REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
BRANCH __, QUEZON CITY

JUAN DELA CRUZ,

Plaintiff,

- versus - CIVIL CASE NO: _________________

JOHN DELA CRUZ

Defendant.
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COMMENT/ OPPOSITION
(Re: Motion to Dismiss dated 17 October 2016)
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Plaintiff JUAN DELA CRUZ (herein plaintiff), files its

Comment/Opposition upon the following presentation:

1. Defendant John Dela Cruz (herein defendant John), through

counsel, moves for the dismissal of the action herein based on the following
grounds: (1) the death of defendant John; and (2) the action is barred by
prescription.

2. This Honorable Court should deny defendant Johns motion for

the following reasons: (1) the action herein survives the death of the party; and
(2) the running of the prescriptive period has yet to commence.
3. Plaintiff wishes to emphasize that the action at hand is one for
reconveyance of property based on an existing express trust. It is therefore
erroneous for defendant John to claim the action at hand as one for mere specific
performance.
4. An action for reconveyance is one that seeks to transfer property,
wrongfully registered by another, to its rightful and legal owner.1 The Complaint
clearly allege plaintiff as a rightful and legal co-owner of the real property
concerned. The Complaint likewise specifically point out the fact that as of date,
it is defendant John who is registered as a co-owner of the real property
concerned.

1
Manuel P. Ney and Romulo P. Ney vs Spouses Quijano, G.R. No. 178609, 04 August 2010, citing
Sps. Alfredo v Sps. Borras, 452 Phil. 178, 183 (2003).
1
 5. In establishing plaintiff as the rightful and legal owner, the
Complaint presented several documents that contains express declarations by
defendant John as being a mere trustee for plaintiff. These documents were the
1998 Acknowledgement/Agreement (Annexes A and A-1), the 2002
Acknowledgement/Agreement (Annex B) and the correspondences made by
defendant John (Annexes C-2 and C-5).
6. All of these documents clearly establish an express trust between
plaintiff and defendant John that, in fact, has yet to be repudiated. In the case of
Maria Torbela vs Sps. Rosario and Banco Filipino Savings and Mortgage
Bank2, a trust was explained as such, to wit:

Trust is the right to the beneficial enjoyment of

property, the legal title to which is vested in another. It
is a fiduciary relationship that obliges the trustee to deal with
the property for the benefit of the beneficiary. Trust
relations between parties may either be express or implied.
An express trust is created by the intention of the trustor or
of the parties, while an implied trust comes into being by
operation of law.

Express trusts are created by direct and positive acts of

the parties, by some writing or deed, or will, or by words
either expressly or impliedly evincing an intention to
create a trust. 3

7. Given these, defendant Johns Motion to Dismiss must be denied

by this Honorable Court. Defendant Johns untimely demise will not suffice as
sufficient ground for this actions dismissal. 16 Rule 3 of the Revised Rules of
Court clearly provide for a situation where a party to an action dies, to wit:

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 his 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.

2
G.R. No. 140528, 07 December 2011, citing Heirs of Tranquilino Labiste v. Heirs of Jose Labiste,
G.R. No. 162033, May 8, 2009, 587 SCRA 417, 425.
3
Emphasis supplied.
2
 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.

8. In determining which actions are not extinguished by the death of

a party, the Supreme Court has provided the test in doing so. As enunciated in
the case of Memoracion Z. Cruz vs Oswaldo Z. Cruz4,

The question as to whether an action survives or not

depends on the nature of the action and the damage sued
for. In the 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.

9. In the more recent case of Gilda Jardeleza et al vs Sps.

Jardeleza , which likewise involves an action for reconveyance, the same
5

criterion was used, further stating that the rule is applicable regardless of whether
the plaintiff or defendant dies.

10. In the case at hand, the action survives the death of the party for
the action primarily involves property and property rights. Any prayer for
damages and fees is merely incidental. The Complaint clearly prays for the
reconveyance of the real property concerned to the lawful and rightful owner.
This action cannot be dismissed merely on the argument that causing the
execution of a document cannot be performed by a dead man. Again, the action
is one of reconveyance based on an express trust, not specific performance.
Further, as stated above, an action survives a partys death when the action
involves primarily and principally property and property rights. Hence, this
Honorable Court should treat the pending action as such.

