“x x x.
URGENT AD CAUTELAM MOTION TO DENY DUE COURSE TO
AND TO EXPUNGE PLAINTIFF’S “MOTION TO CITE RESPONDENTS xxx FOR INDIRECT CONTEMPT”, DATED xxx.
THE
DEFENDANTS, by counsel, respectfully state:
1.
The Plaintiff has filed a “MOTION TO CITE RESPONDENTS x x x FOR INDIRECT CONTEMPT”,
DATED x x x.
(1)
The
said pending Motion prays that Defendants be cited for INDIRECT CONTEMPT for
the alleged violations of the Writ of Preliminary Injunction allegedly issued
by the Court.
2.
X x x.
3.
It is
noteworthy to discuss hereinbelow the new rules on direct contempt and indirect
contempt under RULE 71 (CONTEMPT) of the 1997 Rules of Cicil Procedure.
4.
Sec. 3, Rule 71 (Indirect contempt to be punished after
charge and hearing) provides that
“(a)fter a charge in
writing has been filed, and an opportunity given to the respondent to comment
thereon within such period as may be fixed by the court and to be heard by
himself or counsel, a person guilty of any of the following acts may be
punished for indirect contempt” on the seven (7) grounds enumerated therein.
(1)
A “CHARGE”, referred to above, speaks
of a SHOW-CAUSE ORDER MOTO PROPRIO ISSUED BY THE COURT or a SEPARATE PETITION
(an initiatory pleading that must follow the rules for initiatory pleadings in
the Rules of Court).
(2)
A mere MOTION of a party is no longer allowed under Rule 71.
5.
Sec. 4, Rule 71 (How proceedings commenced) provides that “(p)roceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by
an order or any other formal charge requiring the respondent to show cause why he should not be punished
for contempt”.
5.1.
To
repeat: The abovecited provision speaks of two (2) modes to initiate an
INDIRECT CONTEMPT proceeding:
5.1.2. “INITIATED MOTO PROPRIO BY THE COURT” (which the Court has
not done); and
5.1.3. “ANY OTHER FORMAL CHARGE”, i.e. a separate/new Petition, an
initiatory pleading and not a mere Motion (which Plaintiff has failed to do).
6.
Sec. 4, Rule 71 further provides that “(i)n
all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting
particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings
for civil actions in the
court concerned”.
6.1.
Furthermore,
it provides that “(i)f the contempt charges arose out of or are related to a principal action pending in the court,
the petition for contempt shall allege that fact but said
petition shall be docketed, heard and decided
separately, unless the
court in its discretion orders the consolidation
of the contempt charge and the principal action for joint hearing and decision.
7.
Sec. 5, Rule 71 (Where charge to be filed) provides, inter alia, that “(w)here
the charge for indirect contempt has been committed against a Regional Trial Court
or a court of equivalent or higher rank, or against an officer appointed by it,
the charge may be filed with such
court”.
8.
Sec. 6, Rule 71 ( Hearing; release on bail) provides, inter
alia, that “(i)f the
hearing is not ordered to be had forthwith, the respondent may be released from
custody upon filing a bond, in an amount fixed by the court, for his appearance
at the hearing of the charge”; and that “(o)n the day set therefor, the
court shall proceed to investigate the
charge and consider such comment, testimony or
defense as the respondent may make or offer”.
9.
JURISPRUDENCE. –
9.1.
In
the case of “HONORATO ESPINOSA, petitioner, vs. COURT OF
APPEALS, HON. PRESIDING JUDGE, Branch 23, RTC Iloilo City and Sps. RODOLFO and
VIOLETA ALCANTARA, respondents”, [G.R. No. 128686. May 28, 2004], the Supreme Court held, inter alia, that:
9.1.1.
“Unlike in cases of direct contempt, which
can be summarily adjudged and punished by a fine, a finding of guilt for indirect contempt must be preceded by a charge in writing, an opportunity
given to the respondent to comment thereon and to be heard by himself or by
counsel in a hearing”;
9.1.2.
“The Court of Appeals erred in summarily punishing Espinosa and his counsel,
considering that the charge against them only constitutes indirect contempt”;
9.1.3.
“In cases of indirect contempt, no matter
how palpable the errant’s bad faith might appear to the court, due process as laid down in the rules of
procedure must be observed before the penalty is imposed” (cf. Rule 71).
THUS:
“x x x.
However, this Court is unable to sustain the Court of
Appeals’ declaration that Espinosa and his counsel are in contempt of court and
the corresponding fine of One Thousand Pesos (P1,000.00) imposed upon them.
Under Revised Circular No. 28-91, the submission of a false certification
constitutes indirect contempt of court, without prejudice to the filing of
criminal action against the guilty party and the institution of disciplinary
proceedings against the counsel. Unlike in cases of direct
contempt, which can be summarily adjudged and punished by a fine[39],
a finding of guilt for indirect contempt must be preceded by a charge in
writing, an opportunity given to the respondent to comment thereon and to be
heard by himself or by counsel in a hearing.[40] The
Court of Appeals erred in summarily punishing Espinosa and his counsel,
considering that the charge against them only constitutes indirect contempt. In
cases of indirect contempt, no matter how palpable the errant’s bad faith might
appear to the court, due process as laid down in the rules of procedure must be
observed before the penalty is imposed.
X x x.”
