Civpro Cases Rule 34-35

8/12/2019 Civpro Cases Rule 34-35

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Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 153867 February 17, 2005

WOOD TECHNOLOGY CORPORATION, CHI TIM CORDOVA AND ROBERT TIONGKING

YOUNG, petitioners,vs.EQUITABLE BANKING CORPORATION, Respondent.

D E C I S I O N

QUISUMBING,J.:

This petition for review seeks to reverse and set aside the Decision 1 dated April 11, 2001 ofthe Court of Appeals in CA-G.R. CV No. 57371 and its Resolution 2 dated June 3, 2002which denied the motion for reconsideration.

The case originated from a Complaint for Sum of Money filed on October 21, 1996, beforethe Regional Trial Court of Manila, Branch 29, by respondent Equitable BankingCorporation 3 against the petitioners, Wood Technology Corporation (WTC), Chi TimCordova, and Robert Tiong King Young.

The Complaint alleged that on December 9, 1994, WTC obtained from respondent a loan inthe amount of US$75,000, with 8.75% interest per annum, as evidenced by a Promissory

Note, No. FXBD94-00881, signed by Cordova and Young as representatives of WTC.Cordova and Young executed a Surety Agreement binding themselves as sureties of WTCfor the loan. Respondent bank made a final demand on April 19, 1996, for WTC to pay itsobligation, but petitioners failed to pay. Respondent prayed that petitioners be ordered to payit $75,603.65 or P2,018,617.46 (computed as of October 10, 1995) plus interest, penalty,attorneys fees and other expenses of litigation; and the cost of suit.

In their Answer, petitioners stated that WTC obtained the $75,000 loan; that Cordova andYoung bound themselves as its sureties. They claimed that only one demand letter, dated

April 19, 1996, was made by respondent. They added that the promissory note did notprovide the due date for payment. Petitioners also claimed that the loan had not yet maturedas the maturity date was purposely left blank, to be agreed upon by the parties at a laterdate. Since no maturity date had been fixed, the filing of the Complaint was premature, and itfailed to state a cause of action. They further claimed that the promissory note and suretyagreement were contracts of adhesion with terms on interest, penalty, charges andattorneys fees that were excessive, unconscionable and not reflective of the parties realintent. Petitioners prayed for the reformation of the promissory note and surety agreement tomake their terms and conditions fair, just and reasonable. They also asked payment ofdamages by respondent.


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On May 5, 1997, respondent moved for a judgment on the pleadings. The RTC, Branch 29rendered judgment 4and disposed as follows:

WHEREFORE, in view of the foregoing, and to abbreviate this case, judgment is herebyrendered based on the pleading[s] filed by the opposing parties and the documents annexedthereto. The defendant[s] Wood Technology Corporation, Robert Tiong King Young and Chi

Tim Cordova are hereby ordered to pay solidarily to herein plaintiff the sum of $75,000.00 orits equivalent in Philippine Currency and to pay the stipulated interest of 8.75% per annum tobe reckoned from the date that the obligation was contracted until the filing of this suit.Thereafter, the legal rate shall apply.

SO ORDERED.

Petitioners appealed, but the Court of Appeals affirmed the RTCs judgment. The appellatecourt noted that petitioners admitted the material allegations of the Complaint, with theiradmission of the due execution of the promissory note and surety agreement as well as ofthe final demand made by the respondent. The appellate court ruled that there was no needto present evidence to prove the maturity date of the promissory note, since it was payable

on demand. In addition, the Court of Appeals held that petitioners failed to show anyambiguity in the promissory note and surety agreement in support of their contention thatthese were contracts of adhesion. Finally, it ruled that the interest rate on the loan was notexorbitant.

The appellate court also denied petitioners motion for reconsideration.

Before us, petitioners now raise the following issues:

1. WHETHER OR NOT THE ANSWER OF PETITIONERS WITH SPECIAL AND AFFIRMATIVE DEFENSES FAILS TO TENDER AN ISSUE OR ADMITS THEMATERIAL ALLEGATIONS IN THE COMPLAINT SO AS TO JUSTIFY THERENDITION OF JUDGMENT ON THE PLEADINGS BY TRIAL COURT;

2. WHETHER OR NOT PETITIONERS SHOULD HAVE BEEN GIVEN THE RIGHTTO PRESENT EVIDENCE ON THEIR SPECIAL AND AFFIRMATIVE DEFENSES;

3. WHETHER OR NOT THE PROMISSORY NOTE IS A CONTRACT OF ADHESION CONTAINING UNREASONABLE CONDITIONS WHICH PETITIONERSSIGNED WITHOUT REAL FREEDOM OF WILL TO CONTRACT THEOBLIGATIONS THEREIN; AND

4. WHETHER OR NOT THE FILING OF THE COMPLAINT WAS PREMATURE AND/OR THE COMPLAINT FAIL[ED] TO STATE A CAUSE OF ACTION. 5

Simply put, the basic issue is whether the appellate court erred when it affirmed the RTCs judgment on the pleadings.

Petitioners argue that a judgment on the pleadings cannot be rendered because their Answer tendered genuine issues and disputed the material allegations in the Complaint.They claim that they did not totally or unqualifiedly admit all the material allegations in theComplaint, and that they had alleged special and affirmative defenses. If they were given the


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chance, they could have presented witnesses to prove their special and affirmativedefenses. 6

For its part, respondent Equitable Banking Corporation states that the Court of Appeals wascorrect in affirming the judgment on the pleadings granted by the RTC. It adds thatpetitioners had admitted the material allegations of the Complaint and they did not raise

genuine issues of fact that necessitate submission of evidence. It also contends that thespecial and affirmative defenses raised by petitioners concern the proper interpretation of theprovisions of the promissory note and surety agreement. Respondent asserts that thesedefenses may be resolved based on the pleadings and the applicable laws and

jurisprudence, without the need to present evidence. 71awphi1.nt

At the outset, we must stress the Courts policy that cases and controversies should bepromptly and expeditiously resolved. The Rules of Court seeks to shorten the procedure inorder to allow the speedy disposition of a case. Specifically, we have rules on demurrer toevidence, judgment on the pleadings, and summary judgments. In all these instances, a fullblown trial is dispensed with and judgment is rendered on the basis of the pleadings,supporting affidavits, depositions and admissions of the parties. 8

In this case, at issue is the propriety and validity of a judgment on the pleadings. A judgmenton the pleadings is proper when an answer fails to tender an issue, or otherwise admits thematerial allegations of the adverse partys pleading. 9

Both the RTC and Court of Appeals recognize that issues were raised by petitioners in their Answer before the trial court. This may be gleaned from their decisions which we partlyquote below:

RTCs ORDER:

. . .

Defendants raised the following defenses :

a. That the contract is one of adhesion and they were "forced to sign the same";

b. That the interest [8.75% per annum], penalties and fees are unconscionable;

c. That plaintiffs demand is premature. 10

. . .

Court of Appeals DECISION:

. . . They neither raise genuine issues of fact needing submission of evidence.Rather, these issues hoist questions concerning the proper interpretation of the provisionsof the promissory note and the surety agreement ! 11 (Emphasis supplied.)

Petitioners also contend that their Answer below raised issues that "are very materialand genuine ."12 Hence, according to petitioners, judgment on the pleadings was not proper.Respondent, on the other hand, argues that the special and affirmative defenses raised byPetitioners are not genuine issues that needed a hearing. 13


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We note now that (1) the RTC knew that the Answer asserted special and affirmativedefenses; (2) the Court of Appeals recognized that certain issues were raised, but they werenot genuine issues of fact; (3) petitioners insisted that they raised genuine issues; and (4)respondent argued that petitioners defenses did not tender genuine issues. However,whether or not the issues raised by the Answer are genuine is not the crux of inquiry in amotion for judgment on the pleadings. It is so only in a motion for summary judgment. 14 In a

case for judgment on the pleadings, the Answer is such that no issue is raised at all. Theessential question in such a case is whether there are issues generated by thepleadings. 15 This is the distinction between a proper case of summary judgment, comparedto a proper case for judgment on the pleadings. We have explained this vital distinctioninNarra Integrated Corporation v. Court of Appeals ,16 thus,

The existence or appearance of ostensible issues in the pleadings, on the one hand, andtheir sham or fictitious character, on the other, are what distinguish a proper case forsummary judgment from one for a judgment on the pleadings. In a proper case for judgmenton the pleadings, there is no ostensible issue at all because of the failure of the defendingpartys answer to raise an issue. On the other hand, in the case a of a summary

judgment, issues apparently exist " i.e. facts are asserted in the complaint regarding whichthere is as yet no admission, disavowal or qualification; or specific denials or affirmativedefenses are in truth set out in the answer " but the issues thus arising from the pleadingsare sham, fictitious or not genuine, as shown by affidavits, depositions, or admissions. . . .(Underscoring and emphasis supplied.)

Indeed, petitioners Answer apparently tendered issues. While it admitted that WTC obtainedthe loan, that Cordova and Young signed the promissory note and that they boundthemselves as sureties for the loan, it also alleged special and affirmative defenses that theobligation had not matured and that the promissory note and surety agreement werecontracts of adhesion.

