Motion For Reconsideration - Rodolfo Arambulo - C.docx

REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT FIRST JUDICIAL REGION Branch 56 SAN CARLOS CITY, Pangasinan Spouses Rodolfo Arambulo and Iluminada Arambulo, Plaintiffs,

CIVIL CASE No.: SCC-4099 For: Recovery of Possession of a Portion of a Registered Land with Damages

Vs. PERFECTO DELOS REYES and ANGEL TAMONDONG, Defendants. X-------------------------------------X

MOTION FOR RECONSIDERATION Plaintiffs-movants, through the undersigned counsel, unto the Honorable Court most respectfully move for the reconsideration of the ORDER of the Honorable Court dated 13 March 2019, and hereby states:

TIMELINESS OF THE MOTION 1. On 20 March 2019, thru undersigned counsel, Plaintiffs-movants were in receipt of the ORDER dated 13 March 2019, the dispositive portion of which reads: “WHEREFORE, in view of the foregoing, the instant case is hereby DISMISSED without prejudice. SO ORDERED.” 2. Plaintiffs herein have a period of fifteen (15) days from 20 March 2019, or until 4 April 2019 to seek for a reconsideration of the said Order; 3. Thus, this motion for reconsideration; GROUNDS 4. Plaintiffs moves for the reconsideration of the aforesaid ORDER of the Honorable Court on the following grounds:

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4.1.

That the case has undergone prior resort to barangay conciliation before it was filed before the Honorable Court;

4.2.

That the Certificate to file action dated June 10, 2010 binds substitutedefendant FREDDIE DELOS REYES as well as defendant ANGEL TAMONDONG; hence, valid and enforceable;

DISCUSSIONS I. WHETHER OR NOT PRIOR REFERRAL OF THE MATTER TO BARANGAY CONCILIATION HAS BEEN COMPLIED IN THIS CASE 5. It is most respectfully submitted that: The Certificate to file action dated June 10, 2010 is valid and enforceable. 5.1.

This case is a dispute involving a real property, that is, for recovery of possession of a portion of a piece of land: 5.1.1. The subject parcel of land is located in Brgy. Batancaoa, Urbiztondo, Pangasinan (paragraph 3 of the Complaint dated 22 February 2016); 5.1.2. Original defendant PERFECTO DELOS REYES (as well as substitutedefendant FREDDIE DELOS REYES) is a resident of Brgy. Batancaoa, Urbiztondo, Pangasinan (paragraph 2 of the same Complaint); 5.1.3. Defendant ANGEL TAMONDONG is a resident of Brgy. Bituag, Urbiztondo, Pangasinan (paragraph 2 of the same Complaint); and 5.1.4. On the other hand, Plaintiffs are residents of Brgy.Poblacion, Urbiztondo, Pangasinan (paragraph 1 of the same Complaint);

5.2.

As to the need for prior referral to the Lupong Tagapamayapa (prior resort to barangay conciliation) before the case is filed, the answer is found in the following provision of R.A. 7160, "The Local Government Code of 1991": SEC. 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:

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(a) Where one party is the government of 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 property located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; (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 recommendation of the Secretary of Justice. marie The court in which the non-criminal cases not falling within the authority of the lupon under this Code are filed may, at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement.

5.3.

Further, the following provision of R.A. 7160, "The Local Government Code of 1991" applies when it comes to venue:

SEC. 409. Venue. - (a) Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon of said barangay. (b) Those involving actual residents of different barangays within the same city of municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complainant. (c) All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated.

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(d) Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located. Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the same shall be deemed waived. Any legal question which may confront the punong barangay in resolving objections to venue herein referred to may be submitted to the Secretary of Justice or his duly designated representative whose ruling thereon shall be binding.

5.4.

It is respectfully submitted that there was prior resort to barangay conciliation, in full compliance with the purpose and intent of the law on the matter: 5.4.1. Paragraph 10, 11 and 14 of the Complaint so states: That the Plaintiffs have invited the defendant PERFECTO DELOS REYES to inform him of such encroachment, through meeting scheduled before the office of the Punong Barangay of Bituag, Urbiztondo, Pangasinan where he manifested that his parents have left the same as part of their estate, and that according to him, he was not inform of the relocation survey, and after failure of earnest efforts to settle; That the Plaintiffs again brought a complaint against defendant PERFECTO DELOS REYES before the Office of the Punong Barangay of Barangay Batancaoa, Urbiztondo, Pangasinan; after failure of earnest efforts to settle, Certification to File Action was issued in favor of the plaintiffs (Attached hereto as ANNEX “H” is the copy of the Certification to File Action);

That the plaintiffs again were constrained to bring the matter to the Lupon of Barangay of BITUAG, Urbiztondo, Pangasinan, to no avail and after failure of earnest efforts to settle, Certification to File Action was issued in favor of the plaintiffs (Attached hereto as ANNEX “I” is the copy of the Certification to File Action); 5.4.2. COMPLAINT contains allegations as to compliance requirement to prior resort to barangay conciliation. 5.4.2.1.

