For research purposes, below is an opposition I filed in a pending civil case involving the said issue.
OPPOSITION
(In Re: MOTION TO DISMISS)
(In Re: MOTION TO DISMISS)
THE PLAINTIFFS, by counsel, respectfully state:
1. In his ad cautelam motion for substitution, dated January 4, 2008, the counsel for the defendant xxx stated that Xxx had died on November 28, 2007; that the legal representative (presumably, the executor or administrator of the Xxx Estate, as the case may be) of the estate of xxx is “her legal heir” (presumably, sole heir and daughter) by the name of Ms. Xxx; that Ms. Xxx “should be substituted as defendant” as “a real party-in-interest” in this case.
2. In his motion to dismiss, dated January 11, 2008, the counsel for xxx prayed that this case “be DISMISSED with prejudice due to the death” of xxx on the premise that an action for tort/damages does not survive the death of the defendant, citing Bonilla vs. Barcena, L-41715, June 18, 1976.
3. At the outset, the aforementioned two (2) motions are contradictory to each other, both in substance and in intention, for one cannot seek the “dismissal with prejudice” of a case based on the death of the defendant while, at the same time, seeking the substitution of the heir/s of such defendant.
4. The aforecited case of ROSALIO BONILLA, etc., et. al., vs. LEON BARCENA, et. al., G.R. No. L-41715. June 18, 1976 involved a civil action to quiet title over certain parcels of land.
In the said case, it was the plaintiff Fortunata Barcena who died and the defendants thereafter moved to dismiss the complaint. Counsels for plaintiff asked for substitution by her minor children and her husband, but the trial court dismissed the case and refused to reconsider. Hence this petition for review.
The Supreme Court reversed the respondent court, set aside the order of dismissal and the orders denying the motion for reconsideration, and directed the respondent court to allow the substitution of the minor children and to appoint a qualified person as guardian ad litem for them.
As a sypnosis, the said case held, thus:
4.1. that “while it is true that a person who is dead cannot sue in court, yet he can be substituted by his heirs in pursuing the case up to its completion”;
4.2. that “where proper substitution of parties had been asked for, it is grave error for the court to dismiss the complaint on the ground that a dead person has no legal personality to sue”;
4.3. that “the death of the plaintiff during the pendency of an action to quiet title of a parcel of land did not extinguish her claim or right to the parcels of land in litigation but was transmitted to her heirs upon her death”;
4.4. that “the question as to whether an action survives or not defends on the nature of the action and the damage sued for”;
4.5. that “in causes of action which survive the wrong complained, of affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive the injury complained of is to the person, the property and rights of property affected being incidental”;
4.6. that “an action to quiet title over a parcel of land affects primarily and principally property and property rights and therefore, is one that survives even after plaintiff's death”;
4.7. that as such, “it is therefore, the duty of the trial. Court to order the legal representative of the deceased plaintiff to appear and to be substituted for said deceased, pursuant to Section 17, Rule 3 of the Rules of Court”;
4.8. that “where, upon the death of the plaintiff in an action to quiet title, counsel has not only asked that the minor children be substituted for her but also suggested that the uncle be appointed as guardian ad litem for them because their father is busy earning a living for the family, it is grave error for the respondent court to refuse the request for substitution on the ground that the children were still minors and cannot sue, because it ought to know that Section 17, Rule 3 of the Rules of Court, directs the Court to appoint a guardian ad litem for the minor”.
5. Sec. 16, Rule 3 of the 1997 Rules of Civil Procedure provides, thus:
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.
The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. (16a, 17a)
6. Sec. 20 of Rule 3 provides, thus:
SEC. 20. Action on contractual money claims. – When the action is for recovery of money arising from contract, express or implied and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, if shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person. (21a)
7. Per Justice JOSE Y. FERIA (Ret.), RULES OF CIVIL PROCEDURE (Rules 1-71, Rules of Court, Effective July 1, 1997, New Provisions, Annotated), Philippine Legal Studies, Series No. 5, 1997, 1997 ed., page s12-13, and 14 – 16, the court shall forthwith order said legal representative to appear and be substituted for the deceased within (30) days from notice. The legal representative may be the executor or administrator appointed by the probate court, or, if none, the heirs of the deceased. (Lawas vs. Court of Appeals, 146 SCRA 173).
