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Republic of the Philippines

COURT OF APPEALS
Cebu City


VICTORIA C. NUEGA
Petitioner,

- versus C.A. G.R. CV No. 13456
RE: ANNULMENT OF
CONTRACT WITH
DAMAGES
ROSITO T. TORIBIO
Respondent.

x ------------------------------------ x


MEMORANDUM FOR THE PETITIONER


The petitioner, VICTORIA C. NUEGA, through the undersigned
counsel and unto this Honorable Court, respectfully submits this
memorandum to wit:


PREFATORY STATEMENT

In the absence of a marriage settlement between spouses as to
the property relations that will govern during their marriage or when
the regime agreed upon is void, they shall be governed by the system
of absolute community of property as provided under the Family
Code of the Philippines (Article 75, Family Code of the Philippines).
Under this regime, all the properties which are owned by the spouses
at the time of the celebration of their marriage or acquired thereafter
shall be owned in common by them (Article 91, Family Code of the
Philippines). Because of this co-ownership, both the consent of the
spouses shall be obtained in the sale and other transactions involving
their co-owned properties. However, where the consent of one spouse
to a transaction cannot be obtained, the other spouse may petition the
court for judicial authorization to proceed with the transaction
(Article 100, Family Code of the Philippines). This shall be done by
filing a verified petition with the court and attaching thereto the
proposed deed for the transaction, if there is any, and if none, shall
describe in detail the said transaction and state the reason why the
required consent thereto cannot be obtained. In any case, the final
deed duly executed by the parties shall be submitted to and approved
by the court (Article 239, Family Code of the Philippines).

STATEMENT OF FACTS

Plaintiff Victoria Nuega, 32 years old and Greggy Nuega got
married in 2009. Immediately thereafter, the spouses have been
living in their rest house in Talisay which was bought by Greggy
Nuega in 2003 when he was still single. When plaintiff learned that
she was having a baby sometime in 2010, they decided to buy a bigger
house to make room for the nanny and all the baby stuff they need.

Defendant Rosito Toribio, 43 years old, has been friends with
the Spouses Nuega since high school and frequented to the spouses
rest house for weekend dinners. Sometime in January 2010, plaintiff
told him mentioned their plan to him. He responded that he would
love to buy their rest house should they finally decide to sell it.

In April 2010, plaintiff called defendant and informed him that
they finally found a bigger house in Maria Luisa, Cebu City. Plaintiff
told defendant that they are now selling their rest house in Talisay.
Since defendant was interested in buying it, she offered it to him for
P5 million. Defendant said that he will call back once the deed of sale
and managers check was ready.

While plaintiff left for Japan in May 2010 to give birth she
eventually decided not to sell the rest house anymore for it would
better to keep it in the meantime as an investment. However, in June
2010, defendant met up with Mr. Nuega and proceeded with the sale
by handing Mr. Nuega the managers check and afterwards signed the
deed of sale. Plaintiff was informed of the said sale sometime in June
2010 that her husband called her.

When plaintiff returned in September 2010, she called
defendant and said they would not be selling the rest house and
offered to return his money in cash to which defendant refused to
accept.

Thus, this case for annulment of contract with damages.




MATERIAL DATES


1. On August 30, 2014, the Regional Trial Court Branch No.
1 in the exercise of its appellate jurisdiction issued an Order
dismissing the Complaint for supposed lack of cause of action.
Plaintiff (Appellant) filed then a time Motion for Consideration. It,
too was decided by the Honorable Court a quo.
2. Appellant filed a timely appeal. Last September 5, 2014,
undersigned counsel received a notice from this honorable Court
directing him to file Appellants Memorandum within 15 days from
receipt of the same (or Until August 20, 2014) pursuant to Rule 40,
Section 7, of the Revised Rules of Court, Hence, this Memorandum
which is seasonably filed.


ERROR OF THE JUNE 30, 2014 ORDER
OF THE MUNICIPAL TRIAL COURT A QUO
AND ITS SUBSEQUENT ORDER DENYING
APPELLANTS MOTION FOR RECONSIDERATION


3. The Honorable Municipal Trial Court a quo erred in
dismissing the Complaint on the ground that ruling that the
Appellant failed to prove her claim as she had no cause of action.
4. The Honorable Municipal Court a quo erred in dismissing
the Complaint even if other material facts, if fairly appreciated, would
have actually supported Appellants claim.

ISSUES


I. Whether or not the subject property is an exclusive property of
Greggy Nuega
II. Whether or not plaintiffs right over the joint administration
and enjoyment of the rest house was violated when this was
sold by her husband to the defendant without her consent
III. Whether or not there has a basis to have the contract of sale
annulled
IV. Whether or not plaintiff is entitled to damages.


