G.R. No. 131466 November 27, 1998

Cristina Diman, Clarissa Diman, George Diman, Felipe Diman and Florina Diman, petitioners, vs.Hon. Florentino M. Alumbres, Presiding Judge, Regional Trial Court, Las Piñas, Branch 255; Heirs of Veronica V. Moreno Lacalle, represented by Jose Moreno Lacalle, respondent.

 

NARVASA, C.J.:

The petition for review on certiorari in this case was initially dismissed by Resolution dated January 14, 1998; but after deliberating on petitioners motion for reconsideration dated February 23, 1998, the private respondent comment thereon, the reply to the comment, as well as the record of the case itself, the Court was convinced that the order of dismissal should be reconsidered and the petition reinstated. It accordingly promulgated a resolution to that effect on October 12, 1998, and required "respondent to file their Comment on the petition within ten (10) days from notice **."

Notice of the Resolution was duly served on private respondent attorney on October 21, 1998. The latter filed a motion for extension of time of thirty (30) days to file comment, counted from October 31. The Court granted the extension sought, but only for fifteen (15) days.

The comment was filed late, on November 20, 1998. Counsel's explanation is that he had sought an extension of 30 days "due to the other volume of legal works similarly situated and school work of the undersigned as professor of law and dean of the University of Manila," and had entertained "the honest belief" that it would be granted. However, he learned belatedly that only a 15-day extension had been conceded. He forthwith completed the comment and filed it, albeit five days late.

The Court admits the late comment, but takes this occasion to reiterate the familiar doctrine that no party has a right to an extension of time to comply with an obligation within the period set therefor by law; motions for extension are not granted as a matter of course; their concession lies in the sound discretion of the Court exercised in accordance with the attendant circumstances; the movant is not justified in assuming that the extension sought will be granted, or that it will be granted for the lenght of time suggested by him. It is thus incumbent on any movant for extension to exercise due diligence to inform himself as soon as possible of the Court's action on his motion, by timely inquiry of the Clerk of Court. Should he neglect to do so, he runs the risk of time running out on him, for which he will have nobody but himself to blame.

Now, the petition for review on certiorari appends practically all the material pleadings, motions, orders and judgements in the Regional Trial Court and the Court of Appeals. The respondents' comment on the petition has been filed, as just mentioned, and opposes its material averments. There is now no impediment to the adjudication of petitioners' appeal on the merits on the basis of the record as it stands at this time. This, the Court will now proceed to do.

In 1991, more that fifty years after the effectivity of the Rules of Court 1 — containing provisions relative inter alia to the modes of discovery 2 — this Court had occasion to observe that "among far too many lawyers (and not a few judges), there is, if not a regrettable unfamiliarity and even outright ignorance about the nature, purposes and operation of the modes of discovery, at least a strong yet unreasoned and unreasonable disinclination to resort to them — which is a great pity for the intelligent and adequate use of the deposition-discovery procedure, could, as the experience of other jurisdictions convincing demonstrates, effectively shorten the period of ligation and speed up adjudication. 3

The case at bar deals with one of such modes of discovery — a request for admission under Rule 26 of the Rules of 1964; more particularly, the legal consequences of the failure to respond thereto in the manner indicated by law. It also treats of other adjective devices to expedite litigation: a summary judgment under Rule 34, 4 and a judgment on demurrer to evidence under Rule 35. 5 Had the principles involved been better understood and more faithfully observed, the case might have been more quickly decided.

Actually, there are several adjective tools incorporated in the Rules of Court explicitly designed, like those just mentioned, to abbreviate litigation or abort it at certain stages. Their obvious purpose is to unmask as quickly as may be feasible, and give short shrift to, untenable causes of action or defenses and thus avoid waste of time, effort and money. 5 For reasons yet to be fathomed, these devices seem to be of scant familiarity and of infrequent availment, as above observed, with the result that the salutary objective of the Rules of bringing about a simple, inexpensive and expeditious system of litigation has not been fully achieved.

Now, to come to grips with the case. There is no disagreement about the antecedents. The case began in the Regional Trial Court of Las Pinas (Branch 255), where a complaint for "Quieting of Title and Damages" was filed by the Heirs of Veronica V. Moreno Lacalle (represented by Jose Moreno Lacalle) against Cristina Diman, Clarissa Diman, George Diman, Felipe Diman and Florina Diman. 7 In their complaint, the Lacalle heirs claimed that:

a) their mother, the late Veronica V. Moreno Lacalle (who died in 1992), was the owner of a "parcel of land situated at Brgy. Pulang Lupa Uno, Las Piñas, ** covered by Transfer Certificate of Title No. 273301 of the Registry of Deeds of the Province of Rizal;"

b) Veronica Lacalle had acquired the land in 1959 by virtue of a deed of absolute sale, and retained as caretakers the persons she found in occupancy of the lot at the time of the sale, namely: Julian Nario and his wife, Adelaida Legaspi, "with arrangement to share the agricultural fruits" until the former would have need of the property:

c) the caretakers of the lot were served with a notice for them to vacate the land (dated November 22, 1994) and an alias writ of demolition (dated June 7, 1994) issued by the Metropolitan Trial Court in Civil Case No. 2619 — a case for "ejectment with damages" filed by the Dimans against the Narios, judgment in which, commanding the Narios' ouster, had supposedly been affirmed by the Makati Regional Trial Court (Branch 137);

d) neither the deceased Veronica nor any of her heirs had been made parties to said ejectment action;

e) the complaint for ejectment contains false assertions, and had caused them injury for which the Dimans should be made to pay damages.

In their answer with counterclaim dated February 2, 1995, 8 the Dimans alleged that:

a) they are the registered and absolute owners of the land registered in their names under TCT Nos. 90628, 90629 and 58676 (Pasay City), and have no knowledge of the land claimed by the Lacalle Heirs;

b) they are entitled to eject from their land the Nario Spouses, who were falsely claiming to be their lessees;

c) if the Heirs' theory is that the land in their title, No 273301, is the same as that covered by the Dimans' titles, then said title No. 2733101 is spurious because :

(1) no less than three official agencies — (i) the Office of the Registrar of Deeds for Rizal and Regional Registrar for Region IV, (ii) the Register of Deeds of Pasay City, and (iii) the Pangasiwaan Pangtalaan ng Lupain (Land Registration Authority) — have certified to the absence of any entry in their records concerning TCT No. 273301 covering land with an area of 22,379 square meters in the name of Veronica Vda. de Moreno Lacalle;

(2) Decree No. N-11601 explicitly cited as basis by TCT No. 273301 refers to land in Mauban, Ouezon Province, according to the records of the Land Registration Authority: and GLRO Record No. 14978 also expressly mentioned as basis for TCT No. 273301, refers to a registration case heard in Pangasinan;

and

d) they are entitled to damages on their counterclaim.

After joinder of the issues, the Dimans served on the Heirs on February 2, 1995 a REQUEST FOR ADMISSION (dated February 2, 1995) of the truth of the following specified matters of fact, to wit: 9

a) the Heirs' TCT 273301 (Rizal) is not recorded in the Registry of Rizal, or of Pasay City, or of Parañaque, or of Las Pinas;

b) the Dimans' transfer certificates of title are all duly registered in their names in Pasay City, as alleged in their answer;

c) in the Index Records of Registered Property Owners under Act No. 496 in the Office of the Land Registration Authority, there is no record of any property situated in Las Piñas in the name of Veronica Lacalle, more particularly described in TCT 273301;

4) the Heirs cannot produce a certified true copy of TCT 273301:

5) neither Veronica Lacalle nor any of her heirs ever declared the property under TCT 273301 for taxation purposes since its alleged acquisition on February 24, 1959 or since the issuance of said title on August 7, 1959;

6) not a single centavo has been paid by the Heirs as real estate taxes; and

7) no steps have been taken by the Heirs to ascertain the genuineness and authenticity of the conflicting titles.

The REQUEST FOR ADMISSION was received by Jose Lacalle himself through registered mail on February 6, 1995, and copy thereof, by the latter's lawyer (Atty. Cesar T. Ching) on February 4, 1995. However, no response whatever was made to the request by Lacalle, his lawyer, or anyone else, despite the lapse of the period therefor fixed by Section 2 of Rule 26 (not less than ten days after service). The

Dimans thereupon filed with the Court a "MANIFESTATION WITH MOTION TO REOUIRE PLAINTIFFS TO ANSWER REQUEST FOR ADMISSION," dated March 28, 1995, 10 giving the Heirs ten (10) more days to file their answer to the request for admission, a copy of which was personally delivered to the latter's lawyer; but again, no response whatever was made.

The Dimans then submitted a "MOTION FOR SUMMARY JUDGMENT" dated April 17, 1995. 11 In that motion they drew attention to the Heirs' failure to file any Pre-Trial Brief, and the several instances when the Heirs failed to appear at scheduled hearings resulting in the dismissal of their complaint, which was however later reinstated. They argued that because the Heirs had failed to respond to their REQUEST FOR ADMISSION, each of the matters of which an admission was requested, was deemed admitted pursuant to Section 2, Rule 26. On this basis, and on the basis of the joint affidavit of Clarissa Diman de los Reyes and Florina Diman Tan — attached to the motion and substantiating the facts recited in the request for admission — the Dimans asserted that no genuine issue existed and prayed that "a summary judgment be entered dismissing the case for lack of merit."

The Heirs counsel filed a two-page opposition dated May 15, 1995 12 in which, betraying an unfortunate unfamiliarity with the concept of summary judgments, he asserted inter alia that:

In order for defendants (Dimans) to successfully pray for judgment on the pleadings, they have to clearly allege in their permissive counterclaim their cause of action and if the answer of the plaintiffs (Heirs) to such kind of counterclaim admit (sic) it or the answer to the counterclaim is a sham, that is the time for the defendants to move for a judgment summarily. ** ** (D)efendants have no cause of action for praying for summary judgment. It is the plaintiffs who will pray for that and not the defendants.

Subsequently, the Dimans submitted a reply dated May 23, 1995; 13 the Heirs, a rejoinder dated June 1, 1995; 14 and the Dimans, a pleading entitled "Exceptions and Comment to Plaintiffs' Rejoinder" dated June 8, 1995. 15

The Trial Court denied the Dimans' motion for summary judgment. In its Order of June 14, 1995, 16 the Court declared that a "perusal of the Complaint and the Answer will clearly show that material issue is raised in that both plaintiffs and defendants claimed ownership over the land in dispute, presenting their respective titles thereto and accused each other of possessing false title to the land." It stressed, citing jurisprudence, that a summary judgment "is not proper where the defendant presented defenses tendering factual issues which call for the presentation of evidence.:"

The case proceeded to trial in due course. At its start, the Heirs' counsel, Atty. Michael Moralde, responding to questions of the Court, admitted that his clients did not have the original copy of the title which was the basis for their cause of action, but asserted that they were "still searching" for it since "(i)n every municipality there are several Registry of Deeds." He theorized that the word "'title' ** is a relative term ** (and) does not only refer to a document but refers to ownership. 17

Only Jose Moreno Lacalle gave evidence for the plaintiff Heirs. Like Atty. Moralde, he admitted that he had no copy "of the document which says ** (his) mother is the registered owner;" that the deed of sale was not the only basis for his and his co-heirs' claim to the land, but also "a xerox copy of the ** title ** except that ** (he) cannot find the original;" that "maybe" the original was in possession of the person who was his mother's agent in all her transactions, a certain Mr. Lopez, whom he could no longer locate; that he had tried to verify the existence of the title "from the Register of Deeds of Pasig and Pasay" without success; that he had not, however, gone to the Register of Deeds of Parañaque or Las Piñas. 18

The Heir's ducumentary evidence consisted of (1) Veronica Lacalle's death certificate, (2) the special power of attorney authorizing Jose Lacalle to act for his brothers and sisters; and (3) the deed of absolute sale purportedly executed by Eusebio Mojica, Clara Mojica, Maria Mojica, Antonia Mojica,

Amanda Mojica and Teodora Aranda which deeded over to Veronica Lacalle the "land 'known as Lot 1 PSU-151453,'" but which made no reference to any Torrens title over it.

Shortly after the Heirs rested their case, the Dimans filed a "Motion for Judgment on Demurrer to Evidence," dated June 25, 1996. 19 They summarized the Heirs' evidence — focusing attention on the Heirs' failure to present "even an unauthenticated photocopy of the title," and the absence of any proof that any proceedings for registration of the land under the Torrens Act had been instituted — and emphasized anew said Heirs' implied admissions resulting from their failure to answer their (the Dimans') request therefor as a mode of discovery. On these premises, the Dimans contended that a judgment on demurrer should be rendered, there being no genuine issue between the parties notwithstanding the ostensible conflict of averments in their basic pleadings.

The Heirs presented a three-page opposition, dated July 7, 1996. 20 In it their counsel set out the startling contention that "(d)emurrer to evidence is violative to due process as the judgment be rendered without giving the plaintiff the opportunity to cross-examine the defendant," and petulantly inquired, "How could the truth come out without cross-examination of the defendants by the plaintiffs?" particularly, as regards "whether their (the Dimans') title is not fake." Said counsel also posited the amazing notion that "Demurrer to evidence may be correct only in criminal cases as it is the right of the accused to remain silent, and that includes his right to file demurrer for fear of cross-examination. But not in Civil Cases." Once more counsel regrettably exposed his ignorance of quite elementary legal principles.

Again, the Dimans' efforts at expediting disposition of the litigation were unsuccessful. By Order dated December 2, 1996,21 the Trial Court denied their motion to dismiss. Respecting the Heirs' omission to present in evidence any copy (even a photocopy) of TCT No. 273301, the Court remarked that "Not being able to prove the genuineness and authenticity of TCT No. 273301, it being only a mere xerox copy ** (the Heirs) did not formally offer the same in evidence." However, the Court said, the deed of sale of the land in Veronica Lacalle's favor that was submitted instead — the "genuineness and authenticity ** (of which had) been fully established" by the certification of the Clerk of Court of the Manila RTC — was adequate for the purpose. According to the Court, "(e)xecution of a deed of conveyance in a certain prescribed form gave effect to the transfer of a title to the land conveyed ** (and) without being controverted by any convincing evidence to the contrary can be a sufficient basis in granting the plaintiffs' relief for quieting of their title." The Order passed sub silentio on the quaint contentions in the Heirs' opposition.

The Dimans moved for reconsideration under date of January 2, 1997, 22 inter alia (1) alleging that although the photocopy of TCT 2773301 annexed to the Heirs' complaint states that the "certificate is a transfer from T.C.T. No. 259150" (and this, presumably, would be the vendors' [the Mojicas'] title), no effort whatever was made to submit proof thereof, and (2) reiterating the proposition that the Heirs were bound by their implied admissions under Rule 26.

The Dimans also submitted a "SUPPLEMENT TO MOTION FOR RECONSIDERATION" dated January 7, 1997 23 in which they invited attention to the identity of the technical description of the land contained in the deed of sale to Veronica Lacalle and that set out in TCT No. 273301. It must therefore have been Veronica Lacalle, they reasoned, who had instituted the registration proceedings leading to the supposed issuance of said TCT No. 273301. Yet the Heirs failed to present evidence of the record of any such registration proceedings, just as they failed to present evidence of any authentic copy of the title itself.

The Heirs filed a one-page "Vehement Opposition **" dated February 15, 1997. 24 Once again they reiterated the astounding argument that the Dimans' "insistence ** (on the demurrer to evidence) is tantamount to suppression of their evidence as they are afraid of cross-examination "!

Again the Trial Court rebuffed the Dimans. In its Order of February 28, 1997, 25 the Court ruled that the issues raised in the motion for reconsideration and its supplement had already been passed upon in the

Order of December 2, 1996. It then set the case "for the reception of defendants' evidence on April 22, 1997 **.

What the Dimans did was to commence a special civil action of certiorari, mandamus and prohibition in the Court of Appeals praying (a) that it set aside the Orders of June 14, 1995 (denying summary judgment), of December 2, 1996 (denying demurrer to evidence), and February 28, 1997 (denying reconsideration); (b) that the Trial Judge be commanded to dismiss the case before it; and (c) that said judge be prohibited from conducting further proceedings in the case.

But once again their efforts met with failure. The Appellate Tribunal (Seventh Division) promulgated judgment on September 9, 1997 decreeing that their petition, be "DENIED due course and DISMISSED." The Court of Appeals held that insofar as concerned the Order of June 14, 1995, the petition for its invalidation had not been filed within a reasonable time; and that as regards the Order of December 2, 1996, the remedy of certiorari was improper because: (1) said order was merely interlocutory, (2) any error therein constituted only an error of judgment correctible by appeal, and (3) there was no capriciousness or whimsicality attendant upon the order. The Dimans' motion for reconsideration was later denied by the Court of Appeals by Resolution dated November 5, 1997. 26

The Dimans thereupon filed with this Court a petition for review on certiorari of the Appellate Tribunal's Decision of September 9, 1997. But seemingly consistent with the pattern of judicial misfortune which they had theretofore been traversing, their petition for review was dismissed, by Resolution dated January 14, 1998. Their appeal was however subsequently reinstated, as earlier recounted.

Now, what first strikes the Court about the case at bar is the regrettable absence of familiarity, therein laid bare, with the rules of discovery and with the underlying philosophy and principles of the cognate remedy of summary judgment. That resulted in the undue protaction of the present action despite ample demonstration of the absence of any genuine issue — that is to say, that the issues ostensibly arising from the pleadings were sham or fictitious.