But if the claim does not arise from contract, express or implied, such as a claim for damages for an injury to person or property, an ordinary action may be filed against the executor or administrator (Id., citing Sec. 1 of Rule 87). An action for damages arising from tort or delict may be filed against the executor or administrator (Id., citing Aguas vs. Llemos, 5 SCRA 959; Boar of Liquidators vs. Kalaw, 20 SCRA 987).
8. In the case of MARIA G. AGUAS, FELIX GUARDINO, et. al. vs. HERMOGENES LLEMOS, et. al., EN BANC, G.R. No. L-18107, August 30, 1962, it was held that “actions that survive against a decedent's executor or administrator are: (1) actions to recover real personal property from the sate; (2) actions to enforce a lien thereon; and (3) actions to recover damages for an injury to person or property. (Rule 88, Sec. 1)”; that “injury to property is not limited to injuries to specific property, but extends to other wrongs by which personal estate is injured or diminished (Baker vs. Crandall, 47 Am. Rep. 126; also 171 A.L.R., 1395)”; that “to maliciously cause a party to incur unnecessary expenses is injury to that party's property (Javier vs. Araneta, 90 Phil., 292); and that “hence, a suit for damages therefor survives the death of the defendant”. THUS:
X x x.
Plaintiffs argue with considerable cogency that contrasting the correlated provisions of the Rules of Court, those concerning claims that are barred if not filed in the estate settlement proceedings (Rule 87, sec. 5) and those defining actions that survive and may be prosecuted against the executor or administrator (Rule 88, sec. 1), it is apparent that actions for damages caused by tortuous conduct of defendant (as in the case at bar) survive the death of the latter. Under Rule 87, section 5, the actions that are abated by death are: (1) claims for funeral expenses and those for the last sickness of the decedent; (2) judgments for money; and (3) "all claims for money against the decedent, arising from contract express or implied". None of these includes that of the plaintiffs-appellants; for it is not enough that the claim against the deceased party be for money, but it must arise from "contract express or implied", and these words (also used by the Rules in connection with attachments and derived from the common law) were construed in Leung Ben vs. O'Brien, 38 Phil. 182, 189-194, "to include all purely personal obligations other than those which have their source in delict or tort."
Upon the other hand, Rule 88, section 1, enumerates actions that survive against a decedent's executors or administrators, and they are: (1) actions to recover real and personal property from the estate; (2) actions to enforce a lien thereon; and (3) actions to recover damages for an injury to person or property. The present suit is one for damages under the last class, it having been held that "injury to property" is not limited to injuries to specific property, but extends to other wrongs by which personal estate is injured or diminished (Baker vs. Crandall, 47 Am. Rep. 126; also 171 A. L. R. 1395). To maliciously cause a party to incur unnecessary expenses, as charged in this case, is certainly injury to that party's property (Javier vs. Araneta, L-4269, Aug. 31 1953).
X x x.
9. In the case of THE BOARD OF LIQUIDATORS, etc., et. al. vs. HEIRS OF MAXIMO M. KALAW, et. al., EN BANC, G.R. No. L-18805, August 14, 1967, it was held that “Rule 87, Section 1, Rules of Court, enumerates actions that survive against a decedent's executors or administrators, and they are: (1) actions to recover real and personal property from the estate; (2) actions to enforce a lien thereon; and (3) actions to recover damages for an injury to person or property”; that “where the suit revolves around alleged negligent acts of decedent for having entered into contracts without the prior approval of the Board of Directors, to plaintiff's damage and prejudice, and is against the decedent and other directors for having subsequently approved those contracts in bad faith and/or breach of trust, the case is not a mere action for money nor a claim for money arising from contract, but is embraced in suits filed "to recover damages for an injury to person or property, real or personal," which survive. Section 1, Rule 87, Rules of Court”.
