CIV PRO | Case Digest| Jan.

11, 2016 1
VALMONTE V CA

declared petitioner Lourdes in default. Said decision was received by

Alfredo hence this petition.

G.R. No. 108538 January 22, 1996

Ponente: Mendoza, J.:
Service of Summons
Facts:
1.
1.

Petitioner Lourdes A. Valmonte is a foreign resident. Petitioners

Lourdes and Alfredo are husband and wife both residents of 90222
Carkeek Drive South Seattle, Washington, U.S.A. Petitioner Alfredo
D. Valmonte, who is a member of the Philippine bar, however,
practices his profession in the Philippines, commuting for this
purpose between his residence in the state of Washington and
Manila, where he holds office at S-304 Gedisco Centre, 1564 A.
Mabini, Ermita, Manila.

2.

Private respondent Rosita Dimalanta, who is the sister of petitioner 2.

filed an action for partition against former and her husband. She
alleged that, the plaintiff is of legal age, a widow and is at present a
resident of 14823 Conway Road, Chesterfield, Missouri, U.S.A., while
the defendants are spouses but, for purposes of this complaint may
be served with summons at Gedisco Center, Unit 304, 1564 A.
Mabini St., Ermita, Manila where defendant Alfredo D. Valmonte as
defendant Lourdes Arreola Valmontes spouse holds office and where
he can be found.He husband was also her counsel, who has a law
office in the Philippines. The summons were served on her husband.
3.

3.

Petitioner in a letter, referred private respondents counsel to her

husband as the party to whom all communications intended for her
should be sent. Service of summons was then made upon petitioner
Alfredo at his office in Manila. Alfredo D. Valmonte accepted his
summons, but not the one for Lourdes, on the ground that he was
4.
not authorized to accept the process on her behalf. Accordingly the
process server left without leaving a copy of the summons and
complaint for petitioner Lourdes A. Valmonte.

4.

Petitioner Alfredo D. Valmonte thereafter filed his Answer with

Counterclaim. Petitioner Lourdes A. Valmonte, however, did not file
her Answer. For this reason private respondent moved to declare her
in default. Petitioner Alfredo D. Valmonte entered a special
appearance in behalf of his wife and opposed the private
respondents motion. RTC denied the MR of respondents. CA

Issue: Whether or not petitioner Lourdes A. Valmonte was validly served

with summons.
NO.
There was no valid service of summons on Lourdes.
The action herein is in the nature of an action quasi in rem. Such an
action is essentially for the purpose of affecting the defendants interest in a
specific property and not to render a judgment against him. As petitioner
Lourdes A. Valmonte is a nonresident who is not found in the Philippines,
service of summons on her must be in accordance with Rule 14, 17. Such
service, to be effective outside the Philippines, must be made either (1) by
personal service; (2) by publication in a newspaper of general circulation in
such places and for such time as the court may order, in which case a copy
of the summons and order of the court should be sent by registered mail to
the last known address of the defendant; or (3) in any other manner which
the court may deem sufficient.
In the case at bar, the service of summons upon petitioner Lourdes A.
Valmonte was not done by means of any of the first two modes. This mode
of service, like the first two, must be made outside the Philippines, such as
through the Philippine Embassy in the foreign country where the defendant
resides. The service of summons on petitioner Alfredo D. Valmonte was not
made upon the order of the court as required by Rule 14, 17 and certainly
was not a mode deemed sufficient by the court which in fact refused to
consider the service to be valid and on that basis declare petitioner Lourdes
A. Valmonte in default for her failure to file an answer.
Secondly, the service in the attempted manner on petitioner was not
made upon prior leave of the trial court as required also in Rule 14, 17. As
provided in 19, such leave must be applied for by motion in writing,
supported by affidavit of the plaintiff or some person on his behalf and
setting forth the grounds for the application.
Finally, and most importantly, because there was no order granting such
leave, petitioner Lourdes was not given ample time to file her Answer which,
according to the rules, shall be not less than sixty (60) days after notice.

CIV PRO | Case Digest| Jan. 11, 2016 2

2
LA
NAVAL
THE
HONORABLE
YAO, respondents.

DRUG
COURT
OF

CORPORATION, petitioner, vs.

APPEALS
and
WILSON
C.

G.R. No. 103200 August 31, 1994

FACTS: Respondent Yao was the owner of a commercial building, a portion

of which is leased to herein petitioner. However, during the renewal of the
contract of lease, the two disagreed on the rental rate, and to resolve the
controversy, they submitted their disagreement to arbitration. Two
arbitrators (Alamarez and Sabile) has been appointed by the parties while
the appointment of the third arbitrator (Tupang) was held in abeyance
because La Naval Drug instructed its arbitrator to defer the same until its
Board of Directors could convene and approved Tupangs appointment. This
was theorized by the respondent as dilatory tactics, hence, he prayed that a
summary hearing be conducted and direct the 2 arbitrators to proceed with
the arbitration in accordance with Contract of Lease and the applicable
provisions of the Arbitration law, by appointing and confirming the
appointment of the Third Arbitrator; and that the Board of Three Arbitrators
be ordered to immediately convene and resolve the controversy before it.
The respondent court announced that the two arbitrators chose Mrs. Eloisa
R. Narciso as the third arbitrator and ordered the parties to submit their
position papers on the issue as to whether or not respondent Yao's claim for
damages may be litigated upon in the summary proceeding for enforcement
of arbitration agreement. In moving for reconsideration of the said Order,
petitioner argued that in Special Case No. 6024, the respondent court sits as
a special court exercising limited jurisdiction and is not competent to act
on respondent Yao's claim for damages, which poses an issue litigable in an
ordinary civil action. However, respondent court was not persuaded
by petitioner's submission, hence, it denied the motion for reconsideration.
While the appellate court has agreed with petitioner that, under Section 6 of
Republic Act No. 876, a court, acting within the limits of its special
jurisdiction, may in this case solely determine the issue of whether
the litigants should proceed or not to arbitration, it, however, considered
petitioner in estoppel from questioning the competence of the court to
additionally hear and decide in the summary proceedings private
respondent's claim for damages, it (petitioner) having itself filed similarly its
own counterclaim with the court a quo.

ISSUES:
1

WON THE COURT HAS JURISDICTION OVER THE PERSON.

WON THE COURT A QUO HAS JURISDICTION OVER THE

SUBJECT MATTER.

