Remedial Law Review 1 || Rule 39, Execution of Judgment

[G.R. No. 132592. January 23, 2002]

AIDA P. BAEZ, petitioner, vs. GABRIEL B. BAEZ, respondent.[G.R. No. 133628. January 23, 2002]

AIDA P. BAEZ, petitioner, vs. GABRIEL B. BAEZ, respondent.D E C I S I O N

QUISUMBING, J.:

These two petitions stem from the decision[1] dated September 23, 1996 of the Regional Trial Court of Cebu, Branch 20, in Civil Case No. CEB-16765. The first[2] seeks the reversal of the Court of Appeals decision dated March 21, 1997, setting aside the orders dated October 1 and November 22, 1996 of the Regional Trial Court. The second[3] prays for the reversal of the resolution dated February 10, 1998, of the Court of Appeals in CA-G.R. No. CV-56265, denying the motion to dismiss.

The antecedent facts, as gathered from the parties pleadings, are as follows:

On September 23, 1996, the Regional Trial Court of Cebu, Branch 20, decided Civil Case No. CEB-16765, decreeing among others the legal separation between petitioner Aida Baez and respondent Gabriel Baez on the ground of the latters sexual infidelity; the dissolution of their conjugal property relations and the division of the net conjugal assets; the forfeiture of respondents one-half share in the net conjugal assets in favor of the common children; the payment to petitioners counsel of the sum of P100,000 as attorneys fees to be taken from petitioners share in the net assets; and the surrender by respondent of the use and possession of a Mazda motor vehicle and the smaller residential house located at Maria Luisa Estate Park Subdivision to petitioner and the common children within 15 days from receipt of the decision.

Thereafter, petitioner filed an urgent ex-parte motion to modify said decision, while respondent filed a Notice of Appeal.

The trial court granted petitioner Aida Banez urgent ex-parte motion to modify the decision on October 1, 1996 by approving the Commitment of Fees dated December 22, 1994; obliging petitioner to pay as attorneys fees the equivalent of 5% of the total value of respondents ideal share in the net conjugal assets; and ordering the administrator to pay petitioners counsel, Atty. Adelino B. Sitoy, the sum of P100,000 as advance attorneys fees chargeable against the aforecited 5%.[4]

In another motion to modify the decision, petitioner Aida Baez sought moral and exemplary damages, as well as litigation expenses. On October 9, 1996, she filed a motion for execution pending appeal. Respondent Gabriel Baez filed a consolidated written opposition to the two motions, and also prayed for the reconsideration of the October 1, 1996 order.

On November 22, 1996, the trial court denied Aidas motion for moral and exemplary damages and litigation expenses but gave due course to the execution pending appeal. Thus:

WHEREFORE, in view of all the foregoing premises, the petitioners motion to modify decision is hereby ordered denied. But, petitioners motion for execution of decision pending appeal is hereby granted. Consequently, let a writ of execution be issued in this case to enforce the decision for (1) respondent to vacate the premises of the small residential house situated in Maria Luisa Estate Park Subdivision, Lahug, Cebu City and for (2) respondent to surrender the use and possession of said Mazda motor vehicle together with its keys and accessories thereof to petitioner.

Atty. Edgar Gica, the Special Administrator, appointed in this case, is hereby ordered to make the necessary computation of the value of the one-half (1/2) share of petitioner in the net remaining conjugal assets of the spouses within 10 days from receipt of this order.

The petitioner is hereby ordered to post a bond in the amount of P1,500,000.00 to answer for all the damages that respondent may suffer arising from the issuance of said writ of execution pending appeal and to further answer for all the advances that petitioner may have received from the Special Administrator in this case pending final termination of this present case.[5]

In turn, in a petition for certiorari, Gabriel Baez elevated the case to the Court of Appeals. On March 21, 1997, the appellate court rendered its decision, thus:

WHEREFORE, the Order dated October 1, 1996 and the Omnibus Order dated November 22, 1996, insofar as (1) it authorized the release of the sum of P100,000.00 to private respondents counsel as the advanced share of private respondent [Aida Baez] in the net remaining conjugal assets, and (2) granted the motion for execution pending appeal by ordering petitioner [Gabriel Baez] to vacate the premises of the small residential house situated in Maria Luisa Estate Park Subdivision, Lahug, Cebu City, and to surrender the use and possession of the Mazda Motor vehicle to private respondent are hereby SET ASIDE. The writ of execution dated December 2, 1996 and the Order dated December 10, 1996 granting the motion filed by the sheriff to make symbolic delivery of the subject house and motor vehicle to the administrator of the partnership are also SET ASIDE.

As prayed for by petitioner, the Administrator of the conjugal partnership is hereby ordered to cause the reimbursement by counsel for the private respondent [Aida Baez] of the amount of P100,000.00 released to him as advance payment of attorneys fees.

SO ORDERED.[6]

On February 10, 1998, the Court of Appeals denied Aidas motion for reconsideration. Hence, the petition in G.R. No. 132592, filed by herein petitioner.

In the meantime, the trial court gave due course to Gabriels Notice of Appeal and elevated on April 15, 1997 the entire case records to the Court of Appeals. Aida filed with the Court of Appeals a motion to dismiss the appeal on the ground that Gabriel had failed to file with the appellate court a Record on Appeal. On February 10, 1998, the Court of Appeals decided the motion, thus:

WHEREFORE, premises considered, the petitionerappellants motion to dismiss filed on November 3, 1997 is hereby DENIED. The appointment of the petitioner-appellee as administratix of the conjugal properties is hereby AFFIRMED.

In view of petitioners Motion to Withdraw her own appeal filed on November 27, 1997, and for failing to pay the required docket fee within the prescribed period under Rule 41, Section 4 of the 1997 Rules of Civil Procedure, the appeal instituted by the petitioner Aida P. Baez is hereby DISMISSED.

In continuance of the appeal of respondent-appellant [Gabriel Baez], he is hereby ordered to file his brief with the court within 45 days from receipt of this resolution. The petitioner-appellee [Aida Baez] shall file her own brief with the court within 45 days from receipt of the petitioner-appellants [Gabriel Baez] brief.

SO ORDERED.[7]

The appellate court also denied herein petitioners motion for reconsideration, hence, the petition in G.R. No. 133628.

On January 19, 2000, we consolidated the two petitions. Petitioner Aida Baez now avers that the Court of Appeals erred:

I. G.R. No. 132592

... IN SETTING ASIDE THE GRANT OF EXECUTION PENDING APPEAL BY THE TRIAL COURT OF THE PORTIONS OF ITS DECISION ORDERING RESPONDENT TO VACATE THE SMALLER RESIDENTIAL HOUSE LOCATED AT THE MARIA LUISA ESTATE PARK SUBDIVISION, CEBU CITY, AND TO PAY P100,000.00 TO PETITIONERS COUNSEL AS ATTORNEYS FEES TO BE TAKEN FROM HER SHARE IN THE NET CONJUGAL ASSETS.[8]

II. G.R. No. 133628:

... IN NOT GRANTING PETITIONERS MOTION TO DISMISS RESPONDENTS ORDINARY APPEAL AND/OR NOT RETURNING THE RECORDS OF CIVIL CASE NO. CEB-16765 TO THE REGIONAL TRIAL COURT OF CEBU.[9]

In G.R. No. 132592, petitioner manifested that she no longer questions the Court of Appeals decision on the Mazda vehicle because respondent repossessed it. As to the residential house, she claimed that being conjugal in nature, justice requires that she and her children be allowed to occupy and enjoy the house considering that during the entire proceedings before the trial court, she did not have the chance to occupy it. Further, she posted a bond of P1,500,000 for the damages which respondent may suffer.[10] For these reasons, she asked for execution pending appeal. The amount of P100,000 as advance payment to her counsel was a drop in the bucket compared to the bond she posted, according to her. She also suggested as an alternative that she simply be required to put up an additional bond. She also agreed to submit to an accounting as regular administratrix and the advance attorneys fees be charged to her share in the net conjugal assets.

In his comment, respondent denied petitioners allegation that she did not have the chance to occupy the residential house. He averred that she could have, had she chosen to. According to him, as the inventory of the couples properties showed, petitioner owned two houses and lots and two motor vehicles in the United States, where she is a permanent resident. Respondent contended that there was no compelling reason for petitioner to have the judgment executed pending appeal.

Essentially, the core issue in G.R. No. 132592 is whether execution of judgment pending appeal was justified.

As held in Echaus vs. Court of Appeals, 199 SCRA 381, 386 (1991), execution pending appeal is allowed when superior circumstances demanding urgency outweigh the damages that may result from the issuance of the writ. Otherwise, instead of being an instrument of solicitude and justice, the writ may well become a tool of oppression and inequity.[11]

In this case, considering the reasons cited by petitioner, we are of the view that there is no superior or urgent circumstance that outweighs the damage which respondent would suffer if he were ordered to vacate the house. We note that petitioner did not refute respondents allegations that she did not intend to use said house, and that she has two (2) other houses in the United States where she is a permanent resident, while he had none at all. Merely putting up a bond is not sufficient reason to justify her plea for execution pending appeal. To do so would make execution routinary, the rule rather than the exception.[12]

Similarly, we are not persuaded that the P100,000 advance payment to petitioners counsel was properly granted. We see no justification to pre-empt the judgment by the Court of Appeals concerning said amount of P100,000 at the time that the trial courts judgment was already on appeal.

