SUPREME COURT DECISIONS

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DISSENTING OPINION

DAVIDE, JR., C.J.:

I respectfully make of record my dissent to both drafts of the decision penned by Mme. Justice Consuelo Y. Santiago.

I. The first draft

The first draft (1) sets aside the Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 49084 and the Orders of the Regional Trial Court of Cebu City, Branch 11, in Civil Case No. CEB-21854; and (2) orders of the dismissal of said civil case.

I seriously doubt the propriety of this action, even if it is principally based on the non-payment of the deficiency of the docket fee. Sun Life Insurance Office Ltd. v. Asuncion (170 SCRA 274 [1989]) is not the final word on deficiency of docket fees. Tacay v. Regional Trial Court of Tagum, Davao del Norte, (180 SCRA 433, 443 [1989)) further liberalized the rule. Thus:

Two situations may arise. One is where the complaint or similar pleading sets out a claim purely for money or damages and there is no precise statement of the amounts being claimed. In this event the rule is that the pleading will not be accepted nor admitted, or shall otherwise be expunged from the record. In other words, the complaint or pleading may be dismissed, or the claims as to which the amounts are unspecified may be expunged, although as aforestated the Court may, on motion, permit amendment of the complaint and payment of the fees provided the claim has not in the meantime become time-barred. The other is where the pleading does specify the amount of every claim, but the fees paid are insufficient; and here again, the rule now is that the court may allow reasonable time for the payment of the prescribed fees, or the balance thereof, and upon such payment, the defect is cured and the court may properly take cognizance of the action, unless in the meantime prescription has set in and consequently barred the right of action.

Where the action involves real property and a related claim for damages as well, the legal fees shall be assessed on the basis of both (a) the value of the property and (b) the total amount of related damages sought. The Court acquires jurisdiction over the action if the filing of the initiatory pleading is accompanied by the payment of the requisite fees, or, if the fees are not paid at the time of the filing of the pleading, as of the time of full payment of the fees within such reasonable time as the court may grant, unless, of course, prescription has set in in the meantime. But where as in the case at bar the fees prescribed for an action involving real property have been paid, but the amounts of certain of the related damages (actual, moral and nominal) being demanded are unspecified, the action may not be dismissed. The Court undeniably has jurisdiction over the action involving the real property, acquiring it upon the filing of the complaint or similar pleading and payment of the prescribed fee. And it is not divested of that authority by the circumstance that it may not have acquired jurisdiction over the accompanying claims for damages because of lack of specification thereof. What should be done is simply to expunge those claims for damages as to which no amounts are stated, which is what the respondent Courts did, or allow, on motion, a reasonable time for the amendment of the complaints so as to allege the precise amount of each item of damages and accept payment of the requisite fees therefor within the relevant prescriptive period.

Even if we would still cling to Sun life, the rule therein laid down would still be applicable to this case, contrary to the assertion in the ponencia in question. The evil contemplated in Manchester case which prompted the pronouncement therein does not exist in the instant case.

Verily, there is good faith on the part of the private respondents in insisting on what their cause of action is. Even the Court of Appeals sustained their position in this issue.

Therefor, private respondents should only be required to pay the deficiency in docket fees.

II. The second draft

The second draft ponencia declares the trial court and the Court of Appeals as having acted with grave abuse of discretion in denying the motion for a preliminary hearing on the affirmative defenses. The order of the trial court denying the motion is an interlocutory order. There can be no appeal from such order of denial. A special civil action of certiorari under Rule 65 of the Rules of Court may be resorted to, but there must be a clear showing that the court had acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of or in excess of jurisdiction. Grave abuse of discretion means arbitrary and despotic action.

I submit that the trial court did not commit any grave abuse of discretion in denying the motion for a preliminary hearing on the affirmative defenses on the ground that such defenses do not appear to be indubitable. The ponencia itself admits that only some of the defenses appeared indubitable. The last paragraph of page 10 of the latest draft of the ponencia reads:

True, the trial court has the discretion to conduct a preliminary hearing on affirmative defenses. In the case at bar, however, the trial court committed a grave abuse of its discretion when it denied the motion for preliminary hearing. As we have discussed above, some of these defenses, which petitioners invoked as grounds for the dismissal of the action, appeared to be indubitable, contrary to the pronouncement of the trial court. Indeed, the abuse of discretion it committed amounted to an evasion of positive duty or virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, which would have warranted the extraordinary writ of certiorari. Hence, the Court of Appeals erred when it dismissed the petition for certiorari filed by petitioners. (underscoring supplied for emphasis.)

Accordingly, since the orders of the trial court are not tainted with grave abuse of discretion, the Court of Appeals committed no error in dismissing the petition for certiorari against said orders.

I then vote to deny due course to the petition.