HELD: As to the first issue, it was held that jurisdiction over the person
must be seasonably raised, i.e., that it is pleaded in a motion to dismiss or
by way of an affirmative defense in an answer. Voluntary appearance shall
be deemed a waiver of this defense. The assertion, however, of affirmative
defenses shall not be constructed as an estoppel or as a waiver of such
defense. With regard to the second issue, it was held that where the
court itself clearly has no jurisdiction over the subject matter or the nature
of the action, the invocation of this defense may be done at any time. It is
neither for the courts nor the parties to violate or disregard that rule, let
alone to confer that jurisdiction, this matter being legislative in character.
Barring highly meritorious and exceptional circumstances, such as herein
before exemplified, neither estoppel nor waiver shall apply. The court must
then refrain from taking up the claims of the contending parties for
damages, which, upon the other hand, may be ventilated in separate regular
proceedings at an opportune

CIV PRO | Case Digest| Jan. 11, 2016 3

not one of those persons named in Section 11, Rule 14 RoC upon whom
E.B. Villarosa and Partner Co., Ltd. vs. Benito, [G.R. No. 136426
August 6, 1999]
Post under case digests, Remedial Law at Thursday, March 08, 2012 Posted
by Schizophrenic Mind

service of summons may be made. plaintiff filed an Opposition to

Defendant's Motion to Dismiss. plaintiff filed a Motion to Declare Defendant
in Default. the trial court issued an Order denying defendant's Motion to

Facts: Petitioner is a limited partnership with principal office address at

Dismiss as well as plaintiffs Motion to Declare Defendant in Default.

Davao City and with branch offices at Paraaque, MM and Lapasan, Cagayan

defendant, filed a Motion for Reconsideration alleging that Sec.11, Rule 14 of

de Oro City. Petitioner and private respondent executed a Deed of Sale with

the new Rules did not liberalize but, on the contrary, restricted the service of

Development Agreement wherein the former agreed to develop certain

summons on persons enumerated therein; and that the new provision is

parcels of land located at Cagayan de Oro belonging to the latter into a

very specific and clear in that the word "manager" was changed to "general

housing subdivision for the construction of low cost housing units. They

manager", "secretary" to "corporate secretary", and excluding therefrom

further agreed that in case of litigation regarding any dispute arising

agent and director. Defendant's Motion for Reconsideration was denied,

therefrom, the venue shall be in the proper courts of Makati. private

hence

respondent, as plaintiff, filed a Complaint for Breach of Contract and

Issue: Whether or not the trial court acquired jurisdiction over the person of

Damages against petitioner, as defendant, before the RTC Makati for failure

petitioner

of the latter to comply with its contractual obligation in that, other than a

Held: No. the enumeration of persons to whom summons may be served is

few

"restricted,

unfinished

low

cost

houses,

there

were

no

this

upon

limited

service

and

of

exclusive"

petition.

summons

following

on

the

its BranchManager

rule

on

statutory

substantialdevelopments therein. Summons, together with the complaint,

construction expressio unios est exclusio alterius and argues that if the Rules

were served upon the defendant, through its Branch Manager at the stated

of Court Revision Committee intended to liberalize the rule on service of

address at Cagayan de Oro City but the Sheriff's Return of Service stated

summons, it could have easily done so by clear and concise language. under

that the summons was duly served "upon defendant E.B. Villarosa & Partner

the new Rules, service of summons upon an agent of the corporation is no

Co., Ltd. thru its Branch Manager Engr. at their new office Villa Gonzalo,

longer authorized. The designation of persons or officers who are authorized

Nazareth, Cagayan de Oro City, and evidenced by the signature on the face

to accept summons for a domestic corporation or partnership is now limited

of the original copy of the summons. Defendant prayed for the dismissal of

and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil

the complaint on the ground of improper service of summons and for lack of

Procedure. The rule now states "general manager" instead of only

jurisdiction over the person of the defendant. It contends that the RTC did

"manager"; "corporate secretary" instead of "secretary"; and "treasurer"

not acquire jurisdiction over its person since the summons was improperly

instead of "cashier." The phrase "agent, or any of its directors" is

served upon its employee in its branch office at Cagayan de Oro City who is

conspicuously deleted in the new rule.

CIV PRO | Case Digest| Jan. 11, 2016 4

Oaminal vs Castillo

the defendants in default when their Answer had already been filed albeit
after the 15-day period, but before they were declared as such. Applying

Oaminal vs Castillo : 152776 : October 8, 2003

that ruling to the present case, we find that respondents were, therefore,
imprudently declared in default.

FACTS: Petitioner filed a complaint for collection against respondents with

the RTC. The summons together with the complaint was served upon the
secretary of respondent. Respondents filed their Urgent Motion to Declare
Service of Summons Improper and Legally Defective alleging that the
Sheriffs Return has failed to comply on substituted service of summons but
said motion was not heard due to the Judges absence. Petitioner then filed
an Omnibus Motion to Declare [Respondents] in Default and to Render
Judgment because no answer [was] filed by [the latter]. The respondents
filed Omnibus Motion Ad Cautelam to Admit Motion to Dismiss and Answer
with. The judge denied [respondents] Motion to Dismiss, and admitted
[their] Answer. However six months after admitting their answer, the judge
ruled that [respondents] Omnibus Motion Ad Cautelam to Admit Motion to
Dismiss and Answer with Counterclaim was filed outside the period to file
answer, hence he (1) denied the Motion to Admit Motion to Dismiss and
Answer; (2) declared [respondents] in default; and (3) ordered [petitioner]
to present evidence ex-parte within ten days from receipt of [the] order,
[failing] which, the case will be dismissed.
ISSUE: WON respondents were properly declared in default?
HELD: NO. Respondents herein were declared in default by the trial court on
May 22, 2001, purportedly because of their delay in filing an answer. Its
unexpected volte face came six months after it had ruled to admit their
Answer on November 16, 2000. Indiana Aerospace University v. Commission
on Higher Education held that no practical purpose was served in declaring

CIV PRO | Case Digest| Jan. 11, 2016 5

Catalan knowing that Thomson had communicated with the

Bank, asked HSBCBank to clear the checks and pay her the
said amount. HSBC did not heed her.

Thomson died but Catalan was not paid yet. The account was
transferred to HSBC [Trustee]. Catalan then requested
Trustee to pay her. They still refused and even asked her to
submit back to them the original checks for verification.