A Trial Court has no discretion to determine what the consequences of a party's refusal to allow or make discovery should be; it is the law which makes that determination; and it is grave abuse of discretion for the Court to refuse to recognize and observe the effects of that refusal as mandated by law. Particularly as regards requests for admission under Rule 26 of the Rules of Court, the law ordains that when a party is served with a written request that he admit: (1) the genuineness of any material and relevant document described in and exhibited with the request, or (2) the truth of any material and relevant matter of fact set forth in the request, said party is bound within the period designated in the request, 27 to file and serve on the party requesting the admission a sworn statement either (1) denying specifically the matters of which an admission is requested or (2) setting forth in detail the reason why cannot truthfully either admit or deny those matters. If the party served does not respond with such a sworn statement, each of the matters of which an admission is requested shall be deemed admitted. 28

In this case, the Dimans' request for admission was duly served by registered mail on Jose Lacalle on February 6, 1995, and a copy thereof on his lawyer on February 4, 1995. Neither made any response whatever within the reglementary period. Nor did either of them do so even after receiving copy of the Dimans' "MANIFESTATION WITH MOTION TO REQUIRE PLAINTIFFS TO ANSWER REQUEST FOR ADMISSION," dated March 28, 1995. On account thereof, in legal contemplation, the Heirs impliedly admitted all the facts listed in the request for admission. These plain and simple legal propositions were disregarded by His Honor.

It is also the law which determines when a summary judgment is proper. It declares that although the pleadings on their face appear to raise issues of fact — e.g., there are denials of, or a conflict in, factual allegations — if it is shown by admissions, depositions or affidavits, that those issues are sham, fictitious,

or not genuine, or, in the language of the Rules, that "except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 29 the Court shall render a summary judgment for the plaintiff 30 or the defendant. 31 as the case may be. 32

Parenthetically, the existence or appearance of ostensible issues in the pleadings, on the one hand, and their sham or fictitious character, on the other, are what distinguish a proper case for a summary judgment 33 from one for a judgment on the pleadings under Rule 19 of the 1964 Rules. 34 In the latter case, there is no ostensible issue at all, but the absence of any because of the failure of the defendings party's answer to raise an issue. Rule 19 expresses the principle as follows:

Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading **. 35

On the other hand, in the case of a summary judgment issues apparently exist — i.e., facts are asserted in the complaint regarding which there is as yet no admission, disavowal or qualification; or specific denials or affirmative defenses are in truth set out in the answer — but the issues thus arising from the pleadings are sham, fictitious, not genuine, as shown by admissions, depositions or admissions. In other words, as a noted authority remarks, a judgment on the pleadings is a judgment on the facts as pleaded, while a summary judgment is a judgment on the facts as summarily proven by affidavits, depositions or admissions. 36 Another distinction is that while the remedy of a judgment on the pleadings may be sought only by a claimant (one seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief, supra), a summary judgment may be applied for by either a claimant or a defending party.

These basic distinctions escaped His Honor. He denied the Dimans' motion for summary judgment in his Order of June 14, 1995, opining that a "perusal of the Complaint and the Answer will clearly show that material issue is raised in that both plaintiffs and defendants claimed ownership over the land in dispute, presenting their respective titles thereto and accused each other of possessing false title to the land." He added, citing cases, that a summary judgment "is not proper where the defendant presented defenses tendering factual issues which call for the presentation of evidence." Such a ratiocination is grossly erroneous. Clearly, the grounds relied on by the Judge are proper for the denial of a motion for judgment on the pleadings — as to which the essential question, as already remarked, is: are there issues arising from or generated by the pleadings? — but not as regards a motion for summary judgment — as to which the crucial question is: issues having been raised by the pleadings, are those issues genuine, or sham or fictitious, as shown by affidavits, depositions or admissions accompanying the application therefor?

Errors on principles so clear and fundamental as those herein involved cannot but be deemed so egregious as to constitute grave abuse of discretion, being tantamount to whimsical or capricious exercise of judicial prerogative.

When the Heirs closed their evidence as party plaintiffs, and the Dimans moved to dismiss on ground of insufficiency of the Heirs' evidence, the Trial Judge was charged with the duty to assess the evidence to ascertain whether or not "upon the facts and the law the plaintiff(s) ** (have) shown no right to relief." It was in the first place incumbent on His Honor to hold the Heirs bound to their admissions appearing in the record, express and implied. In accordance with Section 2, Rule 26 of the 1964 Rules of Court, the Heirs were impliedly, but no less indubitably, deemed to have admitted the facts on which admissions had been duly requested by reason of their failure to reply thereto. Said Section 2 reads as follows:

Sec. 2. Implied admission. — Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than ten (10) days after service thereof, or within such further time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requestring the admission a sworn statemant either denying specifically the matters on which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.

Objections on the ground of irrelevancy or impropriety of the matter requested shall be promptly submitted to the court for resolution. 37

In determining the chief issue in the case, the Trial Judge should have taken due account of the following circumstances on record and obvious legal propositions:

1) the Heirs' admissions of the following facts, viz.:

a) the Heirs' TCT 273301 (Rizal) is not recorded in the Registry of Rizal, or of Pasay City, or of Parañaque, or of Las Piñas;

b) on the other hand, the Dimans' transfer certificates of title are all duly registered in their names in Pasay City;

c) there is no record of any property situated in Las Piñas in the name of Veronica Lacalle — more particularly described in TCT 273301 — in the Index Records of Registered Property Owners under Act No. 496 in the Office of the Land Registration Authority;

d) the Heirs do not have and cannot produce even a certified true copy of TCT 273301;

e) neither Veronica Lacalle nor any of her heirs ever declared the property under TCT 273301 for taxation purposes since its alleged acquisition on February 24, 1959 or since the issuance of said title on August 7, 1959;

f) not a single centavo was ever paid by the Heirs as real estate taxes; and

g) no steps were ever taken by the Heirs to ascertain the genuineness and authenticity of the conflicting titles.

2) the statement in open Court of the Heirs' own counsel that his clients did not have the original copy of the title, that they were in fact "still searching" for the titless; 38

3) the testimony of Jose Moreno Lacalle that he had no copy "of the document which says ** (his) mother is the registered owner" of the land in question; that he "cannot find the original" which "maybe" was in possession of his mother's agent, a certain Mr. Lopez, whom he could no longer locate: that he had tried to verify the existence of the title "from the Register of Deeds of Pasig and Pasay" without success; that he had not, however, gone to the Register of Deeds of Parañaque or Las Piñas; 39

4) that the only document bearing on the issue submitted by the Heirs, the deed of absolute sale purportedly executed by Eusebio Mojica, Clara Mojica, Maria Mojica, Antonia Mojica, Amanda Mojica and Teodora Aranda — which deeded over to Veronica Lacalle the "land 'known as Lot 1 PSU-151453,'" but which made no reference to any Torrens title over it — was not accompanied by proof of the vendors' ownership of the land in question:

5) that the land subject of the Heirs' action for quieting of title being registered land (being in fact registered in the Dimans' favor), the unregistered deed of sale relied upon by the Heirs cannot and does not affect said land, or bind any third party (including the Dimans) for the reason that, as a matter of law:

"** (N)o deed, mortgage, lease or other voluntary instrument, except a will purporting to convey or affect registered land, shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties and as evidence of authority to the Register of Deeds to make registration;" and it is the "act of registration (that) shall be the operative act to convey or affect the land in so far as third person are concerned," which "registration shall be made in the ** Register of Deeds for the province or city where the land lies. 40

and

6) that there is no proof whatever of the ownership or character of the rights of the vendors (the Mojicas) over the property purportedly conveyed.

In fine, the Heirs had proven nothing whatever to justify a judgment in their favor. They had not presented any copy whatever of the title they wished to be quieted. They had not adduced any proof worthy of the name to establish their precedessors' ownership of the land. On the contrary, their own evidence, from whatever aspect viewed, more than persuasively indicated their lack of title over the land, or the spuriousness of their claim of ownership thereof. The evidence on record could not be interpreted in any other way, and no other conclusion could be drawn therefrom except the unmeritoriousness of the complaint. The case at bar is a classic example of the eminent propriety of a summary judgment, or a judgment on demurrer to evidence.

Considering these circumstances, including the outlandish grounds of opposition advanced by the Heirs against the Dimans' motions for summary judgment and for demurrer to evidence, no less than the obviously mistaken grounds cited by the Trial Court for denying said motions, this Court has no hesitation in declaring that it was indeed grave abuse of discretion on the part of the Trial Court to have refused to render a summary judgment or one on demurrer to evidence. In no sense may the Trial Court's errors be considered, as the Court of Appeals did in its judgment of September 9, 1997, as mere errors of judgment correctible by appeal, untarnished by any capriciousness or whimsicality.

WHEREFORE, the challenged Decision of the Court of Appeals promulgated on September 9, 1997 is REVERSED and SET ASIDE: the Orders dated July 14, 1996 and December 2, 1996 rendered in the action for "Quieting of Title and Damages" — docketed as Civil Case No. 94-3085 of the Regional Trial Court at Las Piñas (Branch 255) and entitled "Heirs of Veronica V. Moreno Lacalle, represented by Jose Moreno Lacalle versus Cristina Diman, Clarissa Diman, George Diman, Felipe Diman and Florina Diman" — are annulled; and said Civil Case No. 94-3085 is DISMISSED. Costs against private respondents.

IT IS SO ORDERED.

G.R. No. 159224             January 20, 2006

JOSE D. ONTIMARE, JR., and RENE D. ONTIMARE, as sons/heirs, substituted for their deceased father and the original party JOSE M. ONTIMARE, SR., Petitioners, vs.SPS. RENATO and ROSARIO ELEP, Respondents.

D E C I S I O N

QUISUMBING, J.:

For review on certiorari is the Decision,1 dated July 18, 2003, of the Court of Appeals in CA-G.R. CV No. 69138, affirming with modifications the Summary Judgment2 dated July 11, 2000 of the Regional Trial Court of Quezon City, Branch 77, in Civil Case No. Q-96-28991. The RTC ordered Jose M. Ontimare, Sr. to pay respondents actual and compensatory damages in the amount of P75,000 per month from July 1996 to September 1998, exemplary damages amounting toP50,000, attorney’s fees in the amount of P30,000, and the sum of P150,000 as reimbursement for the damage on respondents’ wood parquet floors, wall paintings and ceiling.

The facts, as borne by the records, are as follows:

Ontimare Sr. and respondents are neighbors in Hyacinth Street, Roxas District, Quezon City. Respondents wanted to build a four-door, two-storey apartment on their lot at No. 74 Hyacinth Street and applied for a building permit with the Building Official of Quezon City sometime in December 1995.

Ontimare Sr. owned the adjoining house and adjacent lot on No. 72 Hyacinth Street. His terrace extends to the boundary between his property and respondents’. On December 3, 1995, respondents wrote Ontimare Sr. a letter seeking his written consent to the construction of a firewall adjacent to his existing firewall.

Instead of consenting, on December 20, 1995, Ontimare Sr. filed a Complaint with the Building Official asking that the request for a building permit be withheld since a firewall would adversely affect the ventilation and market value of his property.

Despite a building permit issued to respondents on January 8, 1996,3 a Cease and Desist Order4 to stop the construction of the four-door apartment was issued on January 12, 1996, as a result of the Complaint of Ontimare Sr.

However, when respondents wrote the City Engineer and explained they were constructing a one-sided firewall within their property, the Cease and Desist Order was forthwith lifted on January 16, 1996.

On January 26, 1996, the complaint of Ontimare Sr. was dismissed. He appealed to the City Mayor, who ordered an investigation on the matter.

On February 2, 1996, Ontimare Sr. filed a Notarial Prohibition.

After hearings conducted on June 18 and 25, 1996, the Building Official dismissed the complaint on July 11, 1996 and ordered Ontimare Sr. to make the adjustments in the construction of his house.5 Respondents were issued a new building permit on July 16, 1996.6

Meanwhile, the day before, on July 15, 1996, while respondents’ workers were plastering and water-proofing the firewall, Ontimare Sr. fired his shotgun, threatening to kill anyone who would enter his property and work on respondents’ construction.7 As a result, a portion of the firewall remained

unfinished. According to respondents, water seeped in the building and damaged the sanding, the wood parquet floors and the ceiling. Respondents filed an action for damages with application for preliminary injunction and restraining order against Ontimare Sr. before the Regional Trial Court of Quezon City, Branch 77.

After trial, Ontimare Sr. moved for a summary judgment while the respondents moved for the resolution of the case on the merits. The RTC issued the summary judgment, the dispositive portion of which reads,

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs, and the defendant is hereby ordered to pay the plaintiffs:

1. Actual and compensatory damages in the form of unrealized income and bank amortization interest in the amount of P75,000.00 per month from July, 1996 to September, 1998;

2. The amount of P150,000.00 as reimbursement for the damage on the wood parquet floors, wall paintings and ceiling;

3. P50,000.00 as and by way of exemplary damages; and

4. P30,000.00 as and by way of attorney’s fees.

SO ORDERED.8

On appeal, the Court of Appeals affirmed the assailed summary judgment with modification,

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs, and the defendant is hereby ordered to pay the plaintiffs:

1. Compensatory damages in the form of unrealized income in the total amount of Two Hundred Eighty-eight Thousand Pesos (P288,000.00) for Apartments A, B and C, and bank amortization interest from July 1996 to July 1997 in the total amount of Three Hundred Forty-four Thousand Eight Hundred Seventy-five Pesos and 74/100 centavos (P344,875.74);

2. The amount of P150,000.00 as reimbursement for the damage on the wood parquet floors, wall paintings and ceiling;

3. P50,000.00 as and by way of exemplary damages; and

4. P30,000 as and by way of attorney’s fees.

SO ORDERED.9

Meanwhile, while the case was on appeal, Ontimare Sr. died. He was survived by his two sons, petitioners herein, who now come to us on a petition for review on certiorari on the ground that:

1. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN MAINTAINING THE TRIAL COURT’S SUMMARY JUDGMENT AGAINST MOVANT DEFENDANT

2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN OVERLOOKING MATERIAL FACTS TO FIND DEFENDANT SOLELY LIABLE FOR THE DELAY IN THE PLASTERING OF THE FIREWALL

3. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT HOLDING THAT THE LOWER COURT ERRED IN CONSIDERING DEFENDANT’S MOTION FOR RECONSIDERATION AS A MERE SCRAP OF PAPER WHICH COULD NOT BE ACTED UPON BY THE COURT

4. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN AWARDING UNEARNED RENT AND REIMBURSEMENT OF BANK INTEREST AMORTIZATION FOR ANY PERIOD AFTER THE REWORK ON THE FIREWALL HAD BEEN COMPLETED IN SEPTEMBER 1996

5. THE COURT OF APPEALS COMMITTED A PATENT ERROR IN GRANTING DAMAGES EQUIVALENT TO ELEVEN MONTHS WHEN THE LIABILITY PERIOD IT COMPUTED ONLY ADDED UP TO TEN MONTHS

6. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN AWARDING EXEMPLARY DAMAGES WITHOUT ANY BAD FAITH ON THE PART OF DEFENDANT10

Simply put, there are two issues for resolution, namely (1) Is the summary judgment rendered by the trial court proper? (2) Are petitioners liable for the damages awarded?

Anent the first issue, petitioners argue that summary judgment may issue only in favor of a moving party and only when there is no genuine issue on any material fact, except for the amount of damages. Petitioners insist that the summary judgment in this case was rendered against the movant and despite the existence of disputed facts.

On the other hand, respondents counter that Ontimare Sr., in moving for summary judgment indicated that he did not want a de riguer trial. Further, respondents argue that he waived his right to question the said summary judgment when he did not object to respondents’ motion that the case be resolved on its merits.

On this issue, Rule 34, Section 3 of the Rules of Court is pertinent. It provides:

SEC. 3. Motion and proceedings thereon. - … After the hearing, the judgment sought shall be rendered forthwith if the pleading, depositions, and admissions on file together with the affidavits, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Hence, for summary judgment to be proper, two (2) requisites must concur, to wit: (1) there must be no genuine issue on any material fact, except for the amount of damages; and (2) the moving party must be entitled to a judgment as a matter of law.

When, on their face, the pleadings tender a genuine issue, summary judgment is not proper. An issue is genuine if it requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim.11

In the instant case, the summary judgment was rendered after the presentation of evidence by both parties in a full blown trial. Records show that during the two-year trial of the case, Ontimare Sr. had

presented his own witnesses, all four of them, and had cross-examined the witnesses of the opposing party.

The trial court’s decision was merely denominated as summary judgment. But in essence, it is actually equivalent to a judgment on the merits, making the rule on summary judgment inapplicable in this case.

Anent the second issue, petitioners contend that respondents were issued locational clearance only on July 16, 1996 and hence, the start of the construction work should be reckoned not earlier than the said date. When the shotgun incident happened on July 15, 1996, respondents had no locational clearance.

Petitioners also argue that the unearned rent and reimbursement of bank interest amortization should be counted up to and not from the completion of the rework because the apartments could have been rented out and could have started to earn once the rework was completed. Petitioners insist the period for the computation of unrealized income should have been ten months.

Lastly, petitioners maintain that Ontimare Sr. did not act in bad faith nor abusively in the protection of his rights, thus no exemplary damages should be granted.

