“x x x.
I.
PREFATORY
STATEMENT.
1.
This petition respectfully seeks the review by this Honorable Court of the
ORDER, dated xxx, issued by the Hon. Xxx, Presiding Judge of the Regional Trial
Court (RTC), Branch xxx , of xxx City by way of Certiorari under Rule 65.
1.1.
A certified
true copy of which is attached hereto as Annex “A” hereof, with sub-markings.
2.
The petitioner respectfully submits that the Public
Respondent acted without or in excess of
her jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction in the issuance of the questioned Order.
3.
There is no
appeal or any plain, speedy, and adequate remedy in the ordinary course of law
in seeking the reversal or nullification of the said Order except this Rule 65
Petition.
4.
This Petitioner submits that this Petition is meritorious, is not being prosecuted
manifestly for delay, and it raises substantial questions that require
consideration by this Honorable Court (Sec.
8, Rule 65).
X x x.
II.
ISSUE.
5. The
sole issue in this Petition is:
WHETHER THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE QUESTIONED ORDER,
DATED xxx.
III.
DISCUSSION.
6. The
herein Petitioner admits the general
doctrine on appeals in Ejectment Cases (i.e., “general” in the sense that they are subject to exceptions) is that, under Rule 70, to perfect an appeal within the
15-day appeal period, three (3) things must be complied with by the Appellant:
6.1.
Filing of the Notice of Appeal with the MeTC, with payment thereat of the
corresponding Appeal Fees;
6.2.
Supersedeas
Bond equivalent to the value of the damages awarded by the MeTC (actual
damages, attorney’s fees, and costs of suit); and
6.3.
Regular
deposits with the Appellate Court (i.e., RTC) of the amounts of the monthly
rentals determined by the MeTC.
7. The
herein Petitioner admits that she failed
to comply with the above requirements.
7.1.
The petitioner failed to post a supersedeas bond
in the MeTC within the 15-day appeal period.
7.2.
The Petitioner failed to make regular deposits
of the monthly rentals awarded.
8. Although
it is ideal to post the Supersedeas Bond at the MeTC level within the 15-day
appeal period, there are jurisprudence where the Supreme Court had, in the
past, allowed the delayed posting thereof
at the RTC (appellate)-level.
8.1.
In the case of the Petitioner, considering her
old age, sicknesses, disabilities, financial straits, and economic sufferings,
assisted by her new Counsel, she filed with Branch 253 (appellate court) the
aforementioned “urgent verified motion
for reduction…”. (Annex “E”, supra).
8.2.
The objective of her motion was precisely to comply with the requirements
of Supersedeas Bond and Regular Deposits
of Monthly Rentals of Rule 70, albeit
on a reduced amount, subject to motion hearings in and the merciful approval of Branch 253.
8.3.
The spirit was to invoke the sense of compassion justice of Branch xxx to allow her to post a reduced Bond and Monthly Deposits.
8.4.
At the time of the filing by Petitioner of the said
“urgent verified motion for reduction
…” only one (1) month had lapsed from the end of the 15-day appeal period.
8.5.
The issue of complying with the requirement of
making regular deposits was minor and insignificant and not
substantially harmful to the Private Respondent as of that time.
9. The
Public Respondent held, in her
questioned Order, dated xxx, that she could have positively considered the
plight of the Petitioner had the latter filed
her motion for reduction of supersedeas bond much earlier – without clearly
mentioning the proper time to do so.
9.1.
The Public Respondent considered against the
Petitioner the fact that the Petitioner had filed her motion for reduction of
supersedeas bond almost one (1) month (actually, 27 days, per the computation of undersigned Counsel) from the end
of the 15-day appeal period.
10.
The Public Respondent gravely abused her discretion
in ruling:
(a) That the motion for
reduction of supersedeas bond should be filed within the 15-day appeal period, or
(b) That the appellate
court (RTC) had no power to exercise its sound discretion to entertain and approve a belated motion for reduction of supersedeas
bond while the appeal is pending before it.
11. Nothing
in Rule 70 supports the restrictive conclusions of Public Respondent.
11.1. On
the contrary, Sec. 6, Rule 1, of the Rules of Court speak of liberality (to read as compassionate justice) in court
litigations. Thus:
SEC. 6. Construction.—These Rules shall be liberally
construed in order to promote their objective of securing a just,
speedy and inexpensive disposition of every action and proceeding.
12.RTC (APPELLATE COURT IN EJECTMENT
APPEALS) MAY APPROVE MOTIONS RELATED TO ALL ISSUES INVOLVING (A) THE MATTER OF SUPERSEDEAS
BOND AND (B) THE MATTER OF REGULAR MONTHLY DEPOSITS.
