Guerrero vs. Regional Trial Court of Ilocos Norte, Br. XVI

Brothers-in-law are not "members of the same family" within the contemplation of Art. 151 of the Family Code; hence, a suit between them does not require a prior allegation of earnest efforts toward a compromise. Consequently, the omission of such an allegation is not a jurisdictional defect but a defect in the cause of action, assailable at any stage of the proceeding, even on appeal.

Gaudencio Guerrero and Pedro G. Hernando are brothers-in-law, their respective wives being half-sisters. Guerrero filed an action to recover Lot No. 15731 of the Sarrat Cadastre, Ilocos Norte, with damages, docketed as Civil Case No. 10084-16 before the Regional Trial Court of Laoag City, Branch XVI. The constitutional and statutory backdrop is the State's protection of the family as a basic social institution, implemented by Art. 151 of the Family Code (formerly Art. 217 of the New Civil Code) and Sec. 1, par. (j), Rule 16 of the Rules of Court, which require that earnest efforts toward a compromise be alleged in a verified complaint in suits between members of the same family.

Gaudencio Guerrero and Pedro G. Hernando are brothers-in-law, their respective wives being half-sisters. Guerrero filed an action, denominated an accion publiciana, to recover from Hernando Lot No. 15731 of the Sarrat Cadastre, Ilocos Norte, with damages. The complaint was docketed as Civil Case No. 10084-16 before the Regional Trial Court of Laoag City, Branch XVI.

The complaint did not allege that the parties had exerted earnest efforts toward a compromise or that such efforts had failed. Hernando did not file a motion to dismiss on this ground, nor did he attack the complaint on this basis in his answer.

It was only on December 7, 1992, at the pre-trial conference, that the relationship of Guerrero and Hernando was noted by respondent Judge Luis B. Bello, Jr., they being married to half-sisters and therefore brothers-in-law. On the basis thereof, respondent Judge gave Guerrero five (5) days "to file his motion and amended complaint" to allege that the parties were very close relatives, their respective wives being sisters, and that the complaint to be maintained should allege that earnest efforts toward a compromise were exerted but failed. Respondent Judge apparently considered this deficiency a jurisdictional defect.

On December 11, 1992, Guerrero moved to reconsider the December 7, 1992 Order, claiming that since brothers by affinity are not members of the same family, he was not required to exert efforts toward a compromise. Guerrero likewise argued that Hernando was precluded from raising the issue since he did not file a motion to dismiss nor assert the same as an affirmative defense in his answer. On December 22, 1992, respondent Judge denied the motion for reconsideration, holding that failure to allege earnest efforts toward a compromise is jurisdictional such that the court would be deprived of its jurisdiction to take cognizance of the case. He warned that unless the complaint was amended within five (5) days, the case would be dismissed.

On January 29, 1993, the 5-day period having expired without Guerrero amending his complaint, respondent Judge dismissed the case, declaring the dismissal to be without prejudice. Guerrero then appealed by way of a petition for review of the dismissal by the court a quo.

In his Comment, Hernando argued that although both wives of the parties were not impleaded, it remained a truism that being spouses of the contending parties, and the litigation involving ownership of real property, the spouses' interest and participation in the land in question could not be denied, making the suit still a suit between half-sisters. Guerrero countered that his wife had no actual interest and participation in the land subject of the suit, which he had bought, according to his complaint, before he married his wife. The Court left this factual controversy to be resolved by the court a quo when it resumes hearing the case.

• Brothers by Affinity Not Members of the Same Family: Petitioner argued that since brothers by affinity are not members of the same family, he was not required to exert efforts toward a compromise before filing suit.
• Waiver by Failure to Raise the Defect: Petitioner maintained that private respondent was precluded from raising the issue of the missing allegation since he did not file a motion to dismiss nor assert the same as an affirmative defense in his answer.
• No Directive Defied: Petitioner contended that he could not be bound to comply with the assailed orders because they did not find support in jurisprudence and were based on an erroneous interpretation and application of the law.

