THIRD DIVISION
[G.R. No. 222842. December 10, 2018.]
ELISA YANGCO VDA. DE ESPINO, REPRESENTED BY HER ATTORNEY-IN-FACT, RODEL YANGCO ESPINO, petitioner, vs.FERNANDO Y. ESPINO AND ELIZABETH S. ESPINO, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated December 10, 2018, which reads as follows:
"G.R. No. 222842 (Elisa Yangco Vda. De Espino, represented by her attorney-in-fact, Rodel Yangco Espino v. Fernando Y. Espino and Elizabeth S. Espino) — This is a Petition for Review on Certiorari1 filed under Rule 45 of the Rules of Court by petitioner Elisa Yangco Vda. De Espino (petitioner) assailing the Court of Appeals (CA) Decision, 2 dated January 28, 2016, in CA-G.R. CV No. 102644. The CA affirmed the Regional Trial Court of Angeles City, Branch 60 (RTC) Decision, 3 dated June 9, 2011, and Order, 4 dated October 4, 2011.
Antecedents
This case stemmed from a Complaint for Declaration of Inexistence of Contract, Annulment of Title, Reconveyance and Damages.
Spouses Fernando Y. Espino and Elizabeth S. Espino (respondents) alleged that they are the absolute owners of a 187-square meter residential land in Sta. Ines, Mabalacat, Pampanga covered by Transfer Certificate of Title (TCT) No. 228181-R. The said property was bought from Dela Cruz-Lim Estate, Inc. on September 10, 1990 on installment basis for the amount of P56,000.00. After full payment of the consideration, the developer, through Emiliano Dela Cruz, executed a Deed of Absolute Sale in favor of respondents.
Sometime in the first quarter of 2008, respondents discovered that the copies of the Deed of Sale and the owner's duplicate copy of title were missing. When they went to the Registry of Deeds of Angeles City to file an Affidavit of Loss, they discovered that TCT No. 228181-R was already cancelled and a new title, TCT No. 588485-R, was issued in the name of petitioner.
Respondents secured from the developer copies of the lost documents. The developer further issued a Certificate of Full Payment to the effect that it received from herein respondents the full payment for the subject property and that the corresponding deed of sale was prepared and delivered to respondents together with the owner's copy of the title. It also stated that petitioner has never been a purchaser of any lot in their subdivision. The developer also denied that it had executed a deed of absolute sale in favor of petitioner and that Emiliano Dela Cruz' signature thereon was not his and that he never appeared before the Notary Public, Atty. Severino Santos.
Respondents also executed an Affidavit of Adverse Claim which was annotated on the Memorandum of Encumbrance of TCT No. 588485-R under Entry 4393. CAIHTE
Summons was served upon petitioner together with a copy of the complaint. However, petitioner failed to file her Answer within the reglementary period; thus, respondents moved that she be declared in default.
On July 14, 2009, petitioner filed a Motion for Extension of Time to File Answer which was granted by the trial court and she was given ten (10) days within which to file her answer. The period again lapsed without petitioner filing her answer. Thus, in an Order 5 dated September 16, 2009, she was declared in default and respondents were allowed to present their evidence ex parte.
After almost a month of having been declared in default, petitioner filed an Urgent Motion to Lift Order of Default and to Admit Attached Answer 6(Urgent Motion) alleging that she has a meritorious defense without, however, stating what her defense was. In the Opposition filed by respondents, it pointed out that the urgent motion was not under oath or verified and was not accompanied by an Affidavit of Merit. Hence, the urgent motion was denied by the trial court for lack of merit.
After presentation of evidence ex parte, the trial court rendered a decision in favor of respondents. It held that respondents were able to prove that they were the owners of the parcel of land described under TCT No. 228181-R.
Petitioner filed a Motion for Reconsideration but it was denied for lack of merit.
Ruling of the CA
The CA denied the appeal of petitioner. The CA held that the trial court did not err in denying her urgent motion as she was given several opportunities to file her answer but still failed to do so. Like the trial court, the appellate court found the urgent motion fatally defective. It was not under oath, lacked an affidavit of merit, and the alleged excusable negligence of her counsel was not properly alleged and proven. She also failed to substantiate the claim that she has a meritorious defense to warrant the lifting of the order of default.
The CA agreed with the factual findings of the trial court and ruled that respondents were able to prove, by preponderance of evidence, the material allegations in their complaint that they were the absolute owners of the subject property.
ISSUES
Petitioner raises the following issues:
I.
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE TRIAL COURT DID NOT ERR IN DENYING THE PETITIONER'S MOTION TO LIFT ORDER OF DEFAULT AND ADMIT ATTACHED ANSWER.
II.
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE RESPONDENTS PROVED THE ALLEGATIONS [IN] THEIR COMPLAINT. 7
OUR RULING
In order to afford substantial justice, we are constrained to grant the petition.