Applying the requisites of a judgment on the pleadings vis--vis a summary judgment, the judgment rendered by the RTC was not a judgment on the pleadings, but a summary

judgment. Although the Answer apparently raised issues, both the RTC and the Court of Appeals after considering the parties pleadings, petitioners admissions and the documentsattached to the Complaint, found that the issues are not factual ones requiring trial, nor werethey genuine issues. 1vvphi1.nt

Summary judgment 17 is a procedure aimed at weeding out sham claims or defenses at anearly stage of the litigation. The proper inquiry in this regard would be whether the affirmativedefenses offered by petitioners constitute genuine issues of fact requiring a full-blowntrial.18 In a summary judgment, the crucial question is: are the issues raised by petitionersnot genuine so as to justify a summary judgment? 19 A "genuine issue" means an issue of factwhich calls for the presentation of evidence, as distinguished from an issue which is fictitiousor contrived, an issue that does not constitute a genuine issue for trial. 20

We note that this is a case for a sum of money, and petitioners have admitted that theyobtained the loan. They also admitted the due execution of the loan documents and theirreceipt of the final demand letter made by the respondent. These documents were allattached to the Complaint. Petitioners merely claimed that the obligation has not matured.Notably, based on the promissory note, the RTC and the Court of Appeals found thisdefense not a factual issue for trial, the loan being payable on demand. We are bound by thisfactual finding. This Court is not a trier of facts.


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When respondent made its demand, in our view, the obligation matured. We agree with boththe trial and the appellate courts that this matter proferred as a defense could be resolved

judiciously by plain resort to the stipulations in the promissory note which was already beforethe trial court. A full-blown trial to determine the date of maturity of the loan is not necessary.

Also, the act of leaving blank the maturity date of the loan did not necessarily mean that theparties agreed to fix it later. If this was the intention of the parties, they should have so

indicated in the promissory note. l^vvphi1.net They did not show such intention. l^vvphi1.net

Petitioners likewise insist that their defense tendered a genuine issue when they claimed thatthe loan documents constituted a contract of adhesion. Significantly, both the trial andappellate courts have already passed upon this contention and properly ruled that it was nota factual issue for trial. We agree with their ruling that there is no need of trial to resolve thisparticular line of defense. All that is needed is a careful perusal of the loan documents. Asheld by the Court of Appeals, petitioners failed to show any ambiguity in the loan documents.The rule is that, should there be ambiguities in a contract of adhesion, such ambiguities areto be construed against the party that prepared it. However, if the stipulations are clear andleave no doubt on the intention of the parties, the literal meaning of its stipulations must beheld controlling. 21

In sum, we find no cause to disturb the findings of fact of the Court of Appeals, affirmingthose of the RTC as to the reasonableness of the interest rate of 8.75% per annum on theloan. We also find no persuasive reason to contradict the ruling of both courts that the loansecured by petitioner WTC, with co-petitioners as sureties, was payable on demand.Certainly, respondents complaint could not be considered premature. Nor could it be said tobe without sufficient cause of action therein set forth. The judgment rendered by the trialcourt is valid as a summary judgment, and its affirmance by the Court of Appeals, as hereinclarified, is in order.

WHEREFORE, the Petition is DENIED for lack of merit.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.


Manila

FIRST DIVISION

G.R. No. L-40500 February 27, 1976

FAUSTO AUMAN, LIBRADO AUMAN, JORGE AUMAN, GREGORIO AUMAN, ERNESTOAUMAN, VICENTA AUMAN, CONCEPCION A. LUMAPAS, and CARLOSAUMAN,petitioners,vs.HON. NUMERIANO G. ESTENZO, Judge, Court of First Instance of Leyte, Branch V(Ormoc Branch) GERONIMO C. CAPAHI, ENCARNACION CORTES,respondents.


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Amado G. Olis for petitioners.

Cristobal S. Mendola for private respondents.

MUOZ PALMA,J.:

Did respondent Judge, Hon. Numeriano G. Estenzo, of the Court of First Instance of Leyte,Branch V, err and gravely abuse his discretion when ' he rendered a Summary Judgment inCivil Case No. 1395-0 on February 25, 1975, in favor of private respondents herein andagainst petitioners, and issued the order dated March 24, 1975, denying the latter's motionfor reconsideration of said judgment? 1

On January 14, 1975, spouses Geronimo and Encarnacion Capahi who are now the privaterespondents filed a complaint with the Court of First Instance of Leyte (Ormoc Branch)against Fausto Auman and others, now petitioners, for an easement of right-of-way anddamages, docketed as Civil Case No. 1395-0, substantially alleging that spouses Capahi are

the lessees of five parcels of land (Lots Nos. 6703-B-1, 6701, 6708, 6707 and 6705 with anapproximate area of 11.9311 hectares, more or less), located in Barrio R.M. Tan, OrmocCity, belonging to one Eulogio Simon, while Fausto Auman and his codefendants are the co-owners of four parcels (Lots Nos. 6696, 6700, 6702 and 6603-part) also located in the samebarrio; that the lots leased to spouses Capahi have no adequate outlet to a public highwayexcept through the lands of the Auman's, hence, the necessity for an easement of right-of-way, as shown in the sketch plan attached to the complaint, limited to the necessarypassage of the vehicles of the Capahi's and the transportation of their sugarcane through theservant estate to the public highway and to the sugar mills. 2

Petitioners, as defendants, answered the complaint specifically denying the materialallegations thereof and setting up in turn the following special and affirmative defenses.

8. That no easement of whatever kind exists on land of defendants in favor ofeither Eulogio Simon or plaintiffs, and none could be declared by thisHonorable Court;

9. That no easement of right away has been provided for and included in thealleged contracts of lease;

10. That plaintiffs have not asked Eulogio Simon, the owner of the lands, todemand from defendants and other adjoining owners right of way in favor ofSimon's lands;

11 That the complaint has failed to establish that plaintiffs have complied withthe preconditions for the grant of the easement of

right of way fixed by Articles 649 and 650 of the new Civil Code, namely, (a)that the leased lands are surrounded by other immovables and have noadequate outlet to a public highway, (b) that proper indemnity for the value ofthe lands and to be occupied and the amount of the damage caused to thesaid lands and their improvements has been pre-paid, (c) that the isolationwas not due to plaintiffs' own acts, and (d) that the right of way claimed is at


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the point least prejudicial to the defendants' lands and that the distance fromSimon's lands to the public highway is the shortest;

12 That the easement claimed is not compulsory;

13. That plaintiffs' own sketch, Annex B, unmistakably shows that the right ofway demanded is to most prejudicial, most onerous, and most burdensomeimposition upon defendants' lands causing defendants the maximuminconvenience, and covers the longest and most circuitous route fromSimons's lands to the public highway." (pp. 36-37, rollo)

In an Order dated February 5, 1975, the case was set for a pretrial for February 17, 1975,and parties were ordered to submit on said dated the following:

(a) a list of witnesses and documents supporting their action or defense;

(b) affidavits of the witnesses to serve as direct examination; and

(c) their respective memorandum in support of the parties' respective contentions.

The Orders also warned that any party who failed to submit on said date and time, a list ofwitnesses with affidavits as aforesaid or documents, which affidavits or documents should beattached to said list would be non-suited or defaulted as the case may be, for failure toprosecute his claims or defenses. 3

On February 17, a copy of their reply dated February 14, 1975, was furnished byrespondents-spouses to petitioners together with a new sketch plan of the lands involvedwith the explanation that the new sketch showed the Pagsanga-an river which traversed thelands leased by respondents-spouses. The same reply also contained an answer to thecounterclaim. 4

On the same date, February 17, a list of exhibits and of the witnesses was submitted byprivate respondents to the trial court, in partial compliance with the order of February 5. 5 Ontheir part, petitioners herein submitted their Memorandum dated February 15, 1975, givingthe names of their witnesses and the substance of their testimonies, together with affidavitsof said witnesses, and a brief statement as to why the right to pay should not be granted. 6

When the case was called for pre-trial, the petitioners were ready to proceed but the privaterespondents were not as they did not have the required affidavits of their Witnesses, andupon their request the Judge reset the case for February 26, 1975 for the omission of saidaffidavits. On February 24, 1975, petitioners' counsel received a telegraphic notice from thetrial court that the case had to be reset for February 25 since the original date of February 26had been declared a special public holiday. 7

On February 25, 1975, petitioners however filed by registered mail a "Motion to Admit Amended Answer" to which was attached the Amended Answer dated February 24, 1975.Petitioners alleged in their motion that since the reply of private respondents presented asketch different from that attached to the complaint and in order that the issues would bedealt with squarely, it was necessary and expedient that the answer of petitioners beamended accordingly without altering the theory of their defense. 8 Petitioners' counsel also


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wired the Clerk of Court asking that the Motion to Admit Amended Answer be set for hearingon March 6 instead of May 6 as stated in the motion. 9

On March 5, a wire was received by petitioners from Judge Estenzo to the effect that theMotion to Admit Amended Answer had become moot and academic because a SummaryJudgment had already been rendered by him. 10 On March 7, petitioners' counsel received a

copy of the Summary Judgment dated February 25, 1975, with the following dispositiveportion:

WHEREFORE, summary judgment is hereby rendered in favor It is plaintiffsand against the defendants ordering the latter to open lot tight of way on Lots6696, 6700, 6703 of the Ormoc Cadastre, necessary for sugarcane trucks topass, upon plaintiffs' payment to the defendants of a rental at the rate ofP400.00 per hectare of sugar harvest or of the amount at the rate ofP4,000.00 per hectare as a sale I what maybe u as a road right of way, withthe plaintiffs litigation of maintaining the road right of way after such payment,in both the plaintiffs and the defendants to use said road right of way isindicated in Annex 'B-1', without pronouncement as to costs. (p. 79. rollo)

Petitioners moved for a reconsideration of the foregoing summary judgment principally onthe ground that it was prematurely rendered and prayed that their amended answer beadmitted and the case set for pre-trial and trial. 11 The Motion for Reconsideration was deniedin an Order dated March 24, 1975. 12 Hence, this appeal on certiorari.

