REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

METROPOLITAN TRIAL COURT
LAS PIAS CITY, BRANCH 79
MILDRED R. CORTES,
Plaintiff,
- versus -

Civil Case No. 1234

For recovery of
Possession and
Damages

OLYMPIO ALMAZAR and

CLEMENTINA O. ALMAZAR
Defendants,
x-------------------------------------x
MOTION TO DISMISS

DEFENDANTS, through counsel and to this Honorable Court,

respectfully move for the dismissal of the complaint in the above
entitled case, on the following:

GROUNDS
(1) UNDER PARAGRAPH 2, SECTION 19 OF BATAS
PAMBANSA BLG. 129, AS AMENDED BY REPUBLIC
ACT NO. 7691, THIS HONORABLE COURT HAS NO
JURISDICTION OVER THE INSTANT ACTION.
(2) UNDER SECTION 1, RULE 4 OF THE 1997 RULES OF
CIVIL PROCEDURE, THE VENUE IS IMPROPERLY LAID.

-2(3) UNDER SECTION 2, RULE 3 OF THE 1997 RULES OF

CIVIL PROCEDURE, THE PLAINTIFF HAS NO LEGAL
CAPACITY TO SUE.
(4) UNDER SECTION 408 IN RELATION TO SECTION 412,
LOCAL GOVERNMENT CODE OF 1991 (REPUBLIC ACT
7160), A CONDITION PRECEDENT FOR FILING OF
CLAIM HAS NOT BEEN COMPLIED WITH.

DISCUSSION OF GROUNDS

(1)

Paragraph 2, Section 19 of Batas Pambansa Blg. 129, as

amended by Republic Act No. 7691, provides as follows:

"Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall
exercise exclusive original jurisdiction.

xxxxxxxxxxxxxxx;
(2) In all civil actions which involve the title to, or
possession of, real property, or any interest therein, where the
assessed value of the property involved exceeds Twenty
thousand pesos (P20,000,00) or, for civil actions in Metro Manila,
where such value exceeds Fifty thousand pesos (P50,000.00)
except actions for forcible entry into and unlawful detainer of
lands or buildings, original jurisdiction over which is conferred
upon the Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts;

Apparent from the above quoted rule that the assessed value of
the property involved determines the jurisdiction over civil actions
involving title to, possession of, real property, or any interest therein.

-3In paragraphs 3 and 4 of the Complaint, it was alleged that

Avelina R. Cortes was the owner of a 450-square meter lot located in
Sta. Cruz, Ligao City, Province of Albay with an assessed value of
P37,500.00 as identified by Tax Declaration of Real Property No.
207-02-008-04-064 issued by the Ligao City Assessors Office on
December 15, 2012.

As clearly stated in the Complaint, the plaintiff is seeking the

recovery of possession of real property. However, the assessed value
of the lot mentioned in the amount of P37,500.00 does not fall within
the jurisdiction of this Honorable Court as stated by paragraph 2,
Section 19 of B.P. Blg. 129, as amended by R.A. 7691, which
mandates that all civil actions which involve the title to, or possession
of, real property, or any interest therein, where the assessed value of
the property involved exceeds Twenty thousand pesos (P20,000,00)
must fall within the exclusive original jurisdiction of the Regional
Trial Court.

(2)

Section 1, Rule 4 of the 1997 Rules of Civil Procedure,

provides as follows:
Section 1. Venue of real actions. Actions affecting title
to or possession of real property, or interest therein, shall be
commenced and tried in the proper court which has
jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated.

-4-

Moreover, Section 4 of the above cited Rule provides the

exception to the above, to wit:
Section 4. When Rule not applicable. This Rule shall not apply.
(a)

In those cases where a specific rule or law provides

otherwise; or

(b)

Where the parties have validly agreed in writing before

the filing of the action on the exclusive venue thereof.

Plaintiffs action being a real action, should be filed in the

province or city where the property lies. The Subject Property of the
instant action is a 450-square meter lot situated at a residential area in
Sta. Cruz, Ligao City, Albay. In the absence of a specific rule or law
which provides another venue or absence any agreement in writing
before filing the action on the exclusive venue thereof, it is therefore
proper that the said action should have been filed in Ligao City,
Albay, where the said property is situated.

(3) Section 2, Rule 3 of the 1997 Rules of Civil Procedure,

provides as follows:
Sec. 2. Parties in interest. A real party in interest is the
party who stands to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of the suit. Unless
otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest.

Section 3 of the said Rule also provides that:

Sec.3. Representatives as parties. Where the action is

allowed to be prosecuted or defended by a representative or
someone acting in a fiduciary capacity, the beneficiary shall be
included in the title of the case and shall be deemed to be the

-5real party in interest. A representative may be a trustee of an

express trust, a guardian, an executor or administrator, or a party
authorized by law or these Rules. An agent acting in his own name
and for the benefit of an undisclosed principal may sue or be sued
without joining the principal except when the contract involves
things belonging to the principal.

The abovementioned rules readily show that the action must be

filed against the real party in interest who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the avails
of the suit. In the event that the case is filed by a fiduciary or a
representative of the real party in interest it is a requirement that the
name of the real party in interest be included in the Complaint.