Anent the first issue raised by petitioner, this Court finds that the denial of petitioner's urgent motion is proper. For a motion to lift an order of default to prosper, the following requisites must concur: (1) it must be made by motion under oath by one who has knowledge of the facts; (2) it must be shown that the failure to file answer was due to fraud, accident, mistake or excusable negligence; and (3) there must be a proper showing of the existence of meritorious defense. 8
Here, the motion is fatally defective. Petitioner filed a motion neither under oath nor verified and was not accompanied with an affidavit of merit. Though it mentioned that petitioner has a meritorious defense, she failed to provide any detail on the same. The motion also failed to properly allege the fraud, accident, mistake or excusable neglect which caused the failure to answer. In short, the motion does not contain a justifiable reason for the failure to file the appropriate responsive pleading.
Worthy to note that petitioner was given ample opportunity to file her answer, but it was only after she was declared in default that she filed the appropriate pleading. We cannot agree with petitioner's contention that the negligence of her counsel should not bind her as she already knew that an answer was required when they received respondent's motion to declare her in default, and yet when she obtained the services of a private counsel, she still did not insist on filing the required pleading. This contention is not consistent with her act and intention of securing a private counsel instead of relying on the public attorney who first handled her case. DETACa
As regards the second issue, we find that petitioner's assertion is meritorious. Indeed, the party declared in default retains the right to appeal from the judgment by default. The grounds that may be raised in such an appeal are restricted to any of the following: first, the failure of the plaintiff to prove the material allegations of the complaint; second, the decision is contrary to law; and third, the amount of judgment is excessive or different in kind from that prayed for. In these cases, the appellate tribunal should only consider the pieces of evidence that were presented by the plaintiff during the ex parte presentation of his evidence. 9
In this case, petitioner insists that respondents failed to prove the material allegations of their complaint as the documents submitted were highly questionable. Petitioner contends that the trial court should not have given credence on the evidence of respondents. She points out several infirmities of the deed of absolute sale (between the developer and respondents), such as: 1) it was undated; 2) no names and/or signatures appear on it as witnesses; and 3) it was a mere photocopy which should have not been admitted in violation of the Best Evidence Rule. It was also highlighted that the name of a notary public appears on the same instrument but it was neither signed nor marked with an official seal. Petitioner also questions the contents of the Contract to Sell as it was allegedly tampered with and that the stipulated consideration was inconsistent with that provided in the deed of absolute sale. She further alleges that the certificate of full payment is dubious as it was not notarized and was issued only on April 22, 2009 when the deed of sale was made on February 21, 2005. Petitioner likewise raises the issue of prematurity of filing the complaint for not having undergone barangay conciliation.
In Otero v. Tan, 10 we have held that "[w]hile it may be said that by defaulting, the defendant leaves himself at the mercy of the court, the rules nevertheless see to it that any judgment against him must be in accordance with the evidence required by law. The evidence of the plaintiff, presented in the defendant's absence, cannot be admitted if it is basically incompetent. Although the defendant would not be in a position to object, elementary justice requires that only legal evidence should be considered against him. If the same should prove insufficient to justify a judgment for the plaintiff, the complaint must be dismissed." 11
To start with, the issue of prematurity for failure to undergo barangay conciliation cannot be the subject of appeal as it was not covered by the default judgment.
A perusal of the records shows that the genuineness and due execution of the deed of absolute sale and the certificate of full payment were not properly established by respondents.
First, records show that the deed of absolute sale is a mere photocopy. Pertinent provisions of Rule 130 of the Rules of Court provides:
RULE 130
Rules of Admissibility
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1. Best Evidence Rule
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Section 3. Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in a public office.
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2. Secondary Evidence
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Section 5. When original document is unavailable. — When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. (Emphases supplied)
Under the Best Evidence Rule, the original document must be produced whenever its contents are the subject of inquiry. When the original is lost, secondary evidence may be allowed. However, "before a party is allowed to adduce secondary evidence to prove the contents of the original, the offeror must prove the following: (1) the existence or due execution of the original; (2) the loss and destruction of the original or the reason for its non-production in court; and (3) on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. The correct order of proof is as follows: existence, execution, loss, and contents." 12 aDSIHc
We agree with petitioner that the best evidence rule was not observed by respondents. The Transcript of Stenographic Notes (TSN) of the proceedings before the RTC reveals:
Q. Were you able to pay the whole consideration for that property?
A. Yes, sir.
Q. After you have fully paid the property in installment basis, what documents did the developer issue, if there were any?
A. They issued me a Deed of Absolute Sale and a Certificate of Full Payment, sir.
Atty. Canlas:
May we request, your Honor, that a copy of the Deed of Absolute Sale identified to by the witness be marked as Exh. B, your Honor, and the Certificate of Full Payment dated April 22, 2009 be marked as Exhs. C and C-1, your Honor.
Br. Clerk of Court:
So marked.
This is just a mere photo copy.
Atty. Canlas:
Q. Madam witness, what you just presented to the Court is a photo copy of the Deed of Absolute Sale which appears Dela Cruz-Lim Estate, Inc. and Spouses Fernando Espino and Elizabeth Espino as buyers. Will you tell the Court where is the original copy of this Deed of Absolute Sale?
A. The original copy was lost, sir.
Q. Will you tell the court how it was lost?
A. This document including the owner's duplicate copy of the title were kept in our files. However, later on we found out that they are missing, sir.
