“x x x.
R E P L Y
(In Re: Plaintiff’s
OPPOSITION, Dated xxx, to the Defendants’ Pending URGENT AD CAUTELAM MOTION TO DENY DUE COURSE TO AND EXPUNGE PLAINTIFF’S
MOTION TO CITE RESPONDENTS FOR INDIRECT CONTEMPT)
THE DEFENDANTS, by counsel,
respectfully state:
1. In
the defendants’ pending URGENT AD CAUTELAM MOTION TO DENY DUE COURSE
TO AND EXPUNGE PLAINTIFF’S MOTION TO CITE RESPONDENTS FOR INDIRECT CONTEMPT, they prayed for the following reliefs:
“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 FROBERG, CRUZ,
GARCIA, JUSI, JUANER AND DAVID FOR INDIRECTT CONTEMPT”, DATED MAY 26, 2015;
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 xxx, setting the Plaintiff’s Motion for hearing before the Court on xxx at xxx, and all such subsequent Orders
issued thereafter;
5.
X x x.
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.
X x x.”
2.
The defendants hereby reiterate the foregoing prayers in this Reply.
2.1.
Further, they hereby adopt, by incorporation and reference, the foregoing prayers into
this Reply.
3.
The 2005
case of JOSE C. LEE AND ALMA AGGABAO, et. al. vs. REGIONAL TRIAL COURT OF
QUEZON CITY, BRANCH 85, et. al., G.R. No. 146006, April 22, 2005, cited by
the Plaintiff, appears to be not on
all fours with the pending incident before this Court.
3.1.
The abovecited case of Lee, et. al. vs. RTC involved private respondents’ omnibus motion
to cite petitioners in indirect contempt of the Supreme Court (SC) for
their refusal to comply with the final
and executory decision of the SC.
3.2.
In the said case, the SC noted that on July 9,
2004, the February 23, 2004 decision became final and executory, and was
recorded in the book of entries of judgments.
3.3.
On October 1, 2004, an alias writ of
execution was issued by the intestate court (the court of origin).
3.4.
In said writ, the deputy sheriffs were ordered
to enforce the August 11 and 29, 1997 and July 6, 2000 orders of the intestate
court.
3.5.
Instead of complying with the writ, petitioners
filed on October 15, 2004, a motion to suspend execution/period of
compliance by reason of supervening events, raising the following
arguments: (1) the intestate court had already revoked the appointment of
private respondent as special administratrix; (2) there was a need to lay down
the legal procedure in the implementation of the writ and (3) there must be a
declaration that the price per share of the 2,029 shares was only P1,000
which was its book value at the time the shares were sold in 1989 and 1991.
3.6.
Private respondent went back to the SC and filed
the pending omnibus motion to cite the petitioners for indirect contempt
asserting that petitioners made a travesty of the final and executory decisions
of the Lower Courts and the SC when they refused to comply with the Alias Writ
of Execution issued by the Lower Court.
3.7.
In the said case the SC stated, citing Remman
Enterprises, Inc. v. CA, 335 Phil. 1150 (1997), that “Section 3, Rule
71 of the Rules of Court outlines the procedural requisites before the accused
may be punished for indirect contempt: (1) the
filing of a written charge and (2) an opportunity to be heard by himself or counsel”; that “all
that the law requires is that there is a charge in writing duly filed in court
and an opportunity given to the person charged to be heard by himself or
counsel; that “what is important is that the alleged contemner be granted an
opportunity to meet the charges against him and to be heard in his defense”;
and that “petitioners were given this opportunity; they in fact filed their
Opposition”.
3.8.
The said case involved an obstinate refusal
on the part of the petitioners to abide by the SC’s February 23, 2004 decision,
the SC added.
3.9.
The SC recalled therein that in its February 23,
2004 decision, it had admonished the petitioners not to further delay the
execution of the Orders of the intestate court dated August 11 and August
29, 1997.
4. It
will be noted, though, that in the 2008 case entitled IN THE MATTER OF THE CONTEMPT ORDERS AGAINST LT. GEN. JOSE M. CALIMLIM AND ATTY. DOMINGO
A. DOCTOR, JR., G.R. No. 141668, August
20, 2008, the SC discussed the proper procedure for indirect contempt.
4.1.
The SC stated that Sections 3 and
4, Rule 71 of the Rules of Court provide the procedure to be followed in
case of indirect contempt.
4.1.1.
First, there must be an order requiring the respondent to show cause why he should not be cited
for contempt.
4.1.2.
Second, the respondent must be given the opportunity to comment on the charge
against him.
4.1.3.
Third, there must be a hearing and the court must investigate the charge and consider
respondents answer.
4.1.4.
Finally, only if found guilty will respondent be
punished accordingly.
4.2.
In the said case, Judge Cruz-Avisado failed
to observe the proper procedure in the exercise of the power to punish for
indirect contempt.
4.2.1.
The SC stated that, first, there can be no indirect
contempt absent any prior written charge.
4.2.2.
In the 19 November 1999 Order, Judge
Cruz-Avisado only ordered petitioners to explain their failure to
bring Pitao before the RTC for his scheduled arraignment.
4.2.3.
The 19 November 1999 Order did
not yet amount to a show-cause order directing petitioners to
explain why they should not be cited for indirect contempt.
4.2.4.
The SC stated that absent an order specifically requiring petitioners
to show cause why they should not be punished for contempt,
Judge Cruz-Avisado had no authority to punish petitioners.
4.3.
The SC further stated that if the answer to the
contempt charge is satisfactory, the contempt proceedings end.
4.3.1.
The SC stated that even if it considered
the 19 November 1999 Order sufficient to charge petitioners with
indirect contempt, petitioners still could not be punished for contempt because
Judge Cruz-Avisado found petitioners explanation satisfactory.
4.3.2.
It added that only in cases of clear and
contumacious refusal to obey should the power to punish for contempt be
exercised.
4.3.3.
It stated that absent any finding that
petitioners contumaciously refused to comply with the orders of the RTC,
Judge Cruz-Avisado had no reason to punish petitioners for indirect contempt.
4.4.
Lastly, the SC stated that there must be a
hearing conducted on the contempt charge.
4.4.1.
In the said case, no hearing was ever conducted,
the SC found.
4.4.2.
After receiving petitioners Compliance, Judge
Cruz-Avisado immediately issued the 11 December 1999 Order, the
SC added.
4.4.3.
Petitioners were not afforded full and real
opportunity to be heard, the SC stated.
4.4.4.
The SC also stated that “since a contempt charge partakes of the nature of a criminal
prosecution and follows the proceedings similar to criminal
prosecution, judges must extend to the alleged contemner the same
rights accorded to an accused.”
4.4.5.
It added that Judge Cruz-Avisado “should have given petitioners their day in
court and considered the testimony and evidence petitioners might offer”.
5.
The 2007 case of ROMEO T. AQUINO
vs. JENNIFER NG, G.R. NO. 155631, July
27, 2007 is on all fours with the pending motion of the defendants.
It is the applicable jurisprudence in the instant pending incident.
5.1.
In the aforecited case of Aquino
vs. Ng, the underlying case a quo
was Civil Case No. 98-0870, an action for Collection of Sum of Money with
Damages filed by respondent against Doughmix, Inc. (Doughmix),
represented by petitioner as its General Manager.
5.2.
In its Decision dated August 23, 1999, the
RTC held Doughmix liable to respondent in
the amount of P360,357.00 plus legal
interest, attorney's fees and costs of suit.
5.3.
The RTC Decision became final and executory for failure of Doughmix to file a notice of appeal on time and pay the appropriate docket
fees.
5.4.
Upon motion of respondent, the RTC, in its Order dated October
12, 1999, granted the issuance of a writ of execution.
5.5.
It appears, however, that the writ of execution was returned
unsatisfied.
5.6.
Respondent then filed a motion to recall petitioner, asking for
the appearance of petitioner for a conference before the RTC.
5.7.
The RTC granted respondent's motion and ordered petitioner to
appear before it on December 9, 1999.
5.8.
Petitioner, however, failed to appear on said date, prompting
respondent to file a motion to cite him in contempt.
5.9.
In an Order dated March 15, 2000, the RTC
granted respondent's motion and cited petitioner for indirect contempt.
5.10.
Subsequently, said Order was recalled and set aside by the RTC per
its Order dated May 29, 2000 when
petitioner appeared and testified before it on said date and gave the address
of Doughmix.
5.11.
Failing to implement the writ of execution, and it appearing that
petitioner furnished an incorrect address of Doughmix, respondent filed a Motion
to Reinstate the Contempt Order Against the Defendant.
5.12.
The RTC then conducted a summary hearing where petitioner claimed
that he made an honest mistake in giving a wrong address of Doughmix.
5.13.
In the assailed Order dated October 3, 2000, the RTC
reiterated its ruling finding petitioner in contempt.
5.14.
Thus, petitioner filed a special civil action for certiorari with
the CA, questioning the orders issued by the RTC.
5.15.
In a Decision dated January 31, 2002, the CA
dismissed the petition for lack of merit. Petitioner filed a
motion for reconsideration, but this was denied by the CA in a Resolution dated October
9, 2002.
5.16.
In the aforementioned case of Aquino
v. Ng, the SC stated that “Section 3, Rule 71 of the 1997 Rules of Civil
Procedure, as amended, specifically outlines the procedural requisites before
one may be punished for indirect contempt, to wit: (1) the filing of a written charge and
(2) the opportunity to be heard given to the accused himself or his counsel.”
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 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. (Emphasis and underscoring supplied)
5.19. It added that in the
case before it, petitioner's first indirect contempt citation was initiated by
respondent “through a mere Motion to
Cite Defendant in Contempt.”
5.20. In the said case, the SC
found that after the RTC recalled the contempt citation, respondent initiated
anew another contempt charge against petitioner “by filing a Motion to Reinstate the Contempt
Order Against the Defendant”.
The requirement of a verified petition is mandatory. Justice Florenz D. Regalado,
Vice-Chairman of the Revision of the Rules of Court Committee that drafted the
1997 Rules of Civil Procedure explains this requirement:
1. This new provision clarifies with a regulatory norm the
proper procedure for commencing contempt proceedings. While such
proceeding has been classified as a special civil action under the former
Rules, the heterogeneous practice, tolerated by the courts, has been for any
party to file a mere motion without paying any docket or lawful
fees therefor and without complying with the requirements for
initiatory pleadings, which is now required in the second paragraph of this
amended section.
x x x x x x x x x
Henceforth, except for indirect contempt proceedings initiated motu proprio by
order of or a formal charge by the offended court, all charges shall be
commenced by a verified petition with full compliance with the requirements therefor and
shall be disposed of in accordance with the second paragraph of this section.
(Emphasis supplied).
5.23. The SC stated that,
moreover, “the RTC failed to observe the
standards of due process when it first cited petitioner for contempt of
court.”
5.23.1.
It stressed that “indirect contempt proceedings
partake of the nature of a criminal prosecution; hence, strict rules that
govern criminal prosecutions also apply to a prosecution for criminal contempt;
the accused is to be afforded many of the protections provided in regular
criminal cases; and proceedings under statutes governing them are to be
strictly construed.”
5.23.2.
The SC added that the “records do not bear any indication that
petitioner was afforded an opportunity to
rebut the charges against him when he was first charged by respondent with
contempt.”
5.23.4.
The SC stated that there was no question that petitioner's
disobedience to the RTC's lawful order constitutes
indirect contempt of court.
5.23.5.
This, however, “was not a
license for the RTC to disregard petitioner's rights”, it stated.
5.23.6.
It added that the trial court “should have held a hearing in order
to provide petitioner with the opportunity to state his defense and explain his
side”.
5.23.7.
It held that “a hearing affords the contemner the opportunity to adduce before the court documentary or
testimonial evidence in his behalf”.
5.23.8.
The hearing will also allow the court “a more thorough evaluation of the defense of the contemner, including the chance to observe the accused present his side in
open court and subject his defense to interrogation from the complainants or
the court itself”,
the SC added.
WHEREFORE, it is respectfully prayed
that the defendants’ prayers in its pending “URGENT AD CAUTELAM MOTION TO DENY
DUE COURSE TO AND EXPUNGE PLAINTIFF’S MOTION TO CITE RESPONDENTS…FOR INDIRECT
CONTEMPT” be GRANTED en toto as prayed for in the said
pending motion.
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
Emails: lcmlaw@gmail.com
X x x.”