For their part, respondents counter that petitioners raise pure questions of fact already ruled upon by the Court of Appeals, hence, the instant petition should be denied outright. Granting arguendo that the petition should be given due course, respondents aver that Ontimare Sr., despite knowledge that respondents had already acquired a building permit, nevertheless, threatened bodily harm on workers of respondents to prevent the construction. He should thus be held liable for damages for abuse of his rights to the prejudice of respondents.

Respondents alleged that rework on the firewall started from September 1996, as evidenced by the receipts issued by the contractor. The compensatory damages in the form of unearned rent started to accrue on October 1, 1996 until the completion of the rework on August 1, 1997 for Apartment A (a total of eleven months) and until July 15, 1997 for Apartments B and C (a total of ten months and fifteen days).

Lastly, respondents posit that Ontimare Sr.’s threats with use of a firearm constitute bad faith.

At the outset, it bears stressing that, except for the issue on exemplary damages, petitioners raise pure questions of fact, which may not be the subject of a petition for review on certiorari.12 Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by substantial evidence, the findings of fact of the Court of Appeals are conclusive and binding on the parties and are not reviewable by this Court, unless the case falls under any of the following recognized exceptions:

(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evidence on which they are based;

(9) When the facts set forth in the petition as well as in the petitioners’ main and reply briefs are not disputed by the respondents; and

(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.13

Petitioners failed to show that their case falls under any of the above-quoted exceptions. Hence, we see no reason to disturb the findings of the Court of Appeals, which we find supported by evidence on record.

We are likewise constrained from reversing the award of exemplary damages. Exemplary damages are imposed by way of example or correction for the public good.14 Ontimare Sr.’s firing his shotgun at respondents’ workers cannot be countenanced by this Court. Exemplary damages in the amount of P50,000 is proper.

WHEREFORE, the petition is DENIED. The assailed Decision, of the Court of Appeals dated July 18, 2003, in CA-G.R. CV No. 69138 is AFFIRMED. Costs against petitioners.

SO ORDERED.

G.R. No. 153827             April 25, 2006

ASIAN CONSTRUCTION AND DEVELOPMENT CORPORATION, Petitioner, vs.PHILIPPINE COMMERCIAL INTERNATIONAL BANK, Respondent.

D E C I S I O N

GARCIA, J.:

In this petition for review under Rule 45 of the Rules of Court, petitioner Asian Construction and Development Corporation or "ASIAKONSTRUKT," seeks the reversal and setting aside of the decision1dated March 15, 2002 and the Resolution2dated June 3, 2002 of the Court of Appeals (CA) in CA-G.R. CV No. 68189. The assailed decision affirm with modification the Summary Judgment rendered by the Regional Trial Court (RTC) of Makati City in an action for a sum of money thereat commenced by the herein respondent, Philippine Commercial International Bank (PCIBANK) against the petitioner, while the challenged resolution denied petitioner’s motion for reconsideration.

The facts:

On February 24, 1999, in the RTC of Makati City, respondent PCIBANK filed a complaint3 for a sum of money with prayer for a writ of preliminary attachment against petitioner ASIAKONSTRUKT. Docketed as Civil Case No. 99-432, the complaint alleged, inter alia, as follows:

FIRST CAUSE OF ACTION

2.01 On various occasions, ASIAKONSTRUKT obtained U.S. dollar denominated credit accommodations from PCIBANK in the amount of Four Million Four Hundred Eighty Seven Thousand U.S. dollars

(US$4,487,000.00), exclusive of interests, charges and fees thereon and the cost of collecting the same. These credit accommodations are covered by the following promissory notes:

xxx xxx xxx

2.02 Prompt and faithful payment of all the foregoing promissory notes was secured by the following deeds of assignment executed by ASIAKONSTRUKT in favor of PCIBANK:

(a) Deed of Assignment of Receivables/Contract Proceeds dated 20 July 1994… where ASIAKONSTRUKT assigned its receivables from its Contract … with the National Power Corporation (NPC) in the amount of ….P54,500,000;

(b) Deed of Assignment of Receivables … dated 28 June 1995 … where ASIAKONSTRUKT assigned its receivables from its Contract … with the NPC in the amount of …P26,281,000.00;

(c) Deed of Assignment of Receivables dated 28 August 1995 … where ASIAKONSTRUKT assigned its receivables from its Sub-Contract with ABB Power, Inc., in the amount of P43,000,000.00;

(d) Deed of Assignment of Contract Proceeds dated 27 March 1996 … where ASIAKONSTRUKT assigned its receivables from its contracts with PNOC … in the aggregate amount of P46,000,000.00; and

(e) Deed of Assignment of Contract Proceeds … dated 20 February 1997 … where ASIAKONSTRUKT assigned its receivables from the Ormat Philippines, Inc., in the aggregate amount of US$3,350,000.00;

2.03 All the foregoing deeds of assignments stipulate, among others, the following terms and conditions:

a) The assignment is for the purpose of securing payment of the principal amount and the interests and bank charges accruing thereon, the costs of collecting the same and all other expenses which PCIBANK may be put in connection with or as an incident of the assignment;

b) That the assignment secures also any extension or renewal of the credit which is the subject thereof as any and all other obligations of ASIAKONSTRUKT of whatever kind and nature as appear in the records of PCIBANK, which ASIAKONSTRUKT accepts as the final and conclusive evidence of such obligations to PCIBANK, "whether contracted before, during or after the constitution of [the assignment agreement]";

c) That PCIBANK authorizes ASIAKONSTRUKT, at the latter’s expense, to "collect and receive for [PCIBANK] all the Receivables"; and

d) That ASIAKONSTRUKT "shall have no right, and agrees not to use any of the proceeds of any collections, it being agreed by the parties that [ASIAKONSTRUKT] divests itself of all the rights, title and interest in said Receivables and the proceeds of the collection received thereon."1avvphil.net

2.04 The promissory notes have remained not fully paid despite their having become due and demandable. Repeated verbal and written demands were made upon ASIAKONSTRUKT, but to no avail.

It has failed and refused, and continues to fail and refuse, to pay its outstanding obligations to PCIBANK…;

2.05 As a result of ASIAKONSTRUKT’s refusal to pay its outstanding obligations, PCIBANK was constrained to refer the matter … to counsel and thus incur attorney’s fees and legal costs.

2.06 The aggregate unpaid obligation of ASIAKONSTRUKT to PCIBANK, as of 31 December 1998, amounts to… US$4,553,446.06, broken down as follows:

Principal US$ 4,067,867.23

Interest US$ 291,263.27

Penalties US$ 194,315.56

TOTAL US$ 4,553,446.06

For its second cause of action, PCIBANK alleged in the same complaint as follows:

SECOND CAUSE OF ACTION

4.02 … as a result of the fraudulent acts of ASIAKONSTRUKT, PCIBANK suffered the following damages, all of which ASIAKONSTRUKT must be held to pay PCIBANK:

4.02.1 Exemplary damages, in the interest of public good and purposes of correction, in the amount of not less than ….P50,000.00;

4.02.2 Attorney’s fees in the amount of not less than …. P1,800,000.00; and

4.02.3 Costs of suit.

In support of its prayer for a writ of preliminary attachment embodied in the complaint, plaintiff PCIBANK alleges the following:

3.02 … ASIAKONSTRUKT is guilty of fraud in contracting the debt, in the performance thereof, or both, xxx;

303. PCIBANK agreed to enter into the above-mentioned credit accommodations primarily because of the existence of the deeds of assignment listed above. However, from telephone inquiries made with responsible officers of the National Power Corporation, ABB Power, Inc., PNOC and Ormat Philippines, Inc., PCIBANK was surprised to learn that ASIAKONSTRUKT had long ago collected the contract proceeds, or portions thereof, which were previously assigned to PCIBANK. However, to date, it has yet to turn over these proceeds to PCIBANK. Worse, PCIBANK learned that the contract proceeds were used by ASIAKONSTRUKT for its own purposes – clear evidence of fraud, which has deprived PCIBANK of its security. ASIAKONSTRUKT’s unauthorized use of the contract proceeds for its own purposes was subsequently confirmed by Mr. Napoleon Garcia, Vice President for Finance of ASIAKONSTRUKT, in a telephone discussion on 12 January 1999 with Ms. Maricel E. Salaveria of PCIBANK. xxx Needless to say, ASIAKONSTRUKT has fraudulently collected such receivables to the prejudice of PCIBANK.

3.04 … it is evident that ASIAKONSTRUKT never had any intention of complying with the deeds of assignment. ASIAKONSTRUKT only misled PCIBANK into believing that it had sufficient security to ensure payment of its loan obligations.

3.05 Alternatively, granting, in argumenti gratia, that ASIAKONSTRUKT, at the time it executed the foregoing deeds of assignment, really intended to abide by their terms and conditions, it nevertheless committed manifest fraud when it collected the contract proceeds, and instead of remitting them to PCIBANK, used them for its own purposes.

In an order4 dated April 13, 1999, the trial court, after receiving ex parte PCIBANK’s evidence in support of its prayer for preliminary attachment, directed the issuance of the desired writ, thus:

WHEREFORE, let a writ of preliminary attachment issue against all the property of defendant not exempt from execution or so much thereof as may be sufficient to satisfy plaintiff’s principal claim of US$4,553,446.06, representing the alleged unpaid obligation of defendant, inclusive of interest and penalty charges, as of December 31, 1998, which is equivalent toP174,260,380.72, upon plaintiff’s filing of a bond in an equal amount to answer for all it may sustain by reason of the attachment if the Court shall finally adjudge that plaintiff was not entitled thereto.

SO ORDERED.

With plaintiff PCIBANK having posted the requisite bond, a writ of preliminary attachment was thereafter issued by the trial court. Per records, defendant ASIAKONSTRUKT did not file any motion for the quashal or dissolution of the writ.

Meanwhile, on August 27, 1999, defendant ASIAKONSTRUKT filed its Answer,5 thereunder making admissions and denials. Defendant admits, subject to its defenses, the material allegations of the Complaint as regards its indebtedness to plaintiff PCIBANK and its execution of the various deeds of assignment enumerated therein. It, however, denies, for lack of knowledge sufficient to form a belief as to the truth thereof, the averments in the Complaint that it has not paid, despite demands, its due and demandable obligations, as well as the amounts due the plaintiff as itemized in paragraph 2.06, supra, of the Complaint. It likewise denies PCIBANK’s allegations in the same Complaint in support of its prayer for a writ of preliminary attachment, particularly its having fraudulently misappropriated for its own use the contract proceeds/receivables under the contracts mentioned in the several deeds of assignments, claiming in this respect that it has still remaining receivables from those contracts.

By way of defenses, defendant pleads in its Answer the alleged "severe financial and currency crisis" which hit the Philippines in July 1997, which adversely affected and ultimately put it out of business. Defendant adds that the deeds of assignments it executed in favor of PCIBANK were standard forms proposed by the bank as pre-condition for the release of the loans and therefore partake of the nature of contracts of adhesion, leaving the defendant to the alternative of "taking it or leaving it." By way of counterclaim, defendant prayed for an award of P1,000,000.00 as and for attorney’s fees andP200,000.00 as litigation expenses.

On January 24, 2000, plaintiff PCIBANK filed a verified Motion for Summary Judgment,6 therein contending that the defenses interposed by the defendant are sham and contrived, that the alleged financial crisis pleaded in the Answer is not a fortuitous event that would excuse debtors from their loan obligations, nor is it an exempting circumstance under Article 1262 of the New Civil Code where, as here, the same is attended by bad faith. In the same motion, PCIBANK also asserts that the deeds of assignments executed in its favor are not contracts of adhesion, and even if they were, the same are valid.

To the Motion for Summary Judgment, defendant interposed an Opposition7 insisting that its Answer tendered or raised genuine and substantial issues of material facts which require full-blown trial, namely:

1. Whether or not defendant received all or part of the proceeds/receivables due from the contracts mentioned in the deeds of assignment at the time the complaint was filed;

2. Granting that defendant received those proceeds/receivables, whether or not defendant fraudulently misappropriated the same;

3. Whether or not defendant is virtually insolvent as a result of the regionwide economic crisis that hit Asia, causing the Philippine peso to depreciate drastically; and

4. Whether the parties dealt with each other on equal footing with respect to the execution of the deeds of assignment as to give the defendant an honest opportunity to reject the onerous terms imposed therein.

Significantly, defendant did not append to its aforementioned Opposition any affidavit in support of the alleged genuine issues of material facts mentioned therein.

Before the pending incident (motion for summary judgment) could be resolved by the trial court, plaintiff PCIBANK waived its claim for exemplary damages and agreed to reduce its claim for attorney’s fees from P1,800,000.00 to P1,260,000.00, but made it clear that its waiver of exemplary damages and reduction of attorney’s fees are subject to the condition that a full and final disposition of the case is obtained via summary judgment.

On May 16, 2000, the trial court, acting favorably on PCIBANK’s motion for summary judgment, came out with its Summary Judgment,8 the decretal portion of which reads:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff:

1. the sum of US$4,553,446.06, or its equivalent in Philippine currency at the time of payment, with interest thereon at the rate of 8.27% per annum from February 24, 1999 until fully paid;

2. P1,260,000.00 as and for attorney’s fees; and

3. the costs of suit.

SO ORDERED.

Explains the trial court in rendering its Summary Judgment:

A thorough examination of the parties’ pleadings and their respective stand in the foregoing motion, the court finds that indeed with defendant’s admission of the first cause of action there remains no question of facts in issue. Further, the proffered defenses are worthless, unsubstantial, sham and contrived.

Considering that there is no more issue to be resolved, the court hereby grants plaintiff’s Motion and renders Judgment in favor of the plaintiff against the defendant based on their respective pleadings in accordance with Section 4, Rule 35 of the Rules of Court.

In time, petitioner went to the CA whereat its appellate recourse was docketed as CA-G.R. CV No. 68189. As stated at the threshold hereof, the CA, in its decision9 of May 15, 2002, affirmed with modification the Summary Judgment rendered by the trial court, the modification being as regards the award for attorney’s fees which the CA reduced to P1,000,000.00, to wit:

IN THE LIGHT OF ALL THE FOREGOING, the appeal is PARTIALLY GRANTED. The "Decision" appealed from is AFFIRMED with the MODIFICATION THAT THE AWARD FOR ATTORNEY’S FEES is reduced to P1,000,000.00.

SO ORDERED.

With its motion for reconsideration having been denied by the CA in its Resolution10 of June 3, 2002, petitioner is now with us via the present recourse, raising the following issues:

I WHETHER OR NOT THERE IS A GENUINE ISSUE AS TO A MATERIAL FACT WHICH RULES OUT THE PROPRIETY OF A SUMMARY JUDGMENT.

II WHETHER OR NOT THE AWARD OF ATTORNEY’S FEES IS EXORBITANT OR UNCONSCIONABLE.

We DENY.

As in the two courts below, it is petitioner’s posture that summary judgment is improper in this case because there are genuine issues of fact which have to be threshed out during trial, to wit: (a) whether or not petitioner was able to collect only a portion of the contract proceeds/receivables it was bound to deliver, remit and tender to respondent under the several deeds of assignment it executed in favor of the latter; and (b) whether or not petitioner fraudulently misappropriated and used for its benefit the said proceeds/receivables. Ergo, so petitioner maintains, genuine triable issues of fact are present in this case, which thereby precludes rendition of summary judgment.

We are not persuaded.

Under Rule 35 of the 1997 Rules of Procedure, as amended, except as to the amount of damages, when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law, summary judgment may be allowed.11 Summary or accelerated judgment is a procedural technique aimed at weeding out sham claims or defenses at an early stage of litigation thereby avoiding the expense and loss of time involved in a trial.12

Under the Rules, summary judgment is appropriate when there are no genuine issues of fact which call for the presentation of evidence in a full-blown trial. Even if on their face the pleadings appear to raise issues, when the affidavits, depositions and admissions show that such issues are not genuine, then summary judgment as prescribed by the Rules must ensue as a matter of law. The determinative factor, therefore, in a motion for summary judgment, is the presence or absence of a genuine issue as to any material fact.

A "genuine issue" is an issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. When the facts as pleaded appear uncontested or undisputed, then there is no real or genuine issue or question as to the facts, and summary judgment is called for. The party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is patently unsubstantial so as not to constitute a genuine issue for trial. Trial courts have limited authority to render summary judgments and may do so only when there is clearly no genuine issue as to any material fact. When the facts as pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place of trial.13

The CA, in its challenged decision, stated and we are in full accord with it:

In the present recourse, the [petitioner] relied not only on the judicial admissions … in its pleadings, more specifically its "Answer" to the complaint, the testimony of Maricel Salaveria as well as Exhibits "A" to "T-3", adduced in evidence by the [respondent], during the hearing on its plea for the issuance, by the Court a quo, of a writ of preliminary attachment. Significantly, the [petitioner] did not bother filing a motion for the quashal of the "Writ" issued by the Court a quo.

It must be borne in mind, too, that the [petitioner] admitted, in its "Answer" … the due execution and authenticity of the documents appended to the complaint … . The [petitioner] did not deny its liability for the principal amount claimed by the [respondent] in its complaint. The [petitioner] merely alleged, by way of defenses, that it failed to pay its account … because of the region-wide economic crisis that engulfed Asia, in July, 1997, and the "Deeds of Assignment" executed by it in favor of the [respondent] were contracts of adhesion:

xxx xxx xxx

The [petitioner] elaborated on and catalogued its defenses in its "Appellants Brief" what it believed, as "genuine issues".

