Sarmiento v. Protacio

FIRST DIVISION

[G.R. No. 225039. May 14, 2021.]

ROSEMARIE TEODORO SARMIENTO (a.k.a.) ROSEMARIE TEODORO BONE, petitioner, vs. SALLY S. PROTACIO, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution dated May 14, 2021 which reads as follows:

"G.R. No. 225039 (Rosemarie Teodoro Sarmiento (a.k.a.) Rosemarie Teodoro Bone v. Sally S. Protacio). — This resolves the Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assailing the Decision 2 dated April 8, 2016 of the Court of Appeals (CA) in CA-G.R. SP No. 140018, the dispositive portion reads:

WHEREFORE, the petition is GRANTED. The Decision dated December 1, 2014 of the Regional Trial Court, Branch 196, Parañaque City is SET ASIDE and the Decision dated September 1, 2014, of the Metropolitan Trial Court, Branch 87, Parañaque City is hereby REINSTATED and UPHELD.

Accordingly, the Defendants and/or all persons claiming rights under them are ORDERED TO:

1. VACATE IMMEDIATELY THE SUBJECT PROPERTY LOCATED AT 164 ORCHID STREET VITALEZ COMPOUND, BARANGAY SAN ISIDRO, PARAÑAQUE AND SURRENDER THE PEACEFUL POSSESSION OF THE PREMISES TO THE PLAINTIFF;

2. PAY ATTORNEY'S FEES IN THE AMOUNT OF PHP100,000.00; AND

3. PAY THE COST OF SUIT.

IT IS SO ORDERED. 3 (Emphasis omitted)

Facts of the Case

This case originated from a Complaint 4 for unlawful detainer filed by respondent Sally S. Protacio (respondent) against petitioner Rosemarie Teodoro Sarmiento (petitioner), Romeo Teodoro and/or Arthur Teodoro before the Metropolitan Trial Court (MeTC) of Parañaque City, Branch 87.

Respondent alleged that she and her husband are the lawful owners of two parcels of land and its improvements (subject property) located in Parañaque City and covered by Transfer Certificate of Title (TCT) Nos. 2013000541 and 2012003521. They acquired the same in a public auction sale of the Branch Sheriff of Makati City, where respondent was declared as the highest bidder. 5

It appeared that creditor Leoncio Solidum filed a collection suit against UNICAP, a financial institution engaged in the business of loan and investments. Solidum obtained a favorable judgment. A writ of execution was issued but it was not satisfied. Solidum went after UNICAP's defaulting debtors, one of whom was petitioner. With the subrogation of debtors, petitioner's property was attached. Despite granting her request to be given opportunity to settle her obligation, petitioner failed to do so. This resulted to the levy and sale of petitioner's mortgaged properties at a public auction conducted by the Branch Sheriff of Makati City, where respondent emerged as the highest bidder. 6

Petitioner failed to redeem the properties within the one-year redemption period. Thereafter, the Sheriff, along with creditor Solidum, went to the subject property to place respondent in possession thereof. They were met by Magdalena Teodoro (Magdalena), petitioner's mother and attorney-in-fact, who begged and pleaded to the Sheriff to allow her and her family to temporarily stay on the premises since she was already old and sickly, and wished to spend her remaining years thereat. After consulting with respondent, the Teodoros were allowed to temporarily settle on the premises borne solely on humanitarian compassion and by mere tolerance. 7

On April 15, 2012, respondent learned that Magdalena died, and her husband left for the United States. Petitioner is now a resident of Nevada, USA. There being no humanitarian reason to extend the temporary occupancy of the Teodoros on the subject properties, respondent moved for the issuance of a writ of possession before the RTC of Makati City. It was dismissed for lack of jurisdiction since, according to the Makati RTC, the properties were located in Parañaque City. 8