In G.R. No. 133628, petitioner Aida Baez contends that an action for legal separation is among the cases where multiple appeals may be taken. According to her, the filing of a record on appeal, pursuant to Section 2(a), Rule 41 of the Rules of Court,[13] is required in this case. She concludes that respondents appeal should have been dismissed for his failure to file the record on appeal within the reglementary period, as provided under Section 1-b, Rule 50 of the Rules of Court.[14]

Petitioner likewise prays that, in the event that we do not dismiss Gabriel Baez appeal, we should direct the appellate court to return the records of the case to the RTC of Cebu. Thereafter, according to her, respondent should file his record on appeal for approval and transmittal to the Court of Appeals. In the alternative, she prays that the appellate court retain only the pleadings and evidence necessary to resolve respondents appeal pursuant to Section 6, Rule 44[15] and Section 6, Rule 135[16] of the Rules of Court, and return the rest of the case records to the RTC.

In turn, respondent argues that Section 39 of B.P. 129[17] expressly abolished the requirement of a record on appeal, except in appeals in special proceedings in accordance with Rule 109,[18] and other cases wherein multiple appeals are allowed. An action for legal separation, he avers, is neither a special proceeding nor one where multiple appeals are allowed.

Now, is an action for legal separation one where multiple appeals are allowed? We do not think so.

In Roman Catholic Archbishop of Manila v. Court of Appeals, 258 SCRA 186, 194 (1996), this Court held:

xxx Multiple appeals are allowed in special proceedings, in actions for recovery of property with accounting, in actions for partition of property with accounting, in the special civil actions of eminent domain and foreclosure of mortgage. The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final.

In said case, the two issues raised by therein petitioner that may allegedly be the subject of multiple appeals arose from the same cause of action, and the subject matter pertains to the same lessor-lessee relationship between the parties. Hence, splitting the appeals in that case would only be violative of the rule against multiplicity of appeals.

The same holds true in an action for legal separation. The issues involved in the case will necessarily relate to the same marital relationship between the parties. The effects of legal separation, such as entitlement to live separately, dissolution and liquidation of the absolute community or conjugal partnership, and custody of the minor children, follow from the decree of legal separation.[19] They are not separate or distinct matters that may be resolved by the court and become final prior to or apart from the decree of legal separation. Rather, they are mere incidents of legal separation.[20] Thus, they may not be subject to multiple appeals.

Petitioners alternative prayers that in case we do not dismiss the appeal, we return the records to the trial court and require respondent to file a record on appeal, or we return the records to the trial court and retain only the pleadings and orders relevant to the appeal, are untenable. If we grant the first, we are effectively saying that the instant case is one involving multiple appeals, which it is not. If we allow the second, we are effectively applying by analogy, Section 6, Rule 44 and Section 6, Rule 135 of the Rules of Court, without petitioner showing support therefor in law or jurisprudence.[21]

WHEREFORE, the instant petitions are DENIED for lack of merit. The decision and resolution of the Court of Appeals in CA-G.R. SP No. 42663 and CA-G.R. No. CV-56265, respectively, are hereby AFFIRMED, so that the Order dated October 1, 1996, of the Regional Trial Court authorizing the release of P100,000 to petitioners counsel; the Omnibus Order dated November 22, 1996 granting the motion pending appeal; the writ of execution dated December 2, 1996; and the Order dated December 10, 1996 granting the motion by the sheriff to make symbolic delivery of the house and vehicle are SET ASIDE. Further, the Administrator of the conjugal partnership is ORDERED to cause the reimbursement by petitioners counsel of the released amount of P100,000. The Court of Appeals is hereby DIRECTED to give due course to respondents appeal, and the Division Clerk of Court of this Court is likewise DIRECTED to promptly remand the record of these cases to the Court of Appeals.

Costs against petitioner.

SO ORDERED.

A.M. No. P-02-1535 March 28, 2003FERNANDO FAJARDO, complainant, vs.SHERIFF RODOLFO V. QUITALIG, Municipal Trial Court in Cities, San Carlos City, Pangasinan, respondent.

PANGANIBAN, J.:As frontline officials of the justice system, sheriffs must always strive to maintain public trust in the performance of their duties. Hence, they must see to it that the final stage in the litigation process is completed without unnecessary delay.

The Case and the FactsIn a Sworn Complaint1 dated April 11, 2000, Sheriff Rodolfo V. Quitalig of the Municipal Trial Court in Cities (MTCC) of San Carlos City was charged by Reverend Fernando Fajardo with conduct prejudicial to the best interest of the service and/or dereliction of duty.

The factual antecedents of the case are summarized by the Office of the Court Administrator (OCA) as follows:

"Complainant, who is one of the plaintiffs in [Civil Case No. MTCC-2266 entitled Spouses Fernando Fajardo and Evangeline Perez vs. Maria Datuin], alleged that the complaint for ejectment which they filed on July 17, 1997 was finally decided on July 29, 1999 against the defendant. The decision was appealed to the Regional Trial Court but it was dismissed on November 29, 1999, and the decision became final and executory. His lawyer filed a Motion for Execution, and on March 7, 2000, the Court issued a Writ of Execution which was brought by the respondent Sheriff to the defendant Maria Datuin on March 9, 2000.

"Complainant claimed that after the Writ of Execution was served, defendant asked for a period of two (2) weeks for her to remove her personal properties on the land. After two (2) weeks he went to Sheriff Quitalig so that the Writ of Execution may be implemented but he was told that a restraining order was issued, but when he asked for it, the respondent told him that he left it in the office.

"Complainant stated that on March 24, 2000, he and his lawyer went to the court to verify whether a restraining order has really been issued but they found out that there was none; so he told the respondent to implement the Writ of Execution. Respondent, accompanied by a policeman and the barangay captain went to the place where the Writ of Execution is to be implemented at 10:00 that morning but when they reached the place, respondent did not do anything except to ask the defendant to bring out her personal properties. His reason is that an employee of the Probation Office, Mr. Leonardo Martinez, talked to him. At 5:30 p.m., the restraining order was brought to the place, and the respondent told him that the writ of execution can no longer be implemented.

"Complainant asserted that respondent favored, or showed partiality in favor of the defendant to his prejudice."2In his Comment3 dated October 3, 2000, respondent denied the charge. He asked for the dismissal of the case, because he had already implemented the Writ on August 24, 2000 as evidenced by his August 25, 2000 Report of Service.4 He also pointed out that he had made an inventory of the personal properties recovered from the subject premises. That he had done so was attested to by defendants mother, Rufina Datuin, and witnessed by the barangay captain and two councilors.

The OCAs Finding and RecommendationIn its October 29, 2001 Report,5 the OCA found respondent to have been negligent in the performance of his duty as a sheriff. It said thus:

"Respondent was negligent in the performance of his duty as sheriff. The Writ of Execution was issued on March 7, 2000, and was served on the judgment obligor on March 9, 2000. Respondent admitted that the judgment obligor promised to vacate the premises on March 29, 2000, but he was not able to implement the Writ of Execution because on March 24, 2000, RTC, Branch 56, San Carlos, Pangasinan issued a Temporary Restraining Order. The Temporary Restraining Order did not ripen into an injunction so it lapsed after twenty (20) days from the date it was issued, but the Writ of Execution was implemented only [on] August 24, 2000 which is more than four (4) months from the date the restraining order lapsed. It is the duty of the sheriff to enforce a writ of execution without delay once it is given to him unless restrained.

"The Writ of Execution was finally and/or implemented only on August 24, 2000, as shown in the Report submitted by the respondent in court. Complainant claimed that the respondent was reluctant to implement the Writ of Execution because a certain Leonardo Martinez intervened. This allegation of the complainant was not denied by the respondent in his Comment. Respondent just stated in his Comment that he implemented the Writ of Execution on August 24, 2000, and made inventory of the personal properties pulled out form the building and signed by defendants mother and Barangay Captain Nestor Poquiz. Respondents deliberate refusal to traverse or refute the charges is an admission that the allegations are true and he cannot deny them."6 (Citation omitted)

The OCA recommended that respondent be ordered to pay a fine of P5,000 and warned that a repetition of the same or a similar offense would be dealt with more severely.7This Courts RulingWe agree with the OCAs findings and recommendation.

Respondents Administrative LiabilityAs frontline officials of the justice system, sheriffs must always strive to maintain public trust in the performance of their duties. Having the forsworn duty to uphold the majesty of the law, they must see to it that the final stage in the litigation process is carried out without unnecessary delay.8A review of the records of this case reveals that respondent enforced the Writ of Execution dated March 7, 2000 only on August 24, 2000, as shown by his August 25, 2000 Report of Service. Within 30 days from receipt thereof and every 30 days thereafter until the judgment is fully satisfied, a sheriff is required by the Rules of Court to render a report on the action taken on a writ of execution. Section 14 of Rule 39 of the Rules provides the manner in which the execution is to be implemented, as follows:

"SEC. 14. Return of Writ of Execution. The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty days (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefore. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties."