We find merit in this petition.

Rule 34 of the Rules of Court covers summary judgments and sets down the procedure to betaken in order that a summary judgment may be issued by a trial court.

Briefly stated, a summary judgment is one granted by the court, upon motion by any of theparties, for the prompt and expeditious settlement of the case, after both parties havepleaded, the motion to be supported by affidavits, depositions, or other documents, afternotice thereof had been served upon the adverse party, who in turn may oppose the motionwith supporting affidavits and other documents and, after hearing, it appears that there is nogenuine issue as to any material fact, except as to the amount of damages, and that themovant or the moving party is entitled to a judgment as a matter of law. 13

The summary judgment rendered by respondent Judge Estenzo was in violation of theforegoing basic rule.

1. There was no motion for a summary judgment with supporting affidavits and of depositionsthat was ever filed by respondents Capahi and served on petitioners herein.

As enumerated and reproduced in the summary judgment itself, all that respondent Judgehad before him on February 25, 1975, the date when the judgment was rendered, were thefollowing: complaint for easement of right of way answer of the defendants; Order datedFebruary 5, 1975, setting the case for pre-trial and trial and requiring the parties to submittheir respective list of witnesses and corresponding affidavits, documentary evidence, etc.;list of exhibits of plaintiffs Capahi and the latter's witnesses; and defendants' Memorandumcontaining a list of witnesses and their respective affidavits.


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Respondents Capahi did not submit on or before February 25, 1975, the affidavits ordepositions of their witnesses as they now claim in their memorandum filed before this Courton September 10, 1975, for had they done so, those documents would have been mentionedand reproduced in the summary judgment as was done with the affidavits of petitioners'witnesses. We believe, therefore, petitioners p contention that respondent Judge renderedhis summary Judgment without any supporting documents from respondents Capahi in

whose favor the judgment was rendered.

The purpose of a motion for summary judgment 14 is to enable the trial court to determinewhether or not a bona fide issue exists between the parties, and if none ' for the court torender a summary judgment as prayed for. This the court can do only after proper notice tothe adverse party who has to be served with a copy of the motion for summary judgment withits supporting affidavits at least ten days before the date of the hearing of the motion (Sec. 3,Rule 34). The adverse or opposing party is given by the Rules sufficient time to prepareand submit on the date of the hearing his own counter affidavits, depositions, or otherdocuments to show that it has a real and valid defense which raises a genuine issue of factproper for trial. ( id .)

Quite obviously, petitioners herein were denied the right accorded them by Section 3, Rule34, and respondent Judge rendered judgment against them without proper hearing.

Private respondents assert, however, that there was substantial compliance with the Ruleswhen the trial court included in its Order of February 5, 1975, setting the case for pre-trial.the following statement:

Both parties are granted until February 17, 1975, at 7:30 A.M. to submit theirrespective memorandum in support of their respective contentions ' in theirpleadings as may be supported by the affidavits of their witnesses andexhibits, at which time the incident will be heard mind thereafter submitted fora judgment on the pleadings or a summary judgment pursuant to Section 3,Rule 20 of the Revised Rules of Court should this Court find that acts andfacts exist which could warrant such judgment. (p. 41, rollo)

The above statement of the court a quo did not preclude the necessity of hearing the partieson the propriety of a summary judgment. A hearing was an invariable prerequisite, as itsessence was to inquire into the existence of a genuine controversy, especially since in theinstant case there was lack of the necessary documents such as affidavits and/ordepositions of the witnesses of the plaintiffs, now respondents, Capahi or even admissions ofthe defendants, now petitioners. As adverted to earlier, all that respondent Capahi submittedat the pre-trial was a list of their exhibits and witnesses, but that no affidavits of the latter werepresented to form a basis for a summary y judgment in their favor.

Strangely enough, as petitioners now maintain, notwithstanding the fact that they were the

very ones who had presented affidavits of their witnesses showing the presence of realissues of fact which needed to be tried, the summary judgment rendered by respondentJudge was adverse to them

2. The answer of petitioners herein as defendants in the court below as well as the affidavitsof their witnesses submitted on February 17, 1975, raised genuine issues which could beresolved only after an appreciation of the evidence of the parties.


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Petitioners resisted the complaint for an easement of right of way over their lands on variousgrounds: first, that the lands of Capahi had an outlet to the public highway other than throughthe lands of the Aumans, that is, to the east where a road built by plaintiff's older brother isbeing used to transport sugar road right-of-way which cane; second, that the approachmeasures 5 meters wide by 246 meters long is the longest, most circuitous and burdensome,as it passes through all the four lots of Fausto Auman, although it is possible to construct a

road right-of-way through only one of the lots, lot No. 6703, which would be the shortest andnearest exit the public road; . and third, that the right-of-way could start from Capahi's lot6705 which adjoins Aumans lot 6703 where the R.M. Tan road ends, thereby involving only aportion of 12 meters. (Joint affidavit of Nicolas Escototo and Norberto Andrin, Affidavit ofFausto Auman, Defendant's Memorandum, Amended Answer, pp. 4950, 57, rollo)

To substantiate the merits of their defense, petitioners invoked Article 649 of the Civil Codewhich expressly provide 8 that the owner, or any person who by virtue of i real right maycultivate or use any immovable, which is surrounded by other immovable pertaining to otherpersons and without adequate outlet to a public highway , is entitled to demand a right-of-waythrough the neighboring estates, after payment of the proper indemnity, and Article 650which states that the easement of a right-of-way shall be established at the point least

prejudicial to the servient estate and insofar as not in connect with this rule, where thedistance from the dominant estate to a public highway may be the shortest.

Among the issues of fact therefore which were to be re solved and could be resolved by thetrial court only on the basis of the evidence of the parties, were: (1) did the lands of Capahihave adequate outlet to the public highway; (2) was the pro road the only Possible exit; and(3) was it the least prejudicial to the owners of the servant estate?

Without resolving these issues, or worse still, finding them without receiving evidence on thematter , respondent Judge pronounced judgment against petitioners granting the proposedright-of-way, fixing the amount of P400.00, as I to be maid by Capahi and even allowing thelatter to buy the portion Of land to be u as the road right-of-way at P4,000.00 a hectare.

Undoubtedly, respondent Judge is misguided in his concept of a summary judgment.

It is settled that Rule 34 of the Rules of Court

... does not vest in the court jurisdiction summarily to try the issues ondepositions and affidavits, but give the court limited authority to entersummary judgment only if it clearly appears that there is no genuine issue ofmaterial fact. Upon a motion for summary judgment the court's sole functionis to determine whether there is an issue of fact to be tried, and all doubts asto the existence of an issue of fact must be resolved against the movingparty. On a motion for summary judgment the court is not authorized todecide an issue of fact, but is to determine whether the pleadings and record

before the court create an issue of fact to be tried. In other words, the rule(Rule 34 sec. 3) does not invest the court with jurisdiction summarily to trythe factual issues on affidavits, but authorizes summary judgment only if itclearly appears that there s no genuine issue as to any material fact. (Moran'sComments on the Rules of Court, Vol. 1, p. 600, 2nd Ed.) (Emphasissupplied)

Judge Estenzo's reference to the case of Taleon vs. Secretary of Public Works ,L-24281, May 16, 1967, 20 SCRA 69, as his authority (p. 83, rollo) is untenable. In Taleon a


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summary judgment was rendered by the trial court and upheld by this Court for purelyquestions of law were involved which did not require a full trial. thus this Court held:

Appellants contentions are without merit. First of all, a full trial was notneeded. the issues raised before the court a quo were all purely legal andthus could be resolved on the basis of the pleadings and the memoranda

filed and the administrative records sent up to it. no necessity was there forfurther reception of evidence. (20 SCRA 73)