"(i) Whether or not [petitioner] received all or part of the proceeds/receivables due from the construction contracts at the time the civil action was filed;

(ii) Granting that [petitioner] received the proceeds/receivables from the construction contracts, whether or not [petitioner] fraudulently misappropriated the same;

(iii) Whether or not [petitioner] had become virtually insolvent as a result of the region-wide economic crisis that hit Asia, causing the Philippine peso to depreciate dramatically; and

(iv) Whether or not [respondent] and [petitioner] dealt with each other on equal footing with respect to the execution of the deeds of assignment of receivables as to give [petitioner] an honest opportunity to reject the onerous terms imposed on it."

However, the [petitioner] failed to append, to its "Opposition" to the "Motion for Summary Judgment", … "Affidavits" showing the factual basis for its defenses of "extraordinary deflation," including facts, figures and data showing its financial condition before and after the economic crisis and that the crisis was the proximate cause of its financial distress. It bears stressing that the [petitioner] was burdened to demonstrate, by its "Affidavits" and documentary evidence, that, indeed, the Philippines was engulfed in an extraordinary deflation of the Philippine Peso and that the same was the proximate cause of the financial distress, it claimed, it suffered.

xxx xxx xxx

Where, on the basis of the records, inclusive of the pleadings of the parties, and the testimonial and documentary evidence adduced by the [respondent], supportive of its plea for a writ of preliminary attachment, the [respondent] had causes of action against the [petitioner], it behooved the [petitioner] to controvert the same with affidavits/documentary evidence showing a prima facie genuine defense. As the Appellate Court of Illinois so aptly declared:

The defendant must show that he has a bona fide defense to the action, one which he may be able to establish. It must be a plausible ground of defense, something fairly arguable and of a substantial character. This he must show by affidavits or other proof.

The trial court, of course, must determine from the affidavits filed whether the defendant has interposed a sufficiently good defense to entitle it to defend, but where defendant’s affidavits present no substantial triable issues of fact, the court will grant the motion for summary judgment.

xxx xxx xxx

The failure of the [petitioner] to append to its "Opposition" any "Affidavits" showing that its defenses were not contrived or cosmetic to delay judgment … created a presumption that the defenses of the [petitioner]

were not offered in good faith and that the same could not be sustained (Unites States versus Fiedler, et al., Federal Reported, 2nd, 578).

If, indeed, the [petitioner] believed it that was prevented from complying with its obligations to the [respondent], under its contracts, it should have interposed a counterclaims for rescission of contracts, conformably with the pronouncement of our Supreme Court, thus:

xxx xxx xxx

The [petitioner] did not. This only exposed the barrenness of the pose of the [petitioner].

The [petitioner] may have experienced financial difficulties because of the "1997 economic crisis" that ensued in Asia. However, the same does not constitute a valid justification for the [petitioner] to renege on its obligations to the [respondent]. The [petitioner] cannot even find solace in Articles 1266 and 1267 of the New Civil Code for, as declared by our Supreme Court:

It is a fundamental rule that contracts, once perfected, bind both contracting parties, and obligations arising therefrom have the force of law between the parties and should be complied with in good faith. But the law recognizes exceptions to the principle of the obligatory force of contracts. One exception is laid down in Article 1266 of the Civil Code, which reads: ‘The debtor in obligations to do shall also be released when the prestation becomes legally or physically impossible without the fault of the obligor.’

Petitioner cannot, however, successfully take refuge in the said article, since it is applicable only to obligations "to do," and not obligations "to give." An obligation "to do" includes all kinds of work or service; while an obligation "to give" is a prestation which consists in the delivery of a movable or an immovable thing in order to create a real right, or for the use of the recipient, or for its simple possession, or in order to return it to its owner.

xxx xxx xxx

In this case, petitioner wants this Court to believe that the abrupt change in the political climate of the country after the EDSA Revolution and its poor financial condition "rendered the performance of the lease contract impractical and inimical to the corporate survival of the petitioner." (Philippine National Construction Corporation versus Court of Appeals, et al., 272 SCRA 183, at pages 191-192, supra)

The [petitioner] even failed to append any "Affidavit" to its "Opposition" showing how much it had received from its construction contracts and how and to whom the said collections had been appended. The [petitioner] had personal and sole knowledge of the aforesaid particulars while the [respondent] did not.

In fine, we rule and so hold that the CA did not commit any reversible error in affirming the summary judgment rendered by the trial court as, at bottom, there existed no genuine issue as to any material fact. We also sustain the CA’s reduction in the award of attorney’s fees to only P1,000,000.00, given the fact that there was no full-blown trial.

WHEREFORE, the assailed CA decision is AFFIRMED in toto and this petition is DENIED for lack of merit.

Costs against petitioner.

SO ORDERED.

G.R. No. 152092               August 4, 2010

PILIPINO TELEPHONE CORPORATION, Petitioner, vs.RADIOMARINE NETWORK, INC., Respondent.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to annul, reverse and set aside the Resolution1 issued on May 2, 2001 by the former Sixth Division of the Court of Appeals in CA-G.R. SP No. 64155, entitled "PILIPINO TELEPHONE CORPORATION v. HON. JUDGE REINATO G. QUILALA, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 57, and RADIOMARINE NETWORK (SMARTNET), Inc." The assailed Court of Appeals Resolution dismissed Pilipino Telephone Corporation’s (PILTEL) petition for certiorari under Rule 65 with application for temporary restraining order (TRO) and/or writ of preliminary injunction which sought to set aside the Resolution2 made by the Regional Trial Court (RTC) of Makati City, Branch 57, dated November 13, 2000, rendering partial summary judgment in Civil Case No. 99-2041, as well as the Order3 of the same trial court dated January 30, 2001 denying the motion for reconsideration thereof. The instant petition also seeks to annul, reverse and set aside the Court of Appeals Resolution4 issued on February 7, 2002 denying petitioner’s motion for reconsideration of the May 2, 2001 Court of Appeals Resolution.

The genesis of this prolonged controversy can be traced back to the execution of a Contract to Sell5 on December 12, 1996 between petitioner PILTEL and respondent Radiomarine Network, Inc. (RADIOMARINE), wherein the latter agreed to purchase a 3,500-square meter lot located in Makati City covered by Transfer Certificate of Title (TCT) No. T-195516 issued by the Registry of Deeds for Makati City. The terms of payment that were agreed upon by the parties were embodied in Article II of the said contract, to wit:

The total consideration of FIVE HUNDRED SIXTY MILLION PESOS [P560,000,000.00] shall be paid by the VENDEE, without the need of any demand, to the VENDOR in the following manner:

[a] a downpayment in the amount of ONE HUNDRED EIGHTY MILLION [P180,000,000.00] PESOS, to be paid on or before December 28, 1996;

[b] Any and all outstanding payables which the VENDOR owes to the VENDEE in consideration of the cellular phone units and accessories ordered by the VENDOR and delivered by the VENDEE between the initial downpayment date i.e. December 28, 1996 and April 30, 1997, shall be credited to the VENDEE as additional payment of the purchase price.

[c] The remaining balance, after deducting [a] and [b] above, shall be paid on or about April 30, 1997. It is expressly understood however, that the VENDOR shall submit to the VENDEE, on or about April 20, 1997, a Statement of Account updating the deliveries of cellular phones and its outstanding amount in order that the VENDEE can prepare the final payment. In this way, the amount of final payment shall be made to the VENDOR on or before April 30, 1997. Should the VENDOR be delayed in the submission of the said Statement on the stipulated date, the date of payment of the remaining balance shall be automatically adjusted for a period equivalent to the number of days by which the VENDOR is delayed in the submission thereof.6

Thus, under the terms agreed upon, respondent was to give the amount of P180,000,000.00 as down payment. Any outstanding unpaid obligation, which petitioner owed respondent, would be deducted from the obligations of the latter. The balance, if any, should be paid on or before April 30, 1997.

Contemporaneous with the execution of the Contract to Sell, petitioner wrote a Letter7 to respondent dated December 11, 1996 in which it expressed its willingness, on a purely best effort basis, to purchase from respondent 300,000 units of various models of Motorola, Mitsubishi and Ericsson brand cellular phones and accessories for the entire year of 1997.

Respondent failed to pay the balance of P380,000,000.00 on the stipulated period of April 30, 1997 alleging, among other things, that petitioner reneged on its commitment to purchase 300,000 units of cellular phones and accessories from respondent and instead purchased the units from other persons/entities.

On December 19, 1997, petitioner returned to respondent the amount of P50,000,000.00, which is part of theP180,000,000.00 down payment made by the latter pursuant to the Contract to Sell as evidenced by a Statement of Account8 issued by the former.

Respondent then filed a Complaint9 on December 1, 1999 against petitioner PILTEL seeking either the rescission of the Contract to Sell or the partial specific performance of the same with the RTC of Makati City. It prayed that judgment be rendered (a) ordering PILTEL to convey to it at least thirty-two percent (32%) interest in the Valgoson property, representing the value of its down payment of P180,000,000.00, or in the alternative, ordering PILTEL to return to it the down payment plus interest; (b) ordering PILTEL to pay to it the amount of P81,800,764.96 representing the value of the 300,000 units of various cellular phones which it bought pursuant to the commitment of PILTEL to purchase but which commitment PILTEL disregarded, plus interest, as actual and compensatory damages; and (c) ordering PILTEL to pay to it the attorney’s fees in the amount of P500,000.00.

Respondent then filed a Motion for Partial Summary Judgment10 on October 6, 2000 which was opposed by petitioner in its Comment/Opposition11 filed on October 26, 2000. The motion was eventually granted by the trial court in its assailed Resolution dated November 13, 2000, the dispositive portion of which reads:

WHEREFORE, the motion for summary judgment is granted and defendant Piltel is hereby ordered to return or to pay to plaintiff Smartnet the down payment of P180 Million less the forfeited amount of P18 Million and the cash advance of P50 Million, or a net of P112 Million with interest at 6% per annum from the extrajudicial demand of October 20, 1998 until finality of the judgment and after this judgment becomes final and executory, additional legal interest at 12% per annum on the total obligation until the judgment is satisfied.12

On December 5, 2000, petitioner filed a Motion for Reconsideration13 which was denied for lack of merit by the RTC in the assailed Order dated January 30, 2001. Prior to the issuance of the said Order, respondent filed its Opposition14 on December 14, 2000 to which petitioner countered with a Reply15 filed on January 10, 2001.

Respondent then filed a Manifestation and Motion for Execution16 on March 15, 2001 manifesting its withdrawal of the two remaining causes of action and moving for the issuance of a Writ of Execution. This was followed by an Alternative Motion for Execution Pending Appeal17 that was filed by respondent on March 20, 2001, praying for execution pending appeal in the event that then defendant PILTEL would be held to have the right to appeal.

On April 4, 2001, petitioner filed a Petition for Certiorari under Rule 6518 of the Rules of Court before the Court of Appeals, with an application for a temporary restraining order and a writ of preliminary injunction, alleging grave abuse of discretion on the part of Judge Reinato Quilala in issuing the November 13, 2000 Resolution and the January 30, 2001 Order. This petition was docketed as CA-G.R. SP No. 64155. A week later, respondent filed before the Court of Appeals its Opposition to the Application for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction19 on April 11, 2001 wherein it called the appellate court’s attention to what it perceived as then defendant PILTEL’s pursuance of

simultaneous reliefs before the trial court and the Court of Appeals that all seek to nullify the November 13, 2000 Resolution of the trial court granting the summary judgment.

Meanwhile, in compliance with the trial court’s Order20 dated April 6, 2001, petitioner filed before it on April 16, 2001, by registered mail, a Consolidated Opposition21 against respondent’s Manifestation and Motion for Execution dated March 15, 2001 and the Alternative Motion for Execution Pending Appeal dated March 20, 2001. On April 17, 2001, respondent filed with the trial court its Ex Parte Manifestation and Motion22 stating therein that, upon verification with the records of the court that day, then defendant PILTEL had failed to file its Comment/Opposition to respondent’s aforementioned pending motions and, thus, respondent moved to submit both motions for the resolution of the trial court without opposition from then defendant PILTEL. Hence, the trial court issued an Order23 on April 23, 2001 granting the withdrawal of respondent’s remaining causes of action and the execution pending appeal, the dispositive portion of which reads:

WHEREFORE, the motion for execution pending appeal of the Partial Summary Judgment rendered on November 13, 2000 is GRANTED.

Let the corresponding Writ of Execution be issued and implemented accordingly.

As a result, the corresponding Writ of Execution Pending Appeal24 was issued on April 24, 2001.

Back at the Court of Appeals, petitioner filed an Urgent Manifestation and Urgent Reiteratory Motion for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction25 on April 25, 2001.

On that same date and while its Petition for Certiorari under Rule 65 was still pending before the Court of Appeals, petitioner filed with the trial court its Notice of Appeal26 informing the said court that it will raise before the Court of Appeals the trial court’s November 13, 2000 Resolution and April 23, 2001 Order. This appeal was subsequently docketed as CA-G.R. CV No. 71805.

The following day, on April 26, 2001, petitioner filed with the trial court an Urgent Manifestation to Post Supersedeas Bond and Urgent Motion to Defer Execution Pending Appeal.27

On April 30, 2001, respondent filed with the Court of Appeals its Supplement (To: Opposition to the Application for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction)28 while, on the other hand, petitioner filed with the trial court another Urgent Motion to Admit Supersedeas Bond29 on May 2, 2001. On the same day, by virtue of the Writ of Execution Pending Appeal issued by the trial court and there being no TRO issued against it by the Court of Appeals in CA-G.R. SP No. 64155, Sheriff George C. Ragutana issued a Notice of Sale on Execution Pending Appeal of Real Property30 giving notice to the public that the sale by public auction of the real property described in TCT No. 195516 or the Valgoson property shall be on May 31, 2001. Likewise on the same date, the Court of Appeals denied petitioner’s petition for certiorari along with the request for the issuance of a TRO in CA-G.R. SP No. 64155, stating:

We resolve to dismiss the petition.

As pointed out by private respondent, an appeal from a partial summary judgment may be allowed by the trial court under Section 1(g), Rule 41 of the 1997 Rules of Civil Procedure, which reads:

"SECTION 1. Subject of appeal. x x x

No appeal may be taken from:

x x x x

(g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom;

x x x x"

Thus, petitioner should have filed, with leave of court, a notice of appeal from the partial summary judgment dated November 13, 2000 before resorting to this special civil action of certiorari. Moreover with the withdrawal and dismissal of private respondent’s remaining two causes of action, the summary judgment dated November 13, 2000 ceased to be partial as it may be considered to have completely disposed of the entire case and, therefore, appealable.

Anent the alleged impropriety of a summary judgment, suffice it to say that certiorari will not be issued to cure errors in proceedings or correct erroneous conclusions of law or fact. As long as a court acts within its jurisdiction, any alleged errors committed in the exercise of its jurisdiction will amount to nothing more than errors of judgment which are reviewable by timely appeal and not by certiorari.

Petitioner likewise assails the Order of execution dated April 23, 2001. However, the copy of said Order attached to the urgent manifestation and urgent reiteratory motion for the issuance of a temporary restraining order and/or writ of preliminary injunction is a mere unsigned xerox copy thereof, contrary to the requirement in Section 1, Rule 65 of the 1997 Rules of Civil Procedure that the petition be accompanied by a clearly legible duplicate original or certified true copy of the order subject thereof. Thus, Section 3, Rule 46 of the 1997 Rules of Civil Procedure provides that the failure of the petitioner to comply with the requirement, inter alia, that the petition be accompanied by a clearly legible duplicate original or certified true copy of the order subject thereof, shall be sufficient ground for the dismissal thereof. As held in Manila Midtown Hotels and Land Corporation vs. NLRC, certiorari, being an extraordinary remedy, the party who seeks to avail of the same must observe the rules laid down by law.31

Thus, the dispositive portion of which reads as follows:

WHEREFORE, the instant petition is DISMISSED for insufficiency in form and substance.32

In response to petitioner’s May 2, 2001 motion filed in the trial court, respondent filed an Opposition to the Urgent Motion to Admit Supersedeas Bond33 on May 4, 2001 alleging that the offer to post supersedeas bond does not entitle then defendant PILTEL to a deferment of execution pending appeal since at that time, compelling reasons warrant immediate execution and that PILTEL has resorted to forum shopping in order to have the execution postponed. On May 8, 2001, petitioner filed its Reply (to the Opposition to Motion to Admit Supersedeas Bond)34 to which respondent filed its Rejoinder35 on May 9, 2001.

Notwithstanding the dismissal of petitioner’s Petition for Certiorari (CA-G.R. SP No. 64155), petitioner still filed on May 9, 2001 a Supplemental Petition for Certiorari36 challenging the April 23, 2001 Order of the trial court as having been issued with grave abuse of discretion. Petitioner likewise filed a (Second) Urgent Manifestation and Reiteratory Motion for a Temporary Restraining Order and/or Writ of Preliminary Injunction37 on May 17, 2001. Both pleadings were merely noted without action by the Court of Appeals in a Resolution38 dated May 18, 2001, to wit:

In view of the resolution of this Court dated May 2, 2001 which dismissed the petition, the Supplemental Petition dated May 9, 2001 and (Second) Urgent Manifestation and Reiteratory Motion for a Temporary Restraining Order and/or Writ of Preliminary Injunction dated May 15, 2001 filed by petitioner are hereby NOTED without action.