Evidently, respondent was not only remiss in his implementation of the Writ, but likewise derelict in his submission of the returns thereof.

Respondent should have immediately implemented and made a return of the Writ after duly serving it upon the defendant on March 9, 2000. Nonetheless, because of the request of the defendant and her promise that she would vacate the premises on March 23, 2000, he allowed her to remain there. However, when he came back on March 24, 2000, he was unable to enforce the Writ because of a TRO issued by the RTC of San Carlos, Pangasinan. He averred that he was finally able to execute the Writ on August 24, 2000 and to submit his Return thereof on the next day.

We find respondents explanation to be utterly wanting. He is guilty of dereliction of his duty as a sheriff, because he failed to (1) execute the Writ within 30 days from his receipt thereof, (2) submit his Report of Service within the same period, (3) make periodic reports to the MTCC until the judgment was fully satisfied, and (4) furnish the parties with copies of the Reports.

By his own words, respondent admitted his dereliction of duty. First, as we have said earlier, he should have immediately executed the Writ when he served it upon the defendant on March 9, 2000.

Second, he should have immediately reported to the MTCC that he was unable to enforce the Writ because another court had issued a TRO enjoining him from doing so. Third, he should have informed the parties, particularly the plaintiff or his counsel, about his inability to enforce the Writ. Fourth, he should have immediately enforced it twenty days after its issuance.

Fifth, he should have made periodic Reports to the MTCC until the judgment was fully satisfied and the parties furnished a copy thereof. Sixth, within thirty days from his receipt of the Writ, he should have promptly made his Return, a copy of which he should have immediately furnished the parties.

Clearly, the actuations of respondent constitute disrespect, if not outright defiance, of the MTCCs authority. In the absence of instructions to the contrary, a sheriff has the duty to execute a Writ with reasonable celerity and promptness in accordance with its mandate.

In several cases,9 the Court has said that the failure to make a return of a writ within the required period is nonfeasance. In Bautista v. De Castro,10 the provincial sheriff of Zambales and his deputy were suspended without pay for 30 and 15 days, respectively, for dereliction of duty. In Barola v. Abogatal,11 a sheriff who had received a writ of execution on January 15, 1978, but made a return thereof only on May 22, 1978, was fined a months salary. In Lapea v. Pamarang,12 a sheriff whose Return was four days late was fined P2,000.

Casal v. Concepcion Jr.13 ordered the dismissal of respondent sheriff from the service and the forfeiture of all his benefits, with prejudice to his reemployment in any branch or service of the government including government-owned and controlled corporations. After the lapse of two years from the issuance of the original Writ in a simple ejectment case, he not only failed to exert reasonable efforts to fully implement its subsequent issuances, but likewise failed to account for the amounts he got from complainant. Furthermore, he abandoned his work during the time that the charges against him were being investigated.

In Concerned Citizen v. Torio,14 the respondent therein was suspended for a year without pay when he failed to act promptly on the Writs of Execution issued from 1998-2001. And in Lumbre v. Dela Cruz,15 respondent, after being found guilty of an inexcusable seven-month delay in carrying out a lawful Writ of Execution was fined P5,000. Justifying the penalty, the Court said:

"When a writ of execution is placed in the hands of a sheriff, it is his duty, in the absence of contrary instructions, to have it implemented forthwith. The sheriff is primarily responsible for the speedy and efficient service of all court processes and writs originating from the court and its branches, including such as may be properly delegated to him by other courts. The delay of more than seven months, from the time the writ of execution was issued by the court on 07 August 1998 to the time when respondent sheriff posted the notice of sale or levy on 23 March 1999, is an inordinately long period for respondent to act thereon. The importance of the role played by all court personnel in the administration of justice is never to be taken lightly. It is the sheriffs particularly who are depended on, and who must properly attend to, the proper implementation of court decrees and orders, and they are expected to do so with utmost diligence and dispatch."16WHEREFORE, Sheriff Rodolfo V. Quitalig is found guilty of dereliction of duty and is ordered to pay a FINE of five thousand pesos (P5,000). Considering that he has already retired from the service, this amount is hereby ordered deducted from his retirement benefits.

SO ORDERED.

G.R. No. 155618 March 26, 2003EDGAR Y. SANTOS, petitioner, vs.COMMISSION ON ELECTIONS (FIRST DIVISION) and PEDRO Q. PANULAYA, respondents.

YNARES-SANTIAGO, J.:Petitioner Edgar Y. Santos and respondent Pedro Q. Panulaya were both candidates for Mayor of the Municipality of Balingoan, Misamis Oriental in the May 14, 2001 elections. On May 16, 2001, after the votes were counted and canvassed, the Municipal Board of Canvassers proclaimed respondent Panulaya as the duly elected Mayor.

Petitioner filed an election protest before the Regional Trial Court of Misamis Oriental, Branch 26, which was docketed as SPL Election Protest No. 1-M(2001). After trial and revision of the ballots, the trial court found that petitioner garnered 2,181 votes while respondent received only 2,105. Hence, on April 2, 2002, it rendered judgment as follows:

WHEREFORE, judgment is hereby rendered declaring and proclaiming protestant/petitioner Edgar Y. Santos as the duly elected Municipal Mayor of Balingoan, Misamis Oriental, in the mayoralty elections held on May 14, 2001 with the plurality of Seventy Six (76) votes over and above his protagonist-protestee Pedro Q. Panulaya setting aside as null and void the proclamation of protestee made by the Municipal Board of Canvassers on May 16, 2001, ordering to pay protestant/petitioner the costs and expenses that the latter incurred in this protest in accordance with Section 259 of the Omnibus Election Code of the Philippines (B.P. 881) and Section 7 of the COMELEC Resolution 1566, to wit:

xxx xxx xxx.

The Clerk of Court of this Court is hereby directed to furnish copy of the DECISION to the following: Office of the Commission on Elections (COMELEC); Office of the Commission on Audit; Office of the Department of Interior and Local Government; Office of the Sangguniang Panlalawigan of Misamis Oriental, in accordance with Section 15 of the COMELEC Resolution 1566.

SO ORDERED.1Petitioner thereafter filed a motion for execution pending appeal. Meanwhile, before the trial court could act on petitioners motion, respondent filed on April 22, 2002 with the Commission on Elections (COMELEC) a petition for certiorari, docketed as SPR No. 20-2002, assailing the decision of the trial court.2 Likewise on April 22, 2002, respondent appealed the trial courts decision to the COMELEC, where it was docketed as EAC No. A-12-2002.

The COMELEC, in SPR No. 20-2002, issued a Writ of Preliminary Injunction, which effectively enjoined the trial court from acting on petitioners motion for execution pending appeal. Subsequently, on August 19, 2002, the COMELEC dismissed SPR No. 20-2002 after finding that the trial court did not commit grave abuse of discretion in rendering the assailed judgment. Moreover, the COMELEC held that the remedy from the decision of the court a quo was to file a notice of appeal, which respondent precisely did in EAC No. A-12-2002. Hence, it directed the trial court to dispose of all pending incidents in SPL Election Protest No. 1-M(2001) with dispatch, to wit:

WHEREFORE, premises considered, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the instant petition for lack of merit.

ACCORDINGLY, the Writ of Preliminary Injunction issued on 16 May 2002, as well as the Order issued on 27 April 2002 by the Commission (First Division), are hereby set aside and lifted, respectively. The Court a quo is hereby directed to dispose with immediate dispatch all pending incidents in SPL Election Case No. 1-M (2001) entitled "Edgar Y. Santos, Petitioner/Protestant versus Pedro Q. Panulaya, Respondent/Protestee."

No pronouncement as to cost.

SO ORDERED. (italics ours)3Thus, on August 20, 2002, the trial court issued an Order as follows:

WHEREFORE, premises considered, this Court hereby upholds and approves the Motion for Execution Pending Appeal. Further, finding good reasons therefor, the Court hereby directs and orders the immediate execution of the Decision promulgated on April 18, 2002, and as prayed for install protestant/petitioner EDGAR Y. SANTOS as the duly elected Mayor of Balingoan, Misamis Oriental, to take his oath of office and assume the functions and duties of Mayor after he shall have filed a bond of One Hundred Thousand Pesos (P100,000.00).

SO ORDERED.4After petitioner posted the required bond, the trial court issued the Writ of Execution,5 thereby installing petitioner as Municipal Mayor of Balingoan, Misamis Oriental. Accordingly, petitioner took his oath of office and thereafter assumed the duties and functions of his office.

On August 21, 2002, respondent filed with the COMELEC a motion for reconsideration of the dismissal of his petition in SPR No. 20-2002.6 After five days, or on August 26, 2002, he filed a supplemental petition in SPR No. 20-2002,7 wherein he prayed:

WHEREFORE, foregoing premises considered, petitioner [herein respondent] respectfully prays unto this Honorable Commission that the following Orders of the public respondent:

1. Resolution dated 20 August 2002;

2. Order dated 20 August 2002;

3. Writ of execution dated 21 August 2002;

Be nullified and set aside.