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Plaintiffs exhausted available administrative remedies:

5.4.2.1.1.

FIRST, there was prior resort to barangay conciliation in BRGY. BITUAG where Defendant ANGEL 4

TAMONDONG is alleged to be a resident of at the time of the filing of the case; 5.4.2.1.2.

SECOND, in BRGY. BATANCOA (where the subject parcel of land is located and where Defendant PERFECTO DELOS REYES (as well as substitutedefendant) is a resident of), there was prior referral to barangay conciliation; and

5.4.2.1.3.

THIRD, the matter was referred for barangay conciliation before BRGY. BITUAG;

5.4.2.2.

In both efforts for barangay conciliation, no settlement was arrived at; II.

WHETHER OR NOT THE DEATH OF ORIGINAL DEFENDANT PERFECTO DELOS REYES AT THE TIME OF THE FILING OF THE SUIT RENDERS THE CERTIFICATE TO FILE ACTION VOID

6. When this case has been referred for barangay conciliation, original defendant PERFECTO DELOS REYES is alive and it was his act that is the subject of the present case: 6.1.

He was made respondent in the matter brought before Brgy. Bituag (where defendant ANGEL is a resident of and Brgy. Batancaoa (where defendant PERFETO and substitute defendant FREDDIE is a resident of and where the subject real property is located); and

6.2.

The documents emanating from the said offices, such as Certificate to File Action contains the name of original defendant PERFECTO;

7. At the time of the filing of the complaint, Plaintiffs-movants filed the COMPLAINT without any knowledge of the fact of death of original Defendant Perfecto delos Reyes: 7.1.

There is no way that Plaintiffs could be expected to resort to prior referral of the case for barangay conciliation against the substitutedefendant;

7.2.

As already stated, Plaintiff has no knowledge of the death of original defendant PERFECTO DELOS REYES prior to the time of the filing of the complaint before the Honorable Court;

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7.3.

They came to know about his death from the report of the process server of the Court;

7.4.

In the said process server’s report, it was indicated that original Defendant Perfecto delos Reyes was already deceased and that the summons and the complaint was duly received by his son, FREDDIE DELOS REYES (now the substitute defendant); and

7.5.

Because of the said development, instead of withdrawing the complaint, the rule on substitution of deceased party has been resorted to;

8. Substitution of original defendant PERFECTO DELOS REYES is proper under the circumstances: 8.1.

That the case has been filed without any indication that original defendant PERFECTO DELOS REYES is now deceased;

8.2.

That substitute-defendant FREDDIE DELOS REYES is the son of original defendant PERFECTO DELOS REYES;

8.3.

That substitute-defendant FREDDIE DELOS REYES has been already served with the Summons and the Complaint as per report of the process server (part of the record of the case); and

8.4.

That to withdraw the case, then refer the matter for prior barangay conciliation substitute defendant before filing the complaint anew is circuitous;

9. Thus, applying, by analogy, the provision of the Rules of Court on substitution of parties, Plaintiffs filed a motion for substitution dated 21 November 2016: 9.1.

Under the Rules of Court, in particular, Rule 3, Section 16, the following is said as to the death of a party to a pending action, to wit: `` “SEC. 16. Death of party; duty of counsel.—Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. X x x. X x x; 6

9.2.

Substitute-defendant FREDDIE DELOS REYES has filed his opposition thereto; “THE SUBSTITUTION OF THE ORIGINAL DEFENDANT HAS ALREADY BEEN RESOLVED AND THE OBJECTIONS THERETO PASSED UPON”

9.3.

As per ORDER of the Honorable Court, FREDDIE DELOS REYES has been ordered to be the substitute-defendant in lieu of his deceased father, PERFECTO DELOS REYES who is the original defendant;

9.4.

The ORDER allowing the substitution of original defendant PERFECTO DELOS REYES due to his death has already became final and executory, so to speak, there being no motion for reconsideration or interlocutory appeal filed by Substitute-defendant FREDDIE ANGELES; and

9.5.

Instead of filing a MOTION FOR RECONSIDERATION or interlocutory appeal (special civil action), Substitute-defendant FREDDIE ANGELES filed a MOTION to admit his ANSWER attached thereto. As such, this choice of remedy is binding to him, thereby waiving his objections to the substitution; “COMPLIANCE WITH SUCH CONDITION PRECEDENT IN FILING THE PRESENT CASE BINDS SUBSTITUTE-DEFENDANT FREDDIE DELOS REYES”

10. The effect of prior referral for barangay conciliation binds not only the original defendant PEREFECTO DELOS REYES, but also his substitute-defendant FREDDIE DELOS REYES: 10.1.

The acts complained of are those of original defendant PERFECTO DELOS REYES;

10.2.

