. It ruled that before respondent could be held liable on the surety and performance bonds, it must first be established that DMI, with whom petitioner had originally contracted, had indeed violated the Agreement. DMI, therefore, is an indispensable party that must be impleaded in the instant suit.ISSUE:Whether DMI is an indispensable party in this case.HELD:No. The nature of the solidary obligation under the surety does not make one an indispensable party. An indispensable party is a party-in-interest without whom no final determination can be had of an action, and who shall be joined mandatorily either as plaintiffs or defendants. The presence of indispensable parties is necessary to vest the court with jurisdiction, thus, without their presence to a suit or proceeding, the judgment of a court cannot attain real finality. The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.In this case, DMI is not an indispensable party because petitioner can claim indemnity directly from respondent, having made itself jointly and severally liable with DMI for the obligation under the bonds. Therefore, the failure to implead DMI is not a ground to dismiss the case, even if the same was without prejudice.1wphi1Moreover, even on the assumption that DMI was, indeed, an indispensable party, the RTC committed reversible error in dismissing the complaint. Failure to implead an indispensable party is not a ground for the dismissal of an action, as the remedy in such case is to implead the party claimed to be indispensable, considering that parties may be added by order of the court, on motion of the party or on its own initiative at any stage of the action.

BOSTON EQUITY RESOURCES V. COURT OF APPEALS & TOLEDOG.R. NO. 173946JUNE 19, 2013

J. PEREZJURISDICTION; INDISPENSABLE PARTIES; SUBSTITUTIONFACTS:Petitioner filed a complaint for sum of money with a prayer for the issuance of a writ of preliminary attachment against the spouses Manuel and Lolita Toledo. Herein respondent filed an Answer dated 19 March 1998 but on 7 May 1998, she filed a Motion for Leave to Admit Amended Answerin which she alleged, among others, that her husband and co-defendant, Manuel Toledo (Manuel), is already dead. As a result, petitioner filed a motion, dated 5 August 1999, to require respondent to disclose the heirs of Manuel. Petitioner then filed a Motion for Substitution praying that Manuel be substituted by his children as party-defendants. It appears that this motion was granted by the trial court in an Order dated 9 October 2000.On 26 May 2004, the reception of evidence for herein respondent was cancelled upon agreement of the parties. On 24 September 2004, counsel for herein respondent was given a period of fifteen days within which to file a demurrer to evidence.However, on 7 October 2004, respondent instead filed a motion to dismiss the complaint, citing the following as grounds: (1) that the complaint failed to implead an indispensable party or a real party in interest; hence, the case must be dismissed for failure to state a cause of action; (2) that the trial court did not acquire jurisdiction over the person of Manuel pursuant to Section 5, Rule 86 of the Revised Rules of Court; (3) that the trial court erred in ordering the substitution of the deceased Manuel by his heirs; and (4) that the court must also dismiss the case against Lolita Toledo in accordance with Section 6, Rule 86 of the Rules of Court.The trial court, in an Order dated 8 November 2004, denied the motion to dismiss for having been filed out of time. Aggrieved, respondent filed a petition for certiorari with the Court of Appeals. The Court of Appeals granted the petition.ISSUE:Whether or not the Court acquired jurisdiction over Manuel Toledo.HELD:No. Jurisdiction over the person of a defendant is acquired through a valid service of summons; trial court did not acquire jurisdiction over the person of Manuel Toledo. In the case at bar, the trial court did not acquire jurisdiction over the person of Manuel since there was no valid service of summons upon him, precisely because he was already dead even before the complaint against him and his wife was filed in the trial court.ISSUE:Whether or not the Estate of Manuel Toledo is an indispensable party.HELD:No. An indispensable party is one who has such an interest in the controversy or subject matter of a case that a final adjudication cannot be made in his or her absence, without injuring or affecting that interest. He or she is a party who has not only an interest in the subject matter of the controversy, but "an interest of such nature that a final decree cannot be made without affecting that interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. It has also been considered that an indispensable party is a person in whose absence there cannot be a determination between the parties already before the court which is effective, complete or equitable." Further, an indispensable party is one who must be included in an action before it may properly proceed.Applying the foregoing pronouncements to the case at bar, it is clear that the estate of Manuel is not an indispensable party to the collection case, for the simple reason that the obligation of Manuel and his wife, respondent herein, is solidary. The collection case can proceed and the demands of petitioner can be satisfied by respondent only, even without impleading the estate of Manuel. Consequently, the estate of Manuel is not an indispensable party to petitioners complaint for sum of money.ISSUE:Whether or not the trial court erred when it ordered the substitution of Manuel Toledo by his heirs.HELD:Yes. Section 16, Rule 3 of the Rules of Court, states:Death of party;duty of counsel. Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. x x xThe heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator x x x.The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. Here, since Manuel was already dead at the time of the filing of the complaint, the court never acquired jurisdiction over his person and, in effect, there was no party to be substituted.