What should have guided respondent Judge is, among others, Ibaez vs. North NegrosSugar Co., Inc., et al ., L-6790, March 28, 1955, where this Court emphasized the rule that asummary judgment can only be rendered where there are no question of fact at issue, orwhere the material allegations of the pleadings are not disputed, and that it is no error for atrial court to grant a motion for summary judgement in spite of the controversial nature of thecase involved. Likewise in Gatchalian vs. Pivilin, et al ., L-17619, October 31, 1962, 6 SCRA509, this court annulled and set aside a summary judgment rendered by the Court of FirstInstance of Isabela in its civil case No. 385 which declared plaintiff-appellee, FranciscaGatchalian, owner of the property under litigation and ordered defendant-appellants tovacate the same, the Court findings that from the leadings and affidavit submitted by thedefendants in opposition to a motion for summary judgment , there were general issues offact which made a trial indespensable and a summary judgment improper. In Aganas vs.Nagum , L-20707, March 30, 1970, 32 SCRA 298, 299, this court, with Justice ClaudioTeehankee as the writer of the Opinion, reiterated once again "the established precept thattrial courts have but limited authority to render summary judgments and may do so only incases where there Id clearly no genuine issue as to any material fact. 15

In closing, it may be well to restrate that this writer said for the Court in Constantino vs. Hon.Estenzo, et al., L-40403, July 31, 1975:

... the demands of a fair, impartial, and wise administration of justice call for afaithful adherence to legal precepts on procedure which ensure to litigantsthe opportunity to present their evidence and secure a ruling on all issuespresented in their respective pleadings. Short-cuts in judicial processes areto be avoided where they impede rather than promote a judiciousdispensation of justice. (65 SCRA 675, 679))

IN VIEW OF ALL FOREGOING, We hereby set aside the summary judgment in Civil CaseNo. 1395-0 dated February 25, 1975, as well as the order of the respondent court datedMarch 24, 1975, and order respondent Judge to admit the amended answer of petitionersherein in the aforesaid case, to set the case for pre-trial, and a trial on the merits, pursuant tolaw. With costs against private respondents.

SO ORDERED.

Teehankee (Chairman), Makasiar, Esguerra and Martin, JJ., concur.


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was the negligence of third persons (the drivers, Danilo Ang and Rodolfo D. Endino, of aToyota pick-up truck bearing Plate No. T-RU-221, and a Ford pick-up truck with Plate No.TRU-420, respectively) over whom defendant Corazon Ramirez Uy had no supervision andcontrol, and who were then driving their respective vehicles at a fast rate of speed and fromdifferent directions, as a result of which said vehicles collided, and because of that collisionthe. Ford pick-up truck was deviated from its lane and hit the jeep of defendants. Defendants

likewise set up a counterclaim for damages by reason of plaintiff's institution of the clearlyunfounded suit against them.

ON April 16, 1975, respondents filed a motion for summary judgment against plaintiff on theground that there is no genuine issue as to any material fact in the case except as to theamount of damages defendants are seeking from plaintiff by way of counterclaim. In supportof their motion for summary judgment, certain annexes to the answer were incorporatedtherein, as follows:

(a) The sketch of the accident made by Traffic Investigator J. S. Formeloza ofthe Davao City Police Department, marked as Annex "3" of the defendants'answer.

(b) Said investigator's affidavit detailing his findings upon investigation statingthat the pick-up with plate No. T-RU-420 upon reaching the intersection ofRecto and Bonifacio Streets collided with the pick-up with plate No. T-RU-221, and that upon impact, the latter pick-up collided with the jeep driven byLucio Galaura that was coming from the opposite direction. (Annex "4" ofdefendants' answer)

(c) The respective sworn statements of the drivers of the two pick-ups (Danilo Ang and Rodolfo Endino) taken by the Traffic Division of the Davao CityPolice Department after the accident, marked as Annexes "5" and of thedefendants' answer wherein each driver respectively claimed that heexercised due care but attributed to the other negligence as the cause of thecollision; and

(d) The sworn statement of defendant driver (Lucio Galaura) of said A. C.Jeep, likewise taken by the Traffic Division of the Davao City PoliceDepartment detailing what he did in order to prevent or minimize damages tohis vehicle and his passengers, marked as Annex "7" of defendants' answer.

By means of the foregoing annexes, respondents sought to prove that they were relieved ofany liability to petitioner inasmuch as the accident which caused the death of petitioner's wife"resulted from the negligence of third persons over whom defendants had no supervision orcontrol, namely, the drivers of the two pick-up trucks which collided at the intersection of C.M. Recto Ave. and Bonifacio St., Davao City, as a result of which collision, one of them was

deviated from course to the lane where defendants' AC- Jeep was then travelling, where italso collided with the latter."

Petitioner opposed the above motion, relying heavily on the presumption that in case ofdeath of the passenger, the common carrier is presumed "to have been at fault or to haveacted negligently," 1 unless the carrier proves that he has observed extraordinary diligencewith due regard to all the circumstances, which movants failed to do.


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Notwithstanding the opposition filed by the plaintiffs, respondent Judge issued the order ofMay 20, 1975, stating, in part, as follows:

The Court has considered at length and thoroughly the pleadings in theaction, the affidavits and other pertinent annexes (Annexes 1 to 6), of themovants, and has found that there is no genuine issue as to material fact and

no controversial question of fact to be submitted to the trial court, and hasconcluded that defendants are entitled to a judgment as a matter of lawexcept as to the amount of damages recoverable.

It is therefore ordered and decreed that defendants have judgment summarilyagainst the plaintiff for such amount as may be found due them for damages,to be ascertained by trial upon that issue alone on June 9, 1975 at 8:30 a.m.

A motion for reconsideration of the afore-quoted Order, on the ground that said Order,having failed to state clearly and distinctly the facts and the law on which it is based, violatedthe Constitution and the Rules of Court, was denied "for lack of merit" on June 9, 1975,hence the present petition for certiorari with prohibition.

Pursuant to Section 2, Rule 34, of the Revised Rules, "A party against whom a claim,counterclaim, or crossclaim is asserted or a declaratory relief is sought may, at any time,move with supporting affidavits for a summary judgment in his favor as to all or any partthereof." 2 The defendant who believes that he is entitled to a judgment either on thepleadings or on the basis of extrinsic facts established by affidavits or depositions may movefor summary judgment in his favor. 3 In other words, when the moving party is a defendingparty, his pleadings, depositions or affidavits must show that his defenses or denials aresufficient to defeat the claimant's claim. The affidavit submitted by the party moving forsummary judgment shall be by persons having personal knowledge of the facts; it shall reciteall material facts and show that there is no defense to the cause of action or that the cause ofaction has no merits. 4 This motion shall be served on the adverse party at least ten (10)days prior to the time specified in the hearing. The adverse party may also, prior to said date,serve opposing affidavits. The opposing papers, including pleadings, depositions, andaffidavits must establish a genuine issue of fact in order to defeat a motion for summary

judgment. After hearing, the motion for summary judgment shall be granted if, on the basis ofall the papers and proofs submitted, the cause of action or defense shall be establishedsufficiently to warrant the court as a matter of law in directing judgment in favor of any party.The motion shall be denied if any party shall show facts sufficient to require a trial of anyissue of fact other than an issue as to the amount or extent of the damages. 5 This SummaryJudgment or Accelerated Judgment is a device for weeding out sham claims or defenses atan early stage of the litigation, thereby avoiding the expense and loss of time involved in atrial. 6 The very object is "to separate what is formal or pretended in denial or averment fromwhat is genuine and substantial, so that only the latter may subject a suitor to the burden of atrial. 7 In conducting the hearing, the purpose of the judge is not to try the issue, but merelyto determine whether there is a meritorious issue to be tried. Where a motion is made forsummary judgment, such motion is not directed to the pleadings and deals only with thequestion of whether there are triable issues of facts and where such issues exist summary

judgment must be denied. 8 Summary judgment should not be granted where it fairly appearsthat there is a triable issue to be tried. 9 "The Court should not pass, on questions ofcredibility or weight of evidence, and that the summary judgment procedure 'should not beperverted to the trial of disputed questions of fact upon affidavits". 10 The test, therefore, of amotion for summary judgment iswhether the pleadings, affidavits and exhibits in support ofthe motions are sufficient to overcome the opposing papers and to justify a finding as amatter of law that there is no defense to the action or the claim is clearly meritorious. 11


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In proceedings for summary judgment, the burden of proof is upon the plaintiff to prove thecause of action and to show that the defense is interposed solely for the purpose ofdelay. 12 After plaintiff's burden has been discharged, defendant has the burden to showfacts sufficient to entitle him to defend. 13