On May 22, 2001, petitioner filed its Motion for Reconsideration39 to the May 2, 2001 Court of Appeals Resolution. It followed this up with the filing of a pleading entitled "(A) Third Urgent Manifestation and

Reiteratory Motion for a Temporary Restraining Order and/or Writ of Preliminary Injunction; and (B) Motion to Set Case for Oral Arguments"40 on June 1, 2001.

Respondent filed its Comment41 and Supplemental Comment42 on June 15, 2001 and June 25, 2001, respectively, to petitioner’s May 22, 2001 Motion for Reconsideration. In return, petitioner filed by registered mail its Consolidated Reply (to Smartnet’s [1] Comment and [2] Supplemental Comment) on August 23, 2001. Subsequently, respondent filed its Rejoinder43 on September 17, 2001.

Back at the trial court, it issued an Order44 on May 11, 2001 denying petitioner’s Urgent Manifestation to Post Supersedeas Bond and Urgent Motion to Defer Execution Pending Appeal on the ground that the reasons for the allowance of execution pending appeal still prevail and the posting of a supersedeas bond does not entitle the judgment debtor to a suspension of execution as a matter of right. The dispositive portion of which states:

WHEREFORE, defendant’s Urgent Manifestation to Post Supersedeas Bond, Urgent Motion to Defer Execution Pending Appeal and the Urgent Motion to Admit Supersedeas Bond are hereby denied for lack of merit.45

Petitioner then filed on May 30, 2001 a Motion for Reconsideration46 of the said Order of the trial court. This was subsequently denied by the trial court in an Order47 issued on August 14, 2001, which likewise granted the withdrawal of all the remaining incidents of the case. This Order later became the subject of petitioner’s Supplemental Notice of Appeal48which it filed on September 4, 2001.

On January 4, 2002, respondent filed a Manifestation49 in CA-G.R. SP No. 64155 informing the Court of Appeals of the status of the appeal taken by petitioner in CA-G.R. CV No. 71805 and reiterating the gross violations of the rule against forum shopping allegedly committed by the same. A month later, or on February 7, 2002, the Court of Appeals denied petitioner’s May 22, 2001 Motion for Reconsideration in CA-G.R. SP No. 64155. In denying petitioner’s motion, the appellate court declared that "even assuming that the Petition for Certiorari has a practical legal effect because it would lead to the reversal of the Resolution dismissing the Complaint, it would still be denied on the ground of forum shopping." The Court of Appeals concluded that petitioner committed forum shopping because the subject matter of its petition for certiorari and the notice of appeal that it subsequently filed are one and the same, to wit:

It should be noted that after the filing of the instant petition, petitioner appealed to this Court the partial summary judgment dated November 13, 2000 and the Order dated April 23, 2001, declaring the partial summary judgment to have finally disposed of the entire case and granting the motion for execution pending appeal, docketed as CA-G.R. CV No. 71805, which are the same subject matter of the instant petition.50

Hence, this petition where petitioner raises the following grounds:

I.

A SPECIAL CIVIL ACTION FOR CERTIORARI UNDER RULE 65 OF THE RULES OF COURT IS THE PROPER REMEDY FROM A PARTIAL SUMMARY JUDGMENT.

A. SECTION 1(G), RULE 41 OF THE RULES OF COURT DOES NOT APPLY TO PARTIAL SUMMARY JUDGMENTS.

B. A PARTIAL SUMMARY JUDGMENT IS AN INTERLOCUTORY ORDER THAT CANNOT BE THE SUBJECT OF AN APPEAL.

C. THE RULES AND EXISTING JURISPRUDENCE DICTATE THAT APPEAL FROM A PARTIAL SUMMARY JUDGMENT MUST BE TAKEN TOGETHER WITH THE JUDGMENT THAT MAY BE RENDERED IN THE ENTIRE CASE AFTER TRIAL.

D. THE REMEDY OF AN AGGRIEVED PARTY FROM A PARTIAL SUMMARY JUDGMENT IS A SPECIAL CIVIL ACTION FOR CERTIORARI UNDER RULE 65 OF THE RULES OF COURT.

E. EVEN ASSUMING, ONLY FOR THE SAKE OF ARGUMENT, THAT SECTION 1, RULE 41 IS APPLICABLE, THE GENERAL RULE EVEN AS STATED IN THE SAME SECTION ITSELF, IS THAT "NO APPEAL MAY BE TAKEN FROM A JUDGMENT OR FINAL ORDER FOR OR AGAINST ONE OR MORE OF SEVERAL PARTIES OR IN SEPARATE CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS AND THIRD-PARTY COMPLAINTS, WHILE THE MAIN CASE IS PENDING." MOREOVER, THE EXCEPTION PROVIDED THEREIN IS NOT EVEN MANDATORY.

F. AT THE TIME OF THE FILING OF THE PETITION IN THIS CASE, THE PARTIAL SUMMARY JUDGMENT WAS TRULY "PARTIAL", AND NOT FINAL IN THE SENSE THAT IT DISPOSES OF THE ENTIRE CASE.

II.

EVEN ASSUMING, ONLY FOR THE SAKE OF ARGUMENT, THAT APPEAL IS THE PROPER REMEDY FROM A PARTIAL SUMMARY JUDGMENT, A SPECIAL CIVIL ACTION FOR CERTIORARI UNDER RULE 65 OF THE RULES OF COURT IS NOT BARRED.

III.

JUDGE QUILALA COMMITTED PATENT AND GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN RENDERING THE ASSAILED PARTIAL SUMMARY JUDGMENT.

IV.

THE ISSUES RAISED IN PILTEL’S PETITION FOR CERTIORARI WITH THE COURT OF APPEALS ARE DIFFERENT FROM THE ISSUES RAISED IN PILTEL’S APPEAL.

V.

PILTEL DID NOT COMMIT FORUM SHOPPING.

VI.

THE COURT OF APPEALS FAILED TO APPRECIATE THAT THE URGENT MANIFESTATION AND URGENT REITERATORY MOTION FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER DID NOT ASSAIL THE 23 APRIL 2001 [ORDER]; THE SAID ORDER WAS ASSAILED IN THE ORIGINAL SUPPLEMENTAL PETITION."51

A careful perusal of the voluminous pleadings filed by the parties leads us to conclude that this case revolves around the following core issues:

I.

WHETHER OR NOT PETITIONER IS GUILTY OF FORUM SHOPPING

II.

WHETHER OR NOT GRAVE ABUSE OF DISCRETION ATTENDED THE TRIAL COURT’S ISSUANCE OF A SUMMARY JUDGMENT

III.

WHETHER OR NOT THE PETITION FOR CERTIORARI WAS PROPERLY DISMISSED

We find the instant petition to be without merit.

Anent the first issue, petitioner asserts that the filing of its Notice of Appeal in CA-G.R. CV No. 71805 subsequent to the filing of its Petition for Certiorari before the Court of Appeals in CA-G.R. SP No. 64155 does not amount to forum shopping because the issues raised in the petition for certiorari are different from the issues raised in the appeal since the former seeks to have an order declared null and void for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction while the latter deals with the correctness and legal soundness of the questioned decision. Furthermore, petitioner argues that a subsequent appeal was not adequate to address the grave abuse of discretion committed by the trial court judge and could not have provided adequate relief. Lastly, petitioner maintains that the element of res judicata is not present in this case so as to amount to forum shopping on the part of petitioner.52

We cannot countenance petitioner’s nuanced position on this issue. The captions/subheadings of the petitioner’s petition for certiorari and the argument captions/subheadings of petitioner’s appellant’s brief may, at first blush, appear to be dissimilar. However, the discussion that expounded on each of them plainly betray a similarity of issues presented, grounds argued, and reliefs sought.

An example is petitioner’s first argument in its Petition for Certiorari before the Court of Appeals in CA-G.R. SP No. 64155 where it alleged grave abuse of discretion on the part of Judge Quilala in granting summary judgment despite the existence of materially disputed facts and the absence of supporting affidavits, to wit:

I

RESPONDENT JUDGE COMMITTED PATENT AND GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN RENDERING SUMMARY JUDGMENT

NOTWITHSTANDING THE FACT THAT:

A. THE PLEADINGS READILY AND IMMEDIATELY SHOW THAT THERE ARE MATERIAL DISPUTED FACTS DETERMINATIVE OF THE PARTIES’ CLAIMS AND DEFENSES WHICH CANNOT BE SETTLED WITHOUT PRESENTATION OF EVIDENCE."53

In support of this allegation, petitioner states the following:

51. From the foregoing statement of the positions of the parties, the following questions of material fact determinative of the parties claim and defenses are glaring:

51.1 Does the Letter constitute a valid, binding, and enforceable agreement between the parties?

51.2 Did the parties intend the Letter to form an integral part of the Contract?

51.3 Was the Letter a material consideration for SMARTNET’s entering into the Contract?

51.4 Did PILTEL violate or fail to comply with any of its obligations under the Contract?

51.5 Assuming, arguendo, that the Letter constitutes a valid binding, and enforceable agreement, did PILTEL violate any of its provisions?

51.6 Is PILTEL guilty of fraud or bad faith in the negotiation, performance or execution of the Contract and/or the Letter?

52. BECAUSE OF THE INDISPUTABLE EXISTENCE OF THE FOREGOING MATERIAL QUESTIONS OF FACT WHICH GO INTO THE HEART OF THE PARTIES’ RESPECTIVE CLAIMS AND DEFENSES, ESPECIALLY SMARTNET’S CLAIM FOR PARTIAL SPECIFIC PERFORMANCE OR (IN THE ALTERNATIVE) FOR RESCISSION,SUMMARY JUDGMENT IS EVIDENTLY NOT PROPER."54

On the other hand, petitioner assigned as its first error in its Appellant’s Brief in CA-G.R. No. 71805 the following contention:

I.

JUDGE QUILALA GRIEVOUSLY ERRED IN HOLDING THAT THE CONTRACT HAD BEEN "RENDERED VOID AND INEFFECTIVE AND WITHOUT FORCE AND EFFECT."55

In discussing this point, petitioner argued that the trial court was required to consider the materially disputed facts before it can properly grant summary judgment instead of directly disputing the finding that the contract had been rendered void, to wit:

Clearly, then, in order for Judge Quilala to determine whether or not SMARTNET is entitled to any of the relief it prayed for, it had to resolve, among others, the following issues of fact: Does the Letter constitute a valid, binding, and enforceable agreement between the parties? Did the parties intend the Letter to form an integral part of the Contract? Did PILTEL violate or fail to comply with any of its obligations under the Contract to Sell? Is PILTEL guilty of fraud or bad faith in the negotiation, performance or execution of the Contract to Sell?"56

In the present Petition for Review, we likewise find the same arguments, to wit:

6.31. In this case, Judge Quilala rendered partial summary judgment notwithstanding the fact that THE PLEADINGS READILY AND IMMEDIATELY SHOW THAT THERE ARE MATERIAL DISPUTED FACTS DETERMINATIVE OF THE PARTIES’ CLAIMS AND DEFENSES WHICH CANNOT BE SETTLED WITHOUT PRESENTATION OF EVIDENCE.

x x x x

The rendition of the foregoing summary judgment is improper because, from the pleadings of the parties and the issues presented at the pre-trial conference, including the issues presented by PILTEL in its pre-trial brief, the following questions of material fact determinative of the parties claim and defenses are glaring:

1. Does the Letter constitute a valid, binding, and enforceable agreement between the parties?

2. Did the parties intend the Letter to form an integral part of the Contract?

3. Was the Letter a material consideration for SMARTNET’s entering into the Contract?

4. Did PILTEL violate or fail to comply with any of its obligations under the Contract?

5. Assuming, arguendo, that the Letter constitutes a valid, binding, and enforceable agreement, did PILTEL violate any of its provisions?

6. Is PILTEL guilty of fraud or bad faith in the negotiation, performance or execution of the Contract and/or the Letter?"57

From the foregoing, it can be clearly deduced that petitioner repeated the same argument in its appeal and its petition forcertiorari filed in the Court of Appeals as well as in the instant petition that the trial court’s resolution of the case by summary judgment was invalid allegedly because of materially disputed facts which would render the whole proceeding beyond the purview of the established rules on summary judgment.

Another illustration of petitioner’s proclivity to repeat its arguments in different fora can be found in the second argument of its petition for certiorari in CA-G.R. SP No. 64155 which reads:

EVEN ASSUMING, ARGUENDO, THAT SUMMARY JUDGMENT IS PROPER, RESPONDENT JUDGE COMMITTED PATENT AND GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION, WHEN HE DISREGARDED THE LAW AND WELL-ESTABLISHED JURISPRUDENCE IN RENDERING JUDGMENT IN FAVOR OF SMARTNET.

A. SMARTNET [RADIOMARINE] WENT TO COURT WITH UNCLEAN HANDS. HENCE, IT IS NOT ENTITLED TO RELIEF FROM THE COURTS.

B. SMARTNET CANNOT RENDER THE CONTRACT VOID AND UNENFORCEABLE THROUGH ITS OWN DEFAULT, BREACH, OR FAILURE.

C. SMARTNET IS NOT ENTITLED TO INTEREST.

D. SMARTNET’S OBLIGATION TO PAY THE BALANCE OF THE PURCHASE PRICE IS VALID, BINDING, ENFORCEABLE AND SUBSISTING.58

In support of which, petitioner discussed the following points:

83. SMARTNET cannot avoid the Contract by the simple expedient of not paying. Here, the bare truth of the matter is that SMARTNET is invoking its own refusal or failure to comply with its obligation under the Contract to annul or render the Contract ineffective or void.

x x x x

85. SMARTNET is in effect saying that, since it has not paid, and it failed and refused, and continues to fail and refuse, to pay the balance of the purchase price for the Valgoson Property, the Contract is automatically annulled or rescinded.

86. Article 1182 of the Civil Code provides that: "When the fulfillment of the obligation depends upon the sole will of the debtor, the conditional obligation shall be void." Thus, in Osmena vs. Rama, it was held that the condition to pay (the balance of the purchase price of shares of stock) as soon as the debtor sells her house is void.

87. Article 1186 of the Civil Code provides that: "The condition shall be deemed fulfilled when the obligor voluntarily prevents its fulfillment." The reason for the rule is that ONE MUST NOT PROFIT BY HIS OWN FAULT.

88. In Mana vs. Luzon Consolidated Mines & Co., a company engaged the services of a contractor to construct a road. Halfway, the company directed the contractor to stop work. The contractor sued for the entire contract price. The company refused, asserting that only half of the project was finished. The Court of Appeals sustained the contractor and directed the company to pay the entire contract price, saying that the project is deemed fulfilled because it was the company that voluntarily prevented its completion.

89. The case of Valencia vs. Rehabilitation Finance Corporation and Court of Appeals is even more applicable. There, the Rehabilitation Finance Corporation ("RFC") advertised to the general public an "invitation to bid" for the construction of a building in Davao City. Valencia submitted a bid for the electrical and plumbing works for the building. RFC awarded the plumbing to Valencia. Valencia was asked to put up the performance bond as required under the contract. Valencia did not put up the bond and also did not begin the work. When RFC sued him, among the defenses put up by Valencia was that, since he did not put up a bond, there was no contract since the condition was not complied with. The Supreme Court, affirming the Court of Appeals, held Valencia liable for damages to RFC, saying that:

x x x x

90. Article 1308 of the Civil Code states that: "The contract must bind both contracting parties; its validity or compliance cannot be left to the will of one of them." Thus, in Fernandez vs. Manila Electric Company, the Supreme Court held that the validity and fulfillment of contracts can not be left to the will of one of the contracting parties, and the mere fact that one has made a poor bargain is no ground for setting aside an agreement.59(citations omitted.)

These same arguments were raised by petitioner in its Appellant’s Brief in CA-G.R. CV No. 71805, to wit:

77. SMARTNET is in effect saying that, since it has not paid, and it failed and refused, and continues to fail and refuse, to pay the balance of the purchase price for the Valgoson Property, the Contract to Sell is automatically annulled or rescinded.

78. SMARTNET cannot avoid the Contract by the simple expedient of not paying. The validity of, compliance with, or fulfillment of a contract cannot be left to the will of one of the parties.

79. Article 1182 of the Civil Code provides that: "When the fulfillment of the obligation depends upon the sole will of the debtor, the conditional obligation shall be void." Thus, in Osmena vs. Rama, it was held that the condition to pay (the balance of the purchase price of shares of stock) as soon as the debtor sells her house is void.

80. Article 1186 of the Civil Code provides that: "The condition shall be deemed fulfilled when the obligor voluntarily prevents its fulfillment." The reason for the rule is that ONE MUST NOT PROFIT BY HIS OWN FAULT."

81. In Mana vs. Luzon Consolidated Mines & Co., a company engaged the services of a contractor to construct a road. Halfway, the company directed the contractor to stop work. The contractor sued for the entire contract price. The company refused, asserting that only half of the project was finished. The Court of Appeals sustained the contractor and directed the company to pay the entire contract price, saying that the project is deemed fulfilled because it was the company that voluntarily prevented its completion.