• Suit Still Between Half-Sisters: Respondent argued that although both wives of the parties were not impleaded, it remained a truism that being spouses of the contending parties, and the litigation involving ownership of real property, the spouses' interest and participation in the land in question could not be denied, making the suit still a suit between half-sisters.
• Dismissal Under Rule 17: Respondent proposed that the case was, after all, also dismissed pursuant to Sec. 3, Rule 17, of the Rules of Court for failure of petitioner to comply with the court's order to amend his complaint.

• Members of the Same Family: Whether brothers by affinity are considered members of the same family contemplated in Art. 217, par. (4), and Art. 222 of the New Civil Code, as well as under Sec. 1, par. (j), Rule 16, of the Rules of Court, requiring earnest efforts toward a compromise before a suit between them may be instituted and maintained.
• Jurisdictional Defect: Whether the absence of an allegation in the complaint that earnest efforts toward a compromise were exerted, which efforts failed, is a ground for dismissal for lack of jurisdiction.

• Members of the Same Family: No. Brothers-in-law are not members of the same family under Art. 151 of the Family Code, which repeats the enumeration of "members of the family" in Art. 217 of the New Civil Code; Gayon vs. Gayon held that "sisters-in-law" are not comprehended therein. The court a quo therefore erred in requiring petitioner to allege earnest efforts toward a compromise.
• Jurisdictional Defect: No. The absence of an allegation of earnest efforts toward a compromise is a defect in the cause of action, not a jurisdictional defect, and is assailable at any stage of the proceeding, even on appeal. In any event, the requirement does not apply to brothers-in-law.

• Members of the Same Family: Art. 151 of the Family Code provides that no suit between members of the same family shall prosper unless it appears from the verified complaint or petition that earnest efforts toward a compromise have been made but failed, and that if it is shown that no such efforts were in fact made, the case must be dismissed. Because the provision begins with the negative word "No," the requirement is mandatory, and it is contemplated by Sec. 1, par. (j), Rule 16 of the Rules of Court as a ground for a motion to dismiss. The Code Commission explained the rule as intended to prevent the "sadder and more tragic spectacle" of litigation between family members. However, the enumeration of "brothers and sisters" as members of the same family does not comprehend "sisters-in-law," as held in Gayon vs. Gayon, where then Chief Justice Concepcion emphasized that "sisters-in-law" (hence, also "brothers-in-law") are not listed under Art. 217 of the New Civil Code. Since Art. 150 of the Family Code repeats essentially the same enumeration of "members of the family," there is no reason to alter existing jurisprudence. Consequently, the court a quo erred in ruling that Guerrero, being a brother-in-law of Hernando, was required to exert earnest efforts toward a compromise before filing the present suit.

• Jurisdictional Defect: The Court reiterated its ruling in O'Laco vs. Co Cho Chit, citing Mendoza vs. Court of Appeals, that the attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family, the absence of such allegation in the complaint being assailable at any stage of the proceeding, even on appeal, for lack of cause of action. It is therefore not correct, as petitioner contended, that private respondent may be deemed to have waived the defect in failing to move to dismiss or raise the same in the Answer. On the other hand, the Court could not sustain the proposition of private respondent that the case was, after all, also dismissed pursuant to Sec. 3, Rule 17, of the Rules of Court for failure of petitioner to comply with the court's order to amend his complaint. A review of the assailed orders does not show any directive which Guerrero supposedly defied. The Order of December 7, 1992 merely gave Guerrero five (5) days to file his motion and amended complaint with a reminder that the complaint failed to allege that earnest efforts were exerted toward a compromise. The Order of December 22, 1992, which denied Guerrero's motion for reconsideration, simply stated that "Plaintiff if it (sic) so desire must amend the complaint otherwise, the court will have to dismiss the case." The Order of January 29, 1993 dismissing the case without prejudice only made reference to an earlier order "admonishing" counsel for Guerrero to amend the complaint, and an "admonition" is not synonymous with "order." Moreover, since the assailed orders do not find support in jurisprudence but, on the other hand, are based on an erroneous interpretation and application of the law, petitioner could not be bound to comply with them.