Several demand letters were sent to petitioner asking her to vacate the premises. In reply, Atty. Elena Rodriguez, petitioner's counsel, informed respondent that her clients refused to heed to her demand. Hence, respondent filed this complaint for unlawful detainer. Respondent averred that due to petitioner's refusal to vacate the premises, she was deprived of rental arrears from the 10-door residential apartment located in the premises. As the registered owner, respondent has the legal right to possess and enjoy the same. 9

Petitioner, a resident of Las Vegas, Nevada, 10 through her Attorney-in-Fact, Ma. Lourdes C. Victoriano, filed her Answer 11 denying the allegations in the complaint. She stated that defendants Romeo Teodoro and Arthur Teodoro are already dead. By way of special and affirmative defenses, petitioner countered that the complaint states no cause of action for unlawful detainer. Petitioner claimed that tolerance was not present at the beginning of possession. Petitioner's possession of the premises is that of an owner under derivative titles [TCT Nos. (120880) 118653 and (118956) 119677] issued in her name on July 6, 1989 and August 17, 1987, respectively. Petitioner had been in possession of the premises in the concept of an owner since those dates onwards. The alleged act of tolerance extended by respondent to Magdalena as stated by the Sheriff and Solidum cannot be proven by parol evidence in violation of the Dead Man' s Statute. Assuming that tolerance was extended to Magdalena, petitioner claimed that such tolerance is not present from the beginning of possession considering that the alleged tolerance was extended to Magdalena sometime in 2001 or 14 years after the TCTs were issued in petitioner's name. Respondent's right to possession begun only on October 12, 2012 and January 25, 2013 when the TCTs were issued in her name, or after 25 years from the issuance of petitioner's TCTs. 12

Petitioner likewise declared that there is a pending civil case for nullification of TCTs and reconveyance with damages before the RTC of Parañaque City, Branch 274, which she filed against Spouses Protacio and the Registry of Deeds of Parañaque City. 13

Ruling of the Metropolitan Trial Court

On September 1, 2014, the MeTC rendered a Decision 14 granting respondent's complaint and ordering petitioner and the other defendants therein and all persons claiming rights and interest under them to vacate immediately the subject property and surrender the peaceful possession to respondent; to pay attorney's fees in the amount of P10,000.00; and to pay the cost of suit. The MeTC declared that Spouses Protacio are already the absolute owners of the subject properties. The MeTC further ruled that the four (4) elements for unlawful detainer are present: (1) petitioner's possession of the subject property was by mere tolerance of respondent; (2) petitioner's stay in the property became illegal upon demand to vacate; (3) despite demand, petitioners remained in possession of the property; and (4) respondent filed the complaint within one year from date of last demand. 15

Ruling of the Regional Trial Court

On appeal, the RTC set aside the MeTC Decision and dismissed the complaint for lack of merit in its Decision 16 dated December 1, 2014. The RTC ruled that there was no valid service of summons upon petitioner, hence, the trial court failed to acquire proper jurisdiction over the person of petitioner. It held that the Branch Sheriff of the MeTC served summons by substituted service to a certain "Ms. Michelle Victoriano," niece of petitioner, at Pamplona 2, Las Piñas City. The complaint referred to petitioner as an American Citizen and a resident of Nevada, USA, yet, summons was still effected personally at a residence located in Las Piñas City. 17

Further, the RTC averred that the filing of petitioner's Answer through a representative did not produce the desired effect of assuming jurisdiction upon her by the trial court given the deficiency of the Verification made by the attorney-in-fact, Ma. Lourdes C. Victoriano, who provided a photocopy of a Special Power of Attorney (SPA) dated April 17, 2013 signed by petitioner who resides in Las Vegas, Nevada, USA but notarized in Parañaque City on April 17, 2013. Also, the SPA was prepared before the filing of the Complaint on May 2, 2013. Likewise, the allegation in the Answer as to the death of defendants Romeo Teodoro and Arthur Teodoro renders the service of summons upon the niece of petitioner highly questionable and irregular given the possible line of death of an indispensable party to the case. 18

Respondent filed a petition for review under Rule 43 to the CA.