In the case
of Planas
vs. Judge Ernesto A. Reyes, RTC Branch III, Pasay City, A. M. RTJ-05-1905,
February 23, 2005, the Supreme Court:
(1)
allowed the appellate RTC Judge to exercise its sound judgment or discretion in
approving the supersedeas bond filed before it;
(2)
affirmed the denial by the appellate RTC Judge of the immediate execution of
ejectment judgment for lack of compelling reasons, despite posting of the
required supersedeas bond with the appellate RTC.
12.1. The real issue in the said case was whether
or not immediate execution could be had after defendant-appellant has perfected
its appeal but failed to post a supersedeas bond before the trial court.
12.2. Sec.
19 of Rule 70 of the Revised Rules of Civil Procedure speaks of immediate
execution in case of failure of defendant to perfect and appeal within the
mandatory appeal period.
12.3. In
the said case, the Supreme Court stated that the plaintiff tarried and did not
immediately file a motion for execution below upon the rendition and before
defendant-appellant perfected its appeal. Rather the plaintiff allowed
the defendant to perfect its appeal leaving the trial court without option but
to elevate the case for review to the Regional Trial Court.
12.4. It
was held that after the perfection of an appeal, the lower court can no longer
require the filing of a supersedeas bond and execution based thereon is void. (citing
Singson v. Babida, 79 SCRA 111).
12.5. With
the approval by the appellate court (RTC), in the exercise of its sound
judgment or discretion of the supersedeas bond posted by the defendant-appellant
and it appearing that there was “no compelling and urgent
reason to order immediate execution pending appeal”, the motion for
immediate execution of the judgment of the MeTC should be denied, the Supreme
Court held.
12.6. The
abovecited case supports the EXERCISE OF DISCRETION by the RTC (appellate court
in Ejectment Appeal) on:
(a) Approval of the
supersedeas bond to stay execution; and
(b) Denial of execution
pending appeal for lack of compelling reasons shown.
13. In
the case of Tagulimot vs. Makalintal and Tanangunan, 85 Phil 40,
reiterated in Acibo
vs. Hon. Higinio Macadaeg, et. al, G. R. No. L-19701, June 30, 1964,
the Supreme Court ruled that the RTC may allow the filing of the supersedeas
bond (which should have been filed in the MeTC) if the judgment is not yet executed and, to this end, the RTC has the discretion to allow a
reasonable time within which the supersedeas bond may be filed. The discretion is to allow or deny a
supersedeas bond.
14. In the case of Quan vs. Sheriff of Manila, et. al., G.
R. No. L-27160, May 30, 1974, the Supreme Court ruled while Section 8 of
Rule 70 requires the filing of a supersedeas bond with, and its approval by,
the inferior court, it was been held that the RTC, which has acquired
jurisdiction over the case by the perfection of the appeal , has the power to permit the appellant to post
the supersedeas bond which he had failed
to submit to the inferior court.
15. In
the case of Galan Realty Co., Inc. vs. Hon. Arranz, et. al, A. M. No.
MTJ-93-878, October 27, 1994, the Supreme Court ruled that the RTC, in its
discretion and “upon good cause shown”,
as the appellate court in Ejectment Appeals, may allow the defendant to file the supersedeas bond in the said court.
16.COMPASSIONATE
JUSTICE. –
The doctrine of social and compassionate justice is so well enshrined in our
Jurisprudence that it needs no voluminous citations.
16.1. Equity
considerations provide an exception to technical and restrictive
interpretation of procedural rules. Equity is justice outside the law.
16.2. Equity is ethical rather than juridical.
16.3. It
belongs to the sphere of morals than
of law.
16.4. It
is grounded on the precepts of conscience and not on any sanction of
positive law.
16.5. Weighed
in the scales of justice, conscience and
reason tip in favor of the herein Petitioner who is old, sickly, widow, jobless, poor, and helpless.
16.6. Social and compassionate justice dictate
that her case be considered with mercy
and compassion.
16.7. Indeed,
equity should be accorded due weight because the administration of justice is:
(a) not only secundum rationem (according to reason)
but
(b) also secundum caritatem (according to
charitable heart).
17. PENDENCY OF RELATED CIVIL CASE (Civil Case
No. xxx-0091). –
The herein
Petitioner admits the doctrine that, as a general rule, the pendency of an
ordinary civil action involving ownership, quieting of title, and similar
issues will not suspend or enjoin the enforcement of a final and executory Ejectment Decision. But admits of exceptions,
in the interest of justice.
18.
In the first place, the MeTC Decision is
not yet final and executory.
18.1. It
is still under appeal in Branch xxx.
18.2. The
parties in the Ejectment Appeal have yet to file their respective Memoranda in
Branch xxx.