Under the contract of carriage, private respondents assumed the express obligation to

transport the wife of petitioner to her destination safely and to observe extra ordinarydiligence with due regard for all the circumstances, and that any injury suffered by her in thecourse thereof, is immediately attributable to the negligence of the carrier. 14 To overcomesuch presumption, it must be shown that the carrier had observed the required extraordinarydiligence, 15 which means that the carrier must show the "utmost diligence of very cautiouspersons * * * as far as human care and foresight can provide", 16 or that the accident wascaused by a fortuitous event. 17 In order to constitute a caso fortuito that would exempt aperson from responsibility, it is necessary that (1) the event must be independent of thehuman will; (2) the occurrence must render it impossible for the obligor to fulfill his obligationin a normal manner; and (3) the obligor must be free of a concurrent or contributory fault ornegligence. 18 It was precisely because of the legal presumption that once a passenger inthe course of travel is injured or does not reach his destination safely, the carrier and thedriver are presumed to be at fault, that private respondents submitted affidavits to prove thatthe accident which resulted in the death of petitioner's wife was due to the fault or negligenceof the drivers of the two pickup trucks over whom the carrier had no supervision or control.Having, therefore, shown prima facie that the accident was due to a caso fortuito and that thedriver of the respondent was free of concurrent or contributory fault or negligence, it wasincumbent upon petitioner to rebut such proof. Having failed to do so, the defense of thecarrier that the proximate cause of the accident was a caso fourtuito remains unrebuted. Weare not unmindful that the issue as to whether a carrier used such reasonable precautions toavoid the accident as would ordinarily be used by careful, prudent persons under likecircumstances is a question essentially one of fact and, therefore, ordinarily such issue mustbe decided at the trial. 19 But where, as in the case at bar, petitioner has not submittedopposing affidavits to controvert private respondents' evidence that the driver of thepassenger jeepney was free of contributory fault as he stopped the jeepney to avoid the

accident, but in spite of such precaution the accident occurred, respondent Judge did not,therefore, act arbitrarily in declaring in his Order of May 20, 1975, that "there is no genuineissue to any material fact and no controversial question of fact to be submitted to the trialcourt." This was, however, a mere interlocutory order directing that a hearing be conductedfor the purpose of ascertaining the amount or the assessment of damages which may beadjudged in favor of the prevailing party. It is a determination of the court of a preliminarypoint or directing some steps in the proceedings, but not a disposition of the merits. 20 "Uponthe rendering of the assessment, the Court shall direct the entry forthwith of the appropriatesummary judgment." 21

In the absence of any findings of fact and conclusions of law, the aforesaid order ofrespondent Judge cannot be considered a judgment. It has been held that "a trial court ingranting summary judgment should file findings of fact and conclusion of law or amemorandum opinion so as to disclose grounds upon which the trial court reached itsdetermination." 22 In this jurisdiction, pursuant to Section 9 of Article X of the Constitution andthe procedural rules, all judgments determining the merits of cases should state clearly anddistinctly the facts and the law on which it is based. 23

There being no judgment, the present petition is, therefore, premature. Certainly, petitionercould move for the setting aside of the aforesaid Order of May 20, 1975 by the presentationof opposing affidavits showing that, other than the issue as to the amount or extent ofdamages, there is a genuine issue of fact on the carrier's liability.


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ACCORDINGLY, the petition for certiorari with prohibition is dismissed, without specialpronouncement as to costs.

Fernando (Chairman), and Martin JJ., concur.

Concepcion, Jr., is on leave.

Separate Opinions

BARREDO, J., concurring:

I concur in the judgment dismissing the instant petition, but I believe it is necessary toemphasize that this decision does not mean that the Court is upholding the questioned orderas the summary judgment prayed for by private respondents. Actually, the said order mustbe construed, despite its seemingly inaccurate tenor, as nothing but an interlocutory oneholding that respondents have sufficiently established the bases for a summary judgmentwhich will be rendered after the court has received and duly evaluated the evidence as to theamount of damages that should be awarded to them for their counterclaim.

Indeed, it is opportune for the Court to clear up in this case some points in summary judgment procedure which by all means should be encouraged whenever appropriate,regardless of the nature of the cause of action involved, if summary judgment procedurewhich has been purposely designed to abbreviate proceedings in cases where the issues arenot genuine is to continue to have any place at all in the Rules of Court. The trouble is thatthere is such a lamentable dearth of knowledge not only of the concept but also of theprocedure contemplated that in actual practice: in the few instances it has been resorted to,

the results have been rather disappointing, almost frustrating.

To start with, there is the usual error of equating summary judgment with judgment on thepleadings. Very often, it is contended that because the allegations in the pleadings give riseto triable issues of fact, summary judgment is not proper. In other words, it is assumed that

just because there is a joining of the factual issues in the pleadings which, by the way, arenot under oath, necessarily a trial with presentation of evidence by both parties is called for.But such criterion is true only for denying a motion for judgment on the pleadings, certainlynot for summary judgment. For the basic reason for judgment on the pleadings is that theallegations in the pleadings of the contending parties show that there is no controversy at allbetween them as to the facts, which is not the reason behind summary judgments. Insummary judgment procedure, it is assumed precisely that in their pleadings, the partieshave joined issues on the ultimate facts, at least, but just the same, trial is foreclosedbecause the factual issues thus joined do not appear to be genuine, meaning to say, theyare not real but sham. And a factual issue raised by a party is considered as sham when byits nature it is evident that it cannot be proven or it is such that the party tendering the samehas neither any sincere intention nor adequate evidence to prove it. This usually happens indenials made by defendants merely for the sake of having an issue and thereby gainingdelay, taking advantage of the fact that their answers are not under oath anyway.

On that score, the problem that is apparently troubling the trial courts and the practitionersand which has brought about the confusion underlying the seeming reluctance, if not


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inability, of some courts to resort to summary judgment procedure is how to determine thatthe factual issues in a given case and referred to in the motion for summary judgment aregenuine or not. It is my impression after forty years in the bar that it is not yet clear toeveryone concerned that such determination is not supposed to be based on the tenor orcontents of the pleadings. It is only from the consideration and appraisal of the facts allegedunder oath by the parties and/or their witnesses in their affidavits submitted with the motion

and the corresponding opposition that such genuineness may and should be determined. Ofcourse, the function of examining and weighing the said affidavits for the purpose justindicated can be properly performed only by one who is thoroughly prepared, both in theoryand in practice, more particularly the latter. The precise objective in such undertaking is tofind out, from a general consideration of all the detailed facts stated in the affidavits takentogether, whether or not the denial by one party of the truth of the allegations of theadversary is such that it would be safe to conclude from the fact of said affidavits thatultimately, one of them will necessarily prevail. In this connection, it goes without saying thatthe facts that should be stated in the affidavits must be specific and categorical, and notmerely general and equivocal. Should the court feel that in the light of such facts, assumingtheir veracity, the actual reception of evidence would be superfluous because even thegeneral thrust alone is definitely in favor of the moving party, then it is obvious that asummary judgment may be rendered.

In the main, whether or not the court should decide in favor of either a summary judgment ora full-blown trial lies in the sound discretion of the trial judge, it being understood that he hasfully imbibed the basic objective of the remedy, namely, to do away with unnecessary trial aslong as this can be done without causing injustice to any of the parties. He must not avoidtrial just because it involves more work and time, but, on the other hand, he must not wastetime and effort in receiving evidence, where, on the basis of the affidavits and counter-affidavits before him, the result is already a foregone conclusion or indubitably predictable. Incase of doubt, it is, of course, preferable to hold a trial, in which event, he and the parties,under his guidance, may as far as practicable make use of such portions of the affidavits andcounter-affidavits as would conduce to the abbreviation of the proceedings. And this may bebest accomplished at the pre-trial, which, to my mind, is not indispensable before summary

judgment procedure may be started. In other words, a motion for summary judgment,particularly that of a defendant before filing his answer, precludes the necessity of a priorpre-trial; it is after an attempt to secure summary judgment fails that a pre-trial is not onlymandatory but more appropriate.

The foregoing discussion should make it plain that when the party against whom a summary judgment is asked fails to submit counter- affidavits to support the opposition and, on theother hand, the facts alleged by the moving party, confirmed in the sworn statementssubmitted with the motion, do not appear to be by their very nature false or not susceptible toproof, a summary judgment is reasonably, if not undeniably, proper. And such is the situationin the case at bar. The fundamental theory of petitioner's complaint is that as commoncarriers, the respondents were by contract and law obliged to conduct his wife safely to herdestination, and having failed to do so, because as a result of the collision of the vehicle,owned by respondents, in which she was a passenger, with another vehicle, she sufferedinjuries which caused her death, the legal presumption is that they failed to exercise thedegree of extraordinary diligence the law requires in the premises. Such presumptioninvoked is, however, one of fact that is subject to rebuttal by actual proof to the contrary.Now, petitioner's invocation of the presumption was countered in respondents' motion forsummary judgment thru ("the affidavits and other pertinent annexes, Annexes 1 to 6)", whichon their face tend to show that respondents' vehicle carrying petitioner's wife was travellingwith due care on its proper side of the road and it was because of the collision of twovehicles at the intersection of C. M. Recto and Bonifacio streets that one of them was


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suddenly and unexpectedly diverted to the lane of respondents' vehicle, thus hitting thesame without any fault at all of their driver. This factual rebuttal of the factual presumption ofthe law in favor of the petitioner was not met by any counter-affidavit indicating that therewas in actual fact some degree of negligence on the part of respondents' driver. Under thesecircumstances, it would appear that contrary to the presumption aforementioned,respondents have succeeded in proving by means of the above- mentioned six annexes that

the cause of the injuries suffered by petitioner's wife was not any kind or degree ofnegligence on the part of respondents or their driver, but the negligence of a third-partywhich was unforseen and inevitable, hence a force majeure or an act of God. Such being thecase, it would also appear that respondents are entitled as a matter of law to be absolvedfrom any obligation to pay damages to petitioner.