Ruling of the Court of Appeals

On April 8, 2016, the CA rendered a Decision 19 granting the petition and reinstating the MeTC Decision dated September 1, 2014. The CA held that the MeTC acquired jurisdiction over the person of petitioner by the latter's voluntary appearance in court. Despite the defective service of summons, petitioner opted to file the Answer with Special and Affirmative Defenses and Compulsory Counterclaims and she never raised the defense of improper service of summons. Petitioner is deemed to have submitted herself to the jurisdiction of the court. 20

Petitioner moved for reconsideration 21 but it was denied in the Resolution 22 dated June 30, 2016.

Hence, this petition for review on certiorari under Rule 45 filed by petitioner.

Petitioner's Arguments

Petitioner insists that respondent has no cause of action for unlawful detainer considering that the alleged tolerance extended by respondent to petitioner was never present from the beginning of the latter's physical possession of the subject property. She possessed the same in the concept of an owner. Petitioner avers that the CA did not categorically rule on this matter. 23

Petitioner further claims that the alleged act of tolerance extended by the Sheriff and Solidum to Magdalena, after consulting respondent, cannot be proven by parol evidence in violation of the Dead Man's Statute. There being no admissible evidence of tolerance, respondent cannot prove her cause of action for unlawful detainer. Assuming that tolerance was extended to Magdalena, petitioner argues that such tolerance is not present from the beginning of possession considering that the alleged tolerance was extended to Magdalena sometime in 2001 or 14 years after the TCTs were issued in petitioner's name. Respondent's right to possession begun only on October 12, 2012 and January 25, 2013 when the TCTs were issued in her name, or after 25 years from the issuance of petitioner's TCTs. 24

Respondent's Arguments

In her Comment, 25 respondent posits that petitioner is raising a new issue, i.e., lack of cause of action for unlawful detainer, when the only issue discussed by the CA was the lack of jurisdiction over the person of petitioner. Respondent claims that petitioner should not be allowed to change her theory on appeal. 26 Assuming that petitioner can raise this issue, respondent argues that the MeTC had resolved that the elements for unlawful detainer are present in this case. The act of tolerance by respondent was present right from the start of the possession sought to be recovered, i.e., from the beginning when the Court Sheriff went to the subject property to recover its possession from petitioner. Respondent points out that petitioner and her family had long lost their right and interest as owners of the subject property nearly 16 years when the one-year redemption period lapsed on November 7, 2001. Petitioner's titles had been cancelled by the Register of Deeds in favor of respondent. Respondent maintains that petitioner's possession was premised only on tolerance and not through ownership. 27

Petitioner's Reply

By way of Reply, 28 petitioner clarifies that she is not changing her theory on appeal as she had always raised the defense of lack of cause of action in all stages of the proceedings. 29

Issue

The issue in this case is whether the CA erred in granting the petition and upholding the Decision of the MeTC granting respondent's complaint for unlawful detainer.

Ruling of the Court

The petition is denied.

The Court notes that petitioner is no longer questioning the issue as to the court's lack of jurisdiction over her person because of a defective service of summons. Petitioner did not even raise this issue in the instant petition.

In any event, the Court agrees with the ruling of the CA that by petitioner's voluntary appearance in court, the court had acquired jurisdiction over her person. Indeed, despite lack of valid service of summons, the court can still acquire jurisdiction over the person of the defendant by virtue of the latter's voluntary appearance. 30 Section 20, Rule 14 of the 1997 Rules of Court clearly states:

Section 20. Voluntary appearance. — The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person shall not be deemed a voluntary appearance.