Catalan and her lawyer went to Hongkong on their own

expense to personally submit the checks. They still were not
honored, leading Catalan to file a suit against HSBC to collect
her HK$3.2M

ISSUES
Whether or not HSBC Bank and Trustee are liable to pay
damages to Catalan on the ground of Abuse of right under Article 19
of the Civil Code
ARGUMENTS
Petitioner: HSBC claims that they are a foreign corporation
not doing business in the Philippines thus the courts do not
have jurisdiction over them. Moreover, there is no cause of
action because it was not alleged in the there was abuse of
right.

HSBC INTERNATIONAL TRUSTEE

vs.
CECILIA DIEZ CATALAN, respondent.

LIMITED,

petitioner,

G.R. No. 159590 & 159591 October 18, 2004|

FACTS

Frederick Arthur Thomson drew 5 checks payable to Catalan

in the total amount of HK$3.2 million. Catalan presented
these checks to HSBC [Bank]. The checks were dishonored
for having insufficient funds. Thomson demanded that the
checks be made good because he, in fact, had sufficient
funds.

Respondent: Catalan claims that although HSBC has the

right to examine the checks, they did so in bad faith because
they required her to submit all sorts of documents and yet
even upon showing that the checks were good, the Bank still
refused to release the money to her. There was abuse of
right on the part of the Bank. HOLDING & RATIO DECIDENDI
THERE IS CAUSE OF ACTION, IT NEED NOT BE EXPRESSLY
STATED, THE FACTS SUFFICIENTLY DESCRIBE THAT THERE
WAS AN ABUSEOF RIGHT.
APPLICATION:
Article 19 of the Civil Code speaks of the fundamental
principle of law and human conduct that a person "must, in the
exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith."
It sets the standards which may be observed not only in the exercise
of ones rights but also in the performance of ones duties.

CIV PRO | Case Digest| Jan. 11, 2016 6

When a right is exercised in a manner which does not

conform with the norms enshrined in Article 19 and results in
damage to another, a legal wrong is thereby committed for which the
wrongdoer must be held responsible. But a right, though by itself
legal because recognized or granted by law as such, may
nevertheless become the source of some illegality. A person should
be protected only when he acts in the legitimate exercise of his right,
that is, when he acts with prudence and in good faith; but not when
he acts with negligence or abuse.
There is an abuse of right when it is exercised for the only
purpose of prejudicing or injuring another. The exercise of a right
must be in accordance with the purpose for which it was established,
and must not be excessive or unduly harsh; there must be no
intention to injure another.
Thus, in order to be liable under the abuse of rights
principle, three elements must concur, to wit: (a) that there is a
legal right or duty; (b) which is exercised in bad faith; and (c) for
the sole intent of prejudicing or injuring another.
HSBANK is being sued for unwarranted failure to pay the
checks notwithstanding the repeated assurance of the drawer
Thomson as to the authenticity of the check sand frequent directives
to pay the value thereof to Catalan. Her allegations in the complaint
that the gross inaction of HSBANK on Thomsons instructions, as well
as its evident failure to inform Catalan of the reason for its continued
inaction and non-payment of the checks, smack of insouciance on its
part, are sufficient statements of clear abuse of right for which it
may be held liable to Catalan for any damages she incurred resulting
therefore. HSBANKs actions or lack thereof, prevented Catalan from
seeking further redress with Thomson for the recovery of her claim
while the latter was alive

DECISION OF THE COURT:

The Decision of the Court of Appeals, dated August 14, 2003, in CAG.R. SP No. 75757 dismissing the petition for certiorari of the
Hongkong and Shanghai Banking Corporation Limited is AFFIRMED.
The petition in G.R. No. 159591 is GRANTED. The Decision of the

Court of Appeals, dated August 14, 2003, in CA-G.R. SP No. 75756

dismissing the petition for certiorari of the HSBC International
Trustee Limited is REVERSED and SET ASIDE. The Regional Trial
Court, Branch 44, Bacolod City is declared without jurisdiction to
take cognizance of Civil Case No. 01-11372 against the HSBC
International Trustee Limited, and all its orders and issuances with
respect to the latter are hereby ANNULLED and SET ASIDE. The
said Regional Trial Court is hereby ORDERED to DESIST from
maintaining further proceedings against the HSBC International
Trustee Limited in the case aforestated.

CIV PRO | Case Digest| Jan. 11, 2016 7

loan advanced to him by respondent when he was still a member of its board
of directors.
Personal service of summons were made to petitioner but failed because the
latter cannot be located in his last known address despite earnest efforts to
do so. Subsequently, on respondents motion, the trial court allowed service
of summons by publication. Respondent caused the publication of the
summons in Remate, a newspaper of general circulation in the Philippines.
Thereafter,

respondent

submitted

the affidavit of

publication

and

the affidavit of service of respondents employee to the effect that he sent a

copy of the summons by registered mail to petitioners last known address.
Petitioner still failed to answer within the prescribed period despite the
publication of summons. Hence, respondent filed a motion for the reception
of its evidence ex parte. Trial court granted said motion and proceeded with
the ex parte presentation and formal offer of its evidence.
Petitioner filed an Omnibus Motion for Reconsideration and to Admit
Attached

Answer,

alleging

that

the affidavit of

service

submitted

by

respondent failed to comply with Section 19, Rule 14 of the Rules of Court as
Santos vs. PNOC Exploration Corporation [G.R. No. 170943; September 23,
2008]

it was not executed by the clerk of court. Trial court denied the said motion

Post under case digests, Remedial Law at Sunday, March 11, 2012 Posted
by Schizophrenic Mind

It also denied the motion to admit petitioners answer because the same was

Facts: PNOC Exploration Corporation, respondent, filed a complaint for a

sum of money against petitioner Pedro Santos Jr. in the RTC of Pasig. The
amount sought to be collected was the petitioners unpaid balance of the car

and held that the rules did not require such execution with the clerk of court.

filed way beyond the reglementary period.

CIV PRO | Case Digest| Jan. 11, 2016 8

Petitioner appeals to the CA via a petition for certiorari but failed and even

granted leave of court to effect the service of summons upon him by

sustained the trial courts decision and ordered the former to pay the amount

publication in a newspaper of general circulation. Thus, petitioner was proper

plus legal interest and cost of suit. Hence, this petition.

served with summons by publication and that there is jurisdiction over his

Issues:

person.