In paragraph 3 of the Complaint, it was stated that the

registered owner of the four hundred fifty (450) square meter
property located in Sta. Cruz, Ligao City, Province of Albay covered
by Transfer Certificate of Title No. T-18910 of the Registry of Deeds
of Ligao City is Avelina R. Cortes, the plaintiffs mother;

In paragraph 4 of the Complaint, the lot is identified under

Avelina R. Cortes by Tax Declaration of Real Property No. 20702-008-04-064 issued by the Ligao City Assessors Office on
December 15, 2012;

Given these undisputed facts, Section 2, Rule 3 of the 1997 Rules of

Civil Procedure authorizes the prosecution of an action in the name of

-6the real party in interest. The filing of the instant Complaint is

certainly erroneous because the plaintiff, being the daughter of the
registered owner of the real property, does not ipso facto makes her
the real party in interest who stands to benefit or to be injured by the
judgment in the suit, or the party entitled to the avails of the suit.
Consequently, as stated in Section 3 of the same Rule, assuming that
the action is prosecuted by the plaintiff in representation of Avelina R.
Cortes, the Compliant is still dismissible as Avelina R. Cortes name
was not joined as a party in the case. The latter must be included in
the title of the case, being the real party in interest.

(4) Section 408 of Republic Act 7160 provides as follows:

Section 408. Subject Matter for Amicable Settlement;
Exception Thereto. - The lupon of each barangay shall
have authority to bring together the parties actually
residing in the same city or municipality for amicable
settlement of all disputes except:

(a) Where one party is the government, or any

subdivision or instrumentality thereof;
(b) Where one party is a public officer or employee,
and the dispute relates to the performance of his
official functions;
(c) Offenses punishable by imprisonment exceeding
one (1) year or a fine exceeding Five thousand
pesos (P5,000.00);
(d) Offenses where there is no private offended
party;
(e) Where the dispute involves real properties
located in different cities or municipalities unless
the parties thereto agree to submit their differences
to amicable settlement by an appropriate lupon;

-7(f) Disputes involving parties who actually reside in

barangays of different cities or municipalities,
except where such barangay units adjoin each other
and the parties thereto agree to submit their
differences to amicable settlement by an appropriate
lupon;
(g) Such other classes of disputes which the
President may determine in the interest of Justice or
upon the recommendation of the Secretary of
Justice.
The court in which non-criminal cases not falling within
the authority of the lupon under this Code are filed may, at
any time before trial motu propio refer the case to the lupon
concerned for amicable settlement.

Meanwhile, Section 412 (a) of the same law provides:

Section 412. Conciliation. (a) Pre-condition to Filing of Complaint in Court. - No
complaint, petition, action, or proceeding involving any
matter within the authority of the lupon shall be filed or
instituted directly in court or any other government
office for adjudication, unless there has been a
confrontation between the parties before the lupon
chairman or the pangkat, and that no conciliation or
settlement has been reached as certified by the lupon
secretary or pangkat secretary as attested to by the lupon or
pangkat chairman or unless the settlement has been
repudiated by the parties thereto.

A cursory reading of the abovementioned provisions of law

clearly provide for the rule that disputes between residents of the same
barangay are required to be settled amicably before the Lupon ng
Tagapamayapa. This serves as a condition precedent before a claim
may be brought before the proper Court. This requirement will not
only come into operation if the case falls under the exceptions
mentioned in Section 408 of the said law.

-8The Complaint states that both the plaintiff and the defendants
are residents of Sta. Cruz, Ligao City in Albay. Moreover, the case at
bar does not fall within the exceptions enumerated by the the Local
Government Code of 1991. Thus, it is a requirement under the law
that they must put an effort to settle their differences amicably before
the Lupon of the said barangay.
However, no such effort was made. In fact, the plaintiff filed
the instant case without any Certification to File Action coming from
the Punong Barangay. It logically follows that the case filed by the
plaintiff must be dismissed for failure of the plaintiff to comply with
the condition precedent required by law before a civil case may be
filed before this Honorable Court.

PRAYER
WHEREFORE, in view of all the foregoing, it is respectfully prayed
that the instant action be dismissed, with costs and against the
Plaintiffs.

MARK ANTHONY N. MANUEL

Counsel for Plaintiff
th
16 Floor, The Manuel Empire Tower,
Paseo de Roxas, Makati City
PTR No. 987654321/5-20-13/Makati
Roll of Attorneys No. 61888
IBP No. 688888/8-24-12/Makati
MCLE Compliance No. IV-001432
February 28, 2012/Makati
Manila, 18 August 2013.

-9NOTICE OF HEARING
BRANCH CLERK OF COURT
MeTC-Las Pinas, Branch 79
ATTY. TALONA S. AKEN
Counsel for Plaintiffs

GREETINGS:
Please take note that the foregoing Motion will be submitted for
the consideration of this Honorable Court on Friday, 10 February
2013 at 8:30 AM.

MARK ANTHONY N. MANUEL

Copy Furnished:
ATTY. TALONA S. AKEN
Counsel for Plaintiffs
123 Menlo Street, Pasay City
EXPLANATION

Copies of the foregoing motion were filed with this Honorable

Court and served upon Plaintiffs counsel by registered mail due to
distance.

MARK ANTHONY N. MANUEL