4
G.R. No. 173292, 01 September 2010.
5
G.R. No. 167975, 17 June 2015.
3
 11. Moreover, defendant John cannot rely on the argument of
prescription based on Article 1144 of the Civil Code. Plaintiff wishes to stress
that this action is one of reconveyance based on an unrepudiated express trust.
Jurisprudence has consistently held that unrepudiated written express trusts
are imprescriptible.
12.Citing the case of Bueno vs Reyes6, the Supreme Court in the case
of Heirs of Maximo Labanon vs Heirs of Constancio Labanon7 stated the
following:

On the issue of prescription, we had the opportunity to rule

in Bueno v. Reyes that unrepudiated written express trusts
are imprescriptible:

While there are some decisions which hold that an action

upon a trust is imprescriptible, without distinguishing
between express and implied trusts, the better rule, as laid
down by this Court in other decisions, is that prescription
does supervene where the trust is merely an implied one.
The reason has been expressed by Justice J.B.L. Reyes
in J.M. Tuason and Co., Inc. vs. Magdangal, 4 SCRA 84, 88, as
follows:

Under Section 40 of the old Code of Civil Procedure, all

actions for recovery of real property prescribed in 10
years, excepting only actions based on continuing or
subsisting trusts that were considered by section 38 as
imprescriptible. As held in the case of Diaz v. Gorricho, L-
11229, March 29, 1958, however, the continuing or
subsisting trusts contemplated in section 38 of the
Code of Civil Procedure referred only to express
unrepudiated trusts, and did not include constructive
trusts (that are imposed by law) where no fiduciary relation
exists and the trustee does not recognize the trust at all.14

This principle was amplified in Escay v. Court of Appeals

this way: "Express trusts prescribe 10 years from the
repudiation of the trust (Manuel Diaz, et al. vs. Carmen
Gorricho et al., 54 0.G. p. 8429, Sec. 40, Code of Civil
Procedure)."15

In the more recent case of Secuya v. De Selma, we again

ruled that the prescriptive period for the enforcement of an
express trust of ten (10) years starts upon the repudiation of
the trust by the trustee. (emphasis supplied)

6
G.R. No. L-22587, 28 April 1969.
7
G.R. No. 160711, 14 August 2004.
4
 13. The principle that unrepudiated written express trusts are
imprescriptible was again upheld in the more recent case of Maria Torbela vs
Sps. Rosario and Banco Filipino Savings and Mortgage Bank8

14. As mentioned, and as alleged in the Complaint filed, defendant

John holds the property in trust for plaintiff. The pieces of evidence not only
point out that an express trust exists, it further establishes that the trust remains
unrepudiated. Defendant John, in fact, repeatedly makes reference to the
documents proving the existence of an express trust.
15. This Honorable Court should therefore deny this Motion to
Dismiss outright for defendant John has no legal and factual basis to make such
prayer.
16. Moreover, given the death of defendant John, a legal representative
should be immediately named as substitute pursuant to the provisions of the
Revised Rules of Court.

PRAYER

WHEREFORE, premises considered, plaintiff JUAN DELA CRUZ

prays that this Honorable Court DENY the Motion to Dismiss for clear lack of
merit and legal basis.

Plaintiff further prays for the immediate designation of a legal

representative for purposes of substitution of defendant John dela Cruz.

Defendant prays for such further or other relief as may be just or

equitable.

City of __________ for Quezon City. __________ 2016.

EXPLANATION

Due to time, distance and manpower constraints, this

Comment/Opposition is being filed and served by registered mail.

____________________ & ASSOCIATES

Counsel for plaintiff Juan dela Cruz
____________________
____________________
telephone: 123 4567
email:

8
G.R. No. 140528, 07 December 2011.
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 By:

______________________________
PTR. No. ___________________
IBP Lifetime Membership No. ___________
MCLE Certificate of Compliance No. _________________
Roll No____________________

Copy furnished by registered mail:

ATTY.
Counsel for the Defendant
_______________
_______________
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