While such seems to be the present situation of the case below, I hasten to add that,considering that petitioner's wife was an innocent passenger who could not have contributedin any way to the cause of the tragedy that befell her, it still lies in the hands of respondentcourt to do justice to petitioner, her widowed husband. Indeed, fortunately for petitioner,respondent court's order of May 20, 1975 he is impugning is not in reality and in law a final

judgment yet. It is merely an interlocutory order which does not preclude further proceduralmeasures which will enable petitioner to secure relief. The main opinion spells this matter outquite clearly.

To more precise, it is still within the sound discretion of the trial court, in the light of thepeculiar circumstances of this case where counsel for petitioner might have overly relied onthe factual presumption of negligence of common carriers, apparently equating the samewith a legal presumption, and for this reason omitted to file counter-affidavits, and, what ismore probable, counsel happens to be among those who have not resorted to summary

judgment procedure and hence is not very proficient relative thereto, to consider thepossibility of allowing petitioner to file the corresponding counter affidavit or affidavits neededto compel a trial and the corresponding setting aside of the order in question. If this shouldnot be feasible because there might not be adequate means of showing that respondents ortheir driver failed to exercise extraordinary diligence in the face of the unexpected swerving

into the lane of their vehicle of the pick-up truck that hit it, it would not yet be too late to allowthe petitioner to amend his complaint in order to implead alternatively the owners and driversof the other two vehicles that featured in the incident in question, thereby insuring as thefacts may warrant relief to petitioner, if not from respondents, from the other parties whomthe court may find to have been at fault. And with particular reference to the respondents'counterclaim, it may not be out of place for respondent judge to take into account that thepeculiar and unique relationship between a common carrier and its passengers is such thatin case of injury to the latter, to claim against the former is reasonably the first recourse, andit is only where the common carrier proves exercise of extraordinary diligence that he isrelieved of liability, and, accordingly, an award for damages to the carrier for supposed filingof a totally unfounded suit can hardly be fair and just, unless actual malice on the part of thepassenger or his or her heirs is clearly evident.

Summarizing, I hold that, as explained above, the questioned order is not entirely erroneousbut only improperly worded and therefore certiorari does not lie against respondent court onthe basis thereof. I also hold that said order is merely an interlocutory one and is not a finalappealable judgment. As an order declaring the propriety of a summary judgment, it shouldnot have been worded as "decreeing that defendants have judgment summarily againstplaintiff", for the real summary judgment is not only supposed to be rendered after the proofof damages shall have been presented, but it should also state clearly and distinctly the factsand the law on which it is based, a constitutional requirement which a court of record is not


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relieved from complying even when the judgment it renders is a summary one pursuant toRule 34. Upon these premises, I vote to dismiss the petition.

In addition, I hold that upon the resumption of the proceedings in the court below, respondentCourt should look into the procedural possibilities discussed above to the end that the losssuffered by petitioner as a result of the tragic death of his wife may not be left without relief

from the party at fault merely because of the procedural missteps that have taken place inthe past proceedings before it. The main objective of the rules of procedure is to provide thesteps by which a party suffering a legal wrong may secure relief from the courts, and in theinstances where the particular pertinent rules are themselves rather indefinite and thepossibility of miscomprehending the same is not remote, it would be a travesty of justice toallow said rules to be successfully invoked to prevent redress altogether. Worse, in theinstant case, the order in controversy, inaccurate in its tenor as it is, because it is based onan inadequate comprehension of the pertinent rules, which to be sure are not themselvesclearly definite, would even augment petitioner's loss by making him liable for damages torespondents, just because his lawyer has misapprehended the situation as well as theapplicable rules. Such a result cannot be but shocking to the conscience.

AQUINO,J., concurring:

I concur in the result. Gregorio Estrada acted on the assumption that the lower court's orderof May 20, 1975 is either a summary judgment or an order of dismissal. He appealed fromthat order under Republic Act No. 5440.

Since it is clearly pointed out in the decision that the said interlocutory order is notappealable and that Estrada could still move to have it set aside, I agree that the petition forreview herein is not in order. The said order is erroneous and unjust. Summary judgment isnot warranted in Civil Case No. 8739. It is ironical that Estrada, as plaintiff, would, by reasonof that order, be the one held liable for damages to the defendants whom he (plaintiff) hadsued for damages in utmost good faith.

The trial judge acted rather hastily in rendering summary judgment. The defendants filed ananswer with counterclaim dated March 12, 1975. On April 16, 1975 or a few weeks later, thedefendants filed a motion for summary judgment. The record does not show whether thecase was set for pre-trial. Pre-trial is mandatory (Sec. 1, Rule 20, Rules of Court).

It is true that during the pre-trial the court may explore the advisability of rendering summary judgment ( Ibid, sec. 3). But the fact remains that in the proceedings below the trial courtwithout holding a pre-trial immediately proceeded to consider the rendition of a summary

judgment. The amendment of the complaint for the purpose of impleading the drivers andowners of the two pick-up trucks and to enable Estrada to rely alternatively on a cause ofaction for delict or quasi-delict was never considered.

Also not considered in the pre-trial (for there was no pre-trial) nor in the said order, which ineffect dismissed the complaint, was the possibility that the petitioner's remedy is to intervenein Criminal Case No. 8099-B of the City Court, Davao City and to claim civil liability for thedeath of his wife.

The order in question was not proper because there is a genuine triable issue in thepleadings. That factual issue is whether Corazon Ramirez Uy, the owner of the jeepney, as acommon carrier, complied with her obligation of carrying the deceased passenger, Simeona


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Estrada, "safely as far as human care and foresight can provide, using the utmost diligenceof very cautious persons, with a due regard for all the circumstances."

The trial of that issue was not foreclosed by the sketch made by the traffic investigator andby his affidavit, the sworn statements of the drivers of the pickup trucks and the swornstatement of the carrier's driver, all of which are hearsay as far as Estrada is concerned.

Separate Opinions

BARREDO, J., concurring:

I concur in the judgment dismissing the instant petition, but I believe it is necessary toemphasize that this decision does not mean that the Court is upholding the questioned orderas the summary judgment prayed for by private respondents. Actually, the said order mustbe construed, despite its seemingly inaccurate tenor, as nothing but an interlocutory oneholding that respondents have sufficiently established the bases for a summary judgment

which will be rendered after the court has received and duly evaluated the evidence as to theamount of damages that should be awarded to them for their counterclaim.

Indeed, it is opportune for the Court to clear up in this case some points in summary judgment procedure which by all means should be encouraged whenever appropriate,regardless of the nature of the cause of action involved, if summary judgment procedurewhich has been purposely designed to abbreviate proceedings in cases where the issues arenot genuine is to continue to have any place at all in the Rules of Court. The trouble is thatthere is such a lamentable dearth of knowledge not only of the concept but also of theprocedure contemplated that in actual practice: in the few instances it has been resorted to,the results have been rather disappointing, almost frustrating.

To start with, there is the usual error of equating summary judgment with judgment on thepleadings. Very often, it is contended that because the allegations in the pleadings give riseto triable issues of fact, summary judgment is not proper. In other words, it is assumed that

just because there is a joining of the factual issues in the pleadings which, by the way, arenot under oath, necessarily a trial with presentation of evidence by both parties is called for.But such criterion is true only for denying a motion for judgment on the pleadings, certainlynot for summary judgment. For the basic reason for judgment on the pleadings is that theallegations in the pleadings of the contending parties show that there is no controversy at allbetween them as to the facts, which is not the reason behind summary judgments. Insummary judgment procedure, it is assumed precisely that in their pleadings, the partieshave joined issues on the ultimate facts, at least, but just the same, trial is foreclosedbecause the factual issues thus joined do not appear to be genuine, meaning to say, theyare not real but sham. And a factual issue raised by a party is considered as sham when by

its nature it is evident that it cannot be proven or it is such that the party tendering the samehas neither any sincere intention nor adequate evidence to prove it. This usually happens indenials made by defendants merely for the sake of having an issue and thereby gainingdelay, taking advantage of the fact that their answers are not under oath anyway.

On that score, the problem that is apparently troubling the trial courts and the practitionersand which has brought about the confusion underlying the seeming reluctance, if notinability, of some courts to resort to summary judgment procedure is how to determine thatthe factual issues in a given case and referred to in the motion for summary judgment are


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genuine or not. It is my impression after forty years in the bar that it is not yet clear toeveryone concerned that such determination is not supposed to be based on the tenor orcontents of the pleadings. It is only from the consideration and appraisal of the facts allegedunder oath by the parties and/or their witnesses in their affidavits submitted with the motionand the corresponding opposition that such genuineness may and should be determined. Ofcourse, the function of examining and weighing the said affidavits for the purpose just

indicated can be properly performed only by one who is thoroughly prepared, both in theoryand in practice, more particularly the latter. The precise objective in such undertaking is tofind out, from a general consideration of all the detailed facts stated in the affidavits takentogether, whether or not the denial by one party of the truth of the allegations of theadversary is such that it would be safe to conclude from the fact of said affidavits thatultimately, one of them will necessarily prevail. In this connection, it goes without saying thatthe facts that should be stated in the affidavits must be specific and categorical, and notmerely general and equivocal. Should the court feel that in the light of such facts, assumingtheir veracity, the actual reception of evidence would be superfluous because even thegeneral thrust alone is definitely in favor of the moving party, then it is obvious that asummary judgment may be rendered.