(1) Whether or not there is lack of jurisdiction over the petitioner due to
improper service of summons.

(2) The in rem/in personam distinction was significant under the old rule
because it was silent as to the kind of action to which the rule was applicable
but this has been changed, it now applies to any action. The present rule

(2) Whether or not the rule on service by publication under Section 14, Rule

expressly states that it applies in any action where the defendant is

14 of the Rules of Court applies only to actions in rem, not actions in

designated as an unknown owner, or the like, or whenever his whereabouts

personam.

are unknown and cannot be ascertained by diligent inquiry. Hence, the

petitioners contention that the complaint filed against him is not covered by
the said rule because the action for recovery of sum of money is an action in

(3) Whether or not the affidavit of service of the copy of the summons
should have been prepared by the clerk of court and not respondents
messenger.
Held:
(1) Section 14, Rule 14 provides that in any action where the defendant is
designated as an unknown owner or the like or when his whereabouts are
unknown and cannot be ascertained by diligentinquiry, service may, by leave
of court, be effected upon him by publication in a newspaper of general
circulation and in such places and for such times as the court may order.
Since petitioner could not be personally served with summons despite
diligent efforts to locate his whereabouts, respondent sought and was

personam is not applicable anymore.

CIV PRO | Case Digest| Jan. 11, 2016 9

(3) The service of summons by publication is complemented by service of
summons by registered mail to defendants last known address. This
complementary service is evidenced by an affidavitshowing the deposit of a
copy of the summons and order for publication in the post office, postage for
prepaid, directed to the defendant by registered mail to his last known
address.

The

rules,

however,

do

not

require

that

the affidavit of

complementary service be executed by the clerk of court. While the trial

court ordinarily does the mailing of copies of its orders and processes, the
duty to make the complementary service by registered mail is imposed on
the party who resorts to service by publication.

NM Rothschild vs. Lepanto Consolidated Digest

G.R.

No.

175799

NM ROTHSCHILD & SONS (AUSTRALIA) LIMITED, Petitioner, v.

LEPANTO
CONSOLIDATED
MINING
COMPANY,Respondent.
LEONARDO-DE

CASTRO,

J.:

FACTS:
Respondent Lepanto Consolidated Mining Company filed with the RTC of
Makati City a Complaint against petitioner NM Rothschild & Sons (Australia)
Limited praying for a judgment declaring the loan and hedging contracts
between the parties void for being contrary to Article 2018 of the Civil Code
of the Philippines and for damages. Upon respondents motion, the trial court
authorized respondents counsel to personally bring the summons and
Complaint to the Philippine Consulate General in Sydney, Australia for the
latter
office
to
effect
service
of
summons
on
petitioner.
The petitioner prayed for the dismissal of the Complaint on the following
grounds: (a) the court has not acquired jurisdiction over the person of

CIV PRO | Case Digest| Jan. 11, 2016 10

petitioner due to the defective and improper service of summons; (b) the
Complaint failed to state a cause of action and respondent does not have
any against petitioner; (c) the action is barred by estoppel; and (d)
respondent
did
not
come
to
court
with
clean
hands.

which is a remedy designed to correct errors of jurisdiction and not errors of

judgment. However, we have likewise held that when the denial of the
Motion to Dismiss is tainted with grave abuse of discretion, the grant of the
extraordinary
remedy
of
Certiorari
may
be
justified

The RTC issued an Order denying the Motion to Dismiss. According to the
trial court, there was a proper service of summons through the Department
of Foreign Affairs (DFA) on account of the fact that the defendant has neither
applied for a license to do business in the Philippines, nor filed with the
Securities and Exchange Commission (SEC) a Written Power of Attorney
designating some person on whom summons and other legal processes
maybe served. The trial court also held that the Complaint sufficiently stated
a cause of action. The other allegations in the Motion to Dismiss were
brushed aside as matters of defense which can best be ventilated during the
trial.

The resolution of the present Petition therefore entails an inquiry into

whether the Court of Appeals correctly ruled that the trial court did not
commit grave abuse of discretion in its denial of petitioners Motion to
Dismiss. A mere error in judgment on the part of the trial court would
undeniably be inadequate for us to reverse the disposition by the Court of
Appeals.

ISSUES:
I.

Whether

petitioner

is

real

party

in

interest

II. Whether or not it was proper for the petitioner to resort to a petition for
certiorari
with
the
CA
III. Whether or not the lower courts correctly denied the Motion to Dismiss
HELD:
(1) Respondent points out that as of the date of the filing of the Petition,
there is no such corporation that goes by the name NM Rothschild and Sons
(Australia) Limited. Petitioner claims that NM Rothschild and Sons (Australia)
Limited still exists as a corporation under the laws of Australia under the new
name Investec Australia Limited. We find the submissions of petitioner on
the change of its corporate name satisfactory and resolve not to dismiss the
present Petition for Review on the ground of not being prosecuted under the
name
of
the
real
party
in
interest.
(2) We have held time and again that an order denying a Motion to Dismiss
is an interlocutory order which neither terminates nor finally disposes of a
case as it leaves something to be done by the court before the case is finally
decided on the merits. The general rule, therefore, is that the denial of a
Motion to Dismiss cannot be questioned in a special civil action for Certiorari

(3) As correctly ruled by both the RTC and the CA, the alleged absence of a
cause of action, the alleged estoppel on the part of petitioner, and the
argument that respondent is in pari delicto in the execution of the challenged
contracts, are not grounds in a Motion to Dismiss as enumerated in Section
1, Rule 16[17] of the Rules of Court. Rather, such defenses raise evidentiary
issues closely related to the validity and/or existence of respondents alleged
cause of action and should therefore be threshed out during the trial.
As regards the allegation of failure to state a cause of action, while the same
is usually available as a ground in a Motion to Dismiss, said ground cannot
be ruled upon in the present Petition without going into the very merits of
the main case. In the case at bar, respondent asserts in the Complaint that
the Hedging Contracts are void for being contrary to Article 2018[25] of the
Civil Code. Respondent claims that under the Hedging Contracts, despite the
express stipulation for deliveries of gold, the intention of the parties was
allegedly merely to compel each other to pay the difference between the
value of the gold at the forward price stated in the contract and its market
price at the supposed time of delivery. The determination of whether or not
the Complaint stated a cause of action would therefore involve an inquiry
into whether or not the assailed contracts are void under Philippine laws.
This is, precisely, the very issue to be determined. The trial court, therefore,
correctly
denied
the
Motion
to
Dismiss
on
this
ground.
Petitioner alleges that the RTC has not acquired jurisdiction over its person
on account of the improper service of summons. Summons was served on
petitioner through the DFA, with respondents counsel personally bringing the
summons and Complaint to the Philippine Consulate General in Sydney,
Australia. Moreover, by seeking affirmative reliefs from the trial court,
petitioner is deemed to have voluntarily submitted to the jurisdiction of said