It is further prayed that in the event that the public respondent has carried out its Order of ousting petitioner [herein respondent] from his position as Mayor of Balingoan, Misamis Oriental, that the same be nullified and considered of no legal effect. It is likewise prayed that a STATUS QUO ANTE ORDER be issued by the Honorable Commission in order to reinstate the petitioner to his rightful position as Mayor of Balingoan, Misamis Oriental.

Other reliefs, just and equitable are likewise prayed for.8Barely two days later, on August 28, 2002, and while his motion for reconsideration and supplemental petition in SPR No. 20-2002 were pending, respondent filed another petition with the COMELEC, docketed as SPR No. 37-2002.9 The petition contained the same prayer as that in the supplemental petition filed in SPR 20-2002, viz:

WHEREFORE, foregoing premises considered, petitioner [herein respondent] respectfully prays unto this Honorable Commission that immediately upon the filing of the herein petition, the following Orders of the public respondent:

1. Resolution dated 20 August 2002;

2. Order dated 20 August 2002;

3. Writ of execution dated 21 August 2002;

Be nullified and set aside.

Pending trial and final judgment, and soon after the issuance, but during the effectivity of the Temporary Restraining Order, a Writ of Preliminary Injunction be issued prohibiting, restraining and/or enjoining the public respondent from further implementing the highly unjust, irregular and oppressive Orders above-quoted;

It is further prayed that in the event that the public respondent has carried out its Order of ousting petitioner [herein respondent] from his position as Mayor of Balingoan, Misamis Oriental, that the same be nullified and considered of no legal effect. It is likewise prayed that a STATUS QUO ANTE ORDER be issued by the Honorable Commission in order to reinstate the petitioner to his rightful position as Mayor of Balingoan, Misamis Oriental.

Upon due notice and hearing, judgment be rendered in favor of the petitioner [herein respondent] and against the respondent [herein petitioner] as follows:

1. Making the Writ of Preliminary Prohibitory Injunction permanent;

2. Declaring Resolution dated 20 August 2002, Order dated 20 August 2002, and Writ of Execution dated 21 August 2002; as null and void for being highly unjust, irregular and oppressively prepared in utter violation of the Constitutional provisions on equal protection of the laws and due process, and for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction.

3. A writ of Prohibition be issued specifically commanding public respondent to cease and desist from further implementing the highly unjust, irregular and oppressive Orders above-mentioned are concerned (sic); and

4. Ordering the respondents to pay the costs of suit.

Such other reliefs and remedies, as are just and equitable in the premises, are likewise prayed for.10On September 3, 2002, the COMELEC issued the assailed Order directing the parties to maintain the status quo ante and enjoining petitioner from assuming the functions of Mayor. Pertinent portion of the Order reads:

In the interest of justice and so as not to render moot and academic the issues raised in the petition, the Commission (First Division) hereby directs the parties to maintain the status quo ante, which is the condition prevailing before the issuance and implementation of the questioned Order of the court a quo dated August 20, 2002 and the Writ of Execution issued pursuant thereto dated August 21, 2002, in SPL. ELECTION CASE NO. 1-M (2001) entitled "EDGAR Y. SANTOS versus PEDRO Q. PANULAYA." Accordingly, effective immediately, private respondent EDGAR Y. SANTOS is hereby ordered to cease and desist from assuming the duties and functions of the office of Mayor of Balingoan, Misamis Oriental until further orders from this Commission.11Petitioner filed a motion for reconsideration of the above Order. However, the COMELEC First Division did not refer the said motion to the COMELEC En Banc. Hence, petitioner, citing our ruling in Kho v. COMELEC,12 brought the instant special civil action for certiorari with this Court.

Meanwhile, on September 9, 2002, petitioner filed an "Omnibus Motion (1) To Dissolve The Status Quo Order As It Was Based On An Unverified And Dismissed Petition With Pending Motion For Reconsideration; And (2) To Refer This Motion To The Commission En Banc Under Section 2, Rule 3 of the COMELEC Rules of Procedure."13 On October 14, 2002, the COMELEC issued a Resolution in SPR No. 37-2002, the dispositive portion of which states:

WHEREFORE, premises considered, the Petition is hereby GRANTED. Accordingly, the August 20, 2002 Resolution of the respondent judge granting the Motion for Execution Pending Appeal as well as his Order also dated August 20, 2002 directing the issuance of the Writ of Execution and his Writ of Execution dated August 21, 2002 are hereby set aside. Private Respondent Edgar Y. Santos is enjoined from assuming the function of mayor of Balingoan, Misamis Oriental until the final determination of the election appeal case.

This resolution shall be immediately executory.

The Department of Interior and Local Government (DILG) is hereby requested to assist in the peaceful and orderly implementation of this Resolution.

SO ORDERED.14The petition is impressed with merit.

It is at once apparent from the records, as shown above, that respondent was guilty of forum-shopping when he instituted SPR No. 37-2002 with the COMELEC. Forum-shopping is an act of a party against whom an adverse judgment or order has been rendered in one forum of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. For it to exist, there should be (a) identity of parties, or at least such parties as would represent 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 of the two preceding particulars such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.15In the case at bar, respondent obtained an adverse decision when his petition in SPR No. 20-2002 was dismissed by the COMELEC. He thereafter filed a motion for reconsideration and a supplemental petition, praying for the nullification of the trial courts order for the execution of its decision pending appeal. Two days after filing the supplemental petition, and while the same was very much pending before the COMELEC, he filed a wholly separate petition for certiorari, docketed as SPR No. 37-2002, wherein he pleaded the same reliefs prayed for in the supplemental petition. This is plainly evident from the respective prayers in the supplemental petition and the petition for certiorari as reproduced hereinabove. In doing so, respondent, before allowing the COMELEC to fully resolve the incidents in SPR No. 20-2002, both of which were at his own instance, sought to increase his chances of securing a favorable decision in another petition. He filed the second petition on the supposition that the COMELEC might look with favor upon his reliefs.

Forum-shopping is considered a pernicious evil; it adversely affects the efficient administration of justice since it clogs the court dockets, unduly burdens the financial and human resources of the judiciary, and trifles with and mocks judicial processes.16 The most important factor in determining the existence of forum shopping is the vexation caused the courts and parties-litigants by a party who asks different courts to rule on the same or related causes or grant the same or substantially the same reliefs.17Considering that respondent was indubitably guilty of forum-shopping when he filed SPR No. 37-2002, his petition should have been dismissed outright by the COMELEC.18 Willful and deliberate forum-shopping is a ground for summary dismissal of the case, and constitutes direct contempt of court.19The petition for certiorari in SPR No. 37-2002 assailed the trial courts orders for the execution of its decision pending appeal. The grant of execution pending appeal was well within the discretionary powers of the trial court. In order to obtain the annulment of said orders in a petition for certiorari, it must first be proved that the trial court gravely abused its discretion. He should show not merely a reversible error committed by the trial court, but a grave abuse of discretion amounting to lack or excess of jurisdiction. "Grave abuse of discretion" implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility which must be so patent and gross as to amount to an invasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Mere abuse of discretion is not enough.20We find that no grave abuse of discretion was committed by the trial court. In its order granting execution pending appeal, it held:

It is of judicial notice that for the public official elected last May 14, 2001 elections only a short period is left. Relative to this Courts jurisdiction over the instant case, the settled rule that the mere filing of the notice of appeal does not divest the trial court of its jurisdiction over the case and to resolve pending incidents, i.e., motion for execution pending appeal (Asmala vs. COMELEC, 289 SCRA 745) need not be overemphasized.21However, the COMELEC set aside the aforesaid order, saying that shortness of term alone is not a good reason for execution of a judgment pending appeal. We disagree.

While it was indeed held that shortness of the remaining term of office and posting a bond are not good reasons, we clearly stated in Fermo v. COMELEC22 that:

A valid exercise of the discretion to allow execution pending appeal requires that it should be based "upon good reasons to be stated in a special order." The following constitute "good reasons" and a combination of two or more of them will suffice to grant execution pending appeal: (1.) public interest involved or will of the electorate; (2.) the shortness of the remaining portion of the term of the contested office; and (3.) the length of time that the election contest has been pending (italics supplied).23The decision of the trial court in Election Protest No. 1-M(2001) was rendered on April 2, 2002, or after almost one year of trial and revision of the questioned ballots. It found petitioner as the candidate with the plurality of votes. Respondent appealed the said decision to the COMELEC. In the meantime, the three-year term of the Office of the Mayor continued to run. The will of the electorate, as determined by the trial court in the election protest, had to be respected and given meaning. The Municipality of Balingoan, Misamis Oriental, needed the services of a mayor even while the election protest was pending, and it had to be the candidate judicially determined to have been chosen by the people.

Between the determination by the trial court of who of the candidates won the elections and the finding of the Board of Canvassers as to whom to proclaim, it is the courts decision that should prevail. This was sufficiently explained in the case of Ramas v. COMELEC24 in this wise:

All that was required for a valid exercise of the discretion to allow execution pending appeal was that the immediate execution should be based "upon good reasons to be stated in a special order." The rationale why such execution is allowed in election cases is, as stated in Gahol v. Riodique,25 "to give as much recognition to the worth of a trial judges decision as that which is initially ascribed by the law to the proclamation by the board of canvassers." Thus:

Why should the proclamation by the board of canvassers suffice as basis of the right to assume office, subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed, when it is considered that the board of canvassers is composed of persons who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield to extraneous considerations, and that the board must act summarily, practically racing against time, while, on the other hand, the judge has benefit of all the evidence the parties can offer and of admittedly better technical preparation and background, apart from his being allowed ample time for conscientious study and mature deliberation before rendering judgment, one cannot but perceive the wisdom of allowing the immediate execution of decisions in election cases adverse to the protestees, notwithstanding the perfection and pendency of appeals therefrom, as long as there are, in the sound discretion of the court, good reasons therefor.