In the main, whether or not the court should decide in favor of either a summary judgment ora full-blown trial lies in the sound discretion of the trial judge, it being understood that he hasfully imbibed the basic objective of the remedy, namely, to do away with unnecessary trial aslong as this can be done without causing injustice to any of the parties. He must not avoidtrial just because it involves more work and time, but, on the other hand, he must not wastetime and effort in receiving evidence, where, on the basis of the affidavits and counter-affidavits before him, the result is already a foregone conclusion or indubitably predictable. Incase of doubt, it is, of course, preferable to hold a trial, in which event, he and the parties,under his guidance, may as far as practicable make use of such portions of the affidavits andcounter-affidavits as would conduce to the abbreviation of the proceedings. And this may bebest accomplished at the pre-trial, which, to my mind, is not indispensable before summary

judgment procedure may be started. In other words, a motion for summary judgment,particularly that of a defendant before filing his answer, precludes the necessity of a prior

pre-trial; it is after an attempt to secure summary judgment fails that a pre-trial is not onlymandatory but more appropriate.

The foregoing discussion should make it plain that when the party against whom a summary judgment is asked fails to submit counter-affidavits to support the opposition and, on theother hand, the facts alleged by the moving party, confirmed in the sworn statementssubmitted with the motion, do not appear to be by their very nature false or not susceptible toproof, a summary judgment is reasonably, if not undeniably, proper. And such is the situationin the case at bar. The fundamental theory of petitioner's complaint is that as commoncarriers, the respondents were by contract and law obliged to conduct his wife safely to herdestination, and having failed to do so, because as a result of the collision of the vehicle,owned by respondents, in which she was a passenger, with another vehicle, she sufferedinjuries which caused her death, the legal presumption is that they failed to exercise thedegree of extraordinary diligence the law requires in the premises. Such presumptioninvoked is, however, one of fact that is subject to rebuttal by actual proof to the contrary.Now, petitioner's invocation of the presumption was countered in respondents' motion forsummary judgment thru ("the affidavits and other pertinent annexes, Annexes 1 to 6)", whichon their face tend to show that respondents' vehicle carrying petitioner's wife was travellingwith due care on its proper side of the road and it was because of the collision of twovehicles at the intersection of C. M. Recto and Bonifacio streets that one of them wassuddenly and unexpectedly diverted to the lane of respondents' vehicle, thus hitting thesame without any fault at all of their driver. This factual rebuttal of the factual presumption of


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the law in favor of the petitioner was not met by any counter-affidavit indicating that therewas in actual fact some degree of negligence on the part of respondents' driver. Under thesecircumstances, it would appear that contrary to the presumption aforementioned,respondents have succeeded in proving by means of the above-mentioned six annexes thatthe cause of the injuries suffered by petitioner's wife was not any kind or degree ofnegligence on the part of respondents or their driver, but the negligence of a third-party

which was unforseen and inevitable, hence a force majeure or an act of God. Such being thecase, it would also appear that respondents are entitled as a matter of law to be absolvedfrom any obligation to pay damages to petitioner.

While such seems to be the present situation of the case below, I hasten to add that,considering that petitioner's wife was an innocent passenger who could not have contributedin any way to the cause of the tragedy that befell her, it still lies in the hands of respondentcourt to do justice to petitioner, her widowed husband. Indeed, fortunately for petitioner,respondent court's order of May 20, 1975 he is impugning is not in reality and in law a final

judgment yet. It is merely an interlocutory order which does not preclude further proceduralmeasures which will enable petitioner to secure relief. The main opinion spells this matter outquite clearly.

To more precise, it is still within the sound discretion of the trial court, in the light of thepeculiar circumstances of this case where counsel for petitioner might have overly relied onthe factual presumption of negligence of common carriers, apparently equating the samewith a legal presumption, and for this reason omitted to file counter-affidavits, and, what ismore probable, counsel happens to be among those who have not resorted to summary

judgment procedure and hence is not very proficient relative thereto, to consider thepossibility of allowing petitioner to file the corresponding counter affidavit or affidavits neededto compel a trial and the corresponding setting aside of the order in question. If this shouldnot be feasible because there might not be adequate means of showing that respondents ortheir driver failed to exercise extraordinary diligence in the face of the unexpected swervinginto the lane of their vehicle of the pick-up truck that hit it, it would not yet be too late to allowthe petitioner to amend his complaint in order to implead alternatively the owners and drivers

of the other two vehicles that featured in the incident in question, thereby insuring as thefacts may warrant relief to petitioner, if not from respondents, from the other parties whomthe court may find to have been at fault. And with particular reference to the respondents'counterclaim, it may not be out of place for respondent judge to take into account that thepeculiar and unique relationship between a common carrier and its passengers is such thatin case of injury to the latter, to claim against the former is reasonably the first recourse, andit is only where the common carrier proves exercise of extraordinary diligence that he isrelieved of liability, and, accordingly, an award for damages to the carrier for supposed filingof a totally unfounded suit can hardly be fair and just, unless actual malice on the part of thepassenger or his or her heirs is clearly evident.

Summarizing, I hold that, as explained above, the questioned order is not entirely erroneousbut only improperly worded and therefore certiorari does not lie against respondent court onthe basis thereof. I also hold that said order is merely an interlocutory one and is not a finalappealable judgment. As an order declaring the propriety of a summary judgment, it shouldnot have been worded as "decreeing that defendants have judgment summarily againstplaintiff", for the real summary judgment is not only supposed to be rendered after the proofof damages shall have been presented, but it should also state clearly and distinctly the factsand the law on which it is based, a constitutional requirement which a court of record is notrelieved from complying even when the judgment it renders is a summary one pursuant toRule 34. Upon these premises, I vote to dismiss the petition.


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The trial of that issue was not foreclosed by the sketch made by the traffic investigator andby his affidavit, the sworn statements of the drivers of the pickup trucks and the swornstatement of the carrier's driver, all of which are hearsay as far as Estrada is concerned.


Manila

THIRD DIVISION

G.R. No. L-49668 November 14, 1989

POLICARPIO, LUCIO, JULIAN, CATALINO, BONIFACIO, CONRADA, DOMINGO,PAQUITA, AND LILIA, ALL SURNAMED GALICIA,petitioners,vs.THE HON. WENCESLAO M. POLO, in his capacity as Presiding Judge, CFI, Branch V,Samar (Calbayog City), ZOSIMA PALAJOS, TITING LISTOJAS, ALFREDO PALAJOS,MANUELITO ROSIALDA,respondents.

Mateo M. Leanda for petitioners.

Zosimo Santiago for private respondents.

BIDIN,J.:

This is a petition for review on certiorari seeking to set aside the summary judgment enteredby the then Court of First Instance of Samar, Br. V in Civil Case No. 758-CCentitled, "Policarpio, Lucio, Julian, Catalino, Bonifacio, Conrada, Domingo, Paquita and Lilia,all surnamed Galicia v. Zosima Palajos, Titing Listojas, Alfredo Palajos and ManuelitoRosialda" and to order the trial court to try the above-cited case on the merits.

The facts are undisputed.

On December 15, 1973. a complaint for forcible entry (Civil Case No. 56) entitled "AmancioPalajos v. Policarpio, Perfecto, Victorio Julian and Eduardo, all surnamed Galicia," was filedin the Municipal Court of Almagro, Samar, alleging that Amancio Palajos is the owner and inactual possession of a parcel of land located at Bacjao, Almagro, Samar, more particularlydescribed as follows:

A parcel of land with an area of about 4-88-00 hectares, more or less,assessed at P 360.00 as per Tax Declaration No. 8547 in the name of JuanPalajos, it is, however, 14.2860 hectares as per approved survey plan, theboundaries of which are: N Pedro Galicia and the Poblacion of BarrioBacjao; S Emilio Carpon, Magno Suico and Teresa Subito; and W Bernardo Ballarante and Cenon S. Aguilar.


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A parcel of coconut and corn land located at Bacjao, Almagro, Samar,Philippines, with an area of 26,000 sq. m. and bounded on the NORTH, byIsabelo Palajos; SOUTH, by Narciso Pauline; EAST, by Benedicto Paulinoand WEST, by Seashore covered by Tax Declaration No. 12048 in the nameof Pedro Galicia.

The complaint further alleged that pursuant to Civil Case No. 56 (forcible entry case),respondents were able to take possession of the land in question as said case was heard ex-parte; and that a decision was rendered in respondents' favor and said decision wasexecuted sometime in 1976 (Rollo, p. 36-37).

In their Answer, respondents (defendants below) countered that they were able to takepossession of the land described in the complaint by virtue of the decision and later,execution of the decision in the forcible entry case, which, by petitioners' (plaintiffs below)averment in their complaint is an admission of an existing judgment that would constitute res

judicata; that they are the lawful owners of the disputed land the same having beensubjected to levy and execution in 1975 thru a sale in favor of respondents' predecessor-in-interest, Juan Palajos.