CIV PRO | Case Digest| Jan. 11, 2016 11

court. A party cannot invoke the jurisdiction of a court to secure affirmative
relief against his opponent and after obtaining or failing to obtain such relief,
repudiate or question that same jurisdiction. Consequently, the trial court
cannot be considered to have committed grave abuse of discretion
amounting to lack or excess of jurisdiction in the denial of the Motion to
Dismiss on account of failure to acquire jurisdiction over the person of the
defendant.

SANTOS VS LIWAG
FACTS:

Jose Santos filed a complaint against Lorenzo J. Liwag with the Court of
First Instance of Manila, docketed therein as Civil Case No. 57282,
seeking the annulment of certain documents as having been executed by
means of misrepresentations, machination, false pretenses, threats, and
other fraudulent means, as well as for damages and costs.

Liwag filed a bill of particulars on certain allegations on the complaint.

The plaintiff opposed the motion saying that the allegations in his
complaint are sufficient and contain ultimate facts con- constituting his
causes of action and that the subject of the defendant's motion is
evidentiary in nature.

CIV PRO | Case Digest| Jan. 11, 2016 12

The trial court granted the motion and directed the plaintiff "to submit a
bill of particulars with respect to the paragraphs specified in defendant's
motion",

The plaintiff failed to comply with the order.

The court, acting upon previous motion of the defendant,

complaint with costs against the plaintiff.

other fraudulent means without the particular-facts on which alleged fraud,

deceit, machination, or misrepresentations are predicated.

dismissed the

ISSUE: WON the trial court erred in granting the motion for bill of particulars
filed by Respondent Liwag.
HELD:
NO
BILL OF PARTICULARS DISCRETIONARY UPON THE COURT. - The
allowance of a motion for a more definite statement or bill of particulars
rests within the sound judicial discretion of the court and, as usual in
matters of a discretionary nature, the ruling of the trial court in that regard
will not be reversed unless there has been a palpable abuse of discretion or
a clearly erroneous order.In the instant case, the complaint is without doubt
imperfectly drawn and suffers from vagueness and generalization to enable
the defendant properly to prepare a responsive pleading and to clarify issues
and aid the court In an orderly and expeditious disposition tion in the case.
NEED FOR A BILL OF PARTICULARS DUE TO VAGUE COMPLAINT;
FAILURE OF TO COMPLY WITH A COURT ORDER TO FILE A BILL OF
PARTICULARS RESULTS IN DISMISSAL OF COMLAINT. - The present
action is one for the annulment of documents which have been allegedly
executed
by
reason
of
deceit,
machination,
false
pretenses,
misrepresentation, threats, and other fraudulent means. Deceit,
machination, false pretenses, misrepresentation, and threats, however, are
largely conclusions of law and mere allegations thereof without a statement
of the facts to which such terms have reference are not sufficient. The
allegations must state the facts and circumstances from which the fraud,
deceit, machination, false pretenses, misrepresentation, and threats may be
inferred as a conclusions In his complaint, the appellant merely averred that
all the documents sought to be annulled were all executed through the use
of deceits, machination, false pretenses, misrepresentations, threats, and

LEE BUN TING V ALIGAEN

CIV PRO | Case Digest| Jan. 11, 2016 13

Where A Filipino Citizen Sells Land To An Alien Who Later Sells The Land To A
Filipino, The Invalidity Of The First Transfer Is Corrected By The Subsequent

The Courts ruling:

Sale To A Citizen

The petition is without merit.

The Facts:
Lee Liong, a Chinese citizen, bought Lot 398 from the
Dinglasans in 1936. When Lee died in 1944 without will, he was succeeded
by his sons Lee Bing Hoo and Lee Bun Ting, who extrajudicially settled the
estate among themselves and partitioned Lot 398. When the brothers died,
Lot 398 was transferred by succession to their respective wives, Elizabeth
and Pacita Yu-Lee. In the 1956 case of Dinglasan vs. Lee Bun Ting1, the
Court held that the sellers (Dinglasan) cannot invalidate the sale of land (Lot
398) to the buyers who are Chinese citizen on the ground of in pare delicto;
in the latter case of Lee Bun Ting vs Judge Aligaen 2, the Court again
dismissed the case on the ground of res judicata, being a mere relitigation of
the Dinglasan case.On January 26, 1995, the Office of the Solicitor General
filed a Complaint for Reversion of Lot 398, praying that the sale of Lot 398 to
Lee Liong be set aside for being null and void, and for Lot 398 to be reverted
to the public domain for State disposal in accordance with law. In their
answer, Elizabeth and Pacita invoked the affirmative defense of prescription;
Lee a buyer in good faith and for value, and that they were qualified to own
by succession Lot 398, being Filipino citizens. The RTC ruled in favour of the
OSG and declared the sale of Lot 398 to Lee Liong as null and void. His
being a purchaser I good fait and for value did not cure the nullity of the
sale, and prescription does not run against the State. The Court of Appeals
however reversed the RTC. It ruled that the transfer of the land to Elizabeth
and Pacita who are both Filipino citizens may no longer be impugned even
though the initial sale was void, considering that the objective of the
constitutional proscription against alien ownership of lands, that is to keep
our lands in Filipino hands, has been achieved. The OSG elevated its case to
the Supreme Court. It argues that since the acquisition of Lot 398 was null
and void, it did not form part of estate of Lee Liong, and thus cannot be
transmitted by succession to his heirs and eventually to Elizabeth and Pacita.

Petitioner argues that since the sale of Lot No. 398 to Lee Liong was void,
Lot No. 398 never became part of the deceased Lee Liongs estate. Hence,
Lot No. 398 could not be transmitted by succession to Lee Liongs surviving
heirs and eventually to private respondents.