To deprive trial courts of their discretion to grant execution pending appeal would, in the words of Tobon Uy v. COMELEC,26bring back the ghost of the "grab-the-proclamation-prolong the protest" techniques so often resorted to by devious politicians in the past in their efforts to perpetuate their hold to an elective office. This would, as a consequence, lay to waste the will of the electorate.27Thus, the COMELEC committed grave abuse of discretion in giving due course, instead of dismissing outright, the petition in SPR No. 37-2002 despite the clear showing that respondent was guilty of forum-shopping; and in setting aside the trial courts order granting execution pending appeal.

WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The Order dated September 3, 2002 and the Resolution dated October 14, 2002 of the Commission on Elections in SPR No. 37-2002 are ANNULLED and SET ASIDE and the said case is ordered DISMISSED on the ground of forum-shopping. The Order dated August 20, 2002 of the Regional Trial Court of Misamis Oriental, Branch 26, granting the execution pending appeal of its decision in Election Protest No. 1-M(2001), and the Writ of Execution dated August 21, 2002, are REINSTATED. The full enforcement of the said Writ must forthwith be made. The court of origin shall transmit immediately to the Commission on Elections the records of SPL Election Case No. 1-M(2001), and the Commission on Elections shall dispose of the appeal in EAC No. A-12-2002 with deliberate dispatch.

This Decision shall be immediately executory.

Costs against private respondent.

SO ORDERED.

G.R. No. 152878 May 5, 2003RIZAL COMMERCIAL BANKING CORPORATION, petitioner, vs.MAGWIN MARKETING CORPORATION, NELSON TIU, BENITO SY and ANDERSON UY, respondents.

BELLOSILLO, J.:WE ARE PERTURBED that this case should drag this Court in the banal attempts to decipher the hazy and confused intent of the trial court in proceeding with what would have been a simple, straightforward and hardly arguable collection case. Whether the dismissal without prejudice for failure to prosecute was unconditionally reconsidered, reversed and set aside to reinstate the civil case and have it ready for pre-trial are matters which should have been clarified and resolved in the first instance by the court a quo. Unfortunately, this feckless imprecision of the trial court became the soup stock of the parties and their lawyers to further delay the case below when they could have otherwise put things in proper order efficiently and effectively.

On 4 March 1999 petitioner Rizal Commercial Banking Corporation (RCBC) filed a complaint for recovery of a sum of money with prayer for a writ of preliminary attachment against respondents Magwin Marketing Corporation, Nelson Tiu, Benito Sy and Anderson Uy.1 On 26 April 1999, the trial court issued a writ of attachment.2 On 4 June 1999 the writ was returned partially satisfied since only a parcel of land purportedly owned by defendant Benito Sy was attached.3 In the meantime, summons was served on each of the defendants, respondents herein, who filed their respective answers, except for defendant Gabriel Cheng who was dropped without prejudice as party-defendant as his whereabouts could not be located.4 On 21 September 1999 petitioner moved for an alias writ of attachment which on 18 January 2000 the court a quo denied.5Petitioner did not cause the case to be set for pre-trial.6 For about six (6) months thereafter, discussions between petitioner and respondents Magwin Marketing Corporation, Nelson Tiu, Benito Sy and Anderson Uy, as parties in Civil Case No. 99-518, were undertaken to restructure the indebtedness of respondent Magwin Marketing Corporation.7 On 9 May 2000 petitioner approved a debt payment scheme for the corporation which on 15 May 2000 was communicated to the latter by means of a letter dated 10 May 2000 for the conformity of its officers, i.e., respondent Nelson Tiu as President/General Manager of Magwin Marketing Corporation and respondent Benito Sy as Director thereof.8 Only respondent Nelson Tiu affixed his signature on the letter to signify his agreement to the terms and conditions of the restructuring.9On 20 July 2000 the RTC of Makati City, on its own initiative, issued an Order dismissing without prejudice Civil Case No. 99-518 for failure of petitioner as plaintiff therein to "prosecute its action for an unreasonable length of time . . .."10 On 31 July 2000 petitioner moved for reconsideration of the Order by informing the trial court of respondents' unremitting desire to settle the case amicably through a loan restructuring program.11 On 22 August 2000 petitioner notified the trial court of the acquiescence thereto of respondent Nelson Tiu as an officer of Magwin Marketing Corporation and defendant in the civil case.12On 8 September 2000 the court a quo issued an Order reconsidering the dismissal without prejudice of Civil Case No. 99-518 -

Acting on plaintiff's "Motion for Reconsideration" of the Order dated 20 July 2000 dismissing this case for failure to prosecute, it appearing that there was already conformity to the restructuring of defendants' indebtedness with plaintiff by defendant Nelson Tiu, President of defendant corporation per "Manifestation and Motion" filed by plaintiff on 22 August 2000, there being probability of settlement among the parties, as prayed for, the Order dated 20 July 2000 is hereby set aside.

Plaintiff is directed to submit the compromise agreement within 15 days from receipt hereof. Failure on the part of plaintiff to submit the said agreement shall cause the imposition of payment of the required docket fees for re-filing of this case.13On 27 July 2000 petitioner filed in Civil Case No. 99-518 a Manifestation and Motion to Set Case for Pre-Trial Conference alleging that "[t]o date, only defendant Nelson Tiu had affixed his signature on the May 10, 2000 letter which informed the defendants that plaintiff [herein petitioner] already approved defendant Magwin Marketing Corporations request for restructuring of its loan obligations to plaintiff but subject to the terms and conditions specified in said letter."14 This motion was followed on 5 October 2000 by petitioner's Supplemental Motion to Plaintiffs Manifestation and Motion to Set Case for Pre-Trial Conference affirming that petitioner "could not submit a compromise agreement because only defendant Nelson Tiu had affixed his signature on the May 10, 2000 letter . . .."15 Respondent Anderson Uy opposed the foregoing submissions of petitioner while respondents Magwin Marketing Corporation, Nelson Tiu and Benito Sy neither contested nor supported them.16The trial court, in an undated Order (although a date was later inserted in the Order), denied petitioner's motion to calendar Civil Case No. 99-518 for pre-trial stating that -

Acting on plaintiff's [herein petitioner] "Manifestation and Motion to Set Case for Pre-Trial Conference," the "Opposition" filed by defendant Uy and the subsequent "Supplemental Motion" filed by plaintiff; defendant Uy's "Opposition," and plaintiff's "Reply;" for failure of the plaintiff to submit a compromise agreement pursuant to the Order dated 8 September 2000 plaintiff's motion to set case for pre-trial conference is hereby denied.17On 15 November 2000 petitioner filed its Notice of Appeal from the 8 September 2000 Order of the trial court as well as its undated Order in Civil Case No. 99-518. On 16 November 2000 the trial court issued two (2) Orders, one of which inserted the date "6 November 2000" in the undated Order rejecting petitioner's motion for pre-trial in the civil case, and the other denying due course to the Notice of Appeal on the ground that the "Orders dated 8 September 2000 and 6 November 2000 are interlocutory orders and therefore, no appeal may be taken . . .."18On 7 December 2000 petitioner elevated the Orders dated 8 September 2000, 6 November 2000 and 16 November 2000 of the trial court to the Court of Appeals in a petition for certiorari under Rule 65 of the Rules of Civil Procedure.19 In the main, petitioner argued that the court a quo had no authority to compel the parties in Civil Case No. 99-518 to enter into an amicable settlement nor to deny the holding of a pre-trial conference on the ground that no compromise agreement was turned over to the court a quo.20On 28 September 2001 the appellate court promulgated its Decision dismissing the petition for lack of merit and affirming the assailed Orders of the trial court21 holding that -

. . . although the language of the September 8, 2000 Order may not be clear, yet, a careful reading of the same would clearly show that the setting aside of the Order dated July 20, 2000 which dismissed petitioner's complaint . . . for failure to prosecute its action for an unreasonable length of time is dependent on the following conditions, to wit: a) The submission of the compromise agreement by petitioner within fifteen (15) days from notice; and b) Failure of petitioner to submit the said compromise agreement shall cause the imposition of the payment of the required docket fees for the re-filing of the case; so much so that the non-compliance by petitioner of condition no. 1 would make condition no. 2 effective, especially that petitioner's manifestation and motion to set case for pre-trial conference and supplemental motion . . . [were] denied by the respondent judge in his Order dated November 6, 2000, which in effect means that the Order dated July 20, 2000 was ultimately not set aside considering that a party need not pay docket fees for the re-filing of a case if the original case has been revived and reinstated.22On 2 April 2002 reconsideration of the Decision was denied; hence, this petition.