The issues having been enjoined, the case was set for pre-trial by respondent judge Hon.Wenceslao M. Polo. At the pre-trial, counsel for private respondents moved for time withinwhich to file a motion for summary judgment which was granted by respondent judge in hisorder dated June 28, 1978.

Defendants' (private respondents herein) motion for summary judgment was filed on July 7,1978 (Rollo, p. 43) alleging that no genuine issue exists in the case at bar after the pre-trialwas conducted and admission of facts were had (Rollo, p. 44), while plaintiffs (petitionersherein) filed their opposition to the motion for summary judgment dated July 17, 1978alleging among others, that genuine issues exist (Rollo, pp. 45-47).

On August 11, 1978, the court a quo rendered the assailed summary judgment dismissingpetitioners' complaint (Rollo, p. 48-53), the pertinent portion of which reads:

As demonstrated by the parties, there is no question that the land in disputeis that parcel described in paragraph 3 of the complaint, a portion of whichwas a subject in a forcible entry case before the Municipal Trial Court of

Almagro Samar (Exhibit 1, 2 and 3) with the defendants now as sucessors-in-interest of the plaintiff, and most of the herein plaintiffs as defendants.

The pleadings also show that upon the death of the primitive owner, PedroGalicia, the plaintiffs as children and grandchildren possessed and ownedthis land pro-indiviso, until the possession of said portion was transferred tothe defendants when the decision in that forcible entry case was executed in

1976 (Exhibit 7) such being the case, therefore, with respect to this portion ofthe land in dispute, the possession is settled, which would constitute as a barto this action.

xxx xxx xxx

With respect to the other portion of the land in dispute, the plaintiffs admitthat possession was transferred to the defendant by virtue of a sale executedby the sheriff; the one year period having elapsed without exercising their


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right of redemption, as a result a final deed of sale was issued. The legality ofthe sale not having been assailed by them, for all intents and purposes,ownership on this land have been vested on the defendants as heirs of JuanPalajos.

WHEREFORE, premises above considered, judgment is hereby rendered

ordering the dismissal of the plaintiffs' complaint, without pronouncement asto cost."

A motion to re-open the case for trial on the merits was filed by plaintiffs but was denied in anorder dated November 27, 1978 (Rollo, p. 62). Hence, this instant petition.

Petitioners contend that the trial court erred when it decided Civil Case No. 758-CC bysummary judgment when there are several genuine issues involved therein which require atrial of these issues on the merits, such as:

(A) WAS THE EXECUTION SALE CONDUCTED BY DEPUTY PROVINCIALSHERIFF EUFROCINO T. OLIFERNES OF LOT NO. 1363 OF THE LATE

PEDRO GALICIA, PETITIONERS' FATHER, VALID TO CONFER UPONTHE DEFENDANTS IN SAID CASE A JUST TITLE OVER SAID REALTY?

(B) WERE THE UNDIVIDED SHARES AND PARTICIPATIONS OF JULIANGALICIA AND CATALINO GALICIA WHO WERE TWO OF THELEGITIMATE CHILDREN OF PEDRO GALICIA NOT IMPLEADED ASPARTIES IN CIVIL CASE NO. 56 IN THE MUNICIPAL COURT OF

ALMAGRO OVER LOT NO. 1363, AFFECTED BY THAT EXECUTIONSALE?

(C) WERE THE UNDIVIDED SHARES AND PARTICIPATIONS OFEDUARDA GALICIA AND PERFECTO GALICIA OVER LOT NO. 1363, BUTWHO WERE NOT IMPLEADED AS PARTIES IN CIVIL CASE NO. 758-CCOF THE COURT OF FIRST INSTANCE OF SAMAR (CALBAYOG CITY)

AFFECTED BY THE DECISION OF THE LATTER COURT OF SUMMARYJUDGMENT? (Rollo, p. 10).

The crucial issue in this case is whether or not the trial court erred when it decided Civil CaseNo. 758-CC by summary judgment.

It is the contention of petitioners that the trial court erred in deciding their complaint (CC No.758-CC) by summary judgment when there are several genuine issues involved thereinwhich require a full trial on the merits. Among other things, petitioners contend that theexecution sale conducted by the Deputy Provincial Sheriff was null and void and would havemerited a trial on the merits. Moreover, it is further contended that as between Civil Case No.56 and Civil Case No. 758-CC, there can be no res judicata , considering that there is noIdentity of parties, cause of action and subject matter between the two actions.

After a thorough review of the records, the Court finds no cogent reason to disturb thesummary judgment rendered by respondent judge.

The Rules of Court authorizes the rendition of summary judgment if the pleadings,depositions and admissions on file together with the affidavits, show that, except as to theamount of damages, there is no issue as to any material fact and that the moving party is


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October 4, 1978 (Civil Case No. 837-CC; Rollo, p. 31-35). The validity of the execution salenot having been raised and/or litigated in the case subject of the present appeal, the Court,at this stage, cannot pass upon the same for the purpose of determining the propriety of thesummary judgment. Objections to the execution sale cannot be considered in the SupremeCourt inasmuch as it was not raised in the lower court (Ramiro v. Grano 54 Phil. 744 [1930];citing Tan Machan v. de la Trinidad, 3 Phil. 684 [1904] and U.S. v. Inductive, 40 Phil. 84

[1919]).

WHEREFORE, the instant petition is hereby DENIED for lack of merit. Costs againstpetitioners.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Cortes, JJ., concur.


Manila

SECOND DIVISION

G.R. No. 91779 February 7, 1991

GRAND FARMS, INC. and PHILIPPINE SHARES CORPORATION,petitioners,vs.COURT OF APPEALS, JUDGE ADRIAN R. OSORIO, as Presiding Judge of theRegional Trial Court, Branch 171, Valenzuela, Metro Manila; ESPERANZA ECHIVERRI,as Clerk of Court & Ex-Officio Sheriff of the Regional Trial Court of Valenzuela, MetroManila; SERGIO CABRERA, as Deputy Sheriff-in-Charge; and BANCO FILIPINOSAVINGS AND MORTGAGE BANK,respondents .

Balgos & Perez for petitioners.

Sycip, Salazar, Hernandez & Gatmaitan for private respondent.

REGALADO,J.:p

The propriety of a summary judgment is raised in issue in the instant petition, with hereinpetitioners appealing the decision 1 of respondent court in CA-G.R. SP No. 17535, datedNovember 29, 1989, which found no grave abuse of discretion on the part of respondent

judge in denying petitioners' motion for summary judgment. 2

The antecedents of this case are clear and undisputed. Sometime on April 15, 1988,petitioners filed Civil Case No. 2816-V88 in the Regional Trial Court of Valenzuela, Metro


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appointed attorney-in-fact of the Mortgagor with full powers and authority,with the use of force, if necessary, to take actual possession of themortgaged property, without the necessity for any judicial order or anypermission of power to collect rents, to eject tenants, to lease or sell themortgaged property, or any part thereof, at public or private sale withoutprevious notice or adverstisement of any kind and execute the corresponding

bills of sale, lease or other agreement that may be deemed convenient, tomake repairs or improvement to the mortgaged property and pay for thesame and perform any other act which the Mortgagor may deem convenient .. . 7

On February 27, 1989, the trial court issued an order, denying petitioners' motion forsummary judgment. 8Petitioners' motion for reconsideration was likewise denied byrespondent-judge on the ground that genuine and substantial issues exist which require thepresentation of evidence during the trial, to wit: (a) whether or not the loan has matured; (b)whether or not private respondent notified petitioners of the foreclosure of their mortgage; (c)whether or not the notice by publication of the foreclosure constitutes sufficient notice topetitioners under the mortgage contract; (d) whether or not the applicant for foreclosure ofthe mortgage was a duly authorized representative of private respondent; and (e) whether ornot the foreclosure was enjoined by a resolution of this Court. 9

Petitioners thereafter went on a petition for certiorari to respondent court attacking saidorders of denial as having been issued with grave abuse of discretion. As earlier adverted to,respondent court dismissed the petition, holding that no personal notice was required toforeclose since private respondent was constituted by petitioners as their attorney-in-fact tosell the mortgaged property. It further held that paragraph (k) of the mortgage contractmerely specified the address where correspondence should be sent and did not impose anadditional condition on the part of private respondent to notify petitioners personally of theforeclosure. Respondent court also denied petitioners motion for reconsideration, hence theinstant petition.

We rule for petitioners.

The Rules of Court authorize the rendition of a summary judgment if the pleadings,depositions and admissions on file, together with the affidavits, show that, except as to theamount of damages, there is no issue as to any material fact and that the moving party isentitled to a judgment as a matter of law. 10 Although an issue may be raised formally by thepleadings but there is no genuine issue of fact, and all the facts are within the judicialknowledge of the court, summary judgment may be granted. 11

The real test, therefore, of a motion for summary judgment is whether the pleadings,affidavits and exhibits in support of the motion are sufficient to overcome the opposingpapers and to justify a finding as a matter of law that there is no defense to the action or that

the claim is clearly meritorious.12

Applying said criteria to the case at bar, we find petitioners' action in the court below forannulment and/or declaration of nullity of the foreclosure proceedings and damages ripe forsummary judgment. Private respondent tacitly admitted in its answer t

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