We do not subscribe to petitioners position. The circumstances of this case

are similar to the case of De Castro v. Teng Queen Tan,3 wherein a
residential lot was sold to a Chinese citizen. Upon the death of the alien
vendee, his heirs entered into an extrajudicial settlement of the estate of the
deceased and the subject land was transferred to a son who was a
naturalized Filipino. Subsequently, the vendor of the lot filed a suit for
annulment of sale for alleged violation of the Constitution prohibiting the
sale of land to aliens. Independently of the doctrine of in pari delicto, the
Court sustained the sale, holding that while the vendee was an alien at the
time of the sale, the land has since become the property of a naturalized
Filipino citizen who is constitutionally qualified to own land.
Similarly, in this case, upon the death of the original vendee who was a
Chinese citizen, his widow and two sons extrajudicially settled his estate,
including Lot No. 398. When the two sons died, Lot No. 398 was transferred
by succession to their respective spouses, herein private respondents who
are Filipino citizens.

CIV PRO | Case Digest| Jan. 11, 2016 14

We now discuss whether reversion proceedings is still viable considering that

The constitutional proscription on alien ownership of lands of the public or

Lot No. 398 has already been transfered to Filipino citizens. In the

private domain was intended to protect lands from falling in the hands of

reconstitution case of Lee v. Republic of the Philippines 4 involving Lot No.

non-Filipinos. In this case, however, there would be no more public policy

398, this Court explained that the OSG may initiate an action for reversion

violated since the land is in the hands of Filipinos qualified to acquire and

or escheat of lands which were sold to aliens disqualified from acquiring

own such land. If land is invalidly transferred to an alien who subsequently

lands under the Constitution. However, in the case of Lot No. 398, the fact

becomes a citizen or transfers it to a citizen, the flaw in the original

that it was already transferred to Filipinos militates against escheat

transaction is considered cured and the title of the transferee is rendered

proceedings, thus:

valid. Thus, the subsequent transfer of the property to qualified Filipinos

Although ownership of the land cannot revert to the original sellers, because

may no longer be impugned on the basis of invalidity of the initial transfer.

of the doctrine of pari delicto, the Solicitor General may initiate an action for

The objective of the constitutional provision to keep our lands in Filipino

reversion or escheat of the land to the State, subject to other defenses, as

hands has been achieved.5 (Emphasis supplied)

hereafter set forth.

In this case, the reversion proceedings was initiated only after almost 40
years from the promulgation of the case of Dinglasan v. Lee Bun

In this case, subsequent circumstances militate against escheat proceedings

because the land is now in the hands of Filipinos. The original vendee, Lee
Liong, has since died and the land has been inherited by his heirs and
subsequently their heirs, petitioners herein [Elizabeth Lee and Pacita Yu
Lee]. Petitioners are Filipino citizens, a fact the Solicitor General does not
dispute.

Ting,6 where the Court held that the sale of Lot No. 398 was null and void
for violating the constitutional prohibition on the sale of land to an alien. If
petitioner had commenced reversion proceedings when Lot No. 398 was still
in the hands of the original vendee who was an alien disqualified to hold title
thereto, then reversion of the land to the State would undoubtedly be
allowed. However, this is not the case here. When petitioner instituted the
action for reversion of title in 1995, Lot No. 398 had already been
transferred by succession to private respondents who are Filipino citizens.
Since Lot No. 398 has already been transferred to Filipino citizens, the flaw
in the original transaction is considered cured. 7 As held in Chavez v. Public
Estates Authority:8

CIV PRO | Case Digest| Jan. 11, 2016 15

Thus, the Court has ruled consistently that W.

Similarly, where the alien who buys the land subsequently acquires
Philippine citizenship, the sale was validated since the purpose of the
constitutional ban to limit land ownership to Filipinos has been achieved. In
short, the law disregards the constitutional disqualification of the buyer to
hold land if the land is subsequently transferred to a qualified party, or the
buyer himself becomes a qualified party.9(Emphasis supplied)
Clearly, since Lot No. 398 has already been transferred to private
respondents who are Filipino citizens, the prior invalid sale to Lee Liong can
no longer be assailed. Hence, reversion proceedings will no longer prosper
since the land is now in the hands of Filipino citizens.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 12 July

2002 and the Resolution dated 9 May 2003 of the Court of Appeals in CAG.R. CV No. 53890.

SO ORDERED.

GAUDENCIO GUERRERO vs. RTC OF ILOCOS NORTE, BR. XVI, JUDGE

LUIS B. BELLO, JR., PRESIDING, and PEDRO G. HERNANDO
October 25, 2012

CIV PRO | Case Digest| Jan. 11, 2016 16

FACTS:
Guerrero and Pedro are brothers in law , their respective wives being sisters.
Filed by petitioner as an accion publicana against private respondent, this
case assumed another dimension when it was dismissed by respondent
Judge on the ground that the parties being brother-in-law the complaint
should have alleged that earnest efforts were first exerted towards a
compromise.
ISSUE: WON brothers by affinity are considered members of the same
family.
HELD:
Considering that Art. 151 herein-quoted starts with the negative word No,
the requirement is mandatory 4 that the complaint or petition, which must
be verified, should allege that earnest efforts towards a compromise have
been made but that the same failed, so that [i]f it is shown that no such
efforts

were

in

fact

made,

the

case

must

be

dismissed.

No. The court already ruled in Gayon v. Gayon 6 that the enumeration of
brothers and sisters as members of the same family does not comprehend

G.R. No. 137359

September 13, 2004

sisters-in-law

EDWIN
N.
TRIBIANA,
vs.
LOURDES M. TRIBIANA, respondent

petitioner,

FACTS:
Edwin Tribiana & Lourdes Tribiana are husband and wife. Lourdes
filed a petition for habeas corpus before the Regional Trial Court claiming
that Edwin left their conjugal home with their daughter Khriza Mae 1 year

CIV PRO | Case Digest| Jan. 11, 2016 17

and 4 months old it turned out that it being held by Edwins mother, Rosalina
Tribiana.

Edwin moved to dismiss Lourdes petition on the ground that it failed

to allege that earnest efforts at a compromise Lourdes filed her opposition to
Edwins motion to dismiss that there were prior efforts at a compromise but
failed. Lourdes attached the Certification to file Action from their barangay.

RTC denied Edwins motion to dismiss and reiterated a previous

order requiring Edwin and his mother to bring Khriza Mae before the RTC.
Edwin filed with the Court of Appeals a petition for prohibition and certiorari.
The CA denied Edwins petition and also the motion for reconsideration.