82. The case of Valencia vs. Rehabilitation Finance Corporation and Court of Appeals is even more applicable. There, the Rehabilitation Finance Corporation ("RFC") advertised to the general public an "invitation to bid" for the construction of a building in Davao City. Valencia submitted a bid for the electrical and plumbing works for the building. RFC awarded the plumbing to Valencia. Valencia was asked to put up the performance bond as required under the contract. Valencia did not put up the bond and also did not begin the work. When RFC sued him, among the defenses put up by Valencia was that, since he did not put up a bond, there was no contract since the condition was not complied with. The Supreme Court, affirming the Court of Appeals, held Valencia liable for damages to RFC, saying that:

x x x x

83. Article 1308 of the Civil Code states that: "The contract must bind both contracting parties; its validity or compliance cannot be left to the will of one of them." Thus, in Fernandez vs. Manila Electric Company, the Supreme Court held that the validity and fulfillment of contracts can not be left to the will of one of the contracting parties, and the mere fact that one has made a poor bargain is no ground for setting aside an agreement.60

It is apparent from the above that petitioner puts forward in both its petition for certiorari and its appeal before the Court of Appeals as well as in the present petition the assertion that the contract at issue was rendered void and unenforceable due to mistakes attributable solely to the respondent in this case.

And finally, the most glaring demonstration of petitioner’s penchant for forum shopping can be found in the prayer of its Court of Appeals’ petition for certiorari and appeal including the instant petition before this Court.

In the present petition for review, petitioner sought in its prayer the following relief:

WHEREFORE, PILTEL respectfully prays that judgment be rendered:

1. Annulling, reversing and setting aside the First and Second Assailed Resolutions;

2. Annulling, reversing and setting aside the Resolution of the trial court dated 13 November 2000 and the Order of the trial court dated 30 January 2001.

PILTEL likewise prays for such further or other relief as may be deemed just and equitable under the circumstances.61(Emphasis supplied.)

In its petition for certiorari in CA-G.R. SP No. 64155, petitioner prayed for the following:

2.1. Annul, reverse and set aside the Assailed Resolution dated 13 November 2000 and the assailed Order dated 30 January 2001, AND DENY SMARTNET’S MOTION FOR PARTIAL SUMMARY JUDGMENT;

2.2 (a) Order the lower court to proceed with the trial on the merits of the case; or, in the alternative,

(b) dismiss the Complaint, and order SMARTNET to pay PILTEL:

(i) PhP380,000,000.00, representing the balance of the purchase price for the Valgoson Property, plus interest until the same is fully paid;

(ii) PhP5,000,000.00, as moral damages;

(iii) PhP1,000,000.00, as exemplary damages; and

(iv) PhP1,000,000.00, as attorney’s fees and costs of litigation."62 (Emphasis supplied.)

While in its Supplemental Petition for Certiorari in the same appellate case, petitioner prayed:

2. After due proceedings, judgment be rendered annulling, reversing and setting aside the Order of 23 April 2001 in so far as it grants execution pending appeal.63 (Emphasis supplied.)

Petitioner’s Appellant’s Brief in CA-G.R. CV No. 71805, on the other hand, sought the following relief:

WHEREFORE, PILTEL respectfully prays that judgment be rendered as follows:

a. Annulling, reversing and setting aside (1) the Assailed Resolution dated 13 November 2000, (2) the First Assailed Order dated 23 April 2001, and (3) the Second Assailed Order dated 14 August 2001;

b. Remanding the case to the Trial Court and allow the parties to present evidence on their respective claims and defenses; and

c. Ordering SMARTNET to return the amount of Php131,795,836.38 to PILTEL, plus interest.

PILTEL likewise prays for such further or other relief just and equitable under the circumstances."64 (Emphasis supplied.)

It is plainly apparent from the foregoing that both the then pending suits before the Court of Appeals and the instant petition before this Court raised the same issues and sought the same reliefs, i.e., the annulment of the November 13, 2000 Resolution of the trial court granting partial summary judgment, as well as the withdrawal of the other causes of action thereby disposing of the entire case, and the execution of the summary judgment as directed by the trial court in its April 23, 2001 Order.

Forum shopping exists when the elements of litis pendentia are present or when a final judgment in one case will amount to res judicata in the other.65 There is res judicata when (1) there is a final judgment or order; (2) the court rendering it has jurisdiction over the subject matter and the parties; (3) the judgment or order is on the merits; and (4) there is between the two cases identity of parties, subject matter and causes of action. For litis pendentia to exist, there must be (1) identity of the parties or at least such as representing the same interests in both actions; (2) identity of the rights asserted and relief prayed for, the relief founded on the same facts; and (3) identity of the two cases such that judgment in one, regardless of which party is successful, would amount to res judicata in the other.66

In the case at bar, the elements of litis pendentia and, consequently, of forum shopping are present in petitioner’s petition for certiorari along with its supplemental petition for certiorari in CA-G.R. SP No. 64155 and in its appeal in CA-G.R. CV No. 71850. Obviously, there is identity of parties. Likewise, there is identity of causes of action as both cases assign the same errors on the part of the trial court. Finally, there is identity of reliefs as both seek the annulment and reversal of the same orders. It is not difficult to conclude that a decision in either case will necessarily have a practical legal effect in the other.

Petitioner further argues that the petition for certiorari alleged grave abuse of discretion on the part of the trial court judge in issuing the November 13, 2000 Resolution and April 23, 2001 Order, while the appeal alleged grave error on the part of the trial court judge in its November 13, 2000 Resolution, April 23, 2001 Order, and August 14, 2001 Order which are entirely different issues.67 However, it is our view that, though petitioner attempts to make distinctions between them, the two cases at issue are undoubtedly directed against the November 13, 2000 Resolution and the April 23, 2001 Order of the trial court, as well as all rulings of the trial court arising from these two. Clearly, both actions alleged the same right supposedly violated by the same acts of the trial court which caused the same damage to petitioner, thus, in violation of the rule against forum shopping. The present petition likewise violates the said rule.

Forum shopping is the act of a litigant who repetitively avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and raising substantially the same issues either pending in, or already resolved adversely by some other court, or to increase his chances of obtaining a favorable decision if not in one court, then in another. The rationale against forum shopping is that a party should not be allowed to pursue simultaneous remedies in two different courts as it constitutes abuse of court processes, which tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts.68

Petitioner stresses that when it filed its petition for certiorari directed against the November 13, 2000 Resolution granting partial summary judgment, the remedy of appeal was not yet an available option to it as the case in the trial court had yet to be concluded. However, upon the issuance of the April 23, 2001 Order which rendered the previously partial summary judgment as the complete and final judgment disposing of the trial court case and was the subject of petitioner’s supplemental petition for certiorari, appeal was now open to petitioner which it readily pursued. Since the issues raised and the reliefs sought in its petition for certiorari and its appeal are identical which would make a decision in either one as res judicata on the other and given that it is axiomatic that the availability of appeal precludes resort to certiorari, it was imperative on the part of petitioner to withdraw its petition for certiorari which it did not do. This is where the petitioner crossed the line into the forbidden recesses of forum shopping. The assailed February 7, 2002 Court of Appeals Resolution correctly pointed this out citing the case of Ley Construction and Development Corporation v. Hyatt Industrial Manufacturing Corporation,69 to wit:

Second, the Petition for Certiorari was superseded by the filing, before the Court of Appeals, of a subsequent appeal docketed as CA-G.R. CV No. 57119, questioning the Resolution and the two Orders. In this light, there was no more reason for the CA to resolve the Petition for Certiorari.

Section 1, Rule 65 of the Rules of Court, clearly provides that a petition for certiorari is available only when "there is no appeal, or any plain, speedy and adequate remedy in the ordinary course of law." A petition for certiorari cannot coexist with an appeal or any other adequate remedy. The existence and the

availability of the right to appeal are antithetical to the availment of the special civil action for certiorari. As the Court has held, these two remedies are "mutually exclusive."

In this case, the subsequent appeal constitutes an adequate remedy. In fact it is the appropriate remedy, because it assails not only the Resolution but also the two Orders.

It has been held that "what is determinative of the propriety of certiorari is the danger of failure of justice without the writ, not the mere absence of all other legal remedies." The Court is satisfied that the denial of the Petition for Certiorari by the Court of Appeals will not result in a failure of justice, for petitioner’s rights are adequately and, in fact, more appropriately addressed in the appeal.

Third, petitioner’s submission that the Petition for Certiorari has a practical legal effect is in fact an admission that the two actions are one and the same. Thus, in arguing that the reversal of the two interlocutory Orders "would likely result in the setting aside of the dismissal of petitioner’s amended complaint," petitioner effectively contends that its Petition forCertiorari, like the appeal, seeks to set aside the Resolution and the two Orders.

Such argument unwittingly discloses a recourse to forum shopping, which has been held as "the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition." Clearly, by its own submission, petitioner seeks to accomplish the same thing in its Petition for Certiorari and in its appeal: both assail the two interlocutory Orders and both seek to set aside the RTC Resolution.

Hence, even assuming that the Petition for Certiorari has a practical legal effect because it would lead to the reversal of the Resolution dismissing the Complaint, it would still be denied on the ground of forum shopping.

With respect to the second issue of whether or not grave abuse of discretion attended the granting of summary judgment by the trial court, we rule that a petition for an extraordinary writ of certiorari is not a proper remedy to assail the propriety of the said act. The pertinent provision of law in this particular case is Section 1, Rule 65 of the 1997 Rules of Civil Procedure, to wit:

SECTION 1. Petition for certiorari. – When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

In other words, a writ of certiorari may be issued only for the correction of errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisidiction.70

In Rizal Security & Protective Services, Inc v. Maraan,71 we elaborated on the aforementioned grounds:

The respondent acts without jurisdiction if he does not have the legal power to determine the case. There is excess of jurisdiction where the respondent, being clothed with the power to determine the case, oversteps his authority as determined by law. And there is grave abuse of discretion where the respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment as to be said to be equivalent to lack of jurisdiction. x x x.

After a careful review of the records, we find that petitioner failed to sufficiently show that the trial court, in rendering a partial summary judgment, so gravely abused its discretion amounting to lack or excess of

jurisdiction. Verily, the circumstances of this case do not show that the trial court’s discretion was exercised arbitrarily, capriciously, or despotically because the November 13, 2000 Resolution laid down the factual and legal bases relied upon by the trial court in granting the Motion for Partial Summary Judgment. Even assuming arguendo, that the trial court committed errors in its appreciation of the facts and pleadings on record, as petitioner contends in its petition for certiorari, we agree with the Court of Appeals that these involve errors of judgment which are not reviewable by certiorari. As this Court held:

As a legal recourse, the special civil action of certiorari is a limited form of review. The jurisdiction of this Court is narrow in scope; it is restricted to resolving errors of jurisdiction, not errors of judgment. Indeed, as long as the courts below act within their jurisdiction, alleged errors committed in the exercise of their discretion will amount to mere errors of judgment correctable by an appeal or a petition for review.72

Lastly, we resolve the issue of whether or not the petition for certiorari filed by petitioner was properly dismissed by the Court of Appeals. In dismissing the said petition, the Court of Appeals ruled in its May 2, 2001 Resolution that appeal and not certiorari is the proper remedy available to petitioner - a holding that was restated by the appellate court in its February 7, 2002 Resolution citing the case of Ley Construction and Development Corporation v. Hyatt Industrial Manufacturing Corporation.73

1avvphi1

Petitioner defends its resort to dual remedies by arguing that, under the peculiar circumstances of the case, it could properly avail of a petition for certiorari and an appeal and that the former is not barred even with the filing of the latter.74However, we deem such a position untenable as established jurisprudence declares otherwise.

The well-settled rule is that certiorari is not available where the aggrieved party’s remedy of appeal is plain, speedy and adequate in the ordinary course, the reason being that certiorari cannot co-exist with an appeal or any other adequate remedy. The existence and availability of the right of appeal are antithetical to the availment of the special civil action forcertiorari. These two remedies are mutually exclusive.75

Moreover, in Monterey Foods Corporation v. Eserjose,76 the Court distinguished when a partial summary judgment is appealable and when it is not, to wit:

Petitioners maintain that the order granting partial summary judgment was merely interlocutory in nature and did not dispose of the action in its entirety. They cite the doctrines laid down in Province of Pangasinan v. Court of Appeals and Guevarra v. Court of Appeals, where the Court categorically stated that a partial summary judgment is not a final or appealable judgment.

Petitioners’ position is untenable.

The rulings in Province of Pangasinan and Guevarra is not applicable in the case at bar. The said cases specifically delved on the appeal of a partial summary judgment, which did not dispose of all the reliefs sought in the complaint. In the case at bar, other than the admitted liability of petitioners to respondents under the contract growing agreement, all other reliefs sought under the complaint had already been expressly waived by respondent before the trial court. Accordingly, the assailed November 25, 1999 Order of the trial court which granted partial summary judgment in favor of respondent was in the nature of a final order which leaves nothing more for the court to adjudicate in respect to the complaint. x x x. (Emphases supplied.)

Petitioner strongly asserts that the aforementioned Court of Appeals’ Resolutions are invalid while conveniently failing to take into account the fact that the petition for certiorari it filed before the Court of Appeals had become moot and academic because of the following circumstances: First, when the May 2, 2001 Resolution was issued by the Court of Appeals, respondent had already filed its Manifestation and Motion for Execution dated March 15, 2001 withdrawing its remaining causes of action and the RTC had already granted this in an Order dated April 23, 2001. In effect, this Order terminated the case before the RTC and the proper mode to challenge it is through an appeal which petitioner did through a Notice of

Appeal on April 25, 2001. Not unlike the factual circumstances found in the Ley Construction and Development Corporationcase, the petition for certiorari was correctly dismissed since superseding events had already rendered it not only improper because appeal already became an available remedy but also superfluous as the appeal that was eventually filed dealt essentially with the same issues. Second, when the February 7, 2002 Resolution was issued, there was already a Sheriff’s Return77 issued on September 21, 2001 informing the trial court that the writ of execution pending appeal was fully satisfied rendering the case bereft of any pending incidents at the trial court level and, thus, concluded already which would make an appeal as the proper mode to question it and not a petition for certiorari.1avvphi1

To reiterate, it is axiomatic that a writ of certiorari is available when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law.78 As we have previously discussed, we find that the trial court acted within its jurisdiction when it granted summary judgment and the purported errors attributed to the trial court appear to be errors of judgment not reviewable by certioraribut by appeal. Likewise, we find that the particular circumstances of this case made the remedy of appeal the proper vehicle to thresh out the issues raised by petitioner and rendered the petition for certiorari improper and moot, notwithstanding the fact that it was filed earlier than the appeal subsequently filed by petitioner. Premises considered, the petition for certiorari was properly dismissed by the Court of Appeals.

WHEREFORE, the petition is hereby DENIED, and the assailed Resolutions of the Court of Appeals are AFFIRMED in toto. With costs against petitioner.

SO ORDERED.

G.R. No. 178899               November 15, 2010

PHILIPPINE BUSINESS BANK, Petitioner, vs.FELIPE CHUA, Respondent.

D E C I S I O N

BRION, J.:

We resolve the petition for review on certiorari1 filed by Philippine Business Bank (PBB) challenging the decision of the Court of Appeals (CA) in CA-G.R. SP No. 94883 dated February 8, 2007,2 insofar as it overturned the Regional Trial Court’s (RTC’s) order dated December 16, 2005 declaring the finality of its Partial Summary Judgment and granting the issuance of a writ of execution against respondent Felipe Chua (respondent Chua). PBB also seeks to overturn the resolution of the CA dated July 18, 2007, which denied its motion for reconsideration.

FACTUAL ANTECEDENTS

From the records, the following facts are not in dispute.

On March 22, 2002, Tomas Tan (Tan), a stockholder and director/Treasurer of CST Enterprises, Inc. (CST), filed a derivative suit for the Declaration of Unenforceability of Promissory Notes and Mortgage, Nullity of Secretary’s Certificate, Injunction, Damages with Prayer for the Issuance of Temporary Restraining Order/Writ of Preliminary Injunction against PBB, Francis Lee, Alfredo Yao, Rodulfo Besinga, Stephen Taala, Rose Robles, Henry Ramos, Yu Heng, Mabuhay Sugar Central, Inc., Nancy Chan, Henry

Chan, John Dennis Chua, Jaime Soriano, Voltaire Uychutin, Peter Salud, Edgar Lo, respondent Felipe Chua, and John Does before the Makati City Regional Trial Court.3

In Tan’s amended complaint dated January 9, 2003, he alleged that sometime in February 2001, before he went abroad for medical treatment, he turned over to respondent Chua, a director and the President of CST, the original copies of Transfer Certificate of Title Nos. 124275 and 157581, titles to lands owned by, and registered in the name of, CST. In January 2002, the respondent informed him that CST’s properties had been fraudulently used as collateral for loans allegedly taken out in CST’s name, but without proper authority from CST stockholders and/or the Board of Directors.4

From his investigation, Tan discovered that a certain Atty. Jaime Soriano had issued a Secretary’s certificate, which stated that John Dennis Chua was authorized during a duly constituted CST board meeting to open a bank account and obtain credit facilities under the name of CST with PBB. This Secretary’s Certificate also authorized John Dennis Chua to use CST’s properties as security for these loans.5 Using this Secretary’s Certificate, John Dennis Chua took out loans with PBB in the total amount of Ninety-One Million One Hundred Thousand Pesos (P91,100,000.00),6 and used CST properties as collateral.7 Respondent Chua signed as co-maker with John Dennis Chua, who signed both as the representative of CST, as well as in his personal capacity, on six promissory notes to PBB to evidence parts of this loan.8

When PBB threatened to foreclose the mortgage on these properties after CST defaulted,9 Tan filed the present complaint, essentially arguing that the loans/promissory notes and mortgage made out in CST’s name are unenforceable against it, since they were entered into by persons who were unauthorized to bind the company.10

In its Amended Answer,11 PBB claimed that the loans to CST, as well as the corresponding mortgage over CST properties, were all valid and binding since the loan applications and documents accomplished by John Dennis Chua were supported by the duly accomplished secretary’s certificate, which authorized him to obtain credit facilities in behalf of CST. In addition, the original copies of the titles to the properties were offered to PBB as collaterals.