10. In the recent case of EPIFANIO SAN JUAN, JR. vs. JUDGE RAMON A. CRUZ, et. al., , G.R. No. 167321, July 31, 2006, it was held that “the heirs may be allowed to be substituted for the deceased without requiring the appointment of an administrator or executor”; and that “a prior appointment of an administrator or executor of the estate of (a party) is not necessary for his heirs to acquire legal capacity to be substituted as representatives of the estate…. (as) said heirs may designate one or some of them as their representative before the trial court”. THUS :
X x x.
The second paragraph of (Sec. 16, Rule 3) is plain and explicit: the heirs may be allowed to be substituted for the deceased without requiring the appointment of an administrator or executor. However, if within the specified period a legal representative fails to appear, the court may order the opposing counsel, within a specified period, to process the appointment of an administrator or executor who shall immediately appear for the estate of the deceased. The pronouncement of this Court in Lawas v. Court of Appeals (relied upon by petitioner), that priority is given to the legal representative of the deceased (the executor or administrator) and that it is only
in case of unreasonable delay in the appointment of an executor or administrator, or in cases where the heirs resort to an extrajudicial settlement of the estate that the court may adopt the alternative of allowing the heirs of the deceased to be substituted for the deceased, is no longer true. In Gochan v. Young, a case of fairly recent vintage, the Court ruled as follows:
The above-quoted rules, while permitting an executor or administrator to represent or to bring suits on behalf of the deceased, do not prohibit the heirs from representing the deceased. These rules are easily applicable to cases in which an administrator has already been appointed. But no rule categorically addresses the situation in which special proceedings for the settlement of an estate have already been instituted, yet no administrator has been appointed. In such instances, the heirs cannot be expected to wait for the appointment of an administrator; then wait further to see if the administrator appointed would care enough to file a suit to protect the rights and the interests of the deceased; and in the meantime do nothing while the rights and the properties of the decedent are violated or dissipated.
The Rules are to be interpreted liberally in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. They cannot be interpreted in such a way as to unnecessarily put undue hardships on litigants. For the protection of the interests of the decedent, this Court has in previous instances recognized the heirs as proper representatives of the decedent, even when there is already an administrator appointed by the court. When no administrator has been appointed, as in this case, there is all the more reason to recognize the heirs as the proper representatives of the deceased. Since the Rules do not specifically prohibit them from representing the deceased, and since no administrator had as yet been appointed at the time of the institution of the Complaint with the SEC, we see nothing wrong with the fact that it was the heirs of John D. Young, Sr. who represented his estate in the case filed before the SEC. (Emphasis supplied)
The heirs of the estate of Oscar Casa do not need to first secure the appointment of an administrator of his estate, because from the very moment of his death, they stepped into his shoes and acquired his rights as devisee/legatee of the deceased Loreto San Juan. Thus, a prior appointment of an administrator or executor of the estate of Oscar Casa
is not necessary for his heirs to acquire legal capacity to be substituted as representatives of the estate. Said heirs may designate one or some of them as their representative before the trial court.
X x x.
WHEREFORE, premises considered, it is respectfully prayed that the ad cautelam motion for substitution be granted pursuant to Rule 3 and that the motion to dismiss be denied, for lack of merit.
Las Pinas City, February 28, 2008.
LASERNA CUEVA-MERCADER
AND ASSOCIATES LAW OFFICES
Counsel for Plaintiffs
Unit 15, Star Arcade, C.V. Starr Avenue
Philamlife Village, Las Pinas City 1743
Tel./Fax No. 8742539, 8725443
MANUEL J. LASERNA, JR.
PTR No. 9177856, 1/04/06, Las Pinas City
IBP Lifetime Member No. 1907
IBP PPLM Chapter
Roll No. 33640, April 27, 1985