The substitution has already been ordered as it is proper under the circumstances; hence, substitute defendant FREDDIE DELOS REYES became the extension of the personality of original defendant PERFECTO DELOS REYES; and

THE DEATH OF ORIGINAL DEFENDANT PERFECTO DELOS REYES AT THE TIME OF THE FILING OF THE SUIT RENDERS THE CERTIFICATE TO FILE ACTION VOID AS TO SUBSTITUTEDEFENDANT FREDDIE DELOS REYES 11. The effect of compliance with the prior referral for barangay conciliation of the matter brought against original defendant PERFECTO DELOS REYES binds 7

Substitute-defendant FREDDIE DELOS REYES; hence, the death of original defendant PERFECTO DELOS REYES does not render the CERTIFICATE TO FILE ACTION void; “DISCRETION OF THE HONORABLE COURT” 12. Assuming for the sake of argument that there is still a need to refer the matter for barangay conciliation insofar as substitute-defendant FREDDIE DELOS REYES is concerned, the Honorable Court has the discretion at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement; III. WHETHER OR NOT COMPLIANCE WITH CONDITIONPRECEDENT OF PRIOR REFERRAL FOR BARANGAY CONCILIATION BINDS DEFENDANT ANGEL TAMONDONG 13. It is true that original Defendant Perfecto delos Reyes is the one complained of in the case brought for prior barangay conciliation: “EFFECT OF PRIOR RESORT TO BARANGAY CONCILIATION APPLIES/EXTENDS TO DEFENDANT ANGEL TAMONDONG” 13.1.

When the law requires prior referral for barangay conciliation, it is referring to referral of the dispute itself;

13.2.

Since original defendant PERFECTO DELOS REYES is the PRINCIPAL respondent, it was him who was complained of at the barangay level. The theory is if it is resolved, defendant ANGEL TAMONDONG as a mere tiller of the subject lot under the behest of original defendant PERFECTO DELOS REYES will be bound as well;

13.3.

As alleged under paragraph 10 of the Complaint, Defendant ANGEL TAMONDONG has claimed that his “authority” to till the subject portion of the subject parcel of land “emanates” from defendant PERFECTO DELOS REYES who gave him the order to till the portion of the land subject of the case;

13.4.

The dispute is then precisely between Plaintiffs on one hand, and original defendant PEREFECTO DELOS REYES, on the other hand; and

13.5.

Nonetheless, the fact of prior resort to barangay conciliation extends not only to original defendant PERFECTO DELOS REYES (as well as his substitute-defendant), but also to Defendant ANGEL TAMONDONG;

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14. Plaintiff HAS impleaded defendant ANGEL TAMONDONG in the case before the Honorable Court as a nominal defendant as his “act” in cultivating the subject portion of the subject parcel of land is due to the alleged authority from original Defendant PERFECTO DELOS REYES; “DISCRETION OF THE HONORABLE COURT” 15. Assuming for the sake of argument that there is still a need to refer the matter for prior barangay conciliation vis-à-vis defendant ANGEL TAMONDONG, the Honorable Court has the discretion at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement.

PRAYERS WHEREFORE, it is most respectfully prayed unto the Honorable Court that the ORDER dated 13 MARCH 2019 be reconsidered and set aside, and a new one be issued allowing the case to proceed to trial. Other reliefs just and equitable under the circumstances are likewise prayed for. MOST RESPECTFULLY SUBMITTED. Mangatarem, Pangasinan for San Carlos City, Pangasinan. 26 MARCH 2019. ____________________________________ ATTY. MICHAEL GOTOS DELA VEGA (Counsel for Plaintiffs-movants) Roll of Attorney No. 54447 I.B.P. O.R. NO. 0724; 01/04/2019; PANG. CHAP. P.T.R. O.R. No. 4749248; 01/10/2019;Mangatarem, Pangasinan. T.I.N. 253-955-126-000; 08-23-2007; and M.C.L.E Compliance Certificate Number: V-0016700; 3/28/2016.

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Date: 26 March 2019 To: Hon. CLERK OF COURT Regional Trial Court Branch 56 SAN CARLOS CITY, PANGASINAN

REQUEST Sir: Greetings!!! Kindly enter in the calendar of hearing of the Honorable Court this 23 April 2019 at 8:30 o’clock in the morning for the consideration and resolution of the Honorable Court. Thank you! Mangatarem, Pangasinan for San Carlos City, Pangasinan. 26 March 2019. _____________________________ ATTY. MICHAEL GOTOS DELA VEGA (Counsel for the Movants-Plaintiffs) Copy Furnished:

Proof of Service

Atty. JEFERSON T. FACULANAN (For Defendant ANGEL TAMONDONG) 181 Pasibi East, Urbiztondo, Pangasinan

Registry Receipt NO. ____________ Date: __________________ Issued by:

FREDDIE G. DELOS REYES

Registry Receipt NO. ____________

Barangay Bituag, Urbiztondo, Pangasinan

Date: __________________ Issued by: EXPLANATION

Service and Filing were made by registered mail with return card due to lack of messengerial personnel such that personal filing and service of the herein cannot be made. ____________________________ Atty. Michael Gotos dela Vega (Counsel for the Plaintiffs-movants)

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