PBB’s Amended Answer also included a cross-claim against respondent Chua, demanding payment of the promissory notes he signed as co-maker with John Dennis Chua.12

In respondent Chua’s Answer to the Cross-Claim of PBB,13 he claimed that he never applied for a loan with the PBB. He further denied authorizing John Dennis Chua to apply for any loans in CST’s name, or to use CST properties as security for any loans.14 Nevertheless, he admitted that he signed, as co-maker, six promissory notes covering the loans obtained by John Dennis Chua with PBB. According to respondent Chua, he executed these promissory notes after the loans had already been consummated, "in a sincere effort to persuade John Dennis Chua to pay off the unauthorized loan and retrieve from cross-claimant PBB the CST titles."15

PBB subsequently filed a Motion for Partial Summary Judgment based on Section 1, Rule 35 of the 1997 Rules of Civil Procedure (Rules), claiming that since respondent Chua already admitted the execution of the promissory notes in favor of PBB amounting to Seventy Five Million Pesos (P75,000,000.00),16 insofar as its cross-claim against him was concerned, there was no genuine issue on any material fact on the issue of his liability to PBB. PBB argued that although respondent Chua claimed that he signed the promissory notes merely to persuade John Dennis Chua to pay off his loan to PBB, he was still liable as an accommodation party under Section 29 of the Negotiable Instruments Law.17

THE RTC’S PARTIAL SUMMARY JUDGMENT

Acting on PBB’s motion, the RTC issued a partial summary judgment on PBB’s cross-claim on July 27, 2005, finding respondent Chua liable as a signatory to the promissory notes amounting to Seventy-Five

Million Pesos (P75,000,000.00). The RTC reasoned that by signing as a co-maker, he obligated himself to pay the amount indicated in the promissory notes, even if he received no consideration in return. Thus, the RTC ordered him to pay PBB the amount ofP75,000,000.00, plus interests and costs.18

In its order dated December 16, 2005, the RTC resolved respondent Chua’s Notice of Appeal, as well as PBB’s Motion to Disallow Appeal and to Issue Execution. Citing Section 1, Rule 41 of the Rules, the RTC ruled that respondent Chua could not file a notice of appeal. Instead, he should have filed a special civil action for certiorari under Rule 65 of the Rules. However, since the period for filing a certiorari petition had already lapsed without respondent filing any petition, the partial summary judgment had become final and executory. Thus, it ordered the issuance of a writ of execution for the satisfaction of the partial summary judgment in favor of PBB.19

On December 21, 2005, the RTC issued an order appointing Renato Flora as the special sheriff to implement the writ of execution. In line with this order, Renato Flora, on December 23, 2005, issued a Notice of Levy and Sale on Execution of Personal Properties, addressed to respondent Chua. He proceeded with the execution sale, and on December 28, 2005, he issued a certificate of sale over respondent Chua’s 900 shares of stock in CST in favor of PBB. He also posted a notice of sheriff’s sale on January 10, 2006 over respondent Chua’s five parcels of land located in Las Pinas, Pasay City, and Muntinlupa.20

THE COURT OF APPEALS DECISION

Respondent Chua filed a petition for certiorari and mandamus with the CA to challenge: (a) the December 16, 2005 order, granting PBB’s motion to disallow his appeal; (b) the December 21, 2005 order, granting PBB’s motion to appoint Renato Flora as special sheriff to implement the writ of execution; and (c) the February 16, 2006 order denying his motion for reconsideration and to suspend execution. In essence, respondent Chua alleged that the RTC acted with grave abuse of discretion in disallowing his appeal of the partial summary judgment, and in issuing a writ of execution. Significantly, respondent Chua did not question the propriety of the partial summary judgment.

On February 8, 2007, the CA issued the assailed decision, partly affirming the RTC order dated December 16, 2005 on the matter of the disallowance of respondent Chua’s appeal. The CA held that respondent Chua could not appeal the partial summary judgment while the main case remained pending, in keeping with Section 1(g), Rule 41 of the Rules.

However, the CA held that the RTC committed grave abuse of discretion when it issued the writ of execution against respondent Chua. As found by the CA, the RTC grievously erred when it held that the partial judgment had become final and executory when respondent Chua failed to avail of the proper remedy of certiorari within the 60 day reglementary period under Rule 65. Since a partial summary judgment does not finally dispose of the action, it is merely an interlocutory, not a final, order. Thus, it could not attain finality.

The CA further noted that certiorari is an independent action and not part of the appeal proceedings, and failure to file acertiorari petition would not result in the finality of the judgment or final order. The RTC, thus, committed grave abuse of discretion amounting to lack of jurisdiction when it granted the issuance of a writ of execution, and the corresponding writ of execution issued by the court a quo, as well as the subsequent implementing proceedings, were void.

THE PETITION

PBB submits two issues for our resolution:

I.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR IN APPLYING JURISPRUDENCE NOT ON ALL FOURS [WITH] THE FACTUAL BACKDROP OF THE CASE.

II.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR IN RECALLING AND SETTING ASIDE THE WRIT OF EXECUTION AND ALL THE PROCEEDINGS TAKEN FOR ITS IMPLEMENTATION ON THE WRONG NOTION THAT THE PARTIAL SUMMARY JUDGMENT HAS NOT BECOME FINAL AND EXECUTORY.

THE RULING

We DENY the petition for being unmeritorious.

Nature of Partial Summary Judgment

PBB’s motion for partial summary judgment against respondent Chua was based on Section 1, Rule 35 of the Rules, which provides:

Section 1. Summary Judgment for claimant. - A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof.

A summary judgment, or accelerated judgment, is a procedural technique to promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits on record, or for weeding out sham claims or defenses at an early stage of the litigation to avoid the expense and loss of time involved in a trial.21 When the pleadings on file show that there are no genuine issues of fact to be tried, the Rules allow a party to obtain immediate relief by way of summary judgment, that is, when the facts are not in dispute, the court is allowed to decide the case summarily by applying the law to the material facts.22

The rendition by the court of a summary judgment does not always result in the full adjudication of all the issues raised in a case. For these instances, Section 4, Rule 35 of the Rules provides:

Section 4. Case not fully adjudicated on motion. – If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly.

This is what is referred to as a partial summary judgment. A careful reading of this section reveals that a partial summary judgment was never intended to be considered a "final judgment," as it does not "[put] an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for."23 The Rules provide for a partial summary judgment as a means to simplify the trial process by allowing the court to focus the trial only on the assailed facts, considering as established those facts which are not in dispute.

After this sifting process, the court is instructed to issue an order, the partial summary judgment, which specifies the disputed facts that have to be settled in the course of trial. In this way, the partial summary judgment is more akin to a record of pre-trial,24 an interlocutory order, rather than a final judgment.

The differences between a "final judgment" and an "interlocutory order" are well-established. We said in Denso (Phils.) Inc. v. Intermediate Appellate Court25 that:

[A] final judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties' next move . . . and ultimately, of course, to cause the execution of the judgment once it becomes "final" or, to use the established and more distinctive term, "final and executory."

x x x x

Conversely, an order that does not finally dispose of the case, and does not end the Court's task of adjudicating the parties' contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is "interlocutory", e.g., an order denying a motion to dismiss under Rule 16 of the Rules x x x Unlike a 'final judgment or order, which is appealable, as above pointed out, an 'interlocutory order may not be questioned on appeal except only as part of an appeal that may eventually be taken from the final judgment rendered in the case.26

Bearing in mind these differences, there can be no doubt that the partial summary judgment envisioned by the Rules is an interlocutory order that was never meant to be treated separately from the main case. As we explained in Guevarra v. Court of Appeals:27

It will be noted that the judgment in question is a "partial summary judgment." It was rendered only with respect to the private respondents’ first and second causes of action alleged in their complaint. It was not intended to cover the other prayers in the said complaint, nor the supplementary counterclaim filed by the petitioners against the private respondents, nor the third-party complaint filed by the petitioners against the Security Bank and Trust Company. A partial summary judgment "is not a final or appealable judgment." (Moran, Vol. 2, 1970 Edition, p. 189, citing several cases.) "It is merely a pre-trial adjudication that said issues in the case shall be deemed established for the trial of the case." (Francisco, Rules of Court, Vol. II, p. 429.)

x x x x

The partial summary judgment rendered by the trial court being merely interlocutory and not ‘a final judgment’, it is puerile to discuss whether the same became final and executory due to the alleged failure to appeal said judgment within the supposed period of appeal. What the rules contemplate is that the appeal from the partial summary judgment shall be taken together with the judgment that may be rendered in the entire case after a trial is conducted on the material facts on which a substantial controversy exists. This is on the assumption that the partial summary judgment was validly rendered, which, as shown above, is not true in the case at bar.28

We reiterated this ruling in the cases of Province of Pangasinan v. Court of Appeals29 and Government Service Insurance System v. Philippine Village Hotel, Inc.30

Applicability of Guevarra

PBB asserts that our pronouncement in the cases of Guevarra, Province of Pangasinan, and Government Service Insurance System cannot be applied to the present case because these cases involve factual circumstances that are completely different from the facts before us. While the partial summary judgments in the cited cases decided only some of the causes of action presented, leaving other issues unresolved, PBB insists that as far as its cross-claim against respondent Chua is concerned, the court a quo’s partial summary judgment is a full and complete adjudication because the award is for the whole claim.31 According to PBB, whatever the court decides as regards the main case, this will not affect the liability of respondent Chua as a solidary debtor in the promissory notes, since the creditor can proceed against any of the solidary debtors. In other words, no substantial controversy exists between PBB and respondent Chua, and there is nothing more to be done on this particular issue.

We do not agree with PBB’s submission.

In the Guevarra case, the Court held that the summary judgment rendered by the lower court was in truth a partial summary judgment because it failed to resolve the other causes of action in the complaint, as well as the counterclaim and the third party complaint raised by the defendants.

Contrary to PBB’s assertions, the same could be said for the case presently before us. The partial summary judgment in question resolved only the cross-claim made by PBB against its co-defendant, respondent Chua, based on the latter’s admission that he signed promissory notes as a co-maker in favor of PBB. This is obvious from the dispositive portion of the partial summary judgment, quoted below for convenient reference:

WHEREFORE, a partial summary judgment is hereby rendered on the cross-claim of cross-defendant Philippine Business Bank against cross-defendant Felipe Chua, ordering the latter to pay the former as follows:

1. The amount of Ten Million (P10,000,000.00) Pesos, representing the value of the Promissory Note dated April 17, 2001, plus interest thereof at the rate of 16% from April 12, 2002, until fully paid;

2. The amount of Twelve Million (P12,000,000.00) Pesos, representing the value of the Promissory Note dated April 5, 2001, plus interest thereon at the rate of 17% from April 1, 2002, until fully paid;

3. The amount of Twenty Three Million (P23,000,000.00) Pesos, representing the value of the Promissory Note dated April 25, 2001, plus interest thereon at the rate of 16% from April 19, 2002, until fully paid;

4. The amount of Eight Million (P8,000,000.00) Pesos, representing the value of the Promissory Note dated June 20, 2001, plus interest thereon at the rate of 17% from June 20, 2001, until fully paid;

5. The amount of Seven Million (P7,000,000.00) Pesos, representing the value of the Promissory Note dated June 22, 2001, plus interest thereon at the rate of 17% from June 17, 2002, until fully paid;

6. The amount of Fifteen Million (P15,000,000.00) Pesos, representing the value of the Promissory Note dated June 28, 2001, plus interest thereon at the rate of 17% from June 24, 2002, until fully paid;

7. Plus cost of suit.

SO ORDERED. 32

Clearly, this partial summary judgment did not dispose of the case as the main issues raised in plaintiff Tomas Tan’s complaint, i.e., the validity of the secretary’s certificate which authorized John Dennis Chua to take out loans, and execute promissory notes and mortgages for and on behalf of CST, as well as the validity of the resultant promissory notes and mortgage executed for and on behalf of CST, remained unresolved.

Chua shares common interest with co-defendant- debtors

Still, PBB insists that the partial summary judgment is a final judgment as regards PBB’s cross-claim against respondent Chua since respondent Chua’s liability will not be affected by the resolution of the issues of the main case.

On its face, the promissory notes were executed by John Dennis Chua in two capacities – as the alleged representative of CST, and in his personal capacity. Thus, while there can be no question as to respondent Chua’s liability to PBB (since he already admitted to executing these promissory notes as a co-maker), still, the court a quo’s findings on: (a) whether John Dennis Chua was properly authorized to sign these promissory notes on behalf of CST, and (b) whether John Dennis Chua actually signed these promissory notes in his personal capacity, would certainly have the effect of determining whether respondent Chua has the right to go after CST and/or John Dennis Chua for reimbursement on any payment he makes on these promissory notes, pursuant to Article 1217 of the Civil Code, which states:

Article 1217. Payment made by one of the solidary debtors extinguishes the obligation. If two or more solidary debtors offer to pay, the creditor may choose which offer to accept.

He who made the payment may claim from his co-debtors only the share which corresponds to each, with the interest for the payment already made. If the payment is made before the debt is due, no interest for the intervening period may be demanded.

When one of the solidary debtors cannot, because of his insolvency, reimburse his share to the debtor paying the obligation, such share shall be borne by all his co-debtors, in proportion to the debt of each.

In other words, PBB has a common cause of action against respondent Chua with his alleged co-debtors, John Dennis Chua and CST, it would simply not be proper to treat respondent Chua separately from his co-debtors.

Moreover, we cannot turn a blind eye to the clear intention of the trial court in rendering a partial summary judgment. Had the trial court truly intended to treat PBB’s cross-claim against respondent Chua separately, it could easily have ordered a separate trial via Section 2, Rule 31 of the Rules, which states:

Section 2. Separate trials. – The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues.

That the trial court did not do so belies PBB’s contention.

It has also not escaped our attention that PBB, in its Motion to Disallow Appeal and to Issue Execution Against Cross-Defendant Felipe Chua,33 already admitted that the partial summary judgment is not a judgment or final order that completely disposes of the case. In its own words:

x x x x

3. However, the remedy availed of by [respondent Chua] is patently erroneous because under Rule 41 Section 1 of the Rules of Court, an appeal may be taken only from a judgment or final order that completely disposes the case;

4. The judgment rendered by [the RTC] dated July 27, 2005 is only a partial summary judgment against [respondent Chua], on the crossclaim of cross-claimant Philippine Business Bank. The main case which involves the claim of plaintiffs against the principal defendants is still pending and has not yet been adjudged by [the RTC].34

Thus, PBB cannot now be allowed to deny the interlocutory nature of the partial summary judgment.

Certiorari not the proper remedy

PBB also maintains that the partial summary judgment attained finality when respondent Chua failed to file a certiorari petition, citing the last paragraph of Section 1, Rule 41 of the Rules as basis. We quote:

Section 1. Subject of appeal. – An appeal maybe taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.

No appeal may be taken from:

x x x x

(g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third party complaints, while the main case is pending, unless the court allows an appeal therefrom;

x x x x

In all the above instances where the judgment, or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.

Contrary to PBB’s contention, however, certiorari was not the proper recourse for respondent Chua. The propriety of the summary judgment may be corrected only on appeal or other direct review, not a petition for certiorari,35 since it imputes error on the lower court’s judgment. It is well-settled that certiorari is not available to correct errors of procedure or mistakes in the judge’s findings and conclusions of law and fact.36 As we explained in Apostol v. Court of Appeals:37

As a legal recourse, the special civil action of certiorari is a limited form of review. The jurisdiction of this Court is narrow in scope; it is restricted to resolving errors of jurisdiction, not errors of judgment. Indeed, as long as the courts below act within their jurisdiction, alleged errors committed in the exercise of their discretion will amount to mere errors of judgment correctable by an appeal or a petition for review.38

In light of these findings, we affirm the CA’s ruling that the partial summary judgment is an interlocutory order which could not become a final and executory judgment, notwithstanding respondent Chua’s failure to file a certiorari petition to challenge the judgment. Accordingly, the RTC grievously erred when it issued the writ of execution against respondent Chua.

In view of this conclusion, we find it unnecessary to resolve the issue raised by respondent Chua on the validity of the RTC’s appointment of a special sheriff for the implementation of the execution writ.