ARGUMENTS AND DISCUSSION


I. Plaintiff submits that the rest
house, the object of the sale, is a
community property.

In the absence of such contract, or if the contract is void, on
marriages contracted before August 3, 1988, the system of conjugal
partnership of gains shall govern and on marriages contracted on or
after August 3, 1988 (effectivity of the Family Code of the
Philippines), the system of absolute community of property shall
govern. Be it noted that the Spouses Nuega were married in the year
2009 and no marriage settlement was executed prior to their
marriage. It is, therefore, clear that it is the absolute community of
property regime which shall govern their property relations. And by
virtue of Article 88 of the Family Code, the absolute community of
property between spouses shall commence at the precise moment
that the marriage is celebrated. Any stipulation, express or implied,
for the commencement of the community regime at any other time
shall be void. (145a) (Emphasis supplied)

With regards to the property administration of the Spouses
Nuega, the Family Code has also provided under Art. 91 that:

Unless otherwise provided in this Chapter or in the marriage
settlements, the community property shall consist of all the property
owned by the spouses at the time of the celebration of the marriage
or acquired thereafter (Emphasis Supplied)

Article 93 of the Family Code also provides:

Property acquired during the marriage is presumed to belong
to the community; unless it is proved that it is one of those excluded
therefrom.

There are four excluded properties from the absolute
community property. Article 91 provides that the marriage settlement
may provide for exclusions, therefore making the exclusions thereon
depend upon the will of the parties, and Article 92 provides for
statutory exclusions, to wit:

(1) Property acquired during the marriage by gratuitous title by
either spouse, and the fruits as well as the income thereof, if any,
unless it is expressly provided by the donor, testator or grantor that
they shall form part of the community property;
(2) Property for personal and exclusive use of either spouse.
However, jewelry shall form part of the community property;
(3) Property acquired before the marriage by either spouse who
has legitimate descendants by former marriage, and the fruits as well
as the income, if any, of such property. (201a)

Given that no marriage settlement was executed prior to the
marriage of Victoria and Greggy Nuega and the rest house, which is
the object of the sale, is not one of those excluded properties
enumerated under the law, it is without a doubt that the rest house is
not an exclusive property of Greggy Nuega but a community property
which is a special type of co-ownership.


II. Plaintiff submits that Greggy
Nuega cannot encumber nor
alienate the subject rest house
without the consent of Victoria C.
Nuega.


The absolute community of property is a special type of co-
ownership. Hence, the law provides that the provisions on co-
ownership shall apply to the absolute community of property between
the spouses in all matters not provided for in this particular chapter
of the Family Code. Hence, each co-owner may use the thing owned
in common provided he or she does so in accordance with the
purpose for which it is intended and in such a way as not to injure the
interest of the co-ownership or prevent the other co-owners from
using it according to their rights (Article 486 of the Civil Code). Any
one of the co-owners may bring an action for ejectment (Article 487
of the Civil Code).

Article 96 of the Family Code states:

The administration and enjoyment of the community
property shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for proper remedy, which must be
availed of within five years from the date of the contract
implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the common properties, the
other spouse may assume sole powers of administration. These
powers do not include disposition or encumbrance without authority
of the court or the written consent of the other spouse. In the
absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be
construed as a continuing offer on the part of the consenting spouse
and the third person, and may be perfected as a binding contract
upon the acceptance by the other spouse or authorization by the
court before the offer is withdrawn by either or both offerors.
(206a) (Emphasis supplied)

Joint administration and enjoyment by the spouses of the
absolute community of property highlight the fact that, in absolute
community of property of regime, the spouses are co-owners of the
properties they introduced into the marriage and those acquired after
the marriage ceremony except those as may be excluded in the
marriage settlement and those listed under Article 92.

In the case of Docena vs. Lapusera, G.R. No. 140153, March 28,
2001, joint management or administration does not require that the
husband and the wife always act together. Each spouse may validly
exercise full power of management alone, subject to the intervention
of the court in proper cases. It is to be noted, however, that in the
second paragraph of Article 96, the assumption of powers of a spouse
has been limited and restricted so as not to include the power of
disposition, alienation and encumbrance. This provision implies
therefore that the power to administer is broadly treated under the
first paragraph of Article 96 but may be limited by law as in the case
of the second paragraph of Article 96.

In this case, the sale was only signed by the plaintiffs husband,
without any showing that the wife consented to the transaction.
While it is true that it was the plaintiff who made the offer to sell the
subject rest house to the defendant, the acceptance by the latter of the
offer to sell was not known to the former at the time that the latter
handed the managers check to the plaintiffs husband and at the time
plaintiffs husband signed the deed of sale of the subject rest house.
Thus, there was no consent yet by the plaintiff to speak of because
there was no manifestation of the meeting of the offer and the
acceptance upon the thing and the cause which are to constitute the
contract, pursuant to Article 1319 of the Civil to wit:

Consent is manifested by the meeting of the offer and the
acceptance upon the thing and the cause which are to constitute the
contract. The offer must be certain and the acceptance absolute. xxx"

Furthermore, defendant response to the offer made by the plaintiff to
the defendant was tantamount to a qualified acceptance because the
acceptance was not absolute which constitutes as a counter-offer
pursuant to Article 1319 of the Civil Code.

As held by the Supreme Court in the case of Nicolas v. Court of
Appeals, (G.R. No. L-37631, October 12, 1987), the sale by the
husband of the property belonging to the conjugal partnership
without the consent of the wife when there is no showing that the
latter is incapacitated is void ab initio because it is in contravention of
the mandatory requirement of Article 166 of the Civil Code.