In this case, petitioner filed her Answer with Special and Affirmative Defenses and Compulsory Counterclaim for Damages. 31 As a general proposition, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. 32 The Court had occasion to declare that the filing of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, is considered voluntary submission to the court's jurisdiction. 33 This, however, is tempered by the concept of conditional appearance, such that a party who makes a special appearance to challenge, among others, the court's jurisdiction over his person cannot be considered to have submitted to its authority. 34

In filing the Answer and the other subsequent pleadings in court, i.e., Motion to Expunge Reply from the Records; Motion for Reconsideration; and Motion to Reset Preliminary Conference, 35 petitioner did not make a special appearance, nor did she explicitly and unequivocally object to the jurisdiction of the court over her person. By her voluntary appearance, petitioner is deemed to have submitted herself to the jurisdiction of the court.

What petitioner assails is respondent's lack of cause of action for unlawful detainer, tolerance not having been proved to be present at the beginning of petitioner's physical possession of the subject property. Petitioner claims that she is in possession of the property in the concept of an owner, being titled in her name. The alleged tolerance was extended to her mother, Magdalena, sometime in 2001 or 14 years after the TCTs were issued in petitioner's name. Respondent's right to possession begun only on October 12, 2012 and January 25, 2013 when the TCTs were issued in her name, or after 25 years from the issuance of petitioner's TCTs.

A complaint sufficiently alleges a cause of action for unlawful detainer if it states the following:

(a) Initially, the possession of the property by the defendant was by contract with or by tolerance of the plaintiff;

(b) Eventually, such possession became illegal upon notice by the plaintiff to the defendant about the termination of the latter's right of possession;

(c) Thereafter, the defendant remained in possession of the property and deprived the plaintiff of its enjoyment; and

(d) Within one year from the making of the last demand to vacate the property on the defendant, the plaintiff instituted the complaint for ejectment. 36

Respondent is now the absolute owner of the subject property having acquired the same in a public auction. Petitioner failed to redeem the property within the one-year redemption period. Ownership over the same had been consolidated in the name of respondent. TCT Nos. 2013000541 and 2012003521 had been issued in her name. Clearly, respondent is entitled to the possession of the property and can demand it at any time. Respondent is entitled to a writ of possession as a consequence of the execution sale where she is the highest bidder. As absolute owner, respondent is entitled to all the rights of ownership over a property recognized in Article 428 of the Civil Code, not least of which is possession, or jus possidendi. 37

Petitioner's ownership over the subject property was terminated upon their failure to redeem the property within the one-year period. From that time onwards, respondent became the owner of the subject property. In an execution sale, as in this case, upon the expiration of the right of redemption, the purchaser (herein respondent) shall be substituted to and acquire all the rights, title, interest and claim of the judgment debtor (herein petitioner) to the property, and its possession shall be given to the purchaser unless a third party is actually holding the property adversely to the judgment debtor. 38 Since the subject property is occupied by petitioner as the judgment debtor, the issuance of the writ of possession is ex parte. 39

From the time respondent was entitled to the issuance of a writ of possession, petitioner's possession, through that of her mother, Magdalena, had been tolerated. It was at that point that petitioner had been dispossessed of the property and tolerance began as extended to petitioner's mother. It was an error for the RTC of Makati City to have dismissed respondent's petition for the issuance of writ of possession on the ground of lack of jurisdiction, reasoning that the property is located in Parañaque City. Being the court which issued the judgment subject of execution, it has jurisdiction to issue to writ of possession. While respondent no longer pursued this remedy, it is clear that respondent was entitled to the issuance of the writ of possession and it is from that time that tolerance of petitioner's possession of the subject property begun.

The act of respondent in allowing petitioner' s mother, Magdalena, to stay in the premises is considered as tolerance on the part of respondent. Magdalena, petitioner's mother and attorney-in-fact, begged and pleaded to the Sheriff to allow her and her family to temporarily stay on the premises since she was already old and sickly, and wished to spend her remaining years thereat. Respondent allowed them to temporarily stay on the premises solely on humanitarian compassion and by mere tolerance.