Propriety of Summary Judgment Reserved for Appeal

As a final point, we note that respondent Chua has raised with this Court the issue of the propriety of the partial summary judgment issued by the RTC. Notably, respondent Chua never raised this issue in his petition for certiorari before the CA. It is well settled that no question will be entertained on appeal unless it has been raised in the proceedings below.39 Basic considerations of due process impel the adoption of this rule.40

Furthermore, this issue would be better resolved in the proper appeal, to be taken by the parties once the court a quo has completely resolved all the issues involved in the present case in a final judgment.1avvphi1 If we were to resolve this issue now, we would be preempting the CA, which has primary jurisdiction over this issue.

Lastly, taking jurisdiction over this issue now would only result in multiple appeals from a single case which concerns the same, or integrated, causes of action. As we said in Santos v. People:41

Another recognized reason of the law in permitting appeal only from a final order or judgment, and not from an interlocutory or incidental one, is to avoid multiplicity of appeals in a single action, which must necessarily suspend the hearing and decision on the merits of the case during the pendency of the appeal. If such appeal were allowed, the trial on the merits of the case would necessarily be delayed for a considerable length of time, and compel the adverse party to incur unnecessary expenses, for one of the parties may interpose as many appeals as incidental questions may be raised by him, and interlocutory orders rendered or issued by the lower court.

WHEREFORE, premises considered, we DENY the petition for lack of merit and AFFIRM the Decision of the Court of Appeals in CA-G.R. SP No. 94883 dated February 8, 2007, as well as its Resolution dated July 18, 2007. Costs against the petitioner, Philippine Business Bank.

SO ORDERED.

G.R. No. 157810               February 15, 2012

ROLANDO SOFIO and RUFIO SOFIO, Petitioners, vs.ALBERTO I. VALENZUELA, GLORIA I. VALENZUELA, REMEDIOS I. VALENZUELA, and CESAR I. VALENZUELA,Respondents.

D E C I S I O N

BERSAMIN, J.:

The Court will not override the finality and immutability of a judgment based only on the negligence of a party’s counsel in timely taking all the proper recourses from the judgment. To justify an override, the counsel’s negligence must not only be gross but must also be shown to have deprived the party the right to due process.

We deny this appeal via petition for review on certiorari to assail the resolution promulgated on February 13, 2003,1whereby the Court of Appeals (CA) rejected the petitioners’ motion to recall the entry of judgment.

Antecedents

Respondents Alberto, Gloria, Remedios, and Cesar, all surnamed Valenzuela, are brothers and sisters. They are the co-owners of a parcel of agricultural land designated as Lot No. 970-B and located in Barangay Ayungon, Valladolid, Negros Occidental, containing an aggregate area of 10.0959 hectares.

Alberto had been planting sugarcane in the entire property, but poor drainage had led him to abandon his cultivation in 1978 of an .80-hectare portion of the property. Unknown to the respondents, petitioner Rolando Sofio,2 a son of their tenant in another lot, had obtained permission to farm the abandoned area for free from Socorro Valenzuela, the respondents’ mother who was then still managing the property. She had acceded to the request on condition that Rolando would return the portion once the owners needed it.3 In succeeding years, Alberto had also left other portions of the property uncultivated because of the low price of sugar. Apparently, Rolando had also taken over the vacated portions to plant palay. He shared the cultivation with his brother, co-petitioner Rufio Sofio.4

In 1985, respondent Gloria learned for the first time that Rolando had been permitted by her mother to cultivate the .80 hectare portion without paying any rentals; and that the petitioners had actually expanded their cultivation to a total area of 1.8 hectares. After the petitioners refused her demand for the return of the 1.8 hectares, she lodged a complaint against Rolando with the Barangay Chairman of Ayungon, Valladolid, Negros Occidental, and the Municipal Agrarian Reform Officer (MARO). The parties did not reach an amicable settlement.5

On October 14, 1985, the petitioners, along with Wilma Sofio, their sister who had succeeded their father as the tenant of respondents’ other property, informed Gloria that, being the identified tenants under Presidential Decree No. 27, they had already paid the rentals on the portions they were cultivating, and that they would be paying subsequent rentals to the Land Bank of the Philippines (LBP).6

Gloria replied that, except for the area that Wilma had been cultivating as tenant in lieu of her late father, the petitioners were not tenants of any portion of respondents’ lands.7

On July 8, 1988, emancipation patents (EPs) were issued to Rolando and Rufio covering their respective areas of tillage.8

On October 5, 1990, the respondents brought in the Department of Agrarian Reform Adjudication Board (DARAB) a complaint against the petitioners,9 seeking the cancellation of the EPs, recovery of possession, and damages, alleging that the petitioners’ cultivation of their land had been illegal because they had not consented to it.10

On December 18, 1992, Hon. Gil A. Alegario, the Provincial Agrarian Reform Adjudicator (PARAD) of Negros Occidental, ordered the cancellation of petitioners’ EPs, decreeing thus:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. Declaring the Emancipation Patents issued in favor of Rolando Sofio and Rufio Sofio cancelled on account of failure to establish a valid tenancy relationship;

2. Ordering defendants, their agents, representatives and other persons working for and in their behalf to vacate all landholdings occupied by them belonging to the complainants particularly Lot Nos. 970-A and 970-B located at Hda. Lamgam, Brgy. Ayungon, Valladolid, Negros Occidental save for the .80 hectare portion of the landholding situated at Lot No. 970-A, formerly tenanted by Pedro Sopio but is now being occupied by Wilma Sopio;

3. Ordering the defendants to pay the complainants, jointly and severally, 2,880 cavans of palay representing rentals in arrears from crop year 1985 to the present or its cash equivalent computed based on the prevailing market price for each year plus 180 cavans of palay every harvest until complainants are fully restored to the possession of the landholding;

4. Ordering the defendants to pay the complainants, jointly and severally, the sum of P5,000.00 as Attorney’s Fees and P4,000.00 as actual litigation expenses.

SO ORDERED.11

The petitioners appealed.

On September 18, 1996, the DARAB reversed the ruling of the PARAD, and held in favor of the petitioner, as follows:

WHEREFORE, premises considered, the appealed decision is hereby REVERSED and SET ASIDE, thus, Plaintiffs-Appellees are hereby ordered to maintain Defendants-Appellants in the peaceful cultivation and possession of the subject landholdings.

SO ORDERED.12

The DARAB concluded that a tenancy relationship existed between the parties, because the Rice and Corn Land Tenure Survey indicated that Rolando’s tenurial right had been established in 1974; that this finding gave rise to a presumption of the existence of a tenancy relationship between the parties even with the absence of certificates of land transfer; that the respondents did not discharge the burden of proof to establish that Rolando had been merely allowed by the respondents’ mother to temporarily cultivate the landholding; that there was no reason to cancel Rufio’s EPs because none of the grounds for cancellation of EPs was present.13

The respondents elevated the DARAB’s decision to the CA (C.A.-G.R. SP No. 42330).

On May 27, 1998, the CA granted the petition for review; set aside the DARAB decision; and reinstated the PARAD decision.14

The CA decreed that the petitioners did not adduce evidence to prove the existence of a tenancy relationship between them and the respondents; and that the DARAB’s reliance on the Rice and Corn Land Tenure Survey was unfounded, to wit:

xxx This Court however does not find the aforesaid Rice and Corn Land Tenure Survey enough basis to support a finding of landlord-tenant relationship between the parties, the said document being partial in favor of private respondents. As petitioners posit, a perusal of the said survey would reveal that the information contained therein was based solely on the declarations made by private respondent Rolando Sopio.

Furthermore, that the Rice and Corn Land Tenure Survey was accomplished only in 1985, i.e., after petitioner Gloria I. Valenzuela had started to protest private respondents’ possession of the subject landholdings, should have cautioned the DARAB against blindly accepting the veracity of the contents thereof. For if as claimed by private respondent Rolando Sopio in said survey that they have been tenants of petitioners’ land since 1974, they should have accomplished the Rice and Corn Land Tenure Survey much earlier than November 15, 1985 and should have been issued a Certificate of Land Transfer (CLT) by the Department of Agrarian Reform (DAR) in accordance with PD 266.

The foregoing circumstances thus cannot create a presumption of the existence of a tenancy relationship, more so that no CLTs were issued to private respondents.15

The decision of May 27, 1998 became final and executory on October 27, 1998 after the petitioners neither moved for reconsideration nor appealed by certiorari to the Court.16

The respondents later filed an ex parte motion for execution,17 which the PARAD granted on November 27, 2001. The writ of execution was issued on January 23, 2002.18

On February 6, 2002, the petitioners, represented by new counsel, filed in the PARAD a motion for relief from judgment, motion for reconsideration of the order dated November 27, 2001, and motion to recall writ of execution dated January 23, 2002.19 They alleged therein that they had learned of the May 27, 1998 decision of the CA only on December 11, 2001 through their receipt of the November 27, 2001 order of the PARAD granting the respondents’ ex parte motion for execution.

On March 19, 2002, the PARAD denied the motion for relief from judgment for lack of merit but deferred action on the other motions. The PARAD held that he had no authority to grant the motion for relief from judgment due to its subject matter being a judgment of the CA, a superior court.20

The petitioners then filed in the CA a motion to recall entry of judgment with motion for leave of court to file a motion for reconsideration.21

Finding the negligence of the petitioners’ former counsel being matched by their own neglect (of not inquiring about the status of the case from their former counsel and not even taking any action against said counsel for neglecting their case), the CA denied on February 13, 2003 the motion to recall entry of judgment.22

The petitioners received a copy of this resolution of February 13, 2003 on March 14, 2003.

Hence, the petitioners appeal by petition for review on certiorari.

Issues

The petitioners insist that the CA’s denial of their motion to recall entry of judgment denied them fair play, justice, and equity; that pursuant to Ramos v. Court of Appeals,23 a final and executory judgment may be amended under compelling circumstances; and that a compelling circumstance applicable to them was that their former counsel, Atty. Romulo A. Deles, had been guilty of gross negligence for not filing their appellee’s brief in the CA, and for not filing a motion for reconsideration against the May 27, 1998 decision of the CA.

In assailing the May 27, 1998 decision, the petitioners contend that: (a) the CA ignored the DARAB’s findings that they had acquired tenurial rights in 1974 as borne out by the Rice and Corn Land Tenure Survey; and (b) the case had been rendered moot and academic by the cancellation of their EPs and their TCTs in favor of LBP. It appears that in 1991, the petitioners mortgaged their landholdings in favor of LBP; that in 1994, during the pendency of the case before the DARAB, LBP foreclosed the mortgage and purchased the land in the auction sale; that on November 21, 1996, ownership of the landholdings was consolidated in LBP,24 and a year later, the TCTs in the names of the petitioners were cancelled, and new TCTs were issued in the name of LBP.25

The petitioners pray that the resolution of February 13, 2003 by the CA be set aside; that the decision the CA promulgated on May 27, 1998 be reversed; and that the decision of the DARAB be reinstated.

Ruling

The petition for review lacks merit.

I

The Court finds no cause to disturb the decision of the CA promulgated on May 27, 1998; and cannot undo the decision upon the grounds cited by the petitioners, especially as the decision had long become final and executory.

A decision that has acquired finality becomes immutable and unalterable and may no longer be modified in any respect even if the modification is intended to correct erroneous conclusions of fact or law and whether it will be made by the court that rendered it or by the highest court of the land.26 This doctrine of finality and immutability of judgments is grounded on fundamental considerations of public policy and sound practice to the effect that, at the risk of occasional error, the judgments of the courts must become final at some definite date set by law.27 The reason is that litigations must end and terminate sometime and somewhere; and it is essential for the effective and efficient administration of justice that once a judgment has become final the winning party should not be deprived of the fruits of the verdict.

Given this doctrine, courts must guard against any scheme calculated to bring about that result, and must frown upon any attempt to prolong controversies. The only exceptions to the general rule are: (a) the correction of clerical errors; (b) the so-called nunc pro tunc entries that cause no prejudice to any party; (c) void judgments; and (d) whenever circumstances transpire after the finality of the judgments rendering execution unjust and inequitable.28 None of the exceptions obtains here.

Ramos v. Court of Appeals,29 which the petitioners cited to buttress their plea for the grant of their motion to recall entry of judgment, is not pertinent. There, the Court allowed a clarification through a nunc pro tunc amendment of what was actually affirmed through the assailed judgment "as a logical follow through of the express or intended operational terms" of the judgment.

In this regard, we stress that a judgment nunc pro tunc has been defined and characterized thuswise:

The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in place of the one it did erroneously render, nor to supply nonaction by the court, however erroneous the judgment may have been. (Wilmerding vs. Corbin Banking Co., 28 South., 640, 641; 126 Ala., 268.)30

Based on such definition and characterization, the petitioners’ situation did not fall within the scope of a nunc pro tunc amendment, considering that what they were seeking was not mere clarification, but the complete reversal in their favor of the final judgment and the reinstatement of the DARAB decision.

II

The petitioners claim that their former counsel was guilty of gross negligence for letting the CA decision lapse into finality by not filing a motion for reconsideration or by not appealing in due course to the Court.

Although the petitioners’ former counsel was blameworthy for the track their case had taken, there is no question that any act performed by the counsel within the scope of his general or implied authority is still regarded as an act of the client. In view of this, even the negligence of the former counsel should bind them as his clients.31 To hold otherwise would result to the untenable situation in which every defeated party, in order to salvage his cause, would simply claim neglect or mistake on the part of his counsel as a ground for reversing the adverse judgment. There would then be no end to litigation, for every shortcoming of the counsel could become the subject of challenge by his client through another counsel who, if he should also be found wanting, would similarly be disowned by the same client through yet another counsel, and so on ad infinitum.32 This chain of laying blame could render court proceedings indefinite, tentative and subject to reopening at any time by the mere replacement of the counsel.33

Nonetheless, the gross negligence of counsel alone would not even warrant a deviation from the principle of finality of judgment, for the client must have to show that such negligence resulted in the denial of due process to the client. 34When the counsel’s mistake is so great and so serious that the client is prejudiced and is denied his day in court, or when the counsel is guilty of gross negligence resulting in the client’s deprivation of his property without due process of law, the client is not concluded by his counsel’s mistakes and the case can be reopened in order to give the client another chance to present his case.35 As such, the test herein is whether their former counsel’s negligence deprived the petitioners of due process of law.

For one to properly claim gross negligence on the part of his counsel, he must show that the counsel was guilty of nothing short of a clear abandonment of the client’s cause. Considering that the Court has held that the failure to file the appellant’s brief can qualify as simple negligence but cannot amount to gross negligence that justifies the annulment of the proceedings,36 the failure to file an appellee’s brief may be similarly treated.

The Court has also held that the failure to file a motion for reconsideration only amounted to simple negligence.37 In Pasiona v. Court of Appeals,38 the Court declared that his counsel’s failure to file a motion for reconsideration did not necessarily deny due process to a party who had the opportunity to be heard at some point of the proceedings. The Court said:

In a number of cases wherein the factual milieu confronted by the aggrieved party was much graver than the one being faced by herein petitioner, the Court struck down the argument that the aggrieved parties were denied due process of law because they had the opportunity to be heard at some point of the proceedings even if they had not been able to fully exhaust all the remedies available by reason of their counsel’s negligence or mistake. Thus, in Dela Cruz v. Andres, the Court held that "where a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the essence of due process." In the earlier case ofProducers Bank of the Philippines v. Court of Appeals, the decision of the trial court attained finality by reason of counsel’s failure to timely file a notice of appeal but the Court still ruled that such negligence did not deprive petitioner of due process of law. As elucidated by the Court in said case, to wit:

"The essence of due process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of one's defense. xxx Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of due process."

Verily, so long as a party is given the opportunity to advocate her cause or defend her interest in due course, it cannot be said that there was denial of due process. x x x (Emphasis supplied)

Also, in Victory Liner, Inc. v. Gammad, the Court held that:

The question is not whether petitioner succeeded in defending its rights and interests, but simply, whether it had the opportunity to present its side of the controversy. Verily, as petitioner retained the services of counsel of its choice, it should, as far as this suit is concerned, bear the consequences of its choice of a faulty option. xxx (Emphasis supplied)

Here, the petitioners were able to participate in the proceedings before the PARAD and the DARAB, and, in fact, obtained a favorable judgment from the DARAB. They also had a similar opportunity to ventilate their cause in the CA. That they had not been able to avail themselves of all the remedies open to them did not give them the justification to complain of a denial of due process. They could not complain because they were given the opportunity to defend their interest in due course, for it was such opportunity to be heard that was the essence of due process.39

Moreover, the petitioners themselves were guilty of being negligent for not monitoring the developments in their case. They learned about the adverse CA decision on December 11, 2001, more than two years

after the decision had become final and executory. Had they vigilantly monitored their case, they themselves would have sooner discovered the adverse decision and avoided their plight. It was the petitioners’ duty, as the clients, to have kept in constant touch with their former counsel if only to keep themselves abreast of the status and progress of their case. They could not idly sit back, relax and await the outcome of the case.40 Such neglect on their part fortifies our stance that they should suffer the consequence of their former counsel’s negligence. Indeed, every litigant is expected to act with prudence and diligence in prosecuting or defending his cause. Pleading a denial of due process will not earn for the negligent litigant the sympathy of the Court.

The other issues the petitioners raised relate to matters that the CA decision already settled. 1âwphi1 Considering and passing upon such issues again would undo the finality and immutability of the decision.

WHEREFORE, the Court DENIES the petition for review; and AFFIRMS the resolution promulgated on February 13, 2003.

The petitioners shall pay the costs of suit.

SO ORDERED.