9.2. In the case of FRANK LAWRENCE A. CARIÑO @
"FRANKIE CARIÑO," complainant, vs.JUDGE JONATHAN S.
BITENG, respondent, [A.M. No.
MTJ-99-1213. October 2, 2000], the Supreme Court held that “(u)nlike
in a case of direct contempt, where the contemnor may summarily be adjudged in
contempt, in indirect
contempt the Rules require that a written charge
be filed and opportunity be given to the accused to be heard by himself
or counsel before the accused may be punished for contempt.”
THUS:
“x x x.
Conformably with Section 3, Rule 71 of the Revised Rules of
Court[5] and
our decision inCastaños vs. Escaño, Jr. 251 SCRA 174 (1995), the OCA
found that Judge Biteng did not give complainant the opportunity to
be heard as a matter of due process of law before citing complainant with
indirect contempt, and ordering his arrest and detention, and concluded that
this failure of the judge constitutes gross ignorance of the law and
incompetence. Not to be disregarded too according to OCA, is a
past case involving respondent judge,Administrative Matter, No.
MTJ-95-1018, Sule vs. Biteng, 243 SCRA 524 (1995), in which Judge
Biteng was fined with P20,000.00 for gross ignorance of the law and
incompetence and warned that a repetition of the same offense, ignorance of the
law, would be dealt with severely.
The aforecited rule and the jurisprudence on the instant
complaint against Judge Biteng leave us no recourse but to agree with OCA's
evaluation and recommendation. Unlike in a case of direct contempt, where the
contemnor may summarily be adjudged in contempt, in indirect
contempt the Rules require that a written charge be filed and opportunity
be given to the accused to be heard by himself or counsel before
the accused may be punished for contempt.
X x x.”
9.3. In
the case of “ATTY. ROMEO B. IGOT vs. CA,
et al.”, GR 150794, August 17, 2004, the Supreme Court held, inter alia, that
9.3.1.
“Proceedings for indirect contempt may be initiated motu
proprio by the court against which the contempt was
committed by an order or any other formal charge
requiring the respondent to show cause why he should not be punished for
contempt”.
9.3.2.
“In all other cases, charges for
indirect contempt shall be commenced by a verified petition with
supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing
initiatorypleadings
for civil actions in the court concerned.
If the contempt charges arose out of or are related to a principal
action pending in the court, the petition for contempt shall allege that fact
but said petition shall be docketed, heard and decided separately, unless the
court in its discretion orders the consolidation of the contempt charge and the
principal action for joint hearing and decision.
THUS:
“X x x. The pertinent rules on the matter are Sections 4 and 5, Rule 71 of the Rules
of Court, which read:
SEC. 4. How proceedings commenced. – Proceedings
for indirect contempt may be initiated motu proprio by the court
against which the contempt was committed by an order or any
other formal charge requiring the respondent to show cause why
he should not be punished for contempt.
In all other
cases, charges for indirect contempt shall be commenced by
a verified petition with supporting particulars and certified
true copies of documents or papers involved therein, and upon full compliance
with the requirements for filing initiatory pleadings for civil actions in the
court concerned. If the contempt charges
arose out of or are related to a principal action pending in the court, the
petition for contempt shall allege that fact but said petition shall be
docketed, heard and decided separately, unless the court in its discretion
orders the consolidation of the contempt charge and the principal action for
joint hearing and decision.
X x x.”
WHEREFORE, in
the interest of justice and for the legal reasons cited hereinabove, it is
respectfully prayed that, after notice and hearing, an Order be issued:
1.
GRANTING
the Defendants’ herein “URGENT AD
CAUTELAM MOTION TO DENY DUE COURSE TO AND
TO EXPUNGE PLAINTIFF’S “MOTION
TO CITE RESPONDENTS xxx FOR INDIRECTT
CONTEMPT”, DATED xxx”;
2. DENYING DUE COURSE to the Plaintiff’s
aforecited Motion;
3. EXPUNGING from the
Record the aforecited Plaintiff’s Motion;
4. RECALLING AND REVOKING the previous Order, dated x x x, setting the
Plaintiff’s Motion for hearing before the Court on xxx, and all such subsequent Orders issued thereafter;
5. CANCELLING the hearings set by the
Court on xxx.
6. By way of Ad Cautelam Relief, GRANTING
the Defendants, by counsel, a reasonable
time, e.g. 15 days, to file their formal COMMENT to the Plaintiff’s
pending Motion to Cite the Defendants for
Indirect Contempt if and when this Ad
Cautelam Motion of the
Defendants is denied, the period to
file the said Comment to be counted from date of receipt of the Order, if
any, denying this Motion.
7. Further, by way of Ad Cautelam Relief,
GRANTING the Defendants sufficient time to PRESENT both TESTIMONIAL AND
DOCUMENTARY EVIDENCE, in chief and in
rebuttal phases, to prove the lack of merit of Plaintiff’s pending Motion, if
and when this Motion of the Defendants is denied.
FURTHER, the Defendants respectfully pray for such and other reliefs as
may be deemed just and equitable in the premises.
Xxx City, xxx, 2015.
LASERNA CUEVA-MERCADER
LAW OFFICES
Counsel for Defendants
Unit 15, Star Arcade, C. V.
Starr Ave.
Philamlife Village, Las Pinas
City 1740
Tel. Nos. 8725443 &
8462539
X x x.
MANUEL LASERNA JR.
X x x.
X x x.”
