Dino vs. Court of Appeals 359 SCRA 91 June 20 2001

SUPREME COURT REPORTS ANNOTATED VOLUME 359 1/10/22, 10:22 PM
VOL. 359, JUNE 20, 2001 91

Dino vs. Court of Appeals
*
G.R. No. 113564. June 20, 2001.
INOCENCIA YU DINO and her HUSBAND doing business

under the trade name „CANDY CLAIRE FASHION
GARMENTS,‰ petitioners, vs. COURT OF APPEALS and
ROMAN SIO, doing business under the name
„UNIVERSAL TOY MASTER MANUFACTUR-ING,‰
respondents.
Civil Law; Contracts; The contract executed by and between the

petitioners and the respondents was a contract for a piece of work.
·As this Court ruled in Engineering & Machinery Corporation v.
Court of Appeals, et al., „a contract for a piece of work, labor and
materials may be distinguished from a contract of sale by the
inquiry as to whether the thing transferred is one not in existence
and which would never have existed but for the order of the person
desiring it. In such case, the contract is one for a piece of work, not
a sale. On the other hand, if the thing subject of the contract would
have existed and been the subject of a sale to some other
_______________
* FIRST DIVISION.
92
92 SUPREME COURT REPORTS ANNOTATED
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person even if the order had not been given then the contract is one
of sale.‰ The contract between the petitioners and respondent
stipulated that respondent would manufacture upon order of the
petitioners 20,000 pieces of vinyl frogs and 20,000 pieces of vinyl
mooseheads according to the samples specified and approved by the
petitioners. Respondent Sio did not ordinarily manufacture these
products, but only upon order of the petitioners and at the price
agreed upon. Clearly, the contract executed by and between the
petitioners and the respondent was a contract for a piece of work.
Remedial Law; Actions; Prescription; As a rule, the defense of
prescription cannot be raised for the first time on appeal; Trial
courts have authority and discretion to dismiss an action on the
ground of prescription when the partiesÊ pleadings or other facts on
record show it to be indeed time-barred,·As a rule, the defense of
prescription cannot be raised for the first time on appeal. Thus, we
held in Ramos v. Osorio, viz.: „It is settled law in this jurisdiction
that the defense of prescription is waivable, and that if it was not
raised as a defense in the trial court, it cannot be considered on
appeal, the general rule being that the appellate court is not
authorized to consider and resolve any question not properly raised
in the lower court (Subido vs. Lacson, 55 O.G. 8281, 8285; Moran,
Comments on the Rules of Court, Vol. I, p. 784, 1947 Edition).‰
However, this is not a hard and fast rule. In Gicano v. Gegato, we
held: „. . . (T)rial courts have authority and discretion to dismiss an
action on the ground of prescription when the partiesÊ pleadings or
other facts on record show it to be indeed time-barred; (Francisco v.
Robles, Feb. 15, 1954; Sison v. McQuaid, 50 O.G. 97; Bambao v.
Lednicky, Jan. 28, 1961; Cordova v. Cordova, Jan. 14, 1958;
Convets, Inc. v. NDC, Feb. 28, 1958; 32 SCRA 529; Sinaon v.
Sorongan, 136 SCRA 408); and it may do so on the basis of a motion
to dismiss (Sec. 1, f, Rule 16, Rules of Court), or an answer which
sets up such ground as an affirmative defense (Sec. 5, Rule 16), or
even if the ground is alleged after judgment on the merits, as in a
motion for reconsideration (Ferrer v. Ericta, 84 SCRA 705); or even
if the defense has not been asserted at all, as where no statement
thereof is found in the pleadings (Garcia v. Mathis, 100 SCRA 250;
PNB v. Pacific Commission House, 27 SCRA 766; Chua Lamco v.
Dioso, et al., 97 Phil. 821); or where a defendant has been declared
in default (PNB v. Perez, 16 SCRA 270). What is essential only, to
repeat, is that the facts demonstrating the lapse of the prescriptive
period be otherwise sufficiently and satisfactorily apparent on the
record; either in the averments of the plaintiffs complaint, or
otherwise established by the evidence.‰ (emphasis supplied)
93
VOL. 359, JUNE 20, 2001 93
Same; Same; Same; When the plaintiffs own complaint shows

clearly that the action has prescribed, the action may be dismissed
even if the defense of prescription was not invoked by the defendant.
·In Aldovino, et al. v. Alunan, et al., the Court en banc reiterated
the Garcia v. Mathis doctrine cited in the Gicano case that when the
plaintiff Ês own complaint shows clearly that the action has
prescribed, the action may be dismissed even if the defense of
prescription was not invoked by the defendant. It is apparent in the
records that respondent made the last delivery of vinyl products to
the petitioners on September 28, 1988. Petitioners admit this in
their Memorandum submitted to the trial court and reiterate it in
their Petition for Review. It is also apparent in the Complaint that
petitioners instituted their action on July 24, 1989. The issue for
resolution is whether or not the respondent Court of Appeals could
dismiss the petitionersÊ action if the defense of prescription was
raised for the first time on appeal but is apparent in the records.
Same; Same; Same; CourtÊs application of the Osorio and
Gicano doctrines to the case at bar is confirmed and now enshrined
in Rule 9, Sec. 1 of the 1997 Rules of Civil Procedure.·This CourtÊs
application of the Osorio and Gicano doctrines to the case at bar is
confirmed and now enshrined in Rule 9, Sec. 1 of the 1997 Rules of
Civil Procedure, viz.: „Section 1. Defense and objections not pleaded.
·Defenses and objections not pleaded whether in a motion to
dismiss or in the answer are deemed waived. However, when it
appears from the pleadings that the court has no jurisdiction over
the subject matter, that there is another action pending between the
same parties for the same cause, or that the action is barred by a
prior judgment or by statute of limitations, the court shall dismiss
the claim.‰ (Emphasis supplied)
PETITION for review on certiorari of a decision of the

Court of Appeals.
The facts are stated in the opinion of the Court.
Abdul & Maningas Law Offices for petitioners.

Julian S. Yap for private respondent.
94

**
DECISION
PUNO, J.:
Though people say, „better late than never,‰ the law frowns
upon those who assert their rights past the eleventh hour.
For failing to timely institute their action, the petitioners
are forever barred from claiming a sum of money from the
respondent.
This is a petition for review on certiorari to annul and
set aside the amended decision of the respondent court
dated January 24, 1994 reversing its April 30, 1993
decision and dismissing the plaintiff-petitionersÊ Complaint
on the ground of prescription.
The following undisputed facts gave rise to the case at
bar:
Petitioners spouses Dino, doing business under the trade
name „Candy Claire Fashion Garment‰ are engaged 1
in the
business of manufacturing and selling shirts. Respondent
Sio is part owner and general manager of a manufacturing
corporation doing business under the 2
trade name
„Universal Toy Master Manufacturing.‰ Petitioners and
respondent Sio entered into a contract whereby the latter
would manufacture for the petitioners 20,000 pieces of
vinyl frogs and 20,000 pieces of vinyl mooseheads at P7.00
per piece in accordance with the sample approved by the
petitioners. These frogs and mooseheads were to be
attached
3
to the shirts petitioners would manufacture and
sell.
Respondent Sio delivered in several installments the
40,000 pieces of frogs and mooseheads. The last delivery
was made on September 28, 1988. Petitioner fully paid the
4
agreed price. Subsequently, petitioners returned to
respondent 29,772 pieces of frogs
_______________
**This case was transferred to the ponente on March 14, 2001

pursuant to Resolution in A.M. No. 00-9-03-SC·Re: Creation of Special
Committee on Case Backlog dated February 27, 2001.
1 Rollo, p. 20; Complaint, p. 1.
2 TSN, April 27, 1990, pp. 3-4.
3 Rollo, p. 37; Memorandum for the Plaintiff in the RTC, P. 1; Exhibit
„1.‰
4 Rollo, pp. 13, 37-38; Petition for Review, p. 13; Original Records, pp.
71-72; Memorandum for the Plaintiff in the Regional Trial Court, pp. 1-2;
TSN, Venerando dela Cruz, September 3, 1990, p. 27.
95
VOL. 359, JUNE 20, 2001 95

and mooseheads
5
for failing to comply with the approved
sample. The return was made on different dates: the
initial 6 one on December 12, 1988 consisting7
of 1,720
pieces, the second 8
on January 11, 1989, and the last on
January 17, 1989.
Petitioners then demanded from the respondent a
refund of the purchase price of the returned goods in the9
amount of P208,404.00. As respondent Sio refused to pay,
petitioners filed on July 24, 1989 an action for collection of
a sum of money in the Regional Trial Court of Manila,
Branch 38.
The trial court ruled in favor of the petitioners, viz.:
„WHEREFORE, judgment is hereby rendered in favor of the

plaintiffs Vicente and Inocencia Dino and against defendant Toy
Master Manufacturing, Inc. ordering the latter to pay the former:
1. The amount of Two Hundred Eight Thousand Four Hundred

Four (P208,404.00) Pesos with legal interest thereon from
July 5, 1989, until fully paid; and
2. The amount of Twenty Thousand (P20,000.00) Pesos as
attorneyÊs fees and the costs of this suit.
The counterclaim on the other hand is hereby dismissed for lack

10
of merit.‰
Respondent Sio sought recourse in the Court of Appeals. In

its April 30, 1993 decision, the appellate court affirmed the
trial court decision. Respondent then filed a Motion for
Reconsideration and a Supplemental Motion for
Reconsideration alleging therein that the petitionersÊ action
for collection of sum of money based on a breach of
warranty had already prescribed. On January 24, 1994, the
respondent court reversed its decision and dismissed
petitionersÊ Complaint for having been filed beyond the
prescriptive period. The amended decision read in part, viz.
_______________
5 Rollo, p. 31; Plaintiffs Pre-trial Brief, p. 1.

6 Exhibit „F.‰
7 Exhibit „F-1.‰
8 Exhibit „F-2.‰
9 Rollo, p. 38; Memorandum for the Plaintiff, Regional Trial Court, p.
2.
10 Original Records, p. 105.
96

„Even if there is failure to raise the affirmative defense of

prescription in a motion to dismiss or in an appropriate pleading
(answer, amended or supplemental answer) and an amendment
would no longer be feasible, still prescription, if apparent on the
face of the complaint may be favorably considered (Spouses Matias
B. Aznar, III, et al. vs. Hon. Juanito A. Bernad, etc., supra, G.R.
81190, May 9, 1988). The rule in Gicano vs. Gegato (supra) was
reiterated in Severo v. Court of Appeals, (G.R. No. 84051, May 19,
1989).
WHEREFORE the Motion for Reconsideration is granted. The
judgment of this Court is set aside and judgment is hereby rendered
REVERSING the judgment of the trial court and dismissing

11
plaintiff Ês complaint.‰
Hence, this petition with the following assignment of

errors:
I.
The respondent Court of Appeals seriously erred in dismissing the

complaint of the Petitioners on the ground that the action had
prescribed.
II.
The respondent Court of Appeals seriously erred in holding that

the defense of prescription would still be considered despite the fact
that it was not raised in the answer, if apparent on the face of the
complaint.
We first determine the nature of the action filed in the trial

court to resolve the issue of prescription. Petitioners claim
that the Complaint they filed in the trial court on July 24,
1989 was one for the collection of a sum of money.
Respondent contends that it was an action for breach of
warranty as the sum of money petitioners sought to collect
was actually a refund of the purchase price they paid for
the alleged defective goods they bought from the
respondent.
We uphold the respondentÊs contention.
The following provisions of the New Civil Code are
apropos:
„Art. 1467. A contract for the delivery at a certain price of an article

which the vendor in the ordinary course of his business
manufactures or procures for the general market, whether the same
is on hand at the time or not, is a contract of sale, but if the goods
are to be manufactured
_______________
11 Rollo, pp. 12-13.
97
VOL. 359, JUNE 20, 2001 97
specially for the customer and upon his special order, and not for
the general market, it is a contract for a piece of work.‰
„Art. 1713. By the contract for a piece of work the contractor
binds himself to execute a piece of work for the employer, in
consideration of a certain price or compensation. The contractor
may either employ only his labor or skill, or also furnish the
material.‰
As this Court ruled in Engineering 12

& Machinery
Corporation v. Court of Appeals, et al., „a contract for a
piece of work, labor and materials may be distinguished
from a contract of sale by the inquiry as to whether the
thing transferred is one not in existence and which would
never have existed but for the order of the person desiring
it. In such case, the contract is one for a piece of work, not a
sale. On the other hand, if the thing subject of the contract
would have existed and been the subject of a sale to some
other person even if the order
13
had not been given then the
contract is one of sale.‰ The contract between the
petitioners and respondent stipulated that respondent
would manufacture upon order of the petitioners 20,000
pieces of vinyl frogs and 20,000 pieces of vinyl mooseheads
according to the samples specified and approved by the
petitioners. Respondent Sio did not ordinarily manufacture
these products, but only 14upon order of the petitioners and
at the price agreed upon. Clearly, the contract executed by
and between the petitioners and the respondent was a
contract for a piece of work. At any rate, whether the
agreement between the parties was one of a contract of sale
or a piece of work, the provisions on warranty of title
against hidden defects in a contract of sale apply to the
case at bar, viz.:
„Art. 1714. If the contractor agrees to produce the work from

material furnished by him, he shall deliver the thing produced to
the employer and transfer dominion over the thing. This contract
shall be governed by the following articles as well as by the
pertinent provisions on warranty of title and against hidden defects
and the payment of price in a contract of sale.‰
_______________
12 252 SCRA 156 (1996).

13 Id., p. 164, footnotes omitted.
14 Rollo, p. 36, Exhibit „1‰; TSN, Roman Sio, April 27, 1990, pp. 6-15, 21.
98

„Art. 1561. The vendor shall be responsible for warranty against

the hidden defects which the thing sold may have, should they
render it unfit for the use for which it is intended, or should they
diminish its fitness for such use to such an extent that, had the
vendee been aware thereof, he would not have acquired it or would
have given a lower price for it; but said vendor shall not be
answerable for patent defects or those which may be visible, or for
those which are not visible if the vendee is an expert who, by reason
of his trade or profession, should have known them.‰
Petitioners aver that they discovered the defects in

respondentÊs products when customers in their
(petitionersÊ) shirt business came back to them complaining
that the frog and moosehead figures attached to the shirts
they bought were torn. Petitioners allege that they did not
readily see these hidden defects upon their acceptance. A
hidden defect is one which 15is unknown or could not have
been known to the vendee. Petitioners then returned to
the respondent 29,772 defective pieces of vinyl products
and demanded a refund of their purchase price in the
amount of P208,404.00. Having failed to collect this
amount, they filed an action for collection of a sum of
money.
Article 1567 provides for the remedies available to the
vendee in case of hidden defects, viz.:
„Art. 1567. In the cases of Articles 1561, 1562, 1564, 1565 and 1566,
the vendee may elect between withdrawing from the contract and
demanding a proportionate reduction of the price, with damages in
either case.‰
By returning the 29,772 pieces of vinyl products to
respondent and asking for a return of their purchase price,

petitioners were in effect „withdrawing from the contract‰
as provided in Art. 1567. The prescriptive period for this
kind of action is provided in Art. 1571 of the New Civil
Code, viz.:
„Art. 1571. Actions arising from the provisions of the preceding ten
articles shall be barred after six months from the delivery of the
thing sold.‰ (Emphasis supplied)
_______________
15 Knecht v. Court of Appeals, et al., 158 SCRA 80 (1988).
99
VOL. 359, JUNE 20, 2001 99

There is no dispute that respondent made the last delivery

of the vinyl products to petitioners on September 28, 1988.
It is also settled that the action to recover the purchase
price of the goods petitioners
16
returned to the respondent
was filed on July 24, 1989, more than nine months from
the date of last delivery. Petitioners having filed the action
three months after the six-month period for filing actions
for breach
17
of warranty against hidden defects stated in Art.
1571, the appellate court dismissed the action.
Petitioners fault the ruling on the ground that it was too
late in the day for respondent to raise the defense of
prescription. The law then applicable to the case at bar,
Rule 9, Sec. 2 of the Rules of Court, provides:
„Defenses and objections not pleaded either in a motion to dismiss

or in the answer are deemed waived; except the failure to state a
cause of action . . .‰
Thus, they claim that since the respondent failed to raise

the defense of prescription in a motion to dismiss or in its
answer, it is deemed waived and cannot be raised for the
first time on appeal in a motion for reconsideration of the
appellate courtÊs decision.
As a rule, the defense of prescription cannot be raised
for the18first time on appeal. Thus, we held in Ramos v.

Osorio, viz.:
„It is settled law in this jurisdiction that the defense of prescription

is waivable, and that if it was not raised as a defense in the trial
court, it cannot be considered on appeal, the general rule being that
the appellate court is not authorized to consider and resolve any
question not properly raised in the lower court (Subido vs. Lacson,
55 O.G, 8281, 8285; Moran, Comments on the Rules of Court, Vol. I,
p. 784, 1947 Edition).‰
However,
19
this is not a hard and fast rule. In Gicano v.
Gegato, we held:
_______________
16 Original Records, p. 1; Complaint, p. 1; TSN, Venerando dela Cruz,

September 3, 1990, p. 37; Rollo, p. 13; Petition for Review, p. 7.
17 G.A. Machineries, Inc. v. Yaptinchay, et al., 126 SCRA 78 (1983);
Moles v. IAC, et al., 169 SCRA 777 (1989).
18 38 SCRA 469 (1971).
19 157 SCRA 140 (1988).
100

„. . . (T)rial courts have authority and discretion to dismiss an

action on the ground of prescription when the partiesÊ pleadings or
other facts on record show it to be indeed time-barred; (Francisco v.
Robles Feb. 15, 1954; Sison v. McQuaid, 50 O.G. 97; Bambao v.
Lednicky, Jan. 28, 1961; Cordova v. Cordova, Jan. 14, 1958;
Convets, Inc. v. NDC, Feb. 28, 1958; 32 SCRA 529; Sinaon v.
Sorongan, 136 SCRA 408); and it may do so on the basis of a motion
to dismiss (Sec. 1, f, Rule 16, Rules of Court), or an answer which
sets up such ground as an affirmative defense (Sec. 5, Rule 16), or
even if the ground is alleged after judgment on the merits, as in a
motion for reconsideration (Ferrer v. Ericta, 84 SCRA 705); or even if
the defense has not been asserted at all, as where no statement
thereof is found in the pleadings (Garcia v. Mathis, 100 SCRA 250;
PNB v. Pacific Commission House, 27 SCRA 766; Chua Lamco v.
Dioso, et al., 97 Phil. 821); or where a defendant has been declared

in default (PNB v. Perez, 16 SCRA 270). What is essential only, to
repeat, is that the facts demonstrating the lapse of the prescriptive
period be otherwise sufficiently and satisfactorily apparent on the
record; either in the averments of the plaintiffs complaint, or
otherwise established by the evidence.‰ (emphasis supplied)
20
In Aldovino, et al. v. Alunan, et al., the Court en banc
reiterated the Garcia v. Mathis doctrine cited in the Gicano
case that when the plaintiffs own complaint shows clearly
that the action has prescribed, the action may be dismissed
even if the defense of prescription was not invoked by the
defendant.
It is apparent in the records that respondent made the
last delivery of vinyl products to the petitioners on
September 28, 1988. Petitioners admit this in their
Memorandum submitted to the 21
trial court and reiterate it
in their Petition for Review. It is also apparent in the
Complaint that petitioners instituted their action on July
24, 1989. The issue for resolution is whether or not the
respondent Court of Appeals could dismiss the petitionersÊ
action if the defense of prescription was raised for the first
time on appeal but is apparent in the records.
Following the Gicano doctrine that allows dismissal of
an action on the ground of prescription even after judgment
on the merits, or even if the defense was not raised at all so
long as the relevant
_______________
20 230 SCRA 825 (1994).

21 Original Records, p. 76; Memorandum for the Plaintiff in the
Regional Trial Court, p. 6; Rollo, p. 13; Petition for Review, p. 7.
101
VOL. 359, JUNE 20, 2001 101

dates are clear on the record, we rule that the action filed
by the petitioners has prescribed. The dates of delivery and
institution of the action are undisputed. There are no new
issues of fact arising in connection with the question of

prescription, thus carving out the case at bar as an
exception from the general rule that prescription
22
if not
impleaded in the answer is deemed waived.
Even if the defense of prescription was raised for the
first time on appeal in respondentÊs Supplemental Motion
for Reconsideration of the appellate courtÊs decision, this
does not militate against the due process right of the
petitioners. On appeal, there was no new issue of fact that
arose in connection with the question of prescription, thus
it cannot be said that petitioners were not given the
opportunity to present evidence in the trial court to meet a
factual issue. Equally important, petitioners had the
opportunity to oppose the defense of prescription in their
Opposition to the Supplemental Motion for Reconsideration
filed in the appellate court and in their Petition for Review
in this Court.
This CourtÊs application of the Osorio and Gicano
doctrines to the case at bar is confirmed and now enshrined
in Rule 9, Sec. 1 of the 1997 Rules of Civil Procedure, viz.:
„Section 1. Defense and objections not pleaded.·Defenses and

objections not pleaded whether in a motion to dismiss or in the
answer are deemed waived. However, when it appears from the
pleadings that the court has no jurisdiction over the subject matter,
that there is another action pending between the same parties for
the same cause, or that the action is barred by a prior judgment or
by statute of limitations, the court shall dismiss the claim.‰
(Emphasis supplied)
WHEREFORE, the petition is DENIED and the impugned