In the instant case, petitioner maintains that the trial court cannot coerce the parties in Civil Case No. 99-518 to execute a compromise agreement and penalize their failure to do so by refusing to go forward with the pre-trial conference. To hold otherwise, so petitioner avers, would violate Art. 2029 of the Civil Code which provides that "[t]he court shall endeavor to persuade the litigants in a civil case to agree upon some fair compromise," and this Court's ruling in Goldloop Properties, Inc. v. Court of Appeals23 where it was held that the trial court cannot dismiss a complaint for failure of the parties to submit a compromise agreement.

On the other hand, respondent Anderson Uy filed his comment after several extensions asserting that there are no special and important reasons for undertaking this review. He also alleges that petitioner's attack is limited to the Order dated 8 September 2000 as to whether it is conditional as the Court of Appeals so found and the applicability to this case of the ruling in Goldloop Properties, Inc. v. Court of Appeals. Respondent Uy claims that the Order reconsidering the dismissal of Civil Case No. 99-518 without prejudice is on its face contingent upon the submission of the compromise agreement which in the first place was the principal reason of petitioner to justify the withdrawal of the Order declaring his failure to prosecute the civil case. He further contends that the trial court did not force the parties in the civil case to execute a compromise agreement, the truth being that it dismissed the complaint therein for petitioner's dereliction.

Finally, respondent Uy contests the relevance of Goldloop Properties, Inc. v. Court of Appeals, and refers to its incongruence with the instant case, i.e., that the complaint of petitioner was dismissed for failure to prosecute and not for its reckless disregard to present an amicable settlement as was the situation in Goldloop Properties, Inc., and that the dismissal was without prejudice, in contrast with the dismissal with prejudice ordered in the cited case. For their part, respondents Magwin Marketing Corporation, Nelson Tiu and Benito Sy waived their right to file a comment on the instant petition and submitted the same for resolution of this Court.24The petition of Rizal Commercial Banking Corporation is meritorious. It directs our attention to questions of substance decided by the courts a quo plainly in a way not in accord with applicable precedents as well as the accepted and usual course of judicial proceedings; it offers special and important reasons that demand the exercise of our power of supervision and review. Furthermore, petitioner's objections to the proceedings below encompass not only the Order of 8 September 2000 but include the cognate Orders of the trial court of 6 and 16 November 2000. This is evident from the prayer of the instant petition which seeks to reverse and set aside the Decision of the appellate court and to direct the trial court to proceed with the pre-trial conference in Civil Case No. 99-518. Evidently, the substantive issue involved herein is whether the proceedings in the civil case should progress, a question which at bottom embroils all the Orders affirmed by the Court of Appeals.

On the task at hand, we see no reason why RTC-Br. 135 of Makati City should stop short of hearing the civil case on the merits. There is no substantial policy worth pursuing by requiring petitioner to pay again the docket fees when it has already discharged this obligation simultaneously with the filing of the complaint for collection of a sum of money. The procedure for dismissed cases when re-filed is the same as though it was initially lodged, i.e., the filing of answer, reply, answer to counter-claim, including other foot-dragging maneuvers, except for the rigmarole of raffling cases which is dispensed with since the re-filed complaint is automatically assigned to the branch to which the original case pertained.25 A complaint that is re-filed leads to the re-enactment of past proceedings with the concomitant full attention of the same trial court exercising an immaculate slew of jurisdiction and control over the case that was previously dismissed,26 which in the context of the instant case is a waste of judicial time, capital and energy.

What judicial benefit do we derive from starting the civil case all over again, especially where three (3) of the four (4) defendants, i.e., Magwin Marketing Corporation, Nelson Tiu and Benito Sy, have not contested petitioner's plea before this Court and the courts a quo to advance to pre-trial conference? Indeed, to continue hereafter with the resolution of petitioner's complaint without the usual procedure for the re-filing thereof, we will save the court a quo invaluable time and other resources far outweighing the docket fees that petitioner would be forfeiting should we rule otherwise.

Going over the specifics of this petition and the arguments of respondent Anderson Uy, we rule that the Order of 8 September 2000 did not reserve conditions on the reconsideration and reversal of the Order dismissing without prejudice Civil Case No. 99-518. This is quite evident from its text which does not use words to signal an intent to impose riders on the dispositive portion -

Acting on plaintiff's "Motion for Reconsideration" of the Order dated 20 July 2000 dismissing this case for failure to prosecute, it appearing that there was already conformity to the restructuring of defendants' indebtedness with plaintiff by defendant Nelson Tiu, President of defendant corporation per "Manifestation and Motion" filed by plaintiff on 22 August 2000, there being probability of settlement among the parties, as prayed for, the Order dated 20 July 2000 is hereby set aside.

Plaintiff is directed to submit the compromise agreement within 15 days from receipt hereof. Failure on the part of plaintiff to submit the said agreement shall cause the imposition of payment of the required docket fees for re-filing of this case.27Contrary to respondent Uy's asseverations, the impact of the second paragraph upon the first is simply to illustrate what the trial court would do after setting aside the dismissal without prejudice: submission of the compromise agreement for the consideration of the trial court. Nothing in the second paragraph do we read that the reconsideration is subject to two (2) qualifications. Certainly far from it, for in Goldloop Properties, Inc. v. Court of Appeals28 a similar directive, i.e., "[t]he parties are given a period of fifteen (15) days from today within which to submit a Compromise Agreement," was held to mean that "should the parties fail in their negotiations the proceedings would continue from where they left off." Goldloop Properties, Inc. further said that its order, or a specie of it, did not constitute an agreement or even an expectation of the parties that should they fail to settle their differences within the stipulated number of days their case would be dismissed.

The addition of the second sentence in the second paragraph does not change the absolute nullification of the dismissal without prejudice decreed in the first paragraph. The sentence "[f]ailure on the part of plaintiff to submit the said agreement shall cause the imposition of payment of the required docket fees for re-filing of this case" is not a directive to pay docket fees but only a statement of the event that may result in its imposition. The reason for this is that the trial court could not have possibly made such payment obligatory in the same civil case, i.e., Civil Case No. 99-518, since docket fees are defrayed only after the dismissal becomes final and executory and when the civil case is re-filed.

It must be emphasized however that once the dismissal attains the attribute of finality, the trial court cannot impose legal fees anew because a final and executory dismissal although without prejudice divests the trial court of jurisdiction over the civil case as well as any residual power to order anything relative to the dismissed case; it would have to wait until the complaint is docketed once again.29 On the other hand, if we are to concede that the trial court retains jurisdiction over Civil Case No. 99-518 for it to issue the assailed Orders, a continuation of the hearing thereon would not trigger a disbursement for docket fees on the part of petitioner as this would obviously imply the setting aside of the order of dismissal and the reinstatement of the complaint.

Indubitably, it is speculative to reckon the effectivity of the Order of dismissal without prejudice to the presentation of the compromise agreement. If we are to admit that the efficacy of the invalidation of the Order of dismissal is dependent upon this condition, then we must inquire: from what date do we count the fifteen (15)-day reglementary period within which the alleged revival of the order of dismissal began to run? Did it commence from the lapse of the fifteen (15) days provided for in the Order of 8 September 2000? Or do we count it from the 6 November 2000 Order when the trial court denied the holding of a pre-trial conference? Or must it be upon petitioner's receipt of the 16 November 2000 Order denying due course to its Notice of Appeal? The court a quo could not have instituted an Order that marked the proceedings before it with a shadow of instability and chaos rather than a semblance of constancy and firmness.

The subsequent actions of the trial court also belie an intention to revive the Order of dismissal without prejudice in the event that petitioner fails to submit a compromise agreement. The Orders of 6 and 16 November 2000 plainly manifest that it was retaining jurisdiction over the civil case, a fact which would not have been possible had the dismissal without prejudice been resuscitated. Surely, the court a quo could not have denied on 6 November 2000 petitioner's motion to calendar Civil Case No. 99-518 for pre-trial if the dismissal had been restored to life in the meantime. By then the dismissal without prejudice would have already become final and executory so as to effectively remove the civil case from the docket of the trial court.

