Republic of the Philippines

7th Judicial Region

Regional Trial Court
Barili, Cebu, Branch 96

Ro Bin, Woo Bin, and

Bin Bin
Plaintiff,

-versus- Civil Case No: 1234

For: Nullity of Documents,
Recovery of Ownership and
Possession with Damages
and Attorney’s Fees

Queen’s Choice Corporation

Defendant.
x----------------------------------------------x

MOTION TO DISMISS

COME NOW, DEFENDANT, by counsel and unto this

Honorable Court, most respectfully moves for the dismissal of the
above-captioned case upon the following arguments:

GROUNDS

1.1. THAT THE CAUSE OF ACTION OF PLAINTIFFS IS

BARRED BY THE STATUTE OF LIMITATIONS.

1.2. THAT THIS HONORABLE COURT HAS NO

JURISDICTION OVER THE SUBJECT MATTER OF THE
CLAIM.

II

DISCUSSIONS

Plaintiffs’ cause of action is barred by the statute of limitations

1
2.1 Article 1106 and Article 1139 of the Civil Code provide that
actions are lost by prescription or mere lapse of time, to wit:

“Art. 1106. By prescription, one acquired ownership of the

real rights through the lapse of time in the manner and under
the conditions laid down by law.

In the same way, rights and actions are lost by prescription.”

“Art. 1139. Actions prescribe by the mere lapse of time fixed

by law.”

2.2 When the action is a real action such as recovery of

ownership and possession of real property, the first paragraph of
Article 1140 of the Civil Code provides that the same must be
instituted before the lapse of thirty (30) years reckoned from the
time the right accrues, to wit:

“Art. 1140. Real actions over immovable prescribe after thirty

years.”

2.3 Plaintiffs allegedly acquired ownership of the properties of

the deceased Hyun Bin in 1979 upon the death of the latter by
virtue of hereditary succession, but it was only in 2020, after the
lapse of forty-one 41 years, that they filed the instant action to
recover ownership and possession of said properties.

2.4 In the case at bar, applying the foregoing provisions of law,

the cause of action of plaintiffs is already barred by extinctive
prescription due to the plaintiffs’ inaction and neglect.

This Honorable Court has no jurisdiction over the subject matter of

the claim

2.5 In the case of Yaptinchay v. Hon. Del Rosario, the Supreme

Court ruled that:

“The trial court cannot make a declaration of heirship in the

civil action for the reason that such a declaration can only be
made in a special proceeding.

xxx

It is then decisively clear that the declaration of heirship can

be made only in a special proceeding inasmuch as the petitioners
here are seeking the establishment of a status or right.”

2
2.6 In the case of Reyes v. Enriquez, the Supreme Court held:

“In cases wherein alleged heirs of a decedent in whose name

a property was registered sue to recover the said property through
the institution of an ordinary civil action, such as a complaint
for reconveyance and partition, or nullification of transfer
certificate of titles and other deeds or documents related thereto,
this Court has consistently ruled that a declaration of heirship is
improper in an ordinary civil action since the matter is within
the ‘exclusive competence of the court in a special proceeding’.

2.7 In the case of Calica Vda. De Lee v. Estela F. Calica-Eclipse,

et. al, the Supreme Court proclaimed that

[I]n a complaint for reconvenyance of title, [plaintiffs] should

first substantiate their claim as heirs in a special proceeding and
be declared as such before they can ask the court for the transfer
of the properties to their names.”

2.8 In their complaint, plaintiffs made an allegation that they

are the heirs of the deceased Hyun Bin, a Filipino citizen of Chinese
descent, who died single and without issue.

2.9 Pursuant to the Supreme Court rulings above-cited, this

Honorable Court cannot rule on the plaintiff’s allegation of heirship
since the action instituted by the plaintiffs, which is in fact recovery
of ownership and possession of real property, is an ordinary civil
action.

3.0 Plaintiffs have not shown that they have been declared as
the legal heirs of the deceased Hyun Bin in a separate special
proceeding which will warrant the filing of the instance ordinary
civil action for recovery of ownership and possession of real
property.

3.1 In the case at bar, applying the foregoing provisions of law

and jurisprudence, this Honorable Court is without jurisdiction to
hear and try the case for being unable to rule on an allegation which
has been held as improper in an ordinary civil action.

PRAYER

WHEREFORE, defendants respectfully pray that the herein

complaint be ordered dismissed.

3
Other reliefs, just and equitable are also prayed for.

MOST RESPECTFULLY SUBMITTED.

Barili, Cebu, Philippines, 09 March 2020.

By:

PLEDD LAW OFFICE

Rm 406, eBloc 4, I.T. Park,
Brgy. Lahug, Cebu City,
Philippines 6000
Email: contact@pleddlaw.com
Contact Number: (032) 236-7488

For the firm:

ABIGAIL DALUSUNG
Counsel for the defendant
PTR NO. 1342347, 2-25-19, Cebu City
IBP NO. 039326, 2-25-19, (Cebu City Chapter)
Roll of Attorneys No. 94572, January 1, 2019
MCLE Compliance No. VI-0013764 (2-25-19)
Email Address: apdalusung@gmail.com
Mobile No.: 09154626089

TRIXIA LOU DIAZ

Counsel for the defendant
PTR NO. 2342347, 2-25-19, Cebu City
IBP NO. 089326, 2-25-19, (Cebu City Chapter)
Roll of Attorneys No. 34872, January 1, 2019
MCLE Compliance No. VI-0023764 (2-25-19)
Email Address: trixialoudiaz@gmail.com
Mobile No.: 09177787104

KIRK YNGWIE ENRIQUEZ

Counsel for the defendant
PTR NO. 5342347, 2-25-19, Cebu City
IBP NO. 039326, 2-25-19, (Cebu City Chapter)
Roll of Attorneys No. 74872, January 1, 2019
MCLE Compliance No. VI-0053763 (2-25-19)
Email Address: enriquez.kirkyngwie@gmail.com
Mobile No.: 09954290348

4
 THEA MITCHELE LABUNOG
Counsel for the defendant
PTR NO. 8342247, 2-25-19, Cebu City
IBP NO. 029323, 2-25-19, (Cebu City Chapter)
Roll of Attorneys No. 25272, January 1, 2019
MCLE Compliance No. VI-0092761 (2-25-19)
Email Address: thealabunog@gmail.com
Mobile No.: 09173893428

ANNE FRANCES PATALINGHUG

Counsel for the defendant
PTR NO. 6342447, 2-25-19, Cebu City
IBP NO. 079326, 2-25-19, (Cebu City Chapter)
Roll of Attorneys No. 75879, January 1, 2019
MCLE Compliance No. VI-0034763 (2-25-19)
Email Address: anpatalinghug@gmail.com
Mobile No.: 09052258001

COPY FURNISHED:

ATTY. CHOCO S. MARTIN

Counsel for the plaintiffs
Osmena St., Zapatera St., Cebu City

EXPLANATION ON SERVICE BY REGISTERED MAIL

Defendants, by counsel, respectfully manifests that due to lack

of messengerial personnel, time constraint, and the distance
involved, a copy of the foregoing Motion to Dismiss was served by
registered mail in accordance with Rule 13 of the Revised Rules on
Civil Procedure.

ABIGAIL DALUSUNG
Counsel for the defendants