That respondent extended tolerance upon petitioner and her family can be established from the fact that respondent demanded petitioner to vacate the premises only upon learning of the death of Magdalena in 2012. True to her word, respondent allowed Magdalena to spend the remaining years of her life in the property. Since there was no more justifiable humanitarian reason to extend the temporary stay of petitioner and her family on the property, as claimed by respondent, the latter sent several demand letters asking petitioner to vacate the premises. Receipt of these demand letters was acknowledged by Atty. Elena Rodriguez, petitioner's counsel, when she sent a reply informing respondent that her clients refused to vacate the premises.

Upon refusal of petitioner to vacate the property despite demand, petitioner's stay became illegal, such that petitioner's continued possession thereat deprived respondent of her enjoyment.

Contrary to petitioner's insistence, the Dead Man's Statute does not apply in this case. Petitioner insists that the Sheriff cannot testify as to what Magdalena pleaded at the time they went to the property considering that Magdalena is already dead. Before the Dead Man's Statute can be successfully invoked to bar the introduction of testimonial evidence, it is necessary that:

1. The witness is a party or assignor of a party to a case or persons in whose behalf a case in prosecuted.

2. The action is against an executor or administrator or other representative of a deceased person or a person of unsound mind;

3. The subject-matter of the action is a claim or demand against the estate of such deceased person or against person of unsound mind;

4. His testimony refers to any matter of fact of which occurred before the death of such deceased person or before such person became of unsound mind. 40

None of the above requisites exist in this case. The Sheriff, as a witness, is neither a party or assignor of a party to case; the action is not against the executor or administrator; and the subject matter of the action is not a claim or demand against the estate of the deceased person.

In sum, respondent was able to prove her cause of action for unlawful detainer. The CA did not err in reinstating the Decision of the MeTC ordering petitioner and all persons claiming rights under her to immediately vacate the subject property and to surrender the peaceful possession thereof to respondent.

WHEREFORE, premises considered, the instant petition is DENIED. The Decision dated April 8, 2016 and the Resolution dated June 30, 2016 of the Court of Appeals in CA-G.R. SP No. 140018 are hereby AFFIRMED.

SO ORDERED."

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

By:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 11-24.

2. Penned by Associate Justice Danton Q. Bueser, with the concurrence of Associate Justices Apolinario D. Bruselas, Jr. and Renato C. Francisco; id. at 34-42.

3.Id. at 41-42.

4.Id. at 98-100.

5.Id. at 98.

6.Id. at 34-35.

7.Id. at 99.

8.Id.

9.Id. at 99-100.

10.Id. at 11.

11.Id. at 103-108.

12.Id.

13.Id. at 106.

14. Penned by Presiding Judge Leilani Marie Dacanay-Grimares; id. at 149-162.

15.Id. at 157-162.

16. Penned by Presiding Judge Brigido Artemon M. Luna II; id. at 191-208.

17.Id. at 205-206.

18.Id. at 206-207.

19.Supra note 2.

20.Rollo, pp. 39-42.

21.Id. at 43-49.

22.Id. at 72-73.

23.Id. at 20-21.

24.Id. at 21-24.

25.Id. at 381-393.

26.Id. at 381-385.

27.Id. at 385-390.

28.Id. at 396-400.

29.Id. at 396.

30.Prudential Bank v. Magdamit, Jr., 746 Phil. 649, 665 (2014).

31.Rollo, pp. 103-108.

32.Prudential Bank v. Magdamit, Jr., supra note 30 at 666, citing Philippine Commercial International Bank v. Sps. Dy Hong Pi, 606 Phil. 615, 633-634 (2009).

33.Id.

34.Id.

35.Rollo, p. 40.

36.De Guzman-Fuerte v. Sps. Estomo, 830 Phil. 653, 661-662 (2018).

37.Heirs of Peñaflor v. Heirs of dela Cruz, 816 Phil. 324, 335 (2017), citing Sps. Gallent v. Velasquez, 784 Phil. 44, 58 (2016).

38.Okabe v. Saturnino, 742 Phil. 1, 14 (2014).

39.Id.

40.Sunga-Chan v. Chua, 415 Phil. 477, 488 (2001).