The same is true with the Order of 16 November 2000 denying due course to petitioner's Notice of Appeal. There would have been no basis for such exercise of discretion because the jurisdiction of the court a quo over the civil case would have been discharged and terminated by the presumed dismissal thereof. Moreover, we note the ground for denying due course to the appeal: the "Orders dated 8 September 2000 and 6 November 2000 are interlocutory orders and therefore, no appeal may be taken from . . .."30 This declaration strongly suggests that something more was to be accomplished in the civil case, thus negating the claim that the Order of dismissal without prejudice was resurrected upon the parties' failure to yield a compromise agreement. A "final order" issued by a court has been defined as one which disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing else to be done but to enforce by execution what has been determined by the court, while an "interlocutory order" is one which does not dispose of a case completely but leaves something more to be decided upon.31Besides the semantic and consequential improbabilities of respondent Uy's argument, our ruling in Goldloop Properties, Inc., is decisive of the instant case. In Goldloop Properties, Inc., we reversed the action of the trial court in dismissing the complaint for failure of the plaintiff to prosecute its case, which was in turn based on its inability to forge a compromise with the other parties within fifteen (15) days from notice of the order to do so and held -

Since there is nothing in the Rules that imposes the sanction of dismissal for failing to submit a compromise agreement, then it is obvious that the dismissal of the complaint on the basis thereof amounts no less to a gross procedural infirmity assailable by certiorari. For such submission could at most be directory and could not result in throwing out the case for failure to effect a compromise. While a compromise is encouraged, very strongly in fact, failure to consummate one does not warrant any procedural sanction, much less an authority to jettison a civil complaint worth P4,000,000.00 . . . Plainly, submission of a compromise agreement is never mandatory, nor is it required by any rule.32As also explained therein, the proper course of action that should have been taken by the court a quo, upon manifestation of the parties of their willingness to discuss a settlement, was to suspend the proceedings and allow them reasonable time to come to terms (a) If willingness to discuss a possible compromise is expressed by one or both parties; or (b) If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer, pursuant to Art. 2030 of the Civil Code. If despite efforts exerted by the trial court and the parties the negotiations still fail, only then should the action continue as if no suspension had taken place.33Ostensibly, while the rules allow the trial court to suspend its proceedings consistent with the policy to encourage the use of alternative mechanisms of dispute resolution, in the instant case, the trial court only gave the parties fifteen (15) days to conclude a deal. This was, to say the least, a passive and paltry attempt of the court a quo in its task of persuading litigants to agree upon a reasonable concession.34 Hence, if only to inspire confidence in the pursuit of a middle ground between petitioner and respondents, we must not interpret the trial court's Orders as dismissing the action on its own motion because the parties, specifically petitioner, were anxious to litigate their case as exhibited in their several manifestations and motions.

We reject respondent Uy's contention that Goldloop Properties, Inc. v. Court of Appeals is irrelevant to the case at bar on the dubious reasoning that the complaint of petitioner was dismissed for failure to prosecute and not for the non-submission of a compromise agreement which was the bone of contention in that case, and that the dismissal imposed in the instant case was without prejudice, in contrast to the dismissal with prejudice decreed in the cited case. To begin with, whether the dismissal is with or without prejudice if grievously erroneous is detrimental to the cause of the affected party; Goldloop Properties, Inc. does not tolerate a wrongful dismissal just because it was without prejudice. More importantly, the facts in Goldloop Properties, Inc. involve, as in the instant case, a dismissal for failure to prosecute on the ground of the parties' inability to come up with a compromise agreement within fifteen (15) days from notice of the court's order therein. All told, the parallelism between them is unmistakable.

Even if we are to accept on face value respondent's understanding of Goldloop Properties, Inc. as solely about the failure to submit a compromise agreement, it is apparent that the present case confronts a similar problem. Perhaps initially the issue was one of failure to prosecute, as can be observed from the Order dated 20 July 2000, although later reversed and set aside. But thereafter, in the Order of 6 November 2000, the trial court refused to proceed to pre-trial owing to the "failure of the plaintiff to submit a compromise agreement pursuant to the Order dated 8 September 2000." When the civil case was stalled on account of the trial court's refusal to call the parties to a pre-trial conference, the reason or basis therefor was the absence of a negotiated settlement - a circumstance that takes the case at bar within the plain ambit of Goldloop Properties, Inc. In any event, given that the instant case merely revolves around the search for a reasonable interpretation of the several Orders of the trial court, i.e., as to whether the dismissal without prejudice was revived upon petitioner's helplessness to perfect an out-of-court arrangement, with more reason must we employ the ruling in Goldloop Properties, Inc. to resolve the parties' differences of opinion.

We also find nothing in the record to support respondent Uy's conclusion that petitioner has been mercilessly delaying the prosecution of Civil Case No. 99-518 to warrant its dismissal. A complaint may be dismissed due to plaintiff's fault: (a) if he fails to appear during a scheduled trial, especially on the date for the presentation of his evidence in chief, or when so required at the pre-trial; (b) if he neglects to prosecute his action for an unreasonable length of time; or (c) if he does not comply with the rules or any order of the court. None of these was obtaining in the civil case.

While there was a lull of about six (6) months in the prosecution of Civil Case No. 99-518, it must be remembered that respondents themselves contributed largely to this delay. They repeatedly asked petitioner to consider re-structuring the debt of respondent Magwin Marketing Corporation to which petitioner graciously acceded. Petitioner approved a new debt payment scheme that was sought by respondents, which it then communicated to respondent Corporation through a letter for the conformity of the latter's officers, i.e., respondent Nelson Tiu as President/General Manager and respondent Benito Sy as Director thereof. Regrettably, only respondent Nelson Tiu affixed his signature on the letter to signify his concurrence with the terms and conditions of the arrangement. The momentary lag in the civil case was aggravated when respondent Benito Sy for unknown and unexplained reasons paid no heed to the adjustments in the indebtedness although curiously he has not opposed before this Court or the courts a quo petitioner's desire to go ahead with the pre-trial conference.

Admittedly, delay took place in this case but it was not an interruption that should have entailed the dismissal of the complaint even if such was designated as without prejudice. To constitute a sufficient ground for dismissal, the inattention of plaintiff to pursue his cause must not only be prolonged but also be unnecessary and dilatory resulting in the trifling of judicial processes. In the instant case, the adjournment was not only fleeting as it lasted less than six (6) months but was also done in good faith to accommodate respondents' incessant pleas to negotiate. Although the dismissal of a case for failure to prosecute is a matter addressed to the sound discretion of the court, that judgment however must not be abused. The availability of this recourse must be determined according to the procedural history of each case, the situation at the time of the dismissal, and the diligence of plaintiff to proceed therein.35 Stress must also be laid upon the official directive that courts must endeavor to convince parties in a civil case to consummate a fair settlement36 and to mitigate damages to be paid by the losing party who has shown a sincere desire for such give-and-take.37 All things considered, we see no compelling circumstances to uphold the dismissal of petitioner's complaint regardless of its characterization as being without prejudice.

In fine, petitioner cannot be said to have lost interest in fighting the civil case to the end. A court may dismiss a case on the ground of non prosequitur but the real test of the judicious exercise of such power is whether under the circumstances plaintiff is chargeable with want of fitting assiduousness in not acting on his complaint with reasonable promptitude. Unless a party's conduct is so indifferent, irresponsible, contumacious or slothful as to provide substantial grounds for dismissal, i.e., equivalent to default or non-appearance in the case, the courts should consider lesser sanctions which would still amount to achieving the desired end.38 In the absence of a pattern or scheme to delay the disposition of the case or of a wanton failure to observe the mandatory requirement of the rules on the part of the plaintiff, as in the case at bar, courts should decide to dispense rather than wield their authority to dismiss.39Clearly, another creative remedy was available to the court a quo to attain a speedy disposition of Civil Case No. 99-518 without sacrificing the course of justice. Since the failure of petitioner to submit a compromise agreement was the refusal of just one of herein respondents, i.e., Benito Sy, to sign his name on the conforme of the loan restructure documents, and the common concern of the courts a quo was dispatch in the proceedings, the holding of a pre-trial conference was the best-suited solution to the problem as this stage in a civil action is where issues are simplified and the dispute quickly and genuinely reconciled. By means of pre-trial, the trial court is fully empowered to sway the litigants to agree upon some fair compromise.

Dismissing the civil case and compelling petitioner to re-file its complaint is a dangerous, costly and circuitous route that may end up aggravating, not resolving, the disagreement. This case management strategy is frighteningly deceptive because it does so at the expense of petitioner whose cause of action, perhaps, may have already been admitted by its adverse parties as shown by three (3) of four (4) defendants not willing to contest petitioner's allegations, and more critically, since this approach promotes the useless and thankless duplication of hard work already undertaken by the trial court. As we have aptly observed, "[i]nconsiderate dismissals, even if without prejudice, do not constitute a panacea nor a solution to the congestion of court dockets. While they lend a deceptive aura of efficiency to records of individual judges, they merely postpone the ultimate reckoning between the parties. In the absence of clear lack of merit or intention to delay, justice is better served by a brief continuance, trial on the merits, and final disposition of the cases before the court."40WHEREFORE, the Petition for Review is GRANTED. The Decision dated 28 September 2001 and Resolution dated 2 April 2002 of the Court of Appeals in CA-G.R. SP No. 62102 are REVERSED and SET ASIDE.

The Orders dated 8 September 2000, 6 November 2000 and 16 November 2000 of the Regional Trial Court, Branch 135, of Makati City, docketed as Civil Case No. 99-518, are also REVERSED and SET ASIDE insofar as these Orders are interpreted to impose upon and collect anew from petitioner RIZAL COMMERCIAL BANKING CORPORATION docket or legal fees for its complaint, or to dismiss without prejudice Civil Case No. 99-518, or to preclude the trial court from calling the parties therein to pre-trial conference, or from proceeding thereafter with dispatch to resolve the civil case.

Civil Case No. 99-518 is deemed REINSTATED in, as it was never taken out from, the dockets of the Regional Trial Court, Branch 135, of Makati City. The trial court is ORDERED to exercise its jurisdiction over Civil Case No. 99-518, to CONDUCT the pre-trial conference therein with dispatch, and to UNDERTAKE thereafter such other proceedings as may be relevant, without petitioner being charged anew docket or other legal fees in connection with its reinstatement. Costs against respondents.