Q. Where did you get this copy?
A. Through Dela Cruz, sir.
Q. How did you secure that photo copy?
A. After discovering that the original co[p]y of the Deed of Absolute Sale and the Certificate of Title were missing, we immediately went to the office of the Dela Cruz-Lim Realty Estate, Inc. and asked for a photo copy and fortunately the original copy of the Deed of Absolute Sale was still intact and they only gave us a photo copy, sir.13 (Emphases supplied)
The deed was purportedly executed by Dela Cruz-Lim Estate, Inc. and signed by its Chairman, Emiliano Dela Cruz, in favor of respondents. It follows then that its existence, due execution and contents may be proven by anyone of the following: the person who prepared the aforesaid document, the one who executed it, any of the witnesses to its due execution, or the notary public. A careful examination of the deed shows that there was no witness who signed it with Emiliano Dela Cruz. Neither did the purported notary public sign or stamp his seal on the document. Thus, there was no other competent witness to testify on its due execution except for Emiliano Dela Cruz. However, records are bereft of proof that Emiliano Dela Cruz or anyone from Dela Cruz-Lim Estate, Inc. was presented by respondents. It must be stressed that respondent Elizabeth Espino cannot testify on the due execution of the deed as she was not the one who executed the same, and was merely a beneficiary of the said instrument. She can only testify as to the fact of loss.
Furthermore, respondents also failed to observe proper authentication of their documents presented as evidence. The deed of absolute sale and certificate of full payment cannot be categorized as public documents. It bears to note that the deed of absolute sale is considered as a private document absent any showing that it was duly notarized; the same goes for the certificate of full payment. Being private documents offered as authentic, the rules require that before it is received in evidence, its due execution and authenticity must be proven, thus:
RULE 132
Presentation of Evidence
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B. AUTHENTICATION AND PROOF OF DOCUMENTS
Section 19. Classes of Documents. — For the purpose of their presentation in evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public except last wills and testaments; and
(c) Public records, kept in the Philippines, of private documents required by law to be entered therein
All other writings are private.
Section 20. Proof of private document. — Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be. ETHIDa
Following Section 19, and as we have earlier ruled, the documents sought to be presented undoubtedly are private in character, and hence, must be identified and authenticated in the manner provided in the Rules. Section 20 provides that before any private document is received in evidence, its due execution and authenticity must be proved either by anyone who saw the document executed or written, or by evidence of the genuineness of the signature or handwriting of the maker. The failure to properly authenticate the documents would result in their inadmissibility. 14 Here, during the ex parte presentation of evidence, respondents failed to present anyone to testify on the due execution and authenticity of the aforementioned documents. Again, Emiliano Dela Cruz who executed both documents was not presented by respondents. Therefore, for respondents' failure to properly authenticate the documents, it should not have been admitted in evidence against petitioner.
In civil cases, the burden of proof rests upon the plaintiff, who is required to establish his case by a preponderance of evidence. 15 As the rule indicates, preponderant evidence refers to evidence that is of greater weight, or more convincing, than the evidence offered in opposition to it. It is proof that leads the trier of facts to find that the existence of the contested fact is more probable than its nonexistence. 16
In this case, we find that in order to properly ventilate the claims of the parties, and considering further that the current certificate of title of the subject property is under petitioner's name, a re-trial of the case is proper. The rights of the parties over the subject property may be accurately determined if both parties are given the opportunity to present their respective evidence. Accordingly, the Answer of petitioner is admitted and the RTC is ordered to conduct further proceedings, thereafter, to weigh the evidence of both parties in order to determine their rights over the subject property.
WHEREFORE, the petition is hereby GRANTED. The Decision of the Court of Appeals is SET ASIDE and this case is REMANDED to the Regional Trial Court of Angeles City, Branch 60. The RTC is ordered to admit petitioner's Answer and proceed to trial with reasonable dispatch.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 13-33.
2.Id. at 38-46; penned by Associate Justice Florito S. Macalino, and concurred in by Associate Justices Mariflor P. Punzalan Castillo and Zenaida T. Galapate-Laguilles.
3.Id. at 140-143; penned by Presiding Judge Ofelia Tuazon Pinto.
4.Id. at 144-146.
5.Id. at 72.
6.Id. at 73-74.
7.Id. at 20.
8.Kilosbayan Foundation, et al. v. Judge Janolo, Jr., et al., 640 Phil. 33, 58 (2010).
9.Otero v. Tan, 692 Phil. 714, 725 (2012).
10.Id.
11.Id. at 726-727.
12.Country Bankers Insurance Corp. v. Lagman, 669 Phil. 205, 216 (2011).
13.Rollo, pp. 114-115.
14.Lara's Gift and Decors, Inc. v. PNB General Insurers Co., Inc., et al., G.R. Nos. 230429-30, January 24, 2018.
15.Spouses De Leon, et al. v. Bank of the Philippine Islands, 721 Phil. 839, 848 (2013).
16.Heirs of Villanueva v. Heirs of Mendoza, G.R. No. 209132, June 5, 2017, 825 SCRA 513, 525-526.