III. Plaintiff submits that the
proper remedy is to seek
annulment of contract pursuant
to Article 96 of the Family Code.


Any disposition by one spouse of the said properties, completely
without the knowledge and consent of the other spouse, is null and
void. Hence, the action to nullify the contract entered into by the
transacting spouse will not have any prescriptive period as such
contract is null and void.

PNB vs. Court of Appeals, 153 SCRA 435, provides an exception
when a third-party purchaser is protected by the law. Under the said
case, the court ruled that if a Transfer Certificate of Title (TCT) of a
real estate indicated that a person named therein is single when in
fact he or she is married and therefore governed by the absolute
community of property, the sale of the said property by the registered
owner to the third person, who is an innocent-purchaser-for-value,
believing that the seller is single because of what is annotated in the
TCT, cannot be avoided. If the buyer acts in bad faith in that he or she
knows that the seller is married, then the sale can be voided. If,
however, there was knowledge but without the consent of the other
spouse and a disagreement arises, the contract entered into by the
husband, whose decision will prevail in cases of disagreement, shall
not be considered void but merely annullable at the instance of the
wife.

In this case, the Respondent cannot excuse himself from
liability by saying that the Transfer Certificate of Title of the subject
rest house indicated that Greggy Nuega was still single. He is a close
friend of the spouses for a very long time and, in fact, it was the
Plaintiff who told him with regards to their plan of selling the rest
house. Mr. Toribio is a buyer in bad faith. Considering that the
community property was sold without the plaintiffs consent,
plaintiffs proper remedy was to seek the annulment of the contract
pursuant to Article 96 of the Family Code.


IV. Plaintiff is entitled to damages.


In the instant case, defendant proceeded with the sale knowing
that the plaintiffs consent was absent in the sale of the community
property. Such action would constitute as bad faith in buying the
property. Moreover, the wanton disregard and refusal to return the
said property would make him liable for damages which he had the
obligation to return said property to plaintiff
PRAYER

WHEREFORE, premises considered, it is most respectfully
prayed that this Honorable Court renders judgment:
a. annulling the contract of sale involving the rest house; and
b. ordering the defendant to pay the plaintiff damages in the
aggregate amount of P150,000.00.

OTHER RELIEFS, just and equitable under the premises, are
likewise prayed for.

Cebu City, October 5, 2014.


CLEO MARJO B. CARTAJENAS
Counsel for the Petitioners
U5 2/F Hibiscus Building,
Hernan Cortes St., Subangdaku,
Mandaue City
PTR No. 5211895, Dec 30, 2013
IBP Lifetime Member
No. 01780, Dec. 27, 1996
Mandaue City, Cebu
Roll No. 0713

VICTORIA NUEGA
Petitioner
Corner Asuncion and Ascension Sts.
Talisay City, Cebu

Copy furnished:
Atty. Kurt Cajeta Talisay City

Recived by: Atty. Remfel Lor
Received on: October 5, 2014


VERIFICATION


ON OATH, I hereby declare that we are the plaintiffs in the
above-entitled case; that we caused the preparation of the foregoing
answer and that the contents thereof are understood by us after being
translated in the dialect we understand and that the same are true to
our personal knowledge based on authentic records.

Talisay City, October 5, 2014


VICTORIA NUEGA



SUBSCRIBED AND SWORN to before this 5
th
day of October 2014 at
Talisay City.

Copy furnished:
Atty. Kurt Cajeta Talisay City

Recived by: Atty. Remfel Lor
Received on: October 5, 2014


HENRY G. CABANILLA JR.
NOTARY PUBLIC
UNTIL DECEMBER 30, 2014
PTR NO. 8762539
ISSUED AT TALISAY CITY
ON JANUARY 20, 2014
TIN-114-646-635-000

Doc. No. 48
Page No. 21
Book No. 12
Series of 2013



PROOF OF SERVICE


I, DUWEY LOUISE GELBOLINGO, Filipino, of legal age,
married and a resident of Capitol Hills, Cebu City, after having been
duly sworn to in accordance with law, do hereby depose and say:
That on October 3, 2014, I serve one (1) copy of the foregoing
Memorandum for Petitioners, to:

Atty. Kurt Cajeta
Counsel for the Respondent
Suite 408, M. Diaz Building
Osmena and Cor. Avila Sts.
Talisay City

By personal Delivery.

Talisay City, October 8, 2014.


DUWEY LOUISE GELBOLINGO
Affiant


SUBSCRIBE AND SWORN, to before me this 3
rd
day of October 2014,
in Talisay City. Affiant exhibited to me her Community Tax
Certificate No. 123456-1, issued on January 25, 2014, in Cebu City
City.

HENRY G. CABANILLA JR.
NOTARY PUBLIC
UNTIL DECEMBER 30, 2013
PTR NO. 8762539
ISSUED AT TALISAY CITY
ON JANUARY 20, 2013
TIN-114-646-635-000

Doc. No. 42
Page No. 81
Book No. 12
Series of 2014