19.EXCEPTION:
The case of MID
PASIG LAND DEVELOPMENT CORPORATION vs.
COURT OF APPEALS, HON.RODRIGO B. LORENZO, in his capacity as Presiding Judge of
RTC-Pasig City, Branch 266 and ROCKLAND CONSTRUCTION COMPANY, INC., G.R. No.
153751, October 8, 2003, is illuminating.
19.1. Litis Pendentia. - In order to
sustain a dismissal of an action on the ground of litis pendentia, the
following requisites must concur:
(a) identity of parties, or
at least such as representing the same
interest in both actions;
(b) identity of rights
asserted and relief prayed for, the relief being founded on the same facts, and
(c) identity in the two
cases should be such that the judgment that may be rendered in the pending case
would, regardless of which party is successful, amount to res judicata in the other.
19.2. In the said case, the Supreme Court noted that
a perusal of the “complaint for specific performance” shows that its main
purpose was “to prevent petitioner from
ejecting respondent from the leased property”.
19.2.1.
Although the complaint sought to compel
petitioner to execute a formal lease contract, “its ultimate intent is to preclude petitioner from filing a complaint
for ejectment and for respondent to maintain possession of the property”,
the Supreme Court noted.
19.2.2.
The right to the execution of a formal agreement
was hinged upon the more fundamental issue of “whether respondent has a right to the possession of the property
under the alleged implied contract of lease”, the Supreme Court stated.
19.2.3.
In other words, according to the Supreme Court, the
central issue to be resolved in the “specific performance case” unmistakably
boiled down to respondent’s “right to
continued possession of the premises, which issue is essentially similar, if not identical, to the one raised in the
unlawful detainer case before the MeTC”.
19.3. Hence,
the Supreme Court in the abovecited case held that the Court of Appeals erred
in finding that “RTC Civil Case No. 68213 and MeTC Civil Case No. 8788 have different causes of action”.
19.3.1.
The ultimate relief sought in the RTC was not
really “to compel the defendant to formalize in a public instrument its lease
agreement with plaintiff” but “to enjoin
petitioner from filing the proper action for respondent’s ejectment so that it
could remain in possession of the property”, the Supreme Court stated.
19.3.2.
This was evident in respondent’s prayer in the “complaint
for specific performance”, where it expressly sought for the issuance of an
order from the trial court “prohibiting
defendant from instituting any action for the ejectment of plaintiff from the
leased premises”, the Supreme Court noted.
19.4. Since the “question of possession” of the
subject property is at the “core of the two actions”, the Supreme Court stated that
the parties in the said case were actually litigating over the “same subject
matter”, which is the leased site, and on the “same issue” – respondent’s right
of possession by virtue of the alleged contract.
Note: This is exactly the scenario in Civil Case No. xxx-0074
in relation to Civil Case No. xxx-0091 referred to in the Statement of Facts in
this Petition.
19.5. In
the aforecited case of MID PASIG LAND
DEVELOPMENT CORPORATION, “at the time of the filing of the RTC case,
petitioner had communicated to respondent that it had filed an ejectment
against it for violation of the original lease agreement”.
19.5.1.
Thus, the RTC case, while “purportedly one for
specific performance” was “in reality a
preemptive maneuver intended to block the complaint for ejectment,
considering that it was brought merely three days after respondent received the
communication from petitioner”, according to the Supreme Court.
19.5.2.
The RTC case was instituted “in anticipation of its forthcoming move to
eject respondent from the property”, said the Supreme Court.
Note:
Consider this ruling in
relation to Civil Case No. xxx-0091 that was filed by herein Petitioner against
the Private Respondent in Branch xxx.
19.5.3.
It was filed “to bind petitioner’s hands, so to
speak, and to lay the ground for dismissal of any subsequent action that the
latter may take pursuant to the notice of eviction”, stated the Supreme Court.
To repeat:
This was one of the main
purposes for the commencement by herein Petitioner of Civil Case No. xxx-0091 (annulment of agreement to sell, etc.) against
the Private Respondent involving the same subject matter.
IV.
PRAYER
FOR TEMPORARY RESTRAINING ORDER (TRO) AND WRIT OF PRELIMINARY INJUNCTION (WPI).
20.
The Petitioner respectfully seeks from this Honorable Court the
issuance of the following injunctive reliefs:
(a) An urgent ex parte TEMPORARY RESTRAINING ORDER (TRO) immediately upon filing of this Petition,
and
(b) A WRIT OF PRELIMINARY INJUNCTION
(WPI) upon notice to and upon filing of a
Comment by the Private Respondent.
21. Sec. 7, Rule 65 grants to this Honorable Court the power to issue
“x x x a temporary restraining order or
a writ of preliminary injunction for the
preservation of the rights of the parties” pending this proceeding.