• Earnest Efforts Toward a Compromise as a Condition Precedent — Art. 151 of the Family Code requires that in suits between members of the same family, the verified complaint or petition must allege that earnest efforts toward a compromise have been made but that the same failed; if it is shown that no such efforts were in fact made, the case must be dismissed. The rule is mandatory because it begins with the negative word "No," and is contemplated by Sec. 1, par. (j), Rule 16 of the Rules of Court as a ground for a motion to dismiss. The rationale, per the Code Commission, is that litigation between family members generates deeper bitterness than between strangers. In this case, the Court held that the requirement did not apply because the parties are brothers-in-law.
• Brothers-in-law Not Members of the Same Family — The enumeration of "brothers and sisters" as members of the same family does not comprehend "sisters-in-law," and hence also "brothers-in-law." Gayon vs. Gayon held that "sisters-in-law" are not listed under Art. 217 of the New Civil Code, and since Art. 150 of the Family Code repeats essentially the same enumeration, the Court found no reason to alter existing jurisprudence. The Court applied this doctrine to hold that the trial court erred in requiring petitioner, a brother-in-law of private respondent, to allege earnest efforts toward a compromise.
• Lack of Cause of Action Distinguished from Lack of Jurisdiction — The absence of an allegation of earnest efforts toward a compromise is a defect in the cause of action, not a jurisdictional defect. The attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family, and the absence of such allegation in the complaint is assailable at any stage of the proceeding, even on appeal, for lack of cause of action. The Court applied this doctrine in rejecting petitioner's contention that private respondent had waived the defect by failing to raise it in a motion to dismiss or in the Answer.
• Mandatory Character of Negative Words in Statutes — Under the rule of statutory construction, negative words and phrases are to be regarded as mandatory while those in the affirmative are merely directory. The use of the term "shall" further emphasizes the mandatory character of a provision and means that it is imperative, operating to impose a duty which may be enforced. The Court cited Fule vs. Court of Appeals in characterizing Art. 151 of the Family Code as mandatory.
• Dismissal Under Rule 17 Requires a Defied Order — Dismissal under Sec. 3, Rule 17 of the Rules of Court for failure to comply with an order of the court requires a directive that the party has defied. An "admonition" is not synonymous with an "order." The Court applied this doctrine in rejecting private respondent's contention that the case was validly dismissed under Rule 17, noting that the assailed orders merely gave reminders and admonitions rather than directives, and that petitioner could not be bound to comply with orders based on an erroneous interpretation and application of the law.

• "No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same had failed. If it is shown that no such efforts were in fact made, the case must be dismissed." — This is the text of Art. 151 of the Family Code, quoted by the Court as the controlling provision. It states the mandatory requirement of earnest efforts toward a compromise in suits between members of the same family, and the consequence of dismissal if no such efforts were in fact made.
• "the enumeration of 'brothers and sisters' as members of the same family does not comprehend 'sisters-in-law'" — Quoted from Gayon vs. Gayon, this passage supplies the ratio decidendi for the first issue. It establishes that sisters-in-law — and, by extension, brothers-in-law — are not members of the same family under Art. 217 of the New Civil Code, a ruling the Court declined to alter because Art. 150 of the Family Code repeats essentially the same enumeration.
• "the attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family, the absence of such allegation in the complaint being assailable at any stage of the proceeding, even on appeal, for lack of cause of action." — Quoted from O'Laco vs. Co Cho Chit, citing Mendoza vs. Court of Appeals, this passage is the Court's canonical formulation of the second issue. It characterizes the omission as a defect in the cause of action rather than a jurisdictional defect, and explains why the defect is not waived by the failure to raise it in a motion to dismiss or in the Answer.
• "This rule is introduced because it is difficult to imagine a sadder and more tragic spectacle than a litigation between members of the same family. It is necessary that every effort should be made toward a compromise before a litigation is allowed to breed hate and passion in the family." — Quoted from the Report of the Code Commission, this passage supplies the policy rationale behind the requirement of earnest efforts toward a compromise. It explains why the law imposes the condition precedent on suits between family members.