VILLAGRACIA V. 5TH SHARIA DISTRICT COURT & MALAG.R. NO. 188832APRIL 23, 2014

J. LEONENJURISDICTION OF SHARIA COURTSFACTS:Roldan purchased a parcel of land located in Maguindanao from one Ceres Caete. At the time of the purchase, Villagracia occupied the parcel of land. Failing to settle with Vivencio at the barangay level, Roldan filed an action to recover the possession of the parcel of land with respondent Fifth Sharia District Court.In his petition, Roldan alleged that he is a Filipino Muslim; that he is the registered owner of the lot covered by Transfer Certificate of Title No. 15633; and that Vivencio occupied his property, depriving him of the right to use, possess, and enjoy it. He prayed that respondent Fifth Sharia District Court order Vivencio to vacate his property. Vivencio failed to file his answer. Thus, Roldan moved that he be allowed to present evidence ex parte, which motion respondent Fifth Sharia District Court.Respondent Fifth Sharia District Court ruled that Roldan, as registered owner, had the better right to possess the parcel of land. It ordered Vivencio to vacate the property, turn it over to Roldan, and payP10,000.00 as moderate damages andP5,000.00 as attorneys fees. It issued the notice of writ of executionto Vivencio,On January 13, 2009, Vivencio filed a petition for relief from judgment with prayer for issuance of writ of preliminary injunction. In his petition for relief from judgment, Vivencio cited Article 155, paragraph (2) of the Code of Muslim Personal Laws of the Philippines and argued that Sharia District Courts may only hear civil actions and proceedings if both parties are Muslims. Considering that he is a Christian, Vivencio argued that respondent Fifth Sharia District Court had no jurisdiction to take cognizance of Roldans action for recovery of possession of a parcel of land.Respondent Fifth Sharia District Court ruled that Vivencio "intentionally waived his right to defend himself.ISSUE:Whether a Sharia District Court has jurisdiction over a real action where one of the parties is not a Muslim.HELD: No. Shari' a District Courts have no jurisdiction over real actions where one of the parties is not a Muslim. Jurisdiction over the subject matter is "the power to hear and determine cases of the general class to which the proceedings in question belong." This power is conferred by law,which may either be the Constitution or a statute. Since subject matter jurisdiction is a matter of law, parties cannot choose, consent to, or agree as to what court or tribunal should decide their disputes.If a court hears, tries, and decides an action in which it has no jurisdiction, all its proceedings, including the judgment rendered, are void.The law conferring the jurisdiction of Sharia District Courts is the Code of the Muslim Personal Laws of the Philippines. Under Article 143 of the Muslim Code, Sharia District Courts have concurrent original jurisdiction with "existing civil courts" over real actions not arising from customary contracts wherein the parties involved are Muslims.When ownership is acquired over a particular property, the owner has the right to possess and enjoy it.If the owner is dispossessed of his or her property, he or she has a right of action to recover its possession from the dispossessor.When the property involved is real, such as land, the action to recover it is a real action; otherwise, the action is a personal action.In such actions, the parties involved must be Muslims for Sharia District Courts to validly take cognizance of them.When it became apparent that Vivencio is not a Muslim, respondent Fifth Sharia District Court should have motu proprio dismissed the case. Under Rule 9, Section 1 of the Rules of Court, if it appears that the court has no jurisdiction over the subject matter of the action based on the pleadings or the evidence on record, the court shall dismiss the claim. The application of the provisions of the Civil Code of the Philippines by respondent Fifth Sharia District Court does not validate the proceedings before the court. Under Article 175 of the Muslim Code, customary contracts are construed in accordance with Muslim law.Hence, Sharia District Courts apply Muslim law when resolving real actions arising from customary contracts.

CHU V. CUNANANG.R. NO. 156185SEPTEMBER 12, 2011

J. BERSAMINSPLITTING OF CAUSE OF ACTION; RES JUDICATAFACTS:The Chus executed a deed of sale with assumption of mortgageinvolving their five parcels of land situated Pampanga, registered in favor of Cunanan. They also executed a so-called side agreement, whereby they clarified that Cunanan had paid onlyP1,000,000.00 to the Chus despite the Chus, as vendors, having acknowledged receivingP5,161,090.00; that the amount ofP1,600,000.00 was to be paid directly to Benito Co and to Security Bank and Trust Company (SBTC) in whose favor the five lots had been mortgaged; and that Cunanan would pay the balance ofP2,561.90.00 within three months, with a grace period of one month subject to 3%/month interest on any remaining unpaid amount. Thereafter, the Chus executed a special power of attorney authorizing Cunanan to borrowP5,161,090.00 from any banking institution and to mortgage the five lots as security, and then to deliver the proceeds to the Chus net of the balance of the mortgage obligation and the downpayment.Cunanan was able to transfer the title of the five lots to her name without the knowledge of the Chus, and to borrow money with the lots as security without paying the balance of the purchase price to the Chus. She later transferred two of the lots to Spouses Carloses. As a result, on March 18, 1988, the Chus caused the annotation of an unpaid vendors lien on three of the lots. Nonetheless, Cunanan still assigned the remaining three lots to Cool Town Realty on May 25, 1989 despite the annotation.In February 1988, the Chus commenced Civil Case No. G-1936 in the RTC to recover the unpaid balance from Spouses Cunanans. Five years later, the Chus amended the complaint to seek the annulment of the deed of sale with assumption of mortgage and of the TCTs issued pursuant to the deed, and to recover damages. They impleaded Cool Town Realty and the Office of the Registry of Deeds of Pampanga as defendants in addition to the Cunanans. Considering that the Carloses had meanwhile sold the two lots to Benelda Estate in 1995, the Chus further amended the complaint in Civil Case No. G-1936 to implead Benelda Estate as additional defendant.On December 2, 1999, the Chus, the Cunanans, and Cool Town Realty entered into a compromise agreement,whereby the Cunanans transferred to the Chus their 50% share in "all the parcels of land situated in Pampanga" registered in the name of Cool Town Realty "for and in consideration of the full settlement of their case." The RTC approved the compromise agreement.On April 30, 2001, the petitioners herein brought another suit, Civil Case No. 12251, against the Carloses and Benelda Estate,seeking the cancellation of the TCTs of the two lots in the name of Benelda Estate, and the issuance of new TCTs in their favor, plus damages.The Cunanans moved to dismiss the amended complaint based on two grounds, namely: (a) bar by prior judgment, and (b) the claim or demand had been paid, waived, and abandoned. Benelda Estate likewise moved to dismiss the amended complaint, citing as grounds: (a) forum shopping; (b) bar by prior judgment, and (c) failure to state a cause of action. On their part, the Carloses raised affirmative defenses in their answer, namely: (a) the failure to state a cause of action; (b) res judicata or bar by prior judgment; and (c) bar by statute of limitations.ISSUE:Was Civil Case No. 12251 barred by res judicata although the compromise agreement did not expressly include Benelda Estate as a party and although the compromise agreement made no reference to the lots now registered in Benelda Estates name?HELD:Yes. A compromise agreement is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced.It encompasses the objects specifically stated therein, although it may include other objects by necessary implication,and is binding on the contracting parties, being expressly acknowledged as a juridical agreement between them.It has the effect and authority of res judicata upon the parties.In the construction or interpretation of acompromise agreement, the intention of the parties is to be ascertained from the agreement itself, and effect should be given to that intention.Thus, thecompromise agreementmust be read as a whole.There is no question that the deed of sale with assumption of mortgage covered all the five lots. To limit thecompromise agreementonly to the three lots mentioned therein would contravene the avowed objective of Civil Case No. G-1936 to enforce or to rescind the entire deed of sale with assumption of mortgage.The petitioners were not at liberty to split their demand to enforce or rescind the deed of sale with assumption of mortgage and to prosecute piecemeal or present only a portion of the grounds upon which a special relief was sought under the deed of sale with assumption of mortgage, and then to leave the rest to be presented in another suit; otherwise, there would be no end to litigation.Their splitting violated the policy against multiplicity of suits, whose primary objective was to avoid unduly burdening the dockets of the courts. Their contravention of the policy merited the dismissal of Civil Case No. 12251 on the ground of bar by res judicata.

TOKYO MARINE V. VALDEZG.R. NO. 150107JANUARY 28, 2008

J. SANDOVAL-GUTIERREZINDIGENT PARTIESFACTS:Jorge Valdez, respondent, was a former unit manager of Tokio Marine pursuant to a Unit Management Contract entered into between them on August 16, 1977. On October 15, 1998, respondent filed with the Regional Trial Court, Branch 35, Manila a complaint for damages against petitioners, docketed as Civil Case No. 98-91356. He alleged therein that petitioners violated the terms of the Unit Management Contract by refusing to pay him, among others, his "commissions," and bonuses.Eventually, respondent filed with the trial court an "UrgentEx ParteMotion For Authority To Litigate As Indigent Plaintiff. On October 28, 1998, the trial court issued an Order, the pertinent portions of which read:The Court hereby allows the plaintiff to litigate as pauper there being sufficient showing that he is an indigent. He does not own any real property in the City of Manila or elsewhere.The Court therefore directs the Clerk of Court to accept the complaint for filing without payment of filing fees computed as SIX HUNDRED FIFTEEN THOUSAND SIX HUNDRED SEVENTY TWO AND EIGHTY-THREE CENTAVOS (P615,672.83) which amount, however, shall constitute a lien upon any judgment to be rendered in favor of the plaintiff.On December 11, 1998, petitioners filed their separate motions to dismiss the complaint. On January 20, 1999, the trial court issued an Orderdenying petitioners' motions to dismiss. They then filed motions for reconsideration, but they were likewise denied. Petitioners contend that the Court of Appeals erred: (1) in denying their motion to dismiss respondent's complaint in Civil Case No. 98-91356 for nonpayment of docket fees.ISSUE:Whether or not the CA erred in denying the motion to dismiss for non-payment of docket fees.HELD:No. The correct docket fees must be paid before courts can act on a petition or complaint. The exception to the rule on payment of docket fees is provided in Section 21, Rule 3 of the 1997 Rules of Civil Procedure, as amended, thus:SEC. 21.Indigent party. - A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon anex parteapplication and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. x x x The guidelines for determining whether a party qualifies as an indigent litigant are provided for in Section 19, Rule 141,of the Revised Rules of Court, which reads:SEC. 19.Indigent litigants exempt from payment of legal fees. - INDIGENT LITIGANT (A) WHOSE GROSS INCOME AND THAT OF THEIR IMMEDIATE FAMILY DO NOT EXCEED AN AMOUNT DOUBLE THE MONTHLY MINIMUM WAGE OF AN EMPLOYEE AND (B) WHO DO NOT OWN REAL PROPERTY WITH A FAIR MARKET VALUE AS STATED IN THE CURRENT TAX DECLARATION OF MORE THAN THREE HUNDRED THOUSAND PESOS (P300,000.00) SHALL BE EXEMPT FROM THE PAYMENT OF LEGAL FEES.x x xTo be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn a gross income abovementioned nor they own any real property with the fair value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigant's affidavit. The current tax declaration, if any, shall be attached to the litigant's affidavit.x x xThe term "immediate family" includes those members of the same household who are bound together by ties of relationship but does not include those who are living apart from the particular household of which the individual is a member. In the instant cases, petitioners maintain that respondent'sex partemotion to litigate as an indigent is defective since it was not accompanied or supported by the affidavits of his children, the immediate members of his family. The argument lacks merit.Section 19 clearly states that it is the litigant alone who shall execute the affidavit.The Rule does not require that all members of the litigant's immediate family must likewise execute sworn statements in support of the petition.Expressio unius est exclusio alterius.

BRIONES V. CAG.R. NO. 204444JANUARY 14, 2015

J. PERLAS BERNABEVENUEFACTS:Briones filed a complaint for nullity of mortgage contract, promissory note, loan agreement, foreclosure of mortgage, cancellation of TCT No. 290846 and damages against Cash Asia before the RTC Manila. This is because he discovered that he purportedly executed the aforementioned documents in favour of Cash Asia in order to obtain a loan from the latter. Briones claims that he never contracted any loans. Since the loans were left unpaid, Cash Asia foreclosed his property.Cash Asia filed a motion to dismiss praying for the outright dismissal of Brioness complaint on the ground of improper venue. It pointed out that the venue stipulation in the subject contracts stated that all legal actions in connection with the Real Estate Mortgage should be filed in Makati. The RTC denied Cash Asias motion to dismiss. Upon appeal, the CA dismissed Brioness complaint. The CA concluded that Brioness complaint should have been dismissed outright on the ground of improper venue.ISSUE:Whether or not the CA erred in dismissing the complaint on the ground of improper venue.HELD:Yes. The general rule is that venue of real actions is the court which has jurisdiction over the area wherein the real property is involved, or a portion thereof, is situated; while the venue for personal actions is the court which has jurisdiction where the plaintiff or the defendant resides, at the election of the plaintiff. As an exception, the parties, thru a written instrument, may either introduce another venue where actions arising from such instrument may be filed, or restrict the filing of said actions in a certain exclusive venue.Here, the venue stipulation found in the subject contracts is indeed restrictive in nature, considering that it effectively limits the venue of the actions arising therefrom to the courts of Makati. However, it must be emphasized that Brioness complaint directly assails the validity of the subject contracts, claiming forgery in their execution. Given this circumstance, Briones cannot be expected to comply with the aforesaid venue stipulation as his compliance would mean an implicit recognition of their validity.

FORTUNE LIFE INSURANCE V. COMMISSION ON AUDITG.R. NO. 213525JANUARY 27, 2015

J. BERSAMINPROOF OF SERVICE; NEYPES RULINGFACTS:The Provincial Government of Antique and petitioner executed a memorandum of agreement concerning the life insurance coverage of certain government employees. However, upon submission of vouchers to the COA for pre-audit, the latter disallowed payment for lack of legal basis under the Local Government Code.Petitioner filed its money claim in the COA but it was denied in its decision dated December 14, 2012. Petitioner filed a motion for reconsideration on January 14, 2013 but it suffered the same fate. The denial of the motion for reconsideration was received on July 14, 2014. Hence, on August 13, 2014, petitioner filed a petition for certiorari under Rule 64. In a resolution dated August 19, 2014, the petition was dismissed by reason of late filing, non-submission of proof of service and verified declaration and also for failure to show grave abuse of discretion on the part of respondents.In its motion for reconsideration, petitioner insists that it filed the petition for certiorari within the reglementary period following the fresh period rule in Neypes v. CA and that the petition included an affidavit of service in compliance with Section 3, Rule 13 of the Rules of Court.ISSUE:Whether or not petitioner complied with the rule on proof of service.HELD:No. The petitioner claims that the affidavit of service attached to the petition for certiorari complied with the requirement on proof of service. This claim is unwarranted.Section 13 of Rule 13 requires that if the service is done by registered mail, proof of service shall consist of the affidavit of the person effecting the mailing and the registry receipt, both of which must be appended to the paper being served. A compliance with the rule is mandatory, such that there is no proof of service if either or both are not submitted.Here, the petition for certiorari only carried the affidavit of service and cut print-outs of what appeared to be the registry receipts and not their reproduction. The rule requires to be appended the registry receipts and not their reproductions. Hence, the print-outs did not substantially comply with the rule.ISSUE:Whether or not the fresh period rule applies to petition for certiorari under Rule 64.HELD:No. Petitioner posits that the fresh period rule applies to Rule 64 because it is akin to a petition for review under Rule 42. However, there is no parity between the petition for review under Rule 42 and the petition for certiorari under Rule 64.As to nature, Rule 42 governs appeal from judgment or final order rendered by the RTC in the exercise of its appellate jurisdiction. Such appeal is on a question of fact, law or mixed. Rue 64 is similar to Rule 65. Questions of fact cannot be raised except to determine whether the COMELEC or the COA were guilty of grave abuse of discretion.Both also differs with respect to reglementary periods. In Rule 42, the aggrieved party is allowed 15 days to file the petition for review from receipt of the assailed decision or from receipt of the denial of a motion for new trial or reconsideration. In Rule 64, the petition is filed within 30 days from notice of judgment or final order. The filing of a motion for new trial or reconsideration, if allowed under the procedural rules of the Commission concerned, interrupts the period. Hence, should the motion be denied, the aggrieved party may file the petition within the remaining period which shall in not be less than 5 days in any event, reckoned from the notice of denial.The motion for reconsideration was filed on January 14, 2013 which was 31 days after receiving the decision of the COA on December 14, 2012. Thus, pursuant to the Rules, it had 5 days from receipt of denial of its motion to file the petition. It received the notice of denial on July 14, 2014 and had only until July 19, 2014 to file the petition. It was already 25 days to late when it filed the petition on August 13, 2014.

SABAY V. PEOPLEG.R. NO. 192150OCTOBER 1, 2014

J. BRIONBARANGAY CONCILIATION PROCEEDINGS; RELAXATION OF THE FORMAL-OFFER RULEFACTS:Petitioner and his daughter Erlinda had a verbal exchange with Godofredo when the latter confronted petitioner of intrusion to his property. In the course of the exchange, Erlinda hit Godofredo on the head with a hard object. Petitioner joined by throwing a stone at Godofredos face, breaking the latters eyeglasses. Jervie came and pacified the three and was hit in the hand with a bolo. The neighbours intervened not long after.Godofredo and Jervie filed a complaint against petitioner before the barangay. They executed a Kasunduang Pag-aayos but the same was not implemented because the building inspector failed to make the promised recommendation to resolve the boundary dispute between the parties. Thus, the Office of the Barangay Captain issued a Certificate to File an Action.Petitioner was accordingly charged with Physical Injuries before the MTC. Both petitioner and Erlinda was also charged with light threats. The MTC convicted petitioner of 2 counts of slight physical injuries. It absolved Erlinda for the crime of light threats. The RTC affirmed the RTCs decision. The CA affirmed the RTCs decision and also dismissed petitioners plea of self defense.Petitioner contends that the certificate to file an action is invalid and inadmissible because it was not formally offered.ISSUE:Whether or not the MTC has jurisdiction over the criminal case in view of the alleged inadmissibility of the Certification to File Action.HELD:Yes. The Certification to File an Action issued by the Office of the Barangay is valid. Although initially the parties agreed to settle the case, the Kasunduan that embodied the agreement was never implemented. No actual settlement materialized as the building inspector failed to make his promised recommendation to settle the dispute. Thus, the Barangay Captain was compelled to issue a Certification to File Action, indicating that the disputing parties did not reach any settlement. The settlement of the case in the performance was conditioned on the recommendation of the building inspector. With no such recommendation, no resolution of the conflict took place.Also, the conciliation procedure is not a jurisdictional requirement and non-compliance cannot affect the jurisdiction which the lower courts had already acquired over the subject matter and private respondents as defendants therein.ISSUE:Whether or not the certification to file action is admissible in evidence.HELD:Yes. Section 34 of Rule 132 provides that the court cannot consider any evidence that has not been formally offered. This rule however, admits of an exception. First, the evidence must have been duly identified by testimony duly recorded and second, the evidence must have been incorporated in the records of the case.In the present case, the requisites for the relaxation of the formal offer rule are present. Although the certification was not formally offered, it was marked and attached to the records of the case. Petitioner never objected to Godofredos testimony, particularly with the identification and marking of the certification.

ZUNIGA-SANTOS V. SANTOS-GRANG.R. NO. 197380OCTOBER 8, 2014

J. PERLAS-BERNABEFAILURE TO STATE CAUSE OF ACTIONFACTS:Santos filed a complaint for annulment of sale and revocation of title against Gran and the Register of Deeds Marikina before the RTC. Santos filed an amended complaint thereafter. The following averments are made in the Amended Complaint;

That pursuant to a voidable [sic] and void documents, the second husband of the plaintiff succeed in transferring the above TITLES in the name of MARIA DIVINAGRACIA SANTOS, who is the alleged daughter of LAMBERTO C. SANTOS in violation of Article 1409, Par. 2 of the Civil Code;

That the said properties [were] transferred to the said defendant by a Deed of Sale (DOS) to the said MARIA DIVINAGRACIA SANTOS through a void document considering that the seller is the alleged mother of defendant is also the buyer of the said properties in favor of defendant;

x x x

That the titles that [were] issued in the name of MARIA DIVINAGRACIA SANTOS by virtue of the said alleged voidable and void documents, should be annulled and cancelled as the basis of the transfer is through void and voidable documents;

Gran filed a motion to dismiss which was granted. The RTC dismissed the complaint for its failure to state cause of action considering that the deed of sale sought to be nullified was not attached. The CA sustained the dismissal of Santoss amended complaint but on the ground of insufficiency of factual basis.Santos moved for reconsideration and attached for the first time, the copy of the questioned deed of sale which she claimed to have recently recovered. Santos prayed that the order of dismissal be set aside and the case be remanded to the RTC for further proceedings.ISSUE:Whether or not the dismissal of the amended complaint should be sustained.HELD:Yes. In the case at bar, both the RTC and the CA were in one in dismissing the amended complaint but varied on the grounds thereof. It is apparent that the CA based its dismissal on an incorrect ground. Insufficiency of factual basis is not a ground for motion to dismiss. Rather, it is a ground which becomes available only after the questions of fact have been resolved on the basis of stipulations, admissions or evidence presented by the plaintiff. The procedural recourse to raise such ground is a demurrer to evidence taken only after the plaintiffs presentation of evidence.A pleading should state the ultimate facts essential to the rights of action or defense asserted, as distinguished from mere conclusions of fact, or conclusions of law. General allegations that a contract is valid or is just, fair and reasonable are mere conclusions of law. Likewise, allegations that a contract is void, voidable or illegal without stating facts showing its invalidity are mere conclusions of law.Hence, by merely stating a legal conclusion, the amended complaint presented no sufficient allegation upon which the Court could grant the relief prayed for. Thus the pleading should be dismissed on the ground of failure to state cause of action.

RAMON CHING V. JOSEPH CHENGG.R. NO. 175507 October 8, 2014

J. LEONENTWO DISMISSAL RULE; WHEN FORUM SHOPPING DOES NOT STRICTLY APPLYFACTS:Ramon Ching, Joseph Cheng and Jaime Cheng all alleged that they are the illegitimate children of Antonio Ching. Ramon avers that he was the only child of Antonio with Lucina while the Chengs were fathered by Antonio with housemaid, Mercedes.Antonio owned several businesses including Po Wing properties. Antonio was murdered in 1996. Ramon allegedly induced Mercedes and the Chengs to sign an agreement and waiver to Antonios estate. A year after Antonios death, the police found Ramon to be its prime suspect.On October 7, 1998, Mercedes and the Chengs filed a complaint (first case) for declaration of nullity of titles against Ramon. They amended the complaint and impleaded Po Wing as defendant.. The amendment was for annulment of agreement, waiver, extra-judicial settlement of estate and the certificates of title issued by virtue of documents with prayer for TRO and writ of preliminary injunction. After responsive pleadings have been filed, Po Wing filed a motion to dismiss which was granted by RTC Branch 6.On April 19, 2002, Lucina and the Chengs filed a complaint (second case) for annulment of agreement, waiver, extra-judicial settlement of estate and the certificates of title issued by virtue of documents with prayer for TRO and writ of preliminary injunction. On November 11, 2002, the Chengs and Lucina filed a motion to dismiss the second complaint.The motion to dismiss in the second complaint was granted. The dismissal of the second case was made without prejudice. Ramon and Po Wing filed a motion for reconsideration and argued that the dismissal should have been with prejudice under the two-dismissal rule in view of the first case.During the pendency of the motion for reconsideration, the Chengs and Lucina filed a complaint (third case) for disinheritance and declaration of nullity of agreement and waiver, affidavit of extra-judicial agreement, deed of absolute sale and TCT with prayer for TRO and writ of preliminary injunction.ISSUE:Whether the trial courts dismissal of the second case operated as a bar to the filing of a third case by reason of the two dismissal rule.HELD:No. The trial court dismissed the first case by granting the motion to dismiss filed by the defendants (Ramon and Po Wing). Thus, when the Chengs filed the second case, they were merely refilling the same claim that had been previously dismissed on the basis of lack of jurisdiction. When they moved to dismiss the second case, the motion to dismiss can be considered as the first dismissal at the plaintiffs instance. When the third case was filed, there was one prior dismissal at the instant of the plaintiffs and one prior dismissal at the instance of the defendants. In all instances, Rule 17 governs the dismissals at the instance of the plaintiff and not of the defendant. Dismissals upon the instance of the defendant are generally governed by Rule 16, which covers motions to dismiss.As a general rule, dismissals under Section 1 of Rule 17 are without prejudice except when it is the second time that the plaintiff caused its dismissal. Accordingly, for a dismissal to operate as an adjudication upon the merits, the following requisites must be present;a. There was a previous case that was dismissed by a competent court;b. Both cases were based on or include the same claim;c. Both notices for dismissal were filed by the plaintiff; andd. When the motion to dismiss filed by the plaintiff was consented to by the defendant on the ground that the latter paid and satisfied all the claims of the former.Here, the first case was filed as an ordinary civil action. It was later amended to include new causes of action that should have been adjudicated in a special proceeding. A motion to dismiss was inevitably filed by the defendant on the ground of lack of jurisdiction.ISSUE:Whether the filing of the third case constitutes forum shopping.HELD:Yes. Forum shopping is the institution of two or more actions or proceedings involving the same parties for the same cause of action, either simultaneously or successively, on the supposition that one or the other court would make a favorable disposition.

To determine whether a party violated the rule against forum shopping, the most important factor to ask is whether the elements of litis pendentia are present, or whether a final judgment in one case will amount to res judicata in another; otherwise stated, the test for determining forum shopping is whether in the two (or more) cases pending, there is identity of parties, rights or causes of action, and reliefs sought.There is no question that there was an identity of parties, rights, and reliefs in the second and third cases. While it may be true that the trial court already dismissed the second case when the third case was filed, it failed to take into account that a motion for reconsideration was filed in the second case and, thus, was still pending. Considering that the dismissal of the second case was the subject of the first certiorari case and this present petition for review, it can be reasonably concluded that the second case, to this day, remains pending. Hence, when respondents filed the third case, they engaged in forum shopping.

However, The rule on forum shopping will not strictly apply when it can be shown that (1) the original case has been dismissed upon request of the plaintiff for valid procedural reasons; (2) the only pending matter is a motion for reconsideration; and (3) there are valid procedural reasons that serve the goal of substantial justice for the fresh new case to proceed.

The motion for reconsideration filed in the second case has since been dismissed and is now the subject of a petition for certiorari. The third case filed apparently contains the better cause of action for the plaintiffs and is now being prosecuted by a counsel they are more comfortable with. Substantial justice will be better served if respondents do not fall victim to the labyrinth in the procedures that their travails led them.

MANALANG V. BACANIG.R. NO. 156995JANUARY 12, 2015

J. BERSAMINUNLAWFUL DETAINERFACTS:Petitioners were the co-owners of Lot No. 4236. In 1997, petitioners caused the relocation and verification survey of said lot and the adjoining lots. The result showed that respondents had encroached on Lot No. 4236. When the respondents refused to vacate the encroached portion and to surrender peaceful possession despite demands, the petitioners commenced an action for unlawful detainer.The MTC dismissed the case for lack of jurisdiction. It held that the action involved is essentially a boundary dispute and should be properly resolved in an accion reinvindicatoria. On appeal, the RTC reversed the MTC decision and remanded the case for further proceeding. Upon remand, the MTC dismissed the complaint and counterclaim for lack of merit and ruled that petitioners failed to adduce clear and convincing evidence showing that the respondents had encroached on their property. Again, petitioners appealed before the RTC. The RTC ordered the petitioners to conduct a relocation survey. It reversed the MTCs decision. Respondents then appealed before the CA. The CA reinstated the MTCs decision.The CA concluded that by ordering the relocation survey in aid of its appellate jurisdiction, the RTC acted as a trial court in complete disregard of Section 18, Rule 70 of the Rules of Court. The CA also declared that such action by the RTC is unwarranted because it amounted to the reopening of the trial.ISSUE:Whether or not the RTC violated Sec. 18 of Rule 70 of the Rules of Court.HELD:Yes. Sec. 18 provides that the judgment or final order shall be appealable to the appropriate Regional Trial Court which shall decide the same on the basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Court. 16 17The RTC violated the foregoing rule by ordering the conduct of the relocation and verification survey in aid of its appellate jurisdiction and by hearing the testimony of the surveyor, for its doing so was tantamount to its holding of a trial de novo. The violation was accented by the fact that the RTC ultimately decided the appeal based on the survey and the surveyors testimony instead of the record of the proceedings had in the court of origin.

ISSUE:Whether the case was an ejectment case.HELD:No. The boundary dispute must be resolved in the context of accion reinvindicatoria and not an ejectment case. The boundary dispute is not about possession. It cannot be settled summarily under Rule 70 of the Rules of Court, the proceedings under which are limited to unlawful detainer and forcible entry. In unlawful detainer, the defendant unlawfully withholds thepossession of the premises upon the expiration or termination of his right to hold such possession under any contract, express or implied. The defendants possession was lawful at the beginning, becoming unlawful only because of the expiration or termination of his right of possession. In forcible entry, the possession of the defendant is illegal from the very beginning, and the issue centers on which between the plaintiff and the defendant had the prior possession de facto.

The allegations of petitioners complaint did not show that they permitted or tolerated respondents occupation or how respondents entry had been effected. All that petitioners alleged was the respondents illegal use and occupation of the property. As such, the action was not unlawful detainer.

VICTORIAS MILLING V. COURT OF APPEALS & INTERNATIONAL PHARMACEUTICALSG.R. NO. 168062JUNE 29, 2010

J. DEL CASTILLOPROHIBITED PLEADINGS IN SUMMARY PROCEDUREFACTS:On March 4, 2004, Victorias Milling, filed a complaint for unlawful detainer and damages against respondent IPI before the MCTC. On March 10, 2004, the sheriff served the summons upon Danilo Maglasang, IPI's Human Relations Department Manager.On March 19, 2004, IPI filed its Answer with express reservation that said Answer should not be construed as a waiver of the lack of jurisdiction of the MCTC over the person of IPI, for non-service of summons on the proper person. It then filed an Omnibus Motion for Hearing of Affirmative Defenses raised in the Answer and moved for the suspension of proceedings.The MCTC issued an Orderdenying the suspension of the proceedings of the case sought by IPI.Thus IPI filed a petition forcertiorariwith the CA, Cebu City to question the jurisdiction of the MCTC over its person.The CA issued the assailed Resolutiondirecting the parties to file simultaneously their respective memoranda on the merits amplifying their positions and supporting their arguments with pertinent jurisprudence on the matter.ISSUE:Whether or not the CA erred in issuing the assailed resolution.HELD:Yes. Rule 70 of the Rules of Court, on forcible entry and unlawful detainer cases, provides:Sec. 13. Prohibited pleadings and motions.-The following petitions, motions, or pleadings shall not be allowed:1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with section 12;2. Motion for a bill of particulars;3. Motion for a new trial, or for reconsideration of a judgment, or for reopening of trial;4. Petition for relief from judgment;5. Motion for extension of time to file pleadings, affidavits or any other paper;6. Memoranda;7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;8. Motion to declare the defendant in default;9. Dilatory motions for postponement;10. Reply;11. Third-party complaints;12. Interventions. Although it is alleged that there may be atechnicalerror in connection with the service of summons, there is no showing of anysubstantiveinjustice that would be caused to IPI so as to call for the disregard of the clear and categorical prohibition of filing petitions forcertiorari. It must be pointed out that the Rule on Summary Procedure, by way of exception, permits only a motion to dismiss on the ground of lack of jurisdiction over the subject matter but it does not mention the ground of lack of jurisdiction over the person. It is a settled rule of statutory construction that the express mention of one thing implies the exclusion of all others. Expressio unius est exclusio alterius. From this it can be gleaned that allegations on the matter of lack of jurisdiction over the person by reason of improper service of summons, by itself, without a convincing showing of any resulting substantive injustice, cannot be used to hinder or stop the proceedings before the MCTC in the ejectment suit. With more reason, such ground should not be used to justify the violation of an express prohibition in the rules prohibiting the petition for certiorari.The present situation, where IPI had filed the prohibited petition forcertiorari; the CA's taking cognizance thereof; and the subsequent issuance of the writ of injunction enjoining the ejectment suit from taking its normal course in an expeditious and summary manner, and the ensuing delay is the antithesis of and is precisely the very circumstance which the Rule on Summary Procedure seeks to prevent. Considering that the petition forcertiorarifiled before the CA is categorically prohibited, the CA should not have entertained the same but should have dismissed it outright.

PHILAMLIFE V. ENARIOG.R. NO. 182075SEPTEMBER 15, 2010

J. PEREZFAILURE OF DEFENDANT TO ATTEND PRE-TRIALFACTS:Respondent was appointed as agent of Philamlife. At the time of respondents resignation, Philamlife allegedly discovered that respondent had an outstanding debit balance ofP1,237,336.20, which he was obligated to settle and liquidate pursuant to the Revised Agency Contract he signed at the time of his employment.Philamlife sent three successive demand letters to respondent for the settlement of his outstanding debit account but respondent requested that he be given time to review and settle his accountabilities as he was still trying to reconcile his records.When the parties failed to reach an agreement regarding the settlement of the outstanding debit balance, Philamlife filed a complaint for collection of a sum of money against respondent before the RTC Manila.On 30 October 2002, the RTC set the pre-trial conference on 3 and 17 December 2002. Respondent moved for the postponement of the pre-trial to 14 January 2003 due to conflict of schedule, On 14 January 2003, the opposing counsels agreed to amicably settle the case, prompting the RTC to reset the pre-trial to 8 May, 3 June and 1 July 2003. On 7 May 2003, respondent sent a telegram requesting for another postponement of the pre-trial scheduled on the following day due to medical reasons.On 3 June 2003, respondent failed to appear. Consequently, Philamlife manifested that respondent be declared in default for failure to appear at the pre-trial. The RTC granted the manifestation and allowed Philamlife to present its evidence on 1 July 2003.It was only on the following day, 4 June, that the RTC received respondents motion for postponement of the 3 June 2003 hearing, which was mailed on 30 May 2003. Despite notice, respondent still failed to appear on the 28 August 2003 pre-trial. Philamlife was then allowed to present its evidence ex parte, which it did on that same hearing.The trial court rendered judgment ordering respondent to pay Philamlife. Respondent elevated the case to the Court of Appeals via petition for certiorari under Rule 65 of the Rules of Court. On 28 September 2007, the Court of Appeals reversed the trial courts decisionISSUE:Whether or not the RTC erred in declaring respondent in default and allowing Philamlife to present its evidence ex parte.HELD:No. As the rule now stands, if the defendant fails to appear for pre-trial, a default order is no longer issued. Instead, the trial court may allow the plaintiff to proceed with his evidence ex parte and the court can decide the case based on the evidence presented by plaintiff.Definitely, non-appearance of a party may only be excused for a valid cause. We see none in this case even if the positions of the parties are given a second consideration. Respondent tries in vain to reason out that by allowing Philamlife to present its evidence ex parte, his right to due process was denied."The essence of due process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of ones defense. Where the opportunity to be heard, either through verbal arguments or pleadings, is accorded, and the party can present its side or defend its interest in due course, there is no denial of procedural due process." Here, Respondent had been given more than enough time to present his evidence. The pre-trial date was reset four (4) times for a total period of 6 months before the trial court allowed Philamlife to present its evidence ex parte when respondent failed to appear on the scheduled date.

PULGAR V. RTC QUEZONG.R. NO. 157583SEPTEMBER 10, 2014

J. PERLAS BERNABEINTERVENTIONFACTS:Sometime in 1999, the Municipal Assessor of Mauban, Quezon issued 34 tax declarations on the buildings and machinery comprising the Mauban Plant a coal-fired electric generation facility owned and operated by respondent Quezon Power Philippines (QPL). On March 16 and 23, 2001, QPL tendered to the Municipal Assessor the amount of P60,223,805.51 as first quarter installment of the realty taxes on the plant, which the latter rejected. Hence, QPL filed a Complaint for Consignation and Damages before the RTC against the defendants.On January 28, 2002, Pulgar filed a Motion for Leave to Admit Answer-in-Intervention and Answer-in-Intervention alleging, that as a resident and taxpayer of Quezon Province, he has an interest in the aggressive collection of realty taxes against QPL. By way of counterclaim, he prayed for the award of moral damages and attorneys fees, anchoring the same on the mindless disturbance of the forest and marine environment whereon the power plant of [QPL] stands. Pulgars motion was initially granted and his Answer-in-Intervention was admitted.The RTC dismissed the Civil Case for lack of jurisdiction in the absence of a payment of the tax assessed under protest. Consequently, it also dismissed Pulgars motion for intervention since with the dismissal of the main case, the same had no leg to stand on.ISSUE:Whether or not the RTC erred in dismissing Pulgars motion for intervention as a consequence of the dismissal of the main case.HELD:No. Jurisdiction over an intervention is governed by jurisdiction over the main action. Accordingly, an intervention presupposes the pendency of a suit in a court of competent jurisdiction.Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. Otherwise stated, the right of an intervenor should only be in aid of the right of the original party. Where the right of the latter has ceased to exist, there is nothing to aid or fight for; hence, the right of intervention ceases.