decision of the Court of Appeals dated January 24, 1994 is
AFFIRMED. No costs.
_______________
22 Luzon Surety Company, Inc. v. IAC, et al., 151 SCRA 652 (1987),
citing Ferrer v. Ericta, 84 SCRA 706 (1978) and Garcia v. Mathis, 100
SCRA 250 (1980).
102
La Jolla, Inc. vs. Court of Appeals
SO ORDERED.
Davide, Jr. (C.J., Chairman), Kapunan, Pardo and

Ynares-Santiago, JJ., concur.
Petition denied, judgment affirmed.
Note.·Rights and actions can be lost by the fact of

delay and by the effect of delay. (Ochagabia vs. Court of
Appeals, 304 SCRA 587 [1999])
··o0o··
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Dino vs. Court of Appeals 359 SCRA 91 June 20 2001

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SUPREME COURT REPORTS ANNOTATED VOLUME 359 1/10/22, 10:22 PM

VOL. 359, JUNE 20, 2001 91

INOCENCIA YU DINO and her HUSBAND doing business

Civil Law; Contracts; The contract executed by and between the

92 SUPREME COURT REPORTS ANNOTATED

Dino vs. Court of Appeals

otherwise established by the evidence.‰ (emphasis supplied)

VOL. 359, JUNE 20, 2001 93

Dino vs. Court of Appeals

Same; Same; Same; When the plaintiffs own complaint shows

PETITION for review on certiorari of a decision of the

The facts are stated in the opinion of the Court.

Abdul & Maningas Law Offices for petitioners.

94 SUPREME COURT REPORTS ANNOTATED

**This case was transferred to the ponente on March 14, 2001

VOL. 359, JUNE 20, 2001 95

„WHEREFORE, judgment is hereby rendered in favor of the

1. The amount of Two Hundred Eight Thousand Four Hundred

attorneyÊs fees and the costs of this suit.

The counterclaim on the other hand is hereby dismissed for lack

Respondent Sio sought recourse in the Court of Appeals. In

5 Rollo, p. 31; Plaintiffs Pre-trial Brief, p. 1.

96 SUPREME COURT REPORTS ANNOTATED

„Even if there is failure to raise the affirmative defense of

REVERSING the judgment of the trial court and dismissing

Hence, this petition with the following assignment of

The respondent Court of Appeals seriously erred in dismissing the

The respondent Court of Appeals seriously erred in holding that

We first determine the nature of the action filed in the trial

„Art. 1467. A contract for the delivery at a certain price of an article

11 Rollo, pp. 12-13.

VOL. 359, JUNE 20, 2001 97

Dino vs. Court of Appeals

As this Court ruled in Engineering 12

„Art. 1714. If the contractor agrees to produce the work from

12 252 SCRA 156 (1996).

98 SUPREME COURT REPORTS ANNOTATED

„Art. 1561. The vendor shall be responsible for warranty against

Petitioners aver that they discovered the defects in

By returning the 29,772 pieces of vinyl products to

respondent and asking for a return of their purchase price,

15 Knecht v. Court of Appeals, et al., 158 SCRA 80 (1988).

VOL. 359, JUNE 20, 2001 99

There is no dispute that respondent made the last delivery

„Defenses and objections not pleaded either in a motion to dismiss

Thus, they claim that since the respondent failed to raise

for the18first time on appeal. Thus, we held in Ramos v.

„It is settled law in this jurisdiction that the defense of prescription

16 Original Records, p. 1; Complaint, p. 1; TSN, Venerando dela Cruz,

100 SUPREME COURT REPORTS ANNOTATED

„. . . (T)rial courts have authority and discretion to dismiss an

Dioso, et al., 97 Phil. 821); or where a defendant has been declared

20 230 SCRA 825 (1994).

VOL. 359, JUNE 20, 2001 101

issues of fact arising in connection with the question of

„Section 1. Defense and objections not pleaded.·Defenses and

WHEREFORE, the petition is DENIED and the impugned

102 SUPREME COURT REPORTS ANNOTATED

La Jolla, Inc. vs. Court of Appeals

Davide, Jr. (C.J., Chairman), Kapunan, Pardo and

Petition denied, judgment affirmed.

Note.·Rights and actions can be lost by the fact of

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