ISSUE:
Whether the Trial Court and the Appellate Court, should have dismissed the
petition for habeas corpus on the ground of failure to comply with the
condition precedent under art. 151 of Family code.

HELD:
The petition is lack of merit, for the habeas corpus on the ground of
failure to comply with the article 151 of Family Code, can not be allowed
such to dismiss such with the compliance of art.151 because they are both
different in nature. The petition for habeas corpus is a valid ground or
contention of the respondent because she was deprived of personal liberty.
The art. 151 cannot be applied with this present case, if ever it were
supposed to be applied, Lourdes validly answer it with its compliance when
she attached the court to file action from their Barangay.

CIV PRO | Case Digest| Jan. 11, 2016 18

DANFOSS, INC. V. CONTINENTAL CEMENT CORP., G.R. NO. 143788, 9/9/05

TOPIC:

UNDER

CAUSE

OF

ACTION,

IN

CONTRAST

WITH

THE

BLOSSOM CASE, THIS IS A CASE WHERE THE PRINCIPLE OF

ANTICIPATORY BREACH CANNOT BE APPLIED

DANFOSS, INC. V. CONTINENTAL CEMENT CORP., G.R. NO. 143788,

9/9/05

CIV PRO | Case Digest| Jan. 11, 2016 19

NATURE OF THE CASE: The CA affirmed the decision of the RTC that the

MINCI that they intend to cancel its order. The order was cancelled on

CCCs (herein respondent) complaint for damages against Danfoss. So, the

November 13, 1997.

case was elevated to the Supreme Court on appeal of the said ruling of the

Hence the complaint for damages filed by CCC with the RTC of

CA and the CAs denial for Danfoss motion for reconsideration.

Quezon City against Danfoss and MINCI on November 5, 1998. In reply,

Danfoss filed a motion to dismiss the complaint.

FACTS: Mechatronics Instruments and Controls, Inc. (MINCI) is an agent of

Danfoss, Inc.s products here in the Philippines. On September 1997, CCC

CCC: Due to the impending delay in the delivery of its order, it suffered

ordered two unit 132 KW Danfoss Brand Frequency Converter/Inverter from

more than P8 million and was compelled to look for another supplier.

MINCI to be used in the Finish Mill of its Cement Plant in Bulacan. In the
terms of conditions of the original purchase order, the two unit Frequency
Converter shall be delivered by Danfoss within 8 to 10 weeks from the
opening of the letter of credit. The letter of credit opened by CCC in favour

Danfoss: The case should be dismissed on the ground that it did not state a

of Danfoss on September 9, 1997.

cause of action.

On September 17, 1997, MINCI informed CCC that its order are 1)
already ready for shipment and MINCI requested to amend the letter of

The letter of credit was opened on September 9, 1997, so, since the
agreed delivery period is 8 to 10 weeks from the opening of the letter of

credit changing the port of origin/loading from Singapore to Denmark

credit, the due date is until November 19, 1997.

(Singapore is the Asian Regional Office of Danfoss, the Head Office of the
company is Denmark). CCC complied and the port of origin in the letter of 2)

Although Danfoss was having a problem with its supplier prior to CCCs
cancellation of its order, CCC only surmised that Danfoss could not deliver

credit was changed.

within the due date agreed upon.

On November 6, 1997, MINCI relayed to CCC that Danfoss Inc. was

still checking the status of their order. CCC replied that every delay in the 3)

Neither Danfoss nor CCC agreed to change the date of delivery. Only the

delivery of the order will cause loss to their company, so CCC requested for

port of origin was changed in the letter of credit. Danfoss has until

early work out and immediate shipment to avoid further loss.

November 19, 1997 to deliver the order, CCC cancelled the order on
November 13, 1997.

But, on November 9, 1997, Danfoss Inc. informed MINCI through

fax, that the reason for the delivery problems was that some of the supplied 4)
components for the new VLT 5000 series (this may be a part of the converter
which is the subject thing in this case or a machine to create the converter)
did not meet the agreed quality standard. So, Danfoss was canvassing for
another supplier for the said VLT 5000 series. In the fax, there was no clear

CCC never made an extrajudicial demand for the delivery of its order on its
due date as it cancelled the order before the due date.

5)

Damages sought for by CCC could not have accrued yet since the order
was cancelled before the delivery was actually delayed.

message as to when normal production will resume.

Upon receiving the relayed information, CCC surmised that Danfoss
would not be able to deliver their order. There was also no definite
commitment of the delivery from Danfoss and MINCI, so CCC informed

RTC: Judgment in favor of CCC. According to the RTC:

CIV PRO | Case Digest| Jan. 11, 2016 20

...the issue of whether or not the defendants incur delay in the delivery of

this purpose, the motion to dismiss must hypothetically admit the truth of

the equipment in question within the period stipulated is a debatable

the facts alleged in the complaint.

question which necessitates actual trial on the merits where the parties have
to adduce evidence in support of their respective stance.
While the defendants contend that the stipulated period of delivery
had not lapsed yet when the plaintiff cancelled its order of the two
equipments in question as the cancellation took place seven (7) days before
the expiry date of the defendants obligation to deliver, the plaintiffs position
is that the acts of the defendants had made compliance with their obligation
to deliver within the period stipulated, impossible, hence, there was no need
for a demand as the law provides that when demand would be useless, as
when the obligor has rendered it beyond his power to perform. The
plaintiffs contention if properly and strongly supported by evidence during
the hearing of the merits of the case may well negates (sic) the defendants

The RTC erred in ruling that the issue of whether or not the
defendants incurred delay in the delivery of the equipment within the period
stipulated was a debatable question. How could Danfoss be liable for
damages when Danfoss had not yet breached his obligation to deliver the
order of CCC, aside from the fact that the obligation was already negated
when CCC cancelled the order before the prestation became due and
demandable? Thus, there was no breach and there was no damage caused
by Danfoss.

contrary stand.

The principle of anticipatory breach cannot be applied here because

the obligation was single and indivisible to deliver two units of frequency
converter by November 19, 1997. There was no showing that Danfoss

CA: Affirmed

the

decision

of

the

RTC

and

denied

the

Motion

for

Reconsideration of Danfoss.

refused to deliver, and on the contrary, Danfoss made an effort to make

good in its obligation by looking for other suppliers who could provide the
parts needed to make the timely delivery of the order. Thus, the case was
prematurely filed.