SO ORDERED.

G.R. No. 145260 July 31, 2003CITY OF ILIGAN, Represented by Hon. FRANKLIN M. QUIJANO in His Capacity as City Mayor, Petitioner, vs.PRINCIPAL MANAGEMENT GROUP, INC. (PMGI), Represented by Its President & Chief Executive Officer, FERNANDO M. SOPOT, Respondent.

D E C I S I O N

PANGANIBAN, J.:The ascertainment of good reasons for execution pending appeal lies within the sound discretion of the trial court. Normally, its finding will not be disturbed by a reviewing court, in the absence of grave abuse of discretion.

The CaseBefore this Court is a Petition1 for Review under Rule 45 of the Rules of Court, assailing the May 4, 2000 Decision2 and the July 14, 2000 Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 56952. The decretal portion of the Decision reads as follows:

"WHEREFORE, the Petition for Certiorari is hereby DISMISSED."4The assailed Resolution denied petitioners Motion for Reconsideration.

The FactsThe facts of the case are summarized by the CA in this wise:

"On October 19, 1998, Mayor Franklin M. Quijano, acting for and in behalf of [petitioner] City of Iligan, requested from the Sangguniang Panlungsod for: (a) Resolution authorizing him to open a domestic Standby Letter of Credit (SLC) in the amount of P14,000,000.00 in favor of the Land Bank Realty Development Corporation and/or PNCC with the Principal Management Group, Inc. (herein private respondent) as the funder/financial managers in connection with the development of a project on a turn-key basis; and (b) Resolution authorizing him to open a high yielding depository account with the Land Bank of the Philippines in the amount of P14,000,000.00 as a hold-out collateral for the domestic SLC.

"The City Council approved Mayor Quijanos requests and passed Resolutions Nos. 1050 and 1051 series of 1998 on October 20, 1998.

"On December 29, 1998, a Memorandum of Agreement (MOA) on a turn-key arrangement was drawn by Mayor Quijano, representing the City of Iligan, with Land Bank Realty Development Corporation (LBRDC) as General Contractor and Principal Management Group, Inc. (PMGI) as Developer - Financing Manager. The project to be undertaken was the construction of a Sports Complex which upon completion shall be turned over to Iligan City for acceptance and the issuance of Certificate of Acceptance and Authority to Pay to enable Land Bank Realty-PMGI to call on the SLC.

"The project started on November 26, 1998 despite the fact that some drawings had not yet been completed, since the MOA provides for a construction period of one hundred twenty days from the date of the signing.

"The construction site of the Sports Complex was donated by San Miguel (Iligan) Enterprises, Inc. wherein the City of Iligan as donee was bound to provide for all expenses for the transfer of the occupants therein.

"On or about January 1999, the work on the project stopped due to the refusal of some of the occupants to vacate the premises claiming that they have not been paid x x x their disturbance compensation. By then, PMGI had already accomplished 78.27% of the contracted project equivalent to P10,957,800.00 of the total project cost of P14,000,000.00.

"On February 24, 1999, PMGI requested from the City of Iligan for a deductive change order to enable it to collect the above-stated amount based on the 78.27% accomplishment of the project. The City of Iligan, however, claimed that PMGIs accomplishment was only 52.89% or equivalent only to P6,958,861.59 based on the Accomplishment Report as of February 9, 1999.

"The City of Iligan refused to pay for the reason that the mutually agreed price of P14 Million shall only be paid after the completion of the project and acceptance by it and since the project is not yet complete, no payment can be paid.

"The problem on the payment of the affected occupant, which was the cause of the work stoppage, was accordingly brought to the attention of the Sangguniang Panlungsod which favorably acted on it through Resolution No. 99-765 dated June 8, 1999 authorizing the payment of the affected occupants in the project site.

"On November 8, 1999, PMGI filed a complaint against the City of Iligan for rescission of the MOA and damages. After the filing of City of Iligans Answer, a Motion for Partial Summary Judgment was filed by PMGI which claimed that there was no genuine issue as to the fact of the obligation of the City of Iligan since it admitted the accomplishment of 52.89% or equivalent to P6,958,861.59 of PMGI and that the City of Iligan had not specifically denied under oath the genuineness of the Letter of Credit and Memorandum of Agreement.

"An Opposition to the Motion for Partial Summary Judgment was filed by the City of Iligan on December 7, 1999 which stated that: it never admitted that PMGI made any accomplishment at all but merely stated that with respect to the work accomplishment, it was only 52.89% based on the report of Engr. Maatas team; the MOA or the contract for the construction of the sports complex is between the City of Iligan, as owner, and the Land Bank Realty Development Corporation as General Contractor, PMGI only entered into the picture to support LBRDC in accordance with their own separate agreement; the grounds of lack of cause of action and jurisdiction raised in the Answer should be set for hearing; LBRDC as an indispensable party should be impleaded; and the court does not have jurisdiction over the case in view of Sec. 4 of Executive Order No. 1008 which vests exclusive jurisdiction over construction disputes to Construction Industry Arbitration Commission (CIAC).

"In private respondents Rejoinder to Opposition, it was alleged that PMGI and LBRDC are solidary creditors, hence, there was no need to implead the latter since the suit redounds to the benefit of LBRDC, there was no disagreement or dispute as to the accomplishment of 52.89% or equivalent to P6,958,861.59, hence, there was no need to resort to arbitration; and the turn-key provision in the MOA is not applicable since the 120-day construction period lapsed due to the failure of the City of Iligan to perform its obligation.

"In the Order dated December 20, 1999, the trial court granted the Motion for Partial Summary Judgment and rendered the following judgment/order:

WHEREFORE, foregoing premises considered, [respondents] motion is GRANTED.

Partial summary judgment is hereby issued in favor of [respondent] in the amount of Six Million Nine Hundred Fifty-eight Thousand Eight Hundred Sixty one & 59/100 (P6,958,861.59) Pesos Only.

The Manager of the LAND BANK OF THE PHILIPPINES (Iligan City Branch), or his authorized representative, or any competent officer of said bank is hereby ORDERED to pay the amount of P6,958,861.59 out of LC NO. 98003/D to Mr. Fernando M. Sopot, President and CEO of [respondent].

In the event said LC NO. 98003/D is insufficient or has expired, the Manager and/or any competent officer of said LAND BANK OF THE PHILIPPINES (Iligan City Branch) is hereby ORDERED to pay to said Mr. Fernando M. Sopot the amount of P6,958,861.59 out of any accounts or moneys of [petitioner].

SO ORDERED.

"The Motion for Reconsideration filed by the City of Iligan to the December 20, 1999 Order was denied in the Resolution dated January 17, 2000.

"A Notice of Appeal was filed by the City of Iligan on January 26, 2000.

"A Motion for Execution Pending Appeal x x x filed on January 18, 2000 by PMGI which alleged that when the appeal is clearly dilatory, order for execution upon good reasons may be issued with the discretion of the court, was granted on January 24, 2000 over the opposition of the City of Iligan, to justify the same, the dispositive portion of which was earlier quoted. The trial court further stated that:

The Court is convinced that there are good reasons to allow the immediate execution pending appeal. Its adjudication is based on [petitioners] own admission hence, any appeal would be unmeritorious and would only serve to delay execution of the final order subject of the instant motion. The fact that an appeal in this case if taken by [petitioner] will be a merely dilatory tactic has been declared by the Supreme Court as a good and sufficient reason upon which to issue execution of the order under Section 2, Rule 39 of the Revised Rules of Court.

"A Demand Letter and Notice of Garnishment, both dated January 26, 2000, were served on even date by Sheriff Montoy B. Lomondot to herein petitioner."5 (Citations omitted)

Ruling of the Court of AppealsThe CA held that "the trial court did not commit grave abuse of discretion in granting the execution pending appeal since the appeal filed by petitioner was a dilatory tactic and is not allowed in the first place."6 Ruling that the trial court could grant executions pending appeal, provided that a good reason therefor was stated in a special order, the appellate court upheld "dilatory tactic" as one such good reason.

The appellate court also ruled that certiorari would not be allowed in this case, because there were other remedies still available to petitioner, like the filing of a supersedeas bond to stay the execution or the filing of a motion for reconsideration.1wphi1Hence, this Petition.7The IssuesPetitioner raises the following issues for our consideration:

"A

Whether or not the Honorable Court of Appeals erred in affirming the Order of the trial court granting a Writ of Execution Pending Appeal to implement its previous Order dated December 20, 1999 approving respondents Motion for Partial Summary Judgment;

"B

Whether or not the Honorable Court of Appeals erred in affirming the Order of the trial court that there were good reasons to allow the immediate execution pending appeal; and

"C

Whether or not the Honorable Court of Appeals erred in affirming the Order of the trial court in spite of the latters failure to take into consideration the provision in paragraph 8 of the Memorandum of Agreement entered into by the herein parties."8 (Citations omitted)

Simply put, the main issue is whether the Order granting execution pending appeal was proper.

The Courts RulingThe Petition has no merit.

Main Issue:Propriety of Execution Pending AppealExecutions pending appeal are governed by Section 2 of Rule 39 of the Rules of Court, which reads: