Category: LATEST SUPREME COURT CASES


CASE 2011-0161: JUDGE EDILBERTO G. ABSIN VS. EDGARDO A. MONTALLA (A.M. NO. P-10-2829, 21 JUNE 2011, PER CURIAM) BRIEF TITLE: JUDGE ABSIN VS. MONTALLA.

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SUBJECT/DOCTRINE/ DIGEST

 

STENOGRAPHER MONTALLA FAILED TO SUBMIT TSNs DESPITE SEVERAL DEMANDS. WHAT IS HIS LIABILITY?

FAILURE TO SUBMIT TSN IS GROSS NEGLECT OF DUTY. IT IS A GRAVE OFFENSE. PENALTY IS DISMISSAL.

Montalla should be reminded that it is the duty of the court stenographer who has attended a session of a court to immediately deliver to the clerk of court all the notes he has taken, the same to be attached to the record of the case.1 Precisely, Administrative Circular No. 24-902 was issued in order to minimize delay in the adjudication of cases as a great number of cases could not be decided or resolved promptly because of lack of TSNs. The circular required all stenographers to transcribe all stenographic notes and to attach the TSNs to the record of the case not later than 20 days from the time the notes are taken. The attaching may be done by putting all TSNs in a separate folder or envelope, which will then be joined to the record of the case.3 The circular also provided that the stenographer concerned shall accomplish a verified monthly certification as to compliance with this duty and in the absence of such certification or for failure and/or refusal to submit it, his salary shall be withheld.4

The Court has ruled, in a number of cases,5 that the failure to submit the TSNs within the period prescribed under Administrative Circular No. 24-90 constitutes gross neglect of duty. Gross neglect of duty is classified as a grave offense and punishable by dismissal even if for the first offense pursuant to Section 52(A)(2) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.

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EN BANC

 

 

JUDGE EDILBERTO G. ABSIN, A.M. No. P-10-2829
Complainant,  

Present:

 

CORONA, C.J.,

CARPIO,

VELASCO, JR.,

LEONARDO-DE CASTRO,

BRION,

- versus – PERALTA,

BERSAMIN,

DELCASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA, and

SERENO, JJ.

EDGARDO A. MONTALLA,

Stenographer, Regional

Trial Court, Branch 29,

San Miguel, Zamboanga Promulgated:

Del Sur,

Respondent. June 21, 2011

x- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x

D E C I S I O N

 

 

PER CURIAM:

 

This administrative matter stemmed from a letter-complaint filed by Judge Edilberto G. Absin (Judge Absin), Presiding Judge of the Regional Trial Court, Branch 29, San Miguel, Zamboanga del Sur (RTC-Branch 29), charging respondent Edgardo A. Montalla (Montalla), stenographer of the same court, with neglect of duty in failing to submit the required transcripts of stenographic notes (TSNs) despite repeated reminders from the court.

 

In his letter-complaint dated 23 November 2009, Judge Absin alleged that in the Resolution dated 23 October 2009 issued by the Court of Appeals (CA) in CA-G.R. No. 01280-MIN (Heirs of Victoriano Magallanes, et al. v. Ernesto Pono and Crispina Pono), the CA noted that Montalla failed to submit signed copies of the TSNs taken on the following dates: (1) 13 October 2004 on the witness Maria Sabuero; (2) 11 January 2005 on the witness Rodolfo Omboy; (3) 26 April 2005 on the witness Rosalinda Magallanes; (4) 12 October 2005 on the witness Ernesto Pono; (5) 7 December 2005 on the witness Crispina Pono; and (6) 25 January 2006 and 2 March 2006 on the witness Rogelio Magallanes. Montalla allegedly asked for time to submit the required TSNs but failed to submit the same. Montalla was repeatedly reminded to comply with the CA’s resolution but he still did not comply.

 

In his Comment dated and mailed on 10 March 2010, Montalla admitted he was the stenographer who took down the stenographic notes on the dates mentioned and both the presiding judge and the clerk of court repeatedly reminded him to transcribe the stenographic notes of the proceedings. Montalla, however, claimed he was prevented from performing his tasks due to poor health as he was diagnosed with pulmonary tuberculosis, peptic ulcer, and diabetes. Montalla now seeks the compassion of the Court as he is allegedly still recovering from his illnesses.

 

In the Resolution dated 2 August 2010, the parties were required to manifest if they were willing to submit the matter for resolution on the basis of the pleadings filed. We noted the letter dated 24 September 2010 of Judge Absin informing the Court that he was submitting the case for resolution on the basis of the pleadings filed without further comment. We dispensed with the manifestation of Montalla who failed to file the same within the period despite receipt of the resolution.

 

The Office of the Court Administrator (OCA) opined that Montalla should have been fully aware that public officers are repositories of public trust and are under obligation to perform the duties of their office honestly, faithfully, and to the best of their ability. For failure to submit the required TSNs, Montalla is guilty of gross neglect of duty classified as a grave offense and punishable by dismissal. However, for humanitarian reasons, the OCA recommended the imposition of the penalty of suspension of six months without pay with a stern warning that a repetition of the same or similar infraction in the future shall be dealt with more severely.

 

 

On 9 February 2011, we issued a Resolution ordering Montalla to manifest whether he has submitted the required TSNs. In effect, this Resolution gave Montalla one more chance to redeem himself. However, Montalla mailed on 4 March 2011 his Comment, which was received by OCA on 2 May 2011, containing the same statements he made in his Comment dated/mailed on 10 March 2010. He admits that the Clerk of Court and Judge Absin had reminded him, repeatedly, to transcribe the stenographic notes. Montalla admits his transgressions but this time his excuse is that his failure to submit the required TSNs was due to poor health (allegedly because of “previous pulmonary tuberculosis, peptic ulcer and diabetes”) that prevented him from performing simple tasks. But one thing is clear. Montalla still has not submitted the required TSNs which were taken sometime in 2004, 2005, and 2006. Verily, Montalla has been remiss in his duty as a court stenographer.

 

Montalla should be reminded that it is the duty of the court stenographer who has attended a session of a court to immediately deliver to the clerk of court all the notes he has taken, the same to be attached to the record of the case.1 Precisely, Administrative Circular No. 24-902 was issued in order to minimize delay in the adjudication of cases as a great number of cases could not be decided or resolved promptly because of lack of TSNs. The circular required all stenographers to transcribe all stenographic notes and to attach the TSNs to the record of the case not later than 20 days from the time the notes are taken. The attaching may be done by putting all TSNs in a separate folder or envelope, which will then be joined to the record of the case.3 The circular also provided that the stenographer concerned shall accomplish a verified monthly certification as to compliance with this duty and in the absence of such certification or for failure and/or refusal to submit it, his salary shall be withheld.4

 

The Court has ruled, in a number of cases,5 that the failure to submit the TSNs within the period prescribed under Administrative Circular No. 24-90 constitutes gross neglect of duty. Gross neglect of duty is classified as a grave offense and punishable by dismissal even if for the first offense pursuant to Section 52(A)(2) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.

 

This is not the first time that Montalla was charged with neglect of duty for delay in the submission of the TSNs. He was previously warned of a repetition of the same or similar infraction. In Office of the Court Administrator v. Montalla,6 Montalla incurred a delay of more than three years in transcribing the TSNs despite constant reminders from his superiors to submit the same. In that case, Montalla admitted lapses in the performance of his function which caused a delay in the speedy disposition of cases. He invoked serious marital problems which allegedly greatly affected his work. The Court considered Montalla’s “humble acknowledgment of his transgressions and his offer of sincere apology and promise to be more circumspect in the performance of his duties” and the fact that it was his first infraction. Montalla was found guilty of simple neglect of duty and was fined P2,000 with a stern warning that a repetition of the same or similar offense in the future shall be dealt with more severely.

 

In the present case, Montalla also failed to submit the required TSNs despite the warnings and the chances given to him to submit the same. The TSNs were taken in 2004, 2005, and 2006 and he was required to submit the same in 2009, 2010 and just recently, in February 2011. His utter disregard of the court directives and the reminders from his superiors and his lapses in the performance of his duty as a court stenographer caused delay in the speedy disposition of the case. This is no longer simple neglect of duty. Montalla, in repeatedly failing to submit the required TSNs for several years now, no longer deserves the compassion and understanding of the Court.

As a stenographer, Montalla should realize that the performance of his duty is essential to the prompt and proper administration of justice, and his inaction hampers the administration of justice and erodes public faith in the judiciary. The Court has expressed its dismay over the negligence and indifference of persons involved in the administration of justice. No less than the Constitution mandates that public officers must serve the people with utmost respect and responsibility. Public office is a public trust, and Montalla has without a doubt violated this trust by his failure to fulfill his duty as a court stenographer.7

 

WHEREFORE, we find respondent Edgardo A. Montalla, Stenographer, Regional Trial Court, Branch 29, San Miguel, Zamboanga del Sur, GUILTY of Gross Neglect of Duty. We DISMISS him from the service and FORFEIT his retirement benefits, except accrued leave credits. He is further disqualified from reemployment in the Judiciary. This judgment is immediately executory.

 

To avoid further delay in the disposition of CA-G.R. No. 01280-MIN (Heirs of Victoriano Magallanes, et al. v. Ernesto Pono and Crispina Pono), Montalla is ordered to submit, within a non-extendible period of thirty (30) days from receipt hereof, the transcripts of stenographic notes mentioned above, under pain of contempt.

 

SO ORDERED.

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

 

 

   
TERESITA J. LEONARDO-DE CASTRO

Associate Justice

 

 

 

 

ARTURO D. BRION

Associate Justice

DIOSDADO M. PERALTA

Associate Justice

 

 

 

 

LUCAS P. BERSAMIN

Associate Justice

 

 

MARIANO C. DEL CASTILLO

Associate Justice

 

 

 

 

ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

 

 

 

 

JOSE C. MENDOZA

Associate Justice

 

 

 

 

 

MARIA LOURDES P. A. SERENO

Associate Justice

   

 

 

 

 

 

1 Section 17, Rule 136 of the Revised Rules of Court provides:

SEC. 17. Stenographer. – It shall be the duty of the stenographer who has attended a session of a court either in the morning or in the afternoon, to deliver to the clerk of court, immediately at the close of such morning or afternoon session, all the notes he has taken, to be attached to the record of the case; and it shall likewise be the duty of the clerk to demand that the stenographer comply with said duty. The clerk of court shall stamp the date on which such notes are received by him. When such notes are transcribed, the transcript shall be delivered to the clerk, duly initialed on each page thereof, to be attached to the record of the case.

Whenever requested by a party, any statement made by a judge of first instance, or by a commissioner, with reference to a case being tried by him, or to any of the parties thereto, or to any witness or attorney, during the hearing of such case, shall be made of record in the stenographic notes.

2 Revised Rules on Transcription of Stenographic Notes and Their Transmission to Appellate Courts, 12 July 1990.

3 Paragraph 2(a).

4 Paragraph 2(b).

5 Marquez v. Pacariem, A.M. No. P-06-2249, 8 October 2008, 568 SCRA 77, 89; Banzon v. Hechanova, A.M. No. P-04-1765 (Formerly OCA IPI No. 01-1174-P), 8 April 2008, 550 SCRA 554, 559-560; Judge Reyes v. Bautista, 489 Phil. 85, 93 (2005); Judge Santos v. Laranang, 383 Phil. 267, 276-277 (2000).

6 A.M. No. P-06-2269, 20 December 2006, 511 SCRA 328.

7 Banzon v. Hechanova, supra note 5 at 560.

 

CASE 2011-160: RE: RESOLUTION OF THE COURT DATED 1 JUNE 2004 IN G.R. NO. 72954 AGAINST ATTY. VICTOR C. AVECILLA (A.C. NO. 6683, 21 JUNE 2011, PEREZ, J.) SUBJECT: BRINGING OUT ROLLO OUTSIDE COURT FOR UNOFFICIAL USE. (BRIEF TITLE: CASE AGAINST ATTY. AVECILLA).

 

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ATTY. AVECILLA, THEN A COURT EMPLOYEE, TOOK OUT ROLLO OUTSIDE COURT. IS HIS ACT PUNISHABLE?

 

YES. COURT EMPLOYEES ARE NOT ALLOWED TO TAKE OUT ANY COURT RECORD OUTSIDE THE COURT PREMISES.

 

Given the foregoing, We find that there are sufficient grounds to hold respondent administratively liable. 

 

First.  Taking judicial records, such as a rollo, outside court premises, without the court’s consent, is an administratively punishable act.  In Fabiculana, Sr. v. Gadon,[1][55] this Court previously sanctioned a sheriff for the wrongful act of bringing court records home, thus:

 

Likewise Ciriaco Y. Forlales, although not a respondent in complainant’s letter-complaint, should be meted the proper penalty, having admitted taking the records of the case home and forgetting about them.  Court employees are, in the first place, not allowed to take any court records, papers or documents outside the court premises.  It is clear that Forlales was not only negligent in his duty of transmitting promptly the records of an appealed case to the appellate court but he also failed in his duty not to take the records of the case outside of the court and to subsequently forget about them.[2][56] (Emphasis supplied)

 

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WHAT RULE DID ATTY. AVECILLA VIOLATE?

 

RULE 6.02, CANON 6 OF THE CODE OF PROFESSIONAL RESPONSIBILITY WHICH PROHIBITS GOVERNMENT LAWYERS TO USE THEIR PUBLIC POSITION TO ADVANCE THEIR INTERESTS.

 

Second.  The act of the respondent in borrowing a rollo for unofficial business entails the employment of deceit not becoming a member of the bar.  It presupposes the use of misrepresentation and, to a certain extent, even abuse of position on the part of the respondent because the lending of rollos are, as a matter of policy, only limited to official purposes.

 

As a lawyer then employed with the government, the respondent clearly violated Rule 6.02, Canon 6 of the Code of Professional Responsibility, to wit:

 

Rule 6.02A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. (Emphasis supplied).

 

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THE OFFICE OF THE CHIEF ATTORNEY (OCAT) RECOMMENDED THAT ATTY. AVECILLA BE  METED PENALTY OF ONE YEAR SUSPENSION. WAS THIS PROPER?

 

NO. THE PENALTY IS TOO HARSH CONSIDERING CERTAIN CIRCUMSTANCES IN FAVOR OF ATTY. AVECILLA.

 

          Third.  However, We find the recommended penalty of suspension from the practice of law for one (1) year as too harsh for the present case.  We consider the following circumstances in favor of the respondent:

 

1.     G.R. No. 72954 was already finally resolved when its rollo was borrowed on 13 September 1991.  Thus, the act of respondent in keeping the subject rollo worked no prejudice insofar as deciding G.R. No. 72954 is concerned.

 

2.     It was never established that the contents of the rollo, which remained confidential despite the finality of the resolution in G.R. No. 72954, were disclosed by the respondent.

 

3.     After his possession of the subject rollo was discovered, the respondent cooperated with the JRO for the return of the rollo.

 

We, therefore, temper the period of suspension to only six (6) months.

 

 

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EN BANC

 

 

RE: RESOLUTION OF THE COURT DATED 1 JUNE 2004 IN G.R. NO. 72954 AGAINST,

 

 

 

ATTY. VICTOR C. AVECILLA,   

                                Respondent.

 

     A.C. No. 6683

 

     Present:

 

     CORONA, C.J.,

     CARPIO,

     VELASCO, JR.,

     LEONARDO-DE CASTRO,

     BRION,

     PERALTA,

     BERSAMIN,

     DEL CASTILLO,

     ABAD,

     VILLARAMA, JR.,

     PEREZ,

    MENDOZA, and

     SERENO, JJ.

 

 

      Promulgated:

 

      June 21, 2011

x———————————————————————————————– x

 

D E C I S I O N

 

PEREZ, J.:

 

 

          The present administrative case is based on the following facts:

 

 

 

Prelude

 

          Sometime in 1985, respondent Atty. Victor C. Avecilla (Atty. Avecilla) and a certain Mr. Louis C. Biraogo (Mr. Biraogo) filed a petition before this Court impugning the constitutionality of Batas Pambansa Blg. 883, i.e., the law that called for the holding of a presidential snap election on 7 February 1986.  The petition was docketed as G.R. No. 72954 and was consolidated with nine (9) other petitions[3][1] voicing a similar concern.

 

          On 19 December 1985, the Court En banc issued a Resolution dismissing the consolidated petitions, effectively upholding the validity of Batas Pambansa Blg. 883.[4][2]

 

          On 8 January 1986, after the aforesaid resolution became final, the rollo[5][3] of G.R. No. 72954 was entrusted to the Court’s Judicial Records Office (JRO) for safekeeping.[6][4]

 

The Present Case

 

On 14 July 2003, the respondent and Mr. Biraogo sent a letter[7][5] to the Honorable Hilario G. Davide, Jr., then Chief Justice of the Supreme Court (Chief Justice Davide), requesting that they be furnished several documents[8][6] relative to the expenditure of the Judiciary Development Fund (JDF).  In order to show that they have interest in the JDF enough to be informed of how it was being spent, the respondent and Mr. Biraogo claimed that they made contributions to the said fund by way of the docket and legal fees they paid as petitioners in G.R No. 72954.[9][7]

 

On 28 July 2003, Chief Justice Davide instructed[10][8] Atty. Teresita Dimaisip (Atty. Dimaisip), then Chief of the JRO, to forward the rollo of G.R. No. 72954 for the purpose of verifying the claim of the respondent and Mr. Biraogo.

 

On 30 July 2003, following a diligent search for the rollo of G.R. No. 72954, Atty. Dimaisip apprised[11][9] Chief Justice Davide that the subject rollo could not be found in the archives.  Resorting to the tracer card[12][10] of G.R. No. 72954, Atty. Dimaisip discovered that the subject rollo had been borrowed from the JRO on 13 September 1991 but, unfortunately, was never since returned.[13][11]  The tracer card named the respondent, although acting through a certain Atty. Salvador Banzon (Atty. Banzon), as the borrower of the subject rollo.[14][12]

 

The next day, or on 31 July 2003, Chief Justice Davide took prompt action by directing[15][13] Atty. Dimaisip to supply information about how the respondent was able to borrow the rollo of G.R. No. 72954 and also to take necessary measures to secure the return of the said rollo.

 

Reporting her compliance with the foregoing directives, Atty. Dimaisip sent to Chief Justice Davide a Memorandum[16][14] on 13 August 2003.  In substance, the Memorandum relates that:

 

1.     At the time the rollo of G.R. No. 72954 was borrowed from the JRO, the respondent was employed with the Supreme Court as a member of the legal staff of retired Justice Emilio A. Gancayco (Justice Gancayco).  Ostensibly, it was by virtue of his confidential employment that the respondent was able to gain access to the rollo of G.R. No. 72954.[17][15]

 

2.     Atty. Dimaisip had already contacted the respondent about the possible return of the subject rollo.[18][16]  Atty. Dimaisip said that the respondent acknowledged having borrowed the rollo of G.R. No. 72954 through Atty. Banzon, who is a colleague of his in the office of Justice Gancayco.[19][17]

 

On 18 August 2003, almost twelve (12) years after it was borrowed, the rollo of G.R. No. 72954 was finally turned over by Atty. Avecilla to the JRO.[20][18]

 

          On 22 September 2003, Chief Justice Davide directed[21][19] the Office of the Chief Attorney (OCAT) of this Court, to make a study, report and recommendation on the incident.  On 20 November 2003, the OCAT submitted a Memorandum[22][20] to the Chief Justice opining that the respondent may be administratively charged, as a lawyer and member of the bar, for taking out the rollo of G.R. No. 72954.  The OCAT made the following significant observations:

 

1.     Justice Gancayco compulsorily retired from the Supreme Court on 20 August 1991.[23][21]  However, as is customary, the coterminous employees of Justice Gancayco were given an extension of until 18 September 1991 to remain as employees of the court for the limited purpose of winding up their remaining affairs.  Hence, the respondent was already nearing the expiration of his “extended tenure” when he borrowed the rollo of G.R. No. 72954 on 13 September 1991.[24][22]

 

2.     The above circumstance indicates that the respondent borrowed the subject rollo not for any official business related to his duties as a legal researcher for Justice Gancayco, but merely to fulfill a personal agenda.[25][23]  By doing so, the respondent clearly abused his confidential position for which he may be administratively sanctioned.[26][24]

 

3.     It must be clarified, however, that since the respondent is presently no longer in the employ of the Supreme Court, he can no longer be sanctioned as such employee.[27][25]  Nevertheless, an administrative action against the respondent as a lawyer and officer of the court remains feasible.[28][26]

 

Accepting the findings of the OCAT, the Court En banc issued a Resolution[29][27] on 9 December 2003 directing the respondent to show cause why he should not be held administratively liable for borrowing the rollo of G.R. No. 72954 and for failing to return the same for a period of almost twelve (12) years.

 

The respondent conformed to this Court’s directive by submitting his Respectful Explanation (Explanation)[30][28] on 21 January 2004.  In the said explanation, the respondent gave the following defenses:

 

1.     The respondent maintained that he neither borrowed nor authorized anyone to borrow the rollo of G.R. No. 72954.[31][29]  Instead, the respondent shifts the blame on the person whose signature actually appears on the tracer card of G.R. No. 72954 and who, without authority, took the subject rollo in his name.[32][30]  Hesitant to pinpoint anyone in particular as the author of such signature, the respondent, however, intimated that the same might have belonged to Atty. Banzon.[33][31]

 

2.     The respondent asserted that, for some unknown reason, the subject rollo just ended up in his box of personal papers and effects, which he brought home following the retirement of Justice Gancayco.[34][32]  The respondent can only speculate that the one who actually borrowed the rollo might have been a colleague in the office of Justice Gancayco and that through inadvertence, the same was misplaced in his personal box.[35][33]

 

3.     The respondent also denounced any ill-motive for failing to return the rollo, professing that he had never exerted effort to examine his box of personal papers and effects up until that time when he was contacted by Atty. Dimaisip inquiring about the missing rollo.[36][34]  The respondent claimed that after finding out that the missing rollo was, indeed, in his personal box, he immediately extended his cooperation to the JRO and wasted no time in arranging for its return.[37][35]

 

On 24 February 2004, this Court referred the respondent’s Explanation to the OCAT for initial study.  In its Report[38][36] dated 12 April 2004, the OCAT found the respondent’s Explanation to be unsatisfactory.

 

On 1 June 2004, this Court tapped[39][37] the Office of the Bar Confidant (OBC) to conduct a formal investigation on the matter and to prepare a final report and recommendation.  A series of hearings were thus held by the OBC wherein the testimonies of the respondent,[40][38] Atty. Banzon,[41][39] Atty. Dimaisip[42][40] and one Atty. Pablo Gancayco[43][41] were taken.  On 6 August 2007, the respondent submitted his Memorandum[44][42] to the OBC reiterating the defenses in his Explanation.

 

On 13 October 2009, the OBC submitted its Report and Recommendation[45][43] to this Court.  Like the OCAT, the OBC dismissed the defenses of the respondent and found the latter to be fully accountable for taking out the rollo of G.R. No. 72954 and failing to return it timely.[46][44]  The OBC, thus, recommended that the respondent be suspended from the practice of law for one (1) year.[47][45]

 

Our Ruling

 

          We agree with the findings of the OBC.  However, owing to the peculiar circumstances in this case, we find it fitting to reduce the recommended penalty. 

 

The Respondent Borrowed The Rollo

 

          After reviewing the records of this case, particularly the circumstances surrounding the retrieval of the rollo of G.R. No. 72954, this Court is convinced that it was the respondent, and no one else, who is responsible for taking out the subject rollo.

 

          The tracer card of G.R. No. 72954 bears the following information:

 

1.     The name of the respondent, who was identified as borrower of the rollo,[48][46] and

 

2.     The signature of Atty. Banzon who, on behalf of the respondent, actually received the rollo from the JRO.[49][47]

 

The respondent sought to discredit the foregoing entries by insisting that he never authorized Atty. Banzon to borrow the subject rollo on his behalf.[50][48]  We are, however, not convinced.

 

First.  Despite the denial of the respondent, the undisputed fact remains that it was from his possession that the missing rollo was retrieved about twelve (12) years after it was borrowed from the JRO.  This fact, in the absence of any plausible explanation to the contrary, is sufficient affirmation that, true to what the tracer card states, it was the respondent who borrowed the rollo of G.R. No. 72954.

 

Second.  The respondent offered no convincing explanation how the subject rollo found its way into his box of personal papers and effects.  The respondent can only surmise that the subject rollo may have been inadvertently placed in his personal box by another member of the staff of Justice Gancayco.[51][49]  However, the respondent’s convenient surmise remained just that—a speculation incapable of being verified definitively.

 

Third. If anything, the respondent’s exceptional stature as a lawyer and former confidante of a Justice of this Court only made his excuse unacceptable, if not totally unbelievable.  As adequately rebuffed by the OCAT in its Report dated 12 April 2004:

 

x x x However, the excuse that the rollo “inadvertently or accidentally” found its way to his personal box through his officemates rings hollow in the face of the fact that he was no less than the confidential legal assistance of a Member of this Court.  With this responsible position, Avecilla is expected to exercise extraordinary diligence with respect to all matters, including seeing to it that only his personal belongings were in that box for taking home after his term of office in this Court has expired.[52][50]

 

          Verily, the tracer card of G.R. No. 72954 was never adequately controverted.  We, therefore, sustain its entry and hold the respondent responsible for borrowing the rollo of G.R. No. 72954.

 

Respondent’s Administrative Liability

 

          Having settled that the respondent was the one who borrowed the rollo of G.R. No. 72954, We next determine his administrative culpability.

 

          We begin by laying the premises:

 

1.     The respondent is presently no longer in the employ of this Court and as such, can no longer be held administratively sanctioned as an employee.[53][51]   However, the respondent, as a lawyer and a member of the bar, remains under the supervisory and disciplinary aegis of this Court.[54][52]

 

2.     The respondent was already nearing the expiration of his “extended tenure” when he borrowed the rollo of G.R. No. 72954 on 13 September 1991.[55][53]  We must recall that Justice Gancayco already retired as of 20 April 1991. Hence, it may be concluded that for whatever reason the respondent borrowed the subject rollo, it was not for any official reason related to the adjudication of pending cases.[56][54]

 

3.     The respondent’s unjustified retention of the subject rollo for a considerable length of time all but confirms his illicit motive in borrowing the same.  It must be pointed out that the subject rollo had been in the clandestine possession of the respondent for almost twelve (12) years until it was finally discovered and recovered by the JRO.

 

          Given the foregoing, We find that there are sufficient grounds to hold respondent administratively liable. 

 

First.  Taking judicial records, such as a rollo, outside court premises, without the court’s consent, is an administratively punishable act.  In Fabiculana, Sr. v. Gadon,[57][55] this Court previously sanctioned a sheriff for the wrongful act of bringing court records home, thus:

 

Likewise Ciriaco Y. Forlales, although not a respondent in complainant’s letter-complaint, should be meted the proper penalty, having admitted taking the records of the case home and forgetting about them.  Court employees are, in the first place, not allowed to take any court records, papers or documents outside the court premises.  It is clear that Forlales was not only negligent in his duty of transmitting promptly the records of an appealed case to the appellate court but he also failed in his duty not to take the records of the case outside of the court and to subsequently forget about them.[58][56] (Emphasis supplied)

 

Second.  The act of the respondent in borrowing a rollo for unofficial business entails the employment of deceit not becoming a member of the bar.  It presupposes the use of misrepresentation and, to a certain extent, even abuse of position on the part of the respondent because the lending of rollos are, as a matter of policy, only limited to official purposes.

 

As a lawyer then employed with the government, the respondent clearly violated Rule 6.02, Canon 6 of the Code of Professional Responsibility, to wit:

 

Rule 6.02A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. (Emphasis supplied).

 

          Third.  However, We find the recommended penalty of suspension from the practice of law for one (1) year as too harsh for the present case.  We consider the following circumstances in favor of the respondent:

 

1.     G.R. No. 72954 was already finally resolved when its rollo was borrowed on 13 September 1991.  Thus, the act of respondent in keeping the subject rollo worked no prejudice insofar as deciding G.R. No. 72954 is concerned.

 

2.     It was never established that the contents of the rollo, which remained confidential despite the finality of the resolution in G.R. No. 72954, were disclosed by the respondent.

 

3.     After his possession of the subject rollo was discovered, the respondent cooperated with the JRO for the return of the rollo.

 

We, therefore, temper the period of suspension to only six (6) months.

 

WHEREFORE, in light of the foregoing premises, the respondent is hereby SUSPENDED from the practice of law for six (6) months.  The respondent is also STERNLY WARNED that a repetition of a similar offense in the future will be dealt with more severely.

 

          SO ORDERED.

 

 

 

JOSE PORTUGAL PEREZ

 Associate Justice

 

 

 

 

 

WE CONCUR:

 

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

ANTONIO T. CARPIO                         PRESBITERO J. VELASCO, JR.   

      Associate Justice                                   Associate Justice

 

 

 

 

 

 

TERESITA J. LEONARDO-DECASTRO           ARTURO D. BRION

     Associate Justice                                         Associate Justice

 

 

 

 

 

                    DIOSDADO M. PERALTA                         LUCAS P. BERSAMIN

       Associate Justice                                         Associate Justice

 

 

 

 

 

 

       MARIANO C. DEL CASTILLO                   ROBERTO A. ABAD

        Associate Justice                                        Associate Justice     

 

 

 

 

 

 

                

        MARTIN S. VILLARAMA, JR.            JOSE CATRAL MENDOZA

         Associate Justice                                    Associate Justice

 

 

 

 

 

 

MARIA LOURDES P. A. SERENO

Associate Justice

 

 


 


[1][55]          A.M. No. P-94-1101, 29 December 1994, 239 SCRA 542.

[2][56]         Id. at 545.

[3][1]           The other petitions were docketed as G.R. Nos. 72915, 72922, 72923, 72924, 72927, 72935, 72954, 72957, 72968 and 72986.

[4][2]           G.R. Nos. 72915, 72922, 72923, 72924, 72927, 72935, 72954, 72957, 72968 and 72986, 19 December 1985, 140 SCRA 453, 454.

[5][3]           Refers to the folder containing the entire records of a case.  The rollo is the official repository of the all pleadings, communications, documents and other papers filed by the parties in a particular case.  (See Section 1 of Rule 9 of the Internal Rules of the Supreme Court).

[6][4]           Rollo, p. 51.

[7][5]           Temporary rollo, pp. 88-89.

[8][6]           The documents requested were: (1) Report of disbursement of the Judiciary Development Fund, (2) Report of collection by the Supreme Court of the said Fund, (3) List of cash advances, (4) List of outstanding cash advances, (5) Report of checks issued for the fund, (6) Disbursement vouchers and subsidiary ledgers of accounts involving the Fund, and (7) Pertinent audit reports of the Commission on Audit. Id. at 88.

[9][7]          Id. at 89.

[10][8]          Memorandum. Id. at 96.

[11][9]         Id. at 97-98.

[12][10]         Refers to the index card that monitors the movement of a given rolloRollo, p. 51.

[13][11]         Temporary rollo, p. 98.

[14][12]        Id.

[15][13]         Memorandum. Id. at 103.

[16][14]        Id. at 104-105.

[17][15]        Id. at 104.

[18][16]        Id.

[19][17]        Id.

[20][18]         See Memorandum of Atty. Teresita Dimaisip to Chief Justice Hilario G. Davide, Jr. dated 19 August 2003. Id. at 109.

[21][19]         Memorandum. Id. at 84-85.

[22][20]        Id. at 71-83.

[23][21]        Id. at 77.

[24][22]        Id.

[25][23]        Id.

[26][24]        Id. at 77-78.

[27][25]        Id. at 77.

[28][26]        Id.

[29][27]        Id. at 29.

[30][28]        Id. at 125-128.

[31][29]        Id.

[32][30]        Id.

[33][31]        Id.

[34][32]        Id.

[35][33]        Id.

[36][34]        Id.

[37][35]        Id.

[38][36]        Id. at 5-18.

[39][37]        Id. at 1.

[40][38]         Rollo, pp. 237-331.

[41][39]        Id. at 226-236.

[42][40]        Id. at 106-183

[43][41]        Id. at 184-225.

[44][42]        Id. at 750-773.

[45][43]         Sealed Report and Recommendation of the OBC.

[46][44]        Id.

[47][45]        Id.

[48][46]         Rollo, p. 51.

[49][47]        Id.

[50][48]         Temporary rollo, pp. 127-129.

[51][49]        Id.

[52][50]        Id. at 17.

[53][51]        Id. at 8.

[54][52]         See Section 5(5), Article VIII of the CONSTITUTION.

[55][53]         Temporary rollo, p. 8.

[56][54]        Id.

[57][55]         A.M. No. P-94-1101, 29 December 1994, 239 SCRA 542.

[58][56]        Id. at 545.

CASE 2011-0159:  HOME DEVELOPMENT MUTUAL FUND (HDMF) VS. Spouses FIDEL and FLORINDA R. SEE and Sheriff MANUEL L. ARIMADO (G.R. NO. 170292, 22 JUNE 2011, DEL CASTILLO, J.) SUBJECT: CERTIORARI (BRIEF TITLE: HOME DEVELOPMENT VS. SEE).

 

====================================

 

 

SUBJECT/DOCTRINE/DIGEST:

 

 

RESPONDENT SPOUSES WON IN AN AUCTION SALE OF PAG-IBIG AND PAID THE PRICE TO THE SHERIFF. SHERIFF USED THE MONEY AND DID NOT REMIT TO PAG-IBIG. WHEN RESPONDENTS ASKED FOR THE TITLE PAG-IBIG REFUSED. RESPONDENTS SUED PAG-IBIG AND SHERIFF FOR DELIVERY OF TITLE. THE PARTIES ENTERED INTO COMPROMISE AGREEMENT WHICH PROVIDES THAT SHERIFF PAYS PAG-IBIG AND THE LATTER WILL DELIVER TITLE TO RESPONDENTS. IF SHERIFF FAILS TO PAY, COURT SHALL RESOLVE THE LEGAL ISSUE ON WHETHER PAG-IBIG IS OBLIGATED TO DELIVER TITLE. COURT ISSUED DECISION DIRECTING PARTIES TO ABIDE BY THE COMPROMISE AGREEMENT. SHERIFF DID NOT PAY. SPOUSES ASKED FOR EXECUTION. COURT ISSUED ANOTHER DECISION ORDERING PAG-IBIG TO DELIVER TITLE. PAG-IBIG FILED AT CA PETITION FOR CERTIORARI ON THE GROUND THAT COURT DID NOT CONDUCT TRIAL PRIOR TO ISSUANCE OF SECOND DECISION AND THAT THE SECOND DECISION AMENDED THE FIRST DECISION.

 

 

WAS CERTIORARI PETITION PROPER?

 

 

NO. RTC DID NOT COMMIT GRAVE ABUSE OF DISCRETION. TRIAL WAS NOT NECESSARY BECAUSE ONLY LEGAL ISSUE WAS TO BE RESOLVED. THE SECOND DECISION DID NOT AMEND THE FIRST DECISION BECAUSE IT  WAS PURSUANT TO THE FIRST DECISION WHICH  APPROVED THE COMPROMISE AGREEMENT. UNDER THE AGREEMENT THE COURT SHALL RESOLVE THE LEGAL ISSUE ON WHETHER PAG-IBIG IS LIABLE TO DELIVER TITLE IN CASE THE SHERIFF FAILS TO PAY.

 

As to Pag-ibig’s argument that the February 21, 2002 Decision of the RTC is null and void for having been issued without a trial, it is a mere afterthought which deserves scant consideration.  The Court notes that Pag-ibig did not object to the absence of a trial when it sought a reconsideration of the February 21, 2002 Decision.  Instead, Pag-ibig raised the following lone argument in their motion:

            3.  Consequently, [Pag-ibig] should not be compelled to release the title to other [respondent-spouses] See because Manuel Arimado [has] yet to deliver to [Pag-ibig] the sum of P 272,000.00.[1][43]              

 

           

Under the Omnibus Motion Rule embodied in Section 8 of Rule 15 of the Rules of Court, all available objections that are not included in a party’s motion shall be deemed waived. 

            Pag-ibig next argues that the February 21, 2002 Decision of the trial court, in ordering Pag-ibig to release the title despite Sheriff Arimado’s failure to remit the P272,000.00 to Pag-ibig, “modified” the October 31, 2001 Decision.  According to Pag-ibig, the October 31, 2001 Decision allegedly decreed that Pag-ibig would deliver the title to respondent-spouses only after Sheriff Arimado has paid the P272,000.00.[2][44]  In other words, under its theory, Pag-ibig cannot be ordered to release the title if Sheriff Arimado fails to pay the said amount.

            The Court finds no merit in this argument.  The October 31, 2001 Decision (as well as the Compromise Agreement on which it is based) does not provide that Pag-ibig cannot be ordered to release the title if Sheriff Arimado fails to pay.  On the contrary, what the Order provides is that if Sheriff Arimado fails to pay, the trial court shall litigate (and, necessarily, resolve) the issue of whether Pag-ibig is obliged to release the title.  This is based on paragraph 6 of the Compromise Agreement which states that in the event Sheriff Arimado fails to pay, “the [respondent-spouses] shall be entitled to an immediate writ of execution without further notice to [Sheriff] Arimado and the issue as to whether [Pag-ibig] shall be liable for the release of the title to [respondent spouses] under the circumstances or allegations narrated in the complaint shall continue to be litigated upon in order that the Honorable Court may resolve the legality of said issue.”  In fact, the trial court, in its October 31, 2001 Decision, already set the hearing of the same “on December 14, 2001 at 9:00 o’clock in the morning.”[3][45]

 

                It is thus clear from both the October 31, 2001 Decision and the Compromise Agreement that the trial court was authorized to litigate and resolve the issue of whether Pag-ibig should release the title upon Sheriff Arimado’s failure to pay the P272,000.00.  As it turned out, the trial court eventually resolved the issue against Pag-ibig, i.e., it ruled that Pag-ibig is obliged to release the title.  In so doing, the trial court simply exercised the authority provided in the October 31, 2001 Decision (and stipulated in the Compromise Agreement).  The trial court did not thereby “modify” the October 31, 2001 Decision.

 

XXXXXXXXXXXXXXXXXXXXXXXXXXX

 

SINCE RTC DID NOT COMMIT GRAVE ABUSE OF DISCRETION, WHAT SHOULD HAVE BEEN THE REMEDY OF PAG-IBIG?

 

APPEAL UNDER RULE 41. CERTIORARI IS A REMEDY OF LAST  RESORT. IT IS NOT A SUBSTITUTE FOR A LOST APPEAL.

“[C]ertiorari is a limited form of review and is a remedy of last recourse.”[4][36]  It is proper only when appeal is not available to the aggrieved party.[5][37]  In the case at bar, the February 21, 2002 Decision of the trial court was appealable under Rule 41 of the Rules of Court because it completely disposed of respondent-spouses’ case against Pag-ibig.  Pag-ibig does not explain why it did not resort to an appeal and allowed the trial court’s decision to attain finality.  In fact, the February 21, 2002 Decision was already at the stage of execution when Pag-ibig belatedly resorted to a Rule 65 Petition for Certiorari.  Clearly, Pag-ibig lost its right to appeal and tried to remedy the situation by resorting to certiorari.  It is settled, however, that certiorari is not a substitute for a lost appeal, “especially if the [party’s] own negligence or error in [the] choice of remedy occasioned such loss or lapse.”[6][38] 

XXXXXXXXXXXXXXXXXXXXXX

 

PAG-IBIG FILED CERTIORARI WITHIN 60 DAYS FROM RECEIPT OF WRIT OF EXECUTION. WAS CERTIORARI FILED WITHIN THE PERIOD REQUIRED?

 

NO. THE 60 DAY PERIOD IS COUNTED FROM RECEIPT OF JUDGMENT.

            Moreover, even assuming arguendo that a Rule 65 certiorari could still be resorted to, Pag-ibig’s petition would still have to be dismissed for having been filed beyond the reglementary period of 60 days from notice of the denial of the motion for reconsideration.[7][39]  Pag-ibig admitted receiving the trial court’s Order denying its Motion for Reconsideration on March 22, 2002;[8][40] it thus had until May 21, 2002 to file its petition for certiorari.  However, Pag-ibig filed its petition only on May 24, 2002,[9][41] which was the 63rd day from its receipt of the trial court’s order and obviously beyond the reglementary 60-day period. 

            Pag-ibig stated that its petition for certiorari was filed “within sixty (60) days from receipt of the copy of the writ of execution by petitioner [Pag-ibig] on 07 May 2002,” which writ sought to enforce the Decision assailed in the petition.[10][42]  This submission is beside the point.  Rule 65, Section 4 is very clear that the reglementary 60-day period is counted “from notice of the judgment, order or resolution” being assailed, or “from notice of the denial of the motion [for reconsideration],” and not from receipt of the writ of execution which seeks to enforce the assailed judgment, order or resolution.  The date of Pag-ibig’s receipt of the copy of the writ of execution is therefore immaterial for purposes of computing the timeliness of the filing of the petition for certiorari.

            Since Pag-ibig’s petition for certiorari before the CA was an improper remedy and was filed late, it is not even necessary to look into the other issues raised by Pag-ibig in assailing the February 21, 2002 Decision of the trial court and the CA’s rulings sustaining the same.  At any rate, Pag-ibig’s arguments on these other issues are devoid of merit.

 

====================================

 

 

FIRST DIVISION

 

HOME DEVELOPMENT MUTUAL FUND (HDMF),   G.R. No.  170292

     Petitioner,

  Present:

 

   
    CORONA, C.J., Chairperson,

- versus -

  LEONARDO-DE CASTRO,
    DELCASTILLO,
    PEREZ, and
Spouses FIDEL and FLORINDA R. SEE and Sheriff MANUEL L. ARIMADO,   MENDOZA, JJ. 

Promulgated:

 Respondents.

   June 22, 2011

x – – – – – – – – – – – – – – – – –  – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x

 

D E C I S I O N

 

DEL CASTILLO, J.:

            A party that loses its right to appeal by its own negligence cannot seek refuge in the remedy of a writ of certiorari.

            This is a Petition for Review on Certiorari[11][1] under Rule 45 of the Rules of Court assailing the August 31, 2005 Decision,[12][2] as well as the October 26, 2005 Resolution,[13][3] of the Court of Appeals (CA) in CA-G.R. SP No. 70828.  The dispositive portion of the assailed CA Decision reads thus:

                WHEREFORE, premises considered, the instant petition is DENIED DUE COURSE and is accordingly DISMISSED.  The assailed Decision of the Regional Trial Court, Branch 6, Legazpi City dated February 21, 2002 and its Order dated March 15, 2002 are AFFIRMED.

                SO ORDERED.[14][4]

Factual Antecedents

 

            Respondent-spouses Fidel and Florinda See (respondent-spouses) were the highest bidders in the extrajudicial foreclosure sale of a property[15][5] that was mortgaged to petitioner Home Development Mutual Fund or Pag-ibig Fund (Pag-ibig).  They paid the bid price of P272,000.00 in cash to respondent Sheriff Manuel L. Arimado (Sheriff Arimado).  In turn, respondent-spouses received a Certificate of Sale wherein Sheriff Arimado acknowledged receipt of the purchase price, and an Official Receipt No. 11496038 dated January 28, 2000 from Atty. Jaime S. Narvaez, the clerk of court with whom Sheriff Arimado deposited the respondent-spouses’ payment.[16][6] 

            Despite the expiration of the redemption period, Pag-ibig refused to surrender its certificate of title to the respondent-spouses because it had yet to receive the respondent-spouses’ payment from Sheriff Arimado[17][7] who failed to remit the same despite repeated demands.[18][8]  It turned out that Sheriff Arimado withdrew from the clerk of court the P272,000.00 paid by respondent-spouses, on the pretense that he was going to deliver the same to Pag-ibig.  The money never reached Pag-ibig and was spent by Sheriff Arimado for his personal use.[19][9]

            Considering Pag-ibig’s refusal to recognize their payment, respondent-spouses filed a complaint for specific performance with damages against Pag-ibig and Sheriff Arimado before Branch 3 of the Regional Trial Court (RTC) of LegazpiCity. The complaint alleged that the law on foreclosure authorized Sheriff Arimado to receive, on behalf of Pag-ibig, the respondent-spouses’ payment.  Accordingly, the payment made by respondent-spouses to Pag-ibig’s authorized agent should be deemed as payment to Pag-ibig.[20][10]  It was prayed that Sheriff Arimado be ordered to remit the amount of P 272,000.00 to Pag-ibig and that the latter be ordered to release the title to the auctioned property to respondent-spouses.[21][11]

            Pag-ibig admitted the factual allegations of the complaint (i.e., the bid of respondent-spouses,[22][12] their full payment in cash to Sheriff Arimado,[23][13] and the fact that Sheriff Arimado misappropriated the money[24][14]) but maintained that respondent-spouses had no cause of action against it.  Pag-ibig insisted that it has no duty to deliver the certificate of title to respondent-spouses unless Pag-ibig actually receives the bid price.  Pag-ibig denied that the absconding sheriff was its agent for purposes of the foreclosure proceedings.[25][15]

            When the case was called for pre-trial conference, the parties submitted their Compromise Agreement for the court’s approval.  The Compromise Agreement reads:

                Undersigned parties, through their respective counsels[,] to this Honorable Court respectfully submit this Compromise Agreement for their mutual interest and benefit that this case be amicably settled, the terms and conditions of which are as follows:

1.     [Respondent] Manuel L. Arimado, Sheriff IV RTC, Legazpi acknowledges his obligation to the Home Development Mutual Fund (PAG-IBIG), Regional Office V, Legazpi City and/or to [respondent-spouses] the amount of P300,000.00, representing payment for the bid price and other necessary expenses incurred by the [respondent-spouses], the latter being the sole bidder of the property subject matter of the Extrajudicial Foreclosure Sale conducted by Sheriff Arimado on January 14, 2000, at the Office of the Clerk of Court, RTC, Legazpi;

x x x x

3.     Respondent Manuel L. Arimado due to urgent financial need acknowledge[s] that he personally used the money paid to him by [respondent-spouses] which represents the bid price of the above[-]mentioned property subject of the foreclosure sale.  The [money] should have been delivered/paid by Respondent Arimado to Home Development Mutual Fund (PAG-IBIG) as payment and in satisfaction of its mortgage claim.

4.     Respondent Manuel L. Arimado obligates himself to pay in cash to [petitioner] Home Development Mutual Fund (PAG-IBIG) the amount of P272,000.00 representing full payment of its claim on or before October 31, 2001 [so] that the title to the property [could] be released by PAG-IBIG to [respondent-spouses].  An additional amount of P28,000.00 shall likewise be paid by [respondent] Arimado to the [respondent-spouses] as reimbursement for litigation expenses;

5.     [Petitioner] Home Development Mutual Fund (PAG-IBIG) shall upon receipt of the P272,000.00 from [respondent] Manuel L. Arimado release immediately within a period of three (3) days the certificate of title of the property above-mentioned to [respondent-spouses] being the rightful buyer or owner of the property;

6.     In the event [respondent] Manuel L. Arimado fails to pay [petitioner] Home Development Mutual Fund (PAG-IBIG), or, [respondent-spouses] the amount of P272,000.00 on or before October 31, 2001, the [respondent-spouses] shall be entitled to an immediate writ of execution without further notice to respondent Manuel L. Arimado and the issue as to whether [petitioner] Home Development Mutual Fund (PAG-IBIG) shall be liable for the release of the title to [respondent spouses] under the circumstances or allegations narrated in the complaint shall continue to be litigated upon in order that the Honorable Court may resolve the legality of said issue;

7.  In the event [respondent] Manuel L. Arimado complies with the payment as above-stated, the parties mutually agree to withdraw all claims and counterclaim[s] they may have against each other arising out of the above-entitled case.[26][16] 

 

 

The trial court approved the compromise agreement and incorporated it in its Decision dated October 31, 2001.  The trial court stressed the implication of paragraph 6 of the approved compromise agreement:

Accordingly, the parties are enjoined to comply strictly with the terms and conditions of their Compromise Agreement.

                In the event that [respondent] Manuel L. Arimado fails to pay [petitioner] HDMF (Pag-ibig), or [respondent-spouses] the amount of P272,000.00 on October 31, 2001, the Court, upon motion of [respondent-spouses], may issue the necessary writ of execution.

                In this connection, with respect to the issue as to whether or not [petitioner] HDMF (Pag-ibig) shall be liable for the release of the title of the [respondent-spouses] under the circumstances narrated in the Complaint which necessitates further litigation in court, let the hearing of the same be set on December 14, 2001 at 9:00 o’clock in the morning. 

                SO ORDERED.[27][17]

None of the parties sought a reconsideration of the aforequoted Decision.

            When Sheriff Arimado failed to meet his undertaking to pay on or before October 31, 2001, the trial court proceeded to rule on the issue of whether Pag-ibig is liable to release the title to respondent-spouses despite non-receipt of their payment.[28][18] 

Ruling of the Regional Trial Court[29][19]

 

            The trial court rendered its Decision dated February 21, 2002 in favor of respondent-spouses, reasoning as follows:  Under Article 1240 of the Civil Code, payment is valid when it is made to a person authorized by law to receive the same.  In foreclosure proceedings, the sheriff is authorized by Act No. 3135 and the Rules of Court to receive payment of the bid price from the winning bidder.  When Pag-ibig invoked the provisions of these laws by applying for extrajudicial foreclosure, it likewise constituted the sheriff as its agent in conducting the foreclosure and receiving the proceeds of the auction.  Thus, when the respondent-spouses paid the purchase price to Sheriff Arimado, a legally authorized representative of Pag-ibig, this payment effected a discharge of their obligation to Pag-ibig. 

            The trial court thus ordered Pag-ibig to deliver the documents of ownership to the respondent-spouses.  The dispositive portion reads thus:

                WHEREFORE, premises considered, decision is hereby rendered in favor of the [respondent-spouses] and against the [petitioner] HDMF, ordering said [petitioner] to execute a Release and/or Discharge of Mortgage, and to deliver the same to the [respondent-spouses] together with the documents of ownership and the owner’s copy of Certificate of Title No. T-78070 covering the property sold [to respondent-spouses] in the auction sale within ten (10) days from the finality of this decision.

                Should [petitioner] HDMF fail to execute the Release and/or Discharge of Mortgage and to deliver the same together with the documents of ownership and TCT No. T-78070 within ten (10) days from the finality of this decision, the court shall order the Clerk of Court to execute the said Release and/or Discharge of Mortgage and shall order the cancellation of TCT No. T-78070 and the issuance of a second owner’s copy thereof.

                SO ORDERED.[30][20]

 

 

            Pag-ibig filed a motion for reconsideration on the sole ground that “[Pag-ibig] should not be compelled to release the title to x x x [respondent-spouses] See because Manuel Arimado [has] yet to deliver to [Pag-ibig] the sum of P272,000.00.”[31][21]

            The trial court denied the motion on March 15, 2002.  It explained that the parties’ compromise agreement duly authorized the court to rule on Pag-ibig’s liability to respondent-spouses despite Sheriff Arimado’s non-remittance of the proceeds of the auction.[32][22]

            Pag-ibig received the denial of its motion for reconsideration on March 22, 2002[33][23] but took no further action.  Hence, on April 23, 2002, the trial court issued a writ of execution of its February 21, 2002 Decision.[34][24]

            On May 24, 2002,[35][25] Pag-ibig filed before the CA a Petition for Certiorari under Rule 65 in order to annul and set aside the February 21, 2002 Decision of the trial court.  Pag-ibig argued that the February 21, 2002 Decision, which ordered Pag-ibig to deliver the title to respondent-spouses despite its non-receipt of the proceeds of the auction, is void because it modified the final and executory Decision dated October 31, 2001.[36][26]  It maintained that the October 31, 2001 Decision already held that Pag-ibig will deliver its title to respondent-spouses only upon receipt of the proceeds of the auction from Sheriff Arimado.  Since Sheriff Arimado did not remit the said amount to Pag-ibig, the latter has no obligation to deliver the title to the auctioned property to respondent-spouses.[37][27] 

            Further, Pag-ibig contended that the February 21, 2002 Decision was null and void because it was issued without affording petitioner the right to trial.[38][28]  

Ruling of the Court of Appeals[39][29]

 

 

            The CA denied the petition due course.  The CA noted that petitioner’s remedy was to appeal the February 21, 2002 Decision of the trial court and not a petition for certiorari under Rule 65.  At the time the petition was filed, the Decision of the trial court had already attained finality.  The CA then held that the remedy of certiorari was not a substitute for a lost appeal.[40][30] 

            The CA also ruled that petitioner’s case fails even on the merits.  It held that the February 21, 2002 Decision did not modify the October 31, 2001 Decision of the trial court.  The latter Decision of the trial court expressly declared that in case Sheriff Arimado fails to pay the P272,000.00 to Pag-ibig, the court will resolve the remaining issue regarding Pag-ibig’s obligation to deliver the title to the respondent-spouses.[41][31] 

            As  to  the  contention that petitioner  was  denied due process when no trial was conducted for the reception of evidence, the CA held that there was no need for the trial court to conduct a full-blown trial given that the facts of the case were already admitted by Pag-ibig and what was decided in the February 21, 2002 Decision was only a legal issue.[42][32]

            Petitioner filed a motion for reconsideration[43][33] which was denied for lack of merit in the Resolution dated October 26, 2005.[44][34]

Issues

 

            Petitioner then raises the following issues for the Court’s consideration:

            1.  Whether certiorari was the proper remedy;

            2.  Whether the February 21, 2002 Decision of the trial court modified its October 31, 2001 Decision based on the compromise agreement;

            3.  Whether petitioner was entitled to a trial prior to the rendition of the February 21, 2002 Decision.

 

 

Our Ruling

 

 

            Petitioner argues that the CA erred in denying due course to its petition for certiorari and maintains that the remedy of certiorari is proper for two reasons:  first, the trial court rendered its February 21, 2002 Decision without the benefit of a trial; and second, the February 21, 2002 Decision modified the October 31, 2001 Decision, which has already attained finality. These are allegedly two recognized instances where certiorari lies to annul the trial court’s Decision because of grave abuse of discretion amounting to lack of jurisdiction.[45][35] 

            The argument does not impress.

            “[C]ertiorari is a limited form of review and is a remedy of last recourse.”[46][36]  It is proper only when appeal is not available to the aggrieved party.[47][37]  In the case at bar, the February 21, 2002 Decision of the trial court was appealable under Rule 41 of the Rules of Court because it completely disposed of respondent-spouses’ case against Pag-ibig.  Pag-ibig does not explain why it did not resort to an appeal and allowed the trial court’s decision to attain finality.  In fact, the February 21, 2002 Decision was already at the stage of execution when Pag-ibig belatedly resorted to a Rule 65 Petition for Certiorari.  Clearly, Pag-ibig lost its right to appeal and tried to remedy the situation by resorting to certiorari.  It is settled, however, that certiorari is not a substitute for a lost appeal, “especially if the [party’s] own negligence or error in [the] choice of remedy occasioned such loss or lapse.”[48][38] 

            Moreover, even assuming arguendo that a Rule 65 certiorari could still be resorted to, Pag-ibig’s petition would still have to be dismissed for having been filed beyond the reglementary period of 60 days from notice of the denial of the motion for reconsideration.[49][39]  Pag-ibig admitted receiving the trial court’s Order denying its Motion for Reconsideration on March 22, 2002;[50][40] it thus had until May 21, 2002 to file its petition for certiorari.  However, Pag-ibig filed its petition only on May 24, 2002,[51][41] which was the 63rd day from its receipt of the trial court’s order and obviously beyond the reglementary 60-day period. 

            Pag-ibig stated that its petition for certiorari was filed “within sixty (60) days from receipt of the copy of the writ of execution by petitioner [Pag-ibig] on 07 May 2002,” which writ sought to enforce the Decision assailed in the petition.[52][42]  This submission is beside the point.  Rule 65, Section 4 is very clear that the reglementary 60-day period is counted “from notice of the judgment, order or resolution” being assailed, or “from notice of the denial of the motion [for reconsideration],” and not from receipt of the writ of execution which seeks to enforce the assailed judgment, order or resolution.  The date of Pag-ibig’s receipt of the copy of the writ of execution is therefore immaterial for purposes of computing the timeliness of the filing of the petition for certiorari.

            Since Pag-ibig’s petition for certiorari before the CA was an improper remedy and was filed late, it is not even necessary to look into the other issues raised by Pag-ibig in assailing the February 21, 2002 Decision of the trial court and the CA’s rulings sustaining the same.  At any rate, Pag-ibig’s arguments on these other issues are devoid of merit.

            As to Pag-ibig’s argument that the February 21, 2002 Decision of the RTC is null and void for having been issued without a trial, it is a mere afterthought which deserves scant consideration.  The Court notes that Pag-ibig did not object to the absence of a trial when it sought a reconsideration of the February 21, 2002 Decision.  Instead, Pag-ibig raised the following lone argument in their motion:

            3.  Consequently, [Pag-ibig] should not be compelled to release the title to other [respondent-spouses] See because Manuel Arimado [has] yet to deliver to [Pag-ibig] the sum of P 272,000.00.[53][43]            

 

           

Under the Omnibus Motion Rule embodied in Section 8 of Rule 15 of the Rules of Court, all available objections that are not included in a party’s motion shall be deemed waived. 

            Pag-ibig next argues that the February 21, 2002 Decision of the trial court, in ordering Pag-ibig to release the title despite Sheriff Arimado’s failure to remit the P272,000.00 to Pag-ibig, “modified” the October 31, 2001 Decision.  According to Pag-ibig, the October 31, 2001 Decision allegedly decreed that Pag-ibig would deliver the title to respondent-spouses only after Sheriff Arimado has paid the P272,000.00.[54][44]  In other words, under its theory, Pag-ibig cannot be ordered to release the title if Sheriff Arimado fails to pay the said amount.

            The Court finds no merit in this argument.  The October 31, 2001 Decision (as well as the Compromise Agreement on which it is based) does not provide that Pag-ibig cannot be ordered to release the title if Sheriff Arimado fails to pay.  On the contrary, what the Order provides is that if Sheriff Arimado fails to pay, the trial court shall litigate (and, necessarily, resolve) the issue of whether Pag-ibig is obliged to release the title.  This is based on paragraph 6 of the Compromise Agreement which states that in the event Sheriff Arimado fails to pay, “the [respondent-spouses] shall be entitled to an immediate writ of execution without further notice to [Sheriff] Arimado and the issue as to whether [Pag-ibig] shall be liable for the release of the title to [respondent spouses] under the circumstances or allegations narrated in the complaint shall continue to be litigated upon in order that the Honorable Court may resolve the legality of said issue.”  In fact, the trial court, in its October 31, 2001 Decision, already set the hearing of the same “on December 14, 2001 at 9:00 o’clock in the morning.”[55][45]

 

                It is thus clear from both the October 31, 2001 Decision and the Compromise Agreement that the trial court was authorized to litigate and resolve the issue of whether Pag-ibig should release the title upon Sheriff Arimado’s failure to pay the P272,000.00.  As it turned out, the trial court eventually resolved the issue against Pag-ibig, i.e., it ruled that Pag-ibig is obliged to release the title.  In so doing, the trial court simply exercised the authority provided in the October 31, 2001 Decision (and stipulated in the Compromise Agreement).  The trial court did not thereby “modify” the October 31, 2001 Decision.

            WHEREFORE, premises considered, the petition is DENIED. The assailed August 31, 2005 Decision, as well as the October 26, 2005 Resolution,  of  the Court of Appeals in CA-G.R. SP No. 70828 are AFFIRMED.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

  

WE CONCUR:

 

RENATO C. CORONA

Chief Justice

Chairperson

 

 

 

 

TERESITA J. LEONARDO-DE CASTRO  

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

 

 

JOSE CATRAL MENDOZA

Associate Justice

 

 

 

C E R T I F I C A T I O N

 

            Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

                                                            Chief Justice



[1][43]         Id. at 23-24.

[2][44] Petition in CA-G.R. SP No. 70828, p. 8; id. at 40.

[3][45]Id.at 17.

[4][36]          Heirs of Lourdes Padilla v. Court of Appeals, 469 Phil. 196, 204 (2004).

[5][37]          Rules of Court, Rule 41, Section 1, in relation to Rule 65, Section 1. 

[6][38]          David v. Cordova, 502 Phil. 626, 638 (2005).

[7][39]          Rules of Court, Rule 65, Section 4.

[8][40]          Petition in CA-G.R. SP No. 70828, p. 3; CA rollo, p. 35.

[9][41]          Petitioner’s Memorandum, p. 7; rollo, p. 158.

[10][42]         Petition in CA-G.R. SP No. 70828, p. 4; CA rollo, p. 36.

     Per Special Order No. 1022 dated June 10, 2011.

[11][1]          Rollo, pp. 9-29.

[12][2]         Id. at 30-35; penned by Associate Justice Estela M. Perlas-Bernabe and concurred in by Associate Justices Elvi John S. Asuncion and Hakim S. Abdulwahid.

[13][3]         Id. at 36.

[14][4]          CA Decision, p. 5; id. at 34.

[15][5]          The mortgaged property was covered by Transfer Certificate of Title No. 78070 and more particularly described as follows:

                A parcel of land (Lot 2583-C of the subdivision plan) situated in the barrio of Tagas, Municipalityof Daraga, Albay; bounded on the E., by Calle Sto. Domingo; on the S., by Lot 2583-B; on the W., by Lot 2583-D and on the N., by Lot2583-E x x x containing an area of Two Hundred Fifty Three (253) sq. m. (RTC Decision dated October 31, 2001, p. 2; CA rollo, p. 16.)

[16][6]          Complaint, pp. 1-2; rollo, pp. 37 and 42.

[17][7]         Id. at 3; id. at 38.

[18][8]          Answer, pp. 2-3; id. at 44-45.

[19][9]          RTC Decision dated February 21, 2002, p. 1; CA rollo, p. 19.

[20][10]         Complaint, pp. 3-5; rollo, pp. 38-40.

[21][11]        Id. at 5-6; id. at 40-41.

[22][12]         Paragraph 3 of the Answer, p. 1; id. at 43.

[23][13]         Paragraphs 4 and 5 of the Answer, pp. 1-2; id. at 43-44.

[24][14]         Paragraph 8 of the Answer, p. 2; id. at 44.

[25][15]         Answer, pp. 2-3; id. at 44-45.

[26][16]         RTC Decision dated October 31, 2001, pp. 1-2; CA rollo, pp. 15-16.

[27][17]        Id. at 3-4; id. at 17-18; penned by Judge Wenceslao R. Villanueva, Jr.

[28][18]         Order dated February 21, 2002, id. at 55.

[29][19]         RTC Decision dated February 21, 2002, id. at 19-22; penned by Judge Vladimir B. Brusola.

[30][20]        Id. at 22.

[31][21]         Motion for Reconsideration, id. at 23-24.

[32][22]         Order dated March 15, 2002, id. at 27.

[33][23]         CA Petition, p. 3; id. at 35.

[34][24]        Id. at 13-14.

[35][25]         Petitioner’s Memorandum p. 7; rollo, p. 158.

[36][26]         CA Petition, p. 7; CA rollo, p. 39.

[37][27]        Id. at 5-7; id. at 37-39.

[38][28]        Id. at 8; id. at 40.

[39][29]         Rollo, pp. 30-35.

[40][30]         CA Decision, pp. 4-5; id. at 33-34.

[41][31]        Id. at 5; id. at 34.

[42][32]        Id.; id.

[43][33]         CA rollo, pp. 366-384.

[44][34]         Rollo, p. 36.

[45][35]         Petitioner’s Memorandum, pp. 15-17; id. at 166-168.

[46][36]         Heirs of Lourdes Padilla v. Court of Appeals, 469 Phil. 196, 204 (2004).

[47][37]         Rules of Court, Rule 41, Section 1, in relation to Rule 65, Section 1. 

[48][38]         David v. Cordova, 502 Phil. 626, 638 (2005).

[49][39]         Rules of Court, Rule 65, Section 4.

[50][40]         Petition in CA-G.R. SP No. 70828, p. 3; CA rollo, p. 35.

[51][41]         Petitioner’s Memorandum, p. 7; rollo, p. 158.

[52][42]         Petition in CA-G.R. SP No. 70828, p. 4; CA rollo, p. 36.

[53][43]        Id. at 23-24.

[54][44]         Petition in CA-G.R. SP No. 70828, p. 8; id. at 40.

[55][45]        Id. at 17.

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