SPOUSES AFULUGENCIA V. METROPOLITAN BANK & TRUST CO.G.R. NO. 185145FEBRUARY 5, 2014

J. DEL CASTILLOFAILURE TO SERVE WRITTEN INTERROGATORIESFACTS:Petitioners, spouses Afulugencia, filed a Complaintfor nullification of mortgage, foreclosure, auction sale, certificate of sale and other documents, with damages, against respondents Metrobank and Emmanuel L. Ortega before RTC Malolos City, where it was docketed as Civil Case No. 336-M-2004 and assigned to Branch 7.After the filing of the parties pleadings and with the conclusion of pre-trial, petitioners filed a Motion for Issuance of Subpoena Duces Tecum Ad Testificandum7to require Metrobanks officersto appear and testify as the petitioners initial witnesses during the August 31, 2006 hearing for the presentation of their evidence-in-chief, and to bring the documents relative to their loan with Metrobank, as well as those covering the extrajudicial foreclosure and sale of petitioners land.Metrobank filed an Opposition arguing that for lack of a proper notice of hearing, the Motion must be denied; that being a litigated motion, the failure of petitioners to set a date and time for the hearing renders the Motion ineffective and pro forma; that pursuant to Sections 1 and 6of Rule 25 of the Rules, Metrobanks officers who are considered adverse parties may not be compelled to appear and testify in court for the petitioners since they were not initially served with written interrogatories; that petitioners have not shown the materiality and relevance of the documents sought to be produced in court; and that petitioners were merely fishing for evidence.The trial court issued an Orderdenying petitioners Motion for Issuance of Subpoena Duces Tecum Ad Testificandum. The CA held that the trial court did not commit grave abuse of discretion in issuing the assailed Orders; petitioners Motion is a litigated motion, especially as it seeks to require the adverse party, Metrobanks officers, to appear and testify in court as petitioners witnesses. It held that a proper notice of hearing, addressed to the parties and specifying the date and time of the hearing, was required, consistent with Sections 4 and 5,Rule 15 of the Rules. By failing to serve written interrogatories upon Metrobank, petitioners foreclosed their right to present the banks officers as their witnesses.ISSUE:Whether or not the Court of Appeals erred in holding that the petitioners must first serve written interrogatories to respondent banks officers before they can be subpoenaedHELD:No. As a rule, in civil cases, the procedure of calling the adverse party to the witness stand is not allowed, unless written interrogatories are first served upon the latter. This is embodied in Section 6, Rule 25 of the Rules, which provides Sec. 6. Effect of failure to serve written interrogatories.Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.One of the purposes of the above rule is to prevent fishing expeditions and needless delays; it is there to maintain order and facilitate the conduct of trial. It will be presumed that a party who does not serve written interrogatories on the adverse party beforehand will most likely be unable to elicit facts useful to its case if it later opts to call the adverse party to the witness stand as its witness. Instead, the process could be treated as a fishing expedition or an attempt at delaying the proceedings; it produces no significant result that a prior written interrogatories might bring.In the present case, petitioners seek to call Metrobanks officers to the witness stand as their initial and main witnesses, and to present documents in Metrobanks possession as part of their principal documentary evidence. This is improper. Petitioners may not be allowed, at the incipient phase of the presentation of their evidence-in-chief at that, to present Metrobanks officers who are considered adverse parties as well, based on the principle that corporations act only through their officers and duly authorized agents as their main witnesses; nor may they be allowed to gain access to Metrobanks documentary evidence for the purpose of making it their own. This is tantamount to building their whole case from the evidence of their opponent. The burden of proof and evidence falls on petitioners, not on Metrobank; if petitioners cannot prove their claim using their own evidence, then the adverse party Metrobank may not be pressured to hang itself from its own defense.It is true that under the Rules, a party may, for good cause shown and to prevent a failure of justice, be compelled to give testimony in court by the adverse party who has not served written interrogatories. But what petitioners seek goes against the very principles of justice and fair play; they would want that Metrobank provide the very evidence with which to prosecute and build their case from the start. This they may not be allowed to do.

ABRIGO V. FLORESG.R. NO. 185145FEBRUARY 5, 2014

J. BERSAMINEXECUTION AS A MATTER OF RIGHTFACTS:Petitioners seek to reverse the decision in CA-G.R. SP No. 48033 promulgated on September 25, 2002, whereby the CA directed the RTC to issue a special order of demolition to implement the immutable and unalterable judgment of the RTC rendered on November 20, 1989.This case emanated from the judicial partition involving a parcel of residential land in Laguna that siblings Francisco Faylona and Gaudencia Faylona had inherited from their parents. Under the immutable and unalterable judgment rendered on November 20, 1989, the heirs and successors-in-interest of Francisco Faylona, respondents herein, would have the western portion of the property in litis, while the heirs and successors-in-interest of Gaudencia Faylona its eastern half.Thereafter, the heirs of Francisco filed with the court a quo a motion for execution to enforce and implement its decision of November 20, 1989, as modified by this Court in its decision in CA-G.R. CV No. 25347.The court likewise directed the defendants, more specifically the herein petitioners, to remove, within the period specified therein, all their improvements which encroached on the western half.Eventually, in an order dated January 28, 1998, the respondent court denied petitioners motion for extension of time to remove their improvements. Thereafter, or on February 6, 1998, the same court issued a writ of execution. On account of the sheriffs return, private respondents then filed with the court a quo on March 11, 1998 a Motion for Issuance of Special Order of Demolition.On March 19, 1998, or even before the respondent court could act on private respondents aforementioned motion for demolition, petitioners filed a Motion to Defer Resolution on Motion for Demolition, this time alleging that they have become one of the co-owners of the western half to the extent of 53.75 square meters thereof, purportedly because one of the successors-in-interest of Francisco Faylona Jimmy Flores who was co-plaintiff of the private respondents in the case, sold to them his share in the western half.ISSUE:Whether or not the sale by respondent Jimmy Flores of his 1/4 share in the western portion of the 402-square meter lot constituted a supervening event that rendered the execution of the final judgment against petitioners inequitable.HELD:No. The contention of petitioners that the sale by Jimmy Flores to them of his 1/4 share in the western portion of the 402-square meter lot under the deed of sale dated March 4, 1998 was a supervening event that rendered the execution inequitable is devoid of merit. A supervening event consists of facts that transpire after the judgment became final and executory, or of new circumstances that develop after the judgment attained finality, including matters that the parties were not aware of prior to or during the trial because such matters were not yet in existence at that time.Although it is true that there are recognized exceptions to the execution as a matter of right of a final and immutable judgment, one of which is a supervening event, such circumstance did not obtain herein. To accept their contention would be to reopen the final and immutable judgment in order to further partition the western portion thereby adjudicated to the heirs and successors-in-interest of Francisco Faylona for the purpose of segregating the portion supposedly subject of the sale by Jimmy Flores. The reopening would be legally impermissible, considering that the November 20, 1989 decision, as modified by the CA, could no longer be altered, amended or modified, even if the alteration, amendment or modification was meant to correct what was perceived to be an erroneous conclusion of fact or of law and regardless of what court, be it the highest Court of the land, rendered it. This is pursuant to the doctrine of immutability of a final judgment, which may be relaxed only to serve the ends of substantial justice in order to consider certain circumstances like: (a) matters of life, liberty, honor or property; (b) the existence of special or compelling circumstances; (c) the merits of the case; (d) the cause not being entirely attributable to the fault or negligence of the party favored by the suspension of the doctrine; (e) the lack of any showing that the review sought is mer