22.
The Petitioner admits that the filing of this petition
“shall not interrupt the course of
the principal case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the public respondent from
further proceeding in the case” (Id.).
22.1.
Hence, she invokes the sense of compassionate justice of this Honorable Court by issuing
the urgent injunctive reliefs sought
hereinabove.
23.
The miserable,
pitiable, and unfortunate personal circumstances of the Petitioner are as
follows:
23.1.
She is 79 years
old now.
23.2.
She has been a widow since 2001.
23.3.
She is jobless.
23.4.
Her old age and poor health prohibits her from
engaging in gainful work.
23.5.
She relies on the financial support of her
child, xxx (who has her own family to support, too).
23.6.
She is afflicted with various geriatric-related diseases considering
her old age, e.g. hypertension,
diabetes, etc.
23.7.
She has resided and continues to reside for almost 25 years now in the
property subject matter of the underlying (a) Civil Case No. xxx-0071 (Ejectment
Appeal) and (b) Civil Case No. xxx-0091 (annulment of agreement to sell,
etc.) since 1991 or thereabout.
23.8.
She has no wealth of her own.
23.9.
She owns no real property except for a small
memorial lot gifted to her by her children in the past.
23.10.
To enforce
the questioned Order, dated xxx would have the unjust effect of ejecting her from the property subject matter of the underlying Civil Case No.
xxx-0074 in relation to Civil Case No. xxx-0091 while the said two related cases are still
pending before the Trial Court a
quo.
23.10.1.
It will be unjust, cruel, inhuman, unkind, and premature to allow such
an unfair scenario (i.e., execution pending appeal).
24.
The Petitioner respectfully submits that she is entitled to the
TRO and WPI she seeks in this Petition against the questioned Order, dated xxx.
24.1.
The enforcement pendente
lite by the Respondents of the said Order during the pendency of this
Petition and during the pendency a quo
of the underlying Civil Case No. xxx-0074 in relation to the related Civil Case
No. xxx-0091 would surely work
injustice to the Petitioner.
24.2.
The enforcement pendente
lite by the Respondents of the questioned Order would violate the constitutional
and human rights of the Petitioner to compassionate
justice, merciful due process of law, and
benevolent equal protection of the law with respect to this Petition
and in relation to the pending underlying Civil Case No. xxx-0074 (Ejectment
Appeal) and the pending related Civil Case No. xxx-0091.
24.3.
If the TRO and the WPI prayed for above are not
issued y the Honorable Court, whatever
judgment this Honorable Court may promulgate in this action would be rendered ineffectual. (Sec. 3, Rule 58).
25.
The Petitioner is prepared to post a BOND at
such amount and under such terms and conditions as may be fixed by this
Honorable Court.
25.1.
The Bond would
adequately protect the rights and interests of the Private Respondent in
this action in relation to the underlying Civil Case No. xxx-0074 (Ejectment
Appeal) vis-à-vis the related Civil Case No. xxx-0091.
26.
This
Petition is duly verified to serve as the AFFIDAVIT OF MERIT of the Petitioner
at the same time, pursuant to Rule 58.
WHEREFORE, premises considered, it is respectfully prayed that:
1. Upon
filing of this Petition with this Honorable Court, an urgent ex parte Temporary Restraining Order (TRO)
be issued enjoining the Public Respondent to suspend further proceedings in the
underlying Civil Case No. xxx-0074;
2. Upon
notice to and filing of a Comment by Private Respondent, a Writ of Preliminary Injunction (WPI)
be issued by this Honorable Court enjoining the Public Respondent from implementing
its Order, dated xxx, in the matter of
the execution pending appeal of the Judgment of the Metropolitan Trial Court
vis-à-vis Civil Case No. xxx-0074 until this Honorable Court shall have
resolved this Petition with finality;
3. This
Petition be given DUE COURSE;
4. The
questioned ORDER, dated xxx (Annex “A”,
supra) of the Public Respondent be SET ASIDE, REVERSED AND NULLIFIED without
prejudice to the continuation of the proceedings on the merits in Civil Case
No. xxx-0074 (Ejectment Appeal), in relation to Civil Case No. xxx-0091, before
the Public Respondent for final adjudication.
5. The
Writ of Preliminary Injunction (WPI) against the questioned Order, dated xxx, AND
AGAINST THE Public Respondent be declared PERMANENT insofar as the matter of “execution pending appeal” by Public Respondent
is concerned.
FURTHER, the Petitioner
respectfully prays for such and other reliefs as may be deemed just and
equitable in the premises.
xxx City, July xxx, 2015.
LASERNA
CUEVA-MERCADER
LAW OFFICES
Counsel for Petitioner
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.”