ISSUE: WON there was a cause of action in the complaint filed by CCC
against Danfoss and WON the principle of anticipatory breach can be applied

CCCs fear that Danfoss might not be able to deliver its order on
time was not the cause of action referred to by the Rules and jurisprudence.

in the case.

PETITION GRANTED. THE CAS DECISIONS ARE REVERSED AND SET

ASIDE.

HELD: No, there was no cause of action in the complaint for damages filed
by CCC.

G.R. No. 185922 : JANUARY 15, 2014

HEIRS OF DR. MARIANO FAVIS, SR., represented by their co-heirs
and Attorneys-in-Fact MERCEDES A. FAVIS and NELLY FAVIS-

In order to sustain a dismissal on the ground of lack of cause of action, the

insufficiency must appear on the face of the complaint. And the test of the
sufficiency of the facts alleged in the complaint to constitute a cause of

VILLAFUERTE, Petitioners, v. JUANA GONZALES, her son MARIANO G.

FAVIS, MA. THERESA JOANA D. FAVIS, JAMES MARK D. FAVIS, all

action is whether or not, admitting the facts alleged, the court can render a

minors represented herein by their parents, SPS. MARIANO FAVIS

valid judgment thereon in accordance with the prayer of the complaint. For

and LARCELITA D. FAVIS, Respondents.

CIV PRO | Case Digest| Jan. 11, 2016 21

HELD: The appellate court committed egregious error in dismissing the
FACTS:
Dr. Mariano Favis, Sr. (Dr. Favis) was married to Capitolina Aguilar

complaint.
REMEDIAL LAW : motu proprio dismissal

(Capitolina) with whom he had seven children. When Capitolina died in

The appellate court committed egregious error in dismissing the complaint.

March 1994. Dr. Favis married Juana Gonzalez (Juana), his common-law wife

The appellate courts decision hinged on Article 151 of the Family Code,

with whom he sired one child, Mariano G. Favis (Mariano), he executed an

Art.151.No suit between members of the same family shall prosper unless it

affidavit acknowledging Mariano as one of his legitimate children. Mariano is

should appear from the verified complaint or petition that earnest efforts

married to Larcelita D. Favis (Larcelita), with whom he has four children.

toward a compromise have been made, but that the same have failed. If it is

Dr. Favis died intestate on July 29, 1995. On October 16, 1994, prior his

shown that no such efforts were in fact made, the case must be dismissed.

death, he allegedly executed a Deed of Donation transferring and conveying

The appellate court correlated this provision with Section 1, par. (j), Rule 16

properties in favor of his grandchildren with Juana. Claiming the said

of

donation prejudiced their legitime, Dr. Favis children with Capitolina,

1. Grounds. - Within the time for but before filing the answer to the

petitioners herein, filed an action for annulment of the Deed of Donation,

complaint or pleading asserting a claim, a motion to dismiss may be made

inventory, liquidation, liquidation and partition of property before the RTC

on any of the following grounds:(j) That a condition precedent for filing the

against Juana, Sps. Mariano and Larcelita and their grandchildren as

claim has not been complied with.

respondents.

The appellate courts reliance on this provision is misplaced. Rule 16 treats of

RTC nullified the Deed of Donation. The trial court found that Dr. Favis, at

the grounds for a motion to dismiss the complaint. It must be distinguished

the age of 92 and plagued with illnesses, could not have had full control of

from the grounds provided under Section 1, Rule 9 which specifically deals

his mental capacities to execute a valid Deed of Donation.

with dismissal of the claim by the court motu proprio. Section 1, Rule 9 of

The Court of Appeals ordered the dismissal of the petitioners nullification

case. The CA motu proprioproprio ordered the dismissal of the complaint for
failure of petitioners to make an averment that earnest efforts toward a
compromise have been made, as mandated by Article 151 of the Family
Court.
ISSUE: Whether or not the appellate court may dismiss the order of
dismissal of the complaint for failure to allege therein that earnest efforts
towards a compromise have been made?

the

1997

Rules

of

Civil

Procedure,

which

provides: Section

the 1997 Rules of Civil Procedure. Section 1, Rule 9 provides for only
four instances when the court may motu proprio dismiss the claim, namely:
(a) lack of jurisdiction over the subject matter; (b) litis pendentia; (c) res
judicata; and (d) prescription of action.

CIV PRO | Case Digest| Jan. 11, 2016 22

It was in Heirs of Domingo Valientes v. Ramas cited in P.L. Uy Realty
Corporation v. ALS Management and Development Corporation where we
noted that the second sentence of Section 1 of Rule 9 does not only supply
exceptions to the rule that defenses not pleaded either in a motion to
dismiss or in the answer are deemed waived, it also allows courts to dismiss
cases motu proprio on any of the enumerated grounds. The tenor of the
second sentence of the Rule is that the allowance of a motu propio dismissal
can proceed only from the exemption from the rule on waiver; which is but
logical because there can be no ruling on a waived ground.
A failure to allege earnest but failed efforts at a compromise in a complaint
among members of the same family, is not a jurisdictional defect but merely
a defect in the statement of a cause of action.
In the case at hand, the proceedings before the trial court ran the full
course. The complaint of petitioners was answered by respondents without a
prior motion to dismiss having been filed. The decision in favor of the
petitioners was appealed by respondents on the basis of the alleged error in
the ruling on the merits, no mention having been made about any defect in
the statement of a cause of action. In other words, no motion to dismiss the
complaint based on the failure to comply with a condition precedent was
filed in the trial court; neither was such failure assigned as error in the
appeal that respondent brought before the Court of Appeals.

Therefore, the rule on deemed waiver of the non-jurisdictional defense or

objection is wholly applicable to respondent. If the respondents as partiesdefendants could not, and did not, after filing their answer to petitioners
complaint, invoke the objection of absence of the required allegation on
earnest efforts at a compromise, the appellate court unquestionably did not
have any authority or basis to motu propio order the dismissal of petitioners
complaint.
The correctness of the finding was not touched by the Court of Appeals. The
respondents opted to rely only on what the appellate court considered,
erroneously though, was a procedural infirmity. The trial court's factual
finding, therefore, stands unreversed; and respondents did not provide us
with any argument to have it reversed.
The decision of the Court of Appeals is reversed and set aside and the
Judgment of the Regional Trial Court is AFFIRMED.

Petition for review is GRANTED.