• Gayon vs. Gayon, No. L-28394, 26 November 1970, 36 SCRA 104 — Controlling precedent. The Court relied on this case for the holding that "sisters-in-law" (hence, also "brothers-in-law") are not listed under Art. 217 of the New Civil Code as members of the same family, and declined to alter the doctrine because Art. 150 of the Family Code repeats essentially the same enumeration.
• O'Laco vs. Co Cho Chit, G.R. No. 58010, 31 March 1993 — Reiterated. The Court cited this case for the rule that the attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family, and that the absence of such allegation is assailable at any stage of the proceeding, even on appeal, for lack of cause of action.
• Mendoza vs. Court of Appeals, No. L-23102, 24 April 1967, 19 SCRA 756 — Cited. Through Justice J.B.L. Reyes, the Court held that since the law forbids a suit being initiated or maintained unless efforts at compromise appear, the showing that such efforts were made is a condition precedent to the existence of the cause of action, and the failure to plead it renders the complaint assailable for lack of cause of action at any stage of the case, even on appeal.
• Fule vs. Court of Appeals, G.R. No. 79094, 22 June 1988 — Cited. The Court relied on this case for the rule that negative words and phrases in a statute are to be regarded as mandatory while those in the affirmative are merely directory, and that the use of the term "shall" emphasizes the mandatory character of the provision.
• Gojo vs. Goyala, G.R. No. L-26768, 30 October 1970 — Cited. The Court invoked this case for the proposition that a party cannot be bound to comply with orders that do not find support in jurisprudence but are based on an erroneous interpretation and application of the law.

• Art. 151, Family Code — Provides that no suit between members of the same family shall prosper unless it appears from the verified complaint or petition that earnest efforts toward a compromise have been made but failed, and that if no such efforts were in fact made, the case must be dismissed. The Court held that this provision is mandatory but inapplicable to the parties, who are brothers-in-law and therefore not members of the same family.
• Art. 149, Family Code — Provides that the family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects, and that family relations are governed by law and no custom, practice, or agreement destructive of the family shall be recognized or given effect. The Court cited this provision as the statutory embodiment of the constitutional protection of the family.
• Art. 150, Family Code — Enumerates the members of the family. The Court cited this provision in holding that it repeats essentially the same enumeration as Art. 217 of the New Civil Code, and that there was therefore no reason to alter the jurisprudence excluding sisters-in-law (and brothers-in-law) from the enumeration.
• Art. 217, par. (4), New Civil Code — The precursor provision enumerating members of the same family. The Court cited Gayon vs. Gayon for the holding that "sisters-in-law" are not listed under this article, and that consequently "brothers-in-law" are likewise excluded.
• Art. 222, New Civil Code — Cited in the framing of the first issue as one of the provisions invoked in connection with the requirement of earnest efforts toward a compromise between members of the same family.
• Sec. 1, par. (j), Rule 16, Rules of Court — Provides as a ground for a motion to dismiss that the suit is between members of the same family and no earnest efforts toward a compromise have been made. The Court cited this provision as contemplating Art. 151 of the Family Code, but held that it did not apply because the parties are not members of the same family.
• Sec. 3, Rule 17, Rules of Court — Provides that if the plaintiff fails to comply with the rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court's own motion, and that the dismissal shall have the effect of an adjudication upon the merits unless otherwise provided by the court. The Court rejected private respondent's reliance on this provision, holding that the assailed orders contained no directive that petitioner had defied.
• Sec. 12, Art. II, 1987 Constitution — The first sentence provides that the State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. The Court cited this provision as the constitutional foundation of the policy embodied in Art. 149 of the Family Code.

Cruz, Davide, Jr., and Quiason, JJ., concur.