Republic of the Philippines COURT OF APPEALS

Manila DANIEL BADILLA Petitioner

CA-G.R. SP. NO._____ -versus- HON. ABAKADA EGAHA, As Presiding Judge, Branch 83, MAKATI CITY Respondent x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

PETITION FOR CERTIORARI Plaintiff, by counsel and to this Honorable Court, alleges:

PREFATORY STATEMENT

This is an action to set aside the order dated 8 November 2014 (Annex A) issued by respondent Judge in Civil Case 12345, Branch 83, Makati City, entitled “Daniel Badilla vs. Vice Pogi, ordering the dismissal of the case and ordering Plaintiff therein to pay damages to Vice Pogi in spite of the absence of a counterclaim filed by the latter, as well as the order of 20 November 2014, which denied petitioner’s motion for reconsideration, on the ground that said questioned order is null and void, for grave abuse of discretion amounting to lack of jurisdiction in issuing said order.

THE PARTIES

1. Petitioner is of legal age and with residence at 608 C Cordillera St. Brgy Malamig, Makati City. He is the plaintiff in the Civil Case No. 12345, Branch 83, RTC, Makati.

2. Respondent Abakada Egaha is of legal age and is the Presiding Judge of

of Branch 83, RTC, Makati, who issued the questioned orders and is sued in his official capacity as such. He may be served with legal processes at said Branch 83, RTC Makati.

TIMELINESS OF PETITION

On 8 November 2014, respondent Judge issued an order dismissing petitioner’s civil case against Vice Pogi involving an action for damages. Petitioner received a copy of said order on 10 November 2014, and certified true copy of which is attached hereto as Annex “A.” On 20 November 2014, or within 15 days from receipt of said order Annex “A, ” petitioner filed a motion for reconsideration. On 22 November 2014, the trial court denied said motion for reconsideration, and a copy thereof was served petitioner on 24 November 2014. Certified true copy of said order of denial is attached hereto as Annex “B” The instant petition is filed with the Court of Appeals within 60 days from receipt of said order Annex “B.”

STATEMENT OF FACTS AND PROCEEDINGS

1. On December 17, 2008, at around one o’clock in the morning, Badilla was driving and on board a Honda CRV 2009 vehicle, bearing the plate number ABS 222.

2. Badilla was traversing the stretch of EDSA at a steady speed with due

regard for traffic regulations.

3. Vice Pogi, defendant in Civil Case 12345, was the driver of a Toyota Altis 2008 model bearing the plate number AHH 246. He blatantly disregarded major traffic rules and acted with gross negligence resulting the collision of the vehicles.

4. The collision between the two cars was so strong resulting to

considerable damage in the body and engine of the Honda CRV.

5. Badilla had to undergo medical treatment.

6. Prior to the institution of the Civil Case the parties entered into a settlement, where plaintiff therein agreed not to pursue any legal action in exchange for the sum of Php 500,000, representing actual damages including car repair and medical expenses.

7. Plaintiff therein was only paid Php 200,000. The remaining balance

is still unpaid despite demand. The demand letter was dated 15 December 2011, which tolled the running of the prescriptive period.

8. Badilla institued the civil action to collect payment 6 October 2014.

9. Respondent Judge granted therein defendant’s motion to dismiss on

the ground of prescription on 8 November 2014.

10. Said order also ordered petitioner to pay damages to defendant therein for malicious prosecution. Said relief was never prayed for by defendant therein in any of the pleadings.

11. Petitioner’s motion for reconsideration was denied.

12. Defendant Pogi is set to leave abroad. His application for U.S.

citizenship is pending as of date.

STATEMENT OF THE ISSUES

The issue of law raised are:

1. Whether or not the respondent Judge committed grave abuse of discretion in issuing the said orders Annexes “A” and “B.”

GROUNDS RELIED UPON

1. The respondent Judge acted with grave abuse of discretion in

dismissing the civil case instituted by petitioner herein against Vice Pogi on the ground of prescription considering that the running of the prescriptive period has been tolled by the demand letter.

2. The respondent Judge erred in awarding damages to the defendant in

the Civil Case since the same was not prayed for by the defendant in its answer.

3. There is no appeal, nor any plain, and speedy in the ordinary course of

law other than the instant petition.

DISCUSSION

Ground No. 1.   Article 1155 of the New Civil Code “provides that the prescription of

actions is interrupted when they are filed before the court, when there is a written extrajudicial demand by the creditor, and when there is any written acknowledgment of the debt by the debtor.” Petitioner wrote a demand letter addressed to defendant therein on 15 December 2011. Pursuant to Article 1155, the running of the prescriptive period has been suspended. The obligation to satisfy the remaining balance remains subsisting and it was error on the part of Respondent Judge to have dismissed the case.

Ground No. 2.

Respondent Judge erred in awarding relief to defendant in view of the

fact that such relief was not prayed for. Rule 9 of the Rules of Civil Procedure provides:

Section 1. Defenses and objections not pleaded. — Defenses and

objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a)

Section 2. Compulsory counterclaim, or cross-claim, not set up

barred. — A compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a)

WHEREFORE, petitioner prays for judgment:

1. The petition be given due course 2. After proceedings, setting aside and nullifying the questioned orders

Annexes “A” and “B.” 3. Petitioner prays for such other reliefs as may be just and equitable in

the premisies. RESPECTFULLY SUBMITTED. 26 November 2014, Makati City

.

JAYPEE ORTIZ Counsel for Plaintiffs Dela Rosa St., Legaspi Village Makati City, Metro Manila IBP Lifetime Member 11111

Attorneys Roll No. 11111 PTR No. 11111, 1-11-10,(MC)

VERIFICATION AND CERTIFICATION

REPUBLIC OF THE PHILIPPINES CITY OF MAKATI . . . . METRO MANILA . . . . . . . . . . I, DANIEL BADILLA, Filipino citizen, 35 years of age, married and a resident of 608 C Cordillera St., Makati City, Metro Manila, after having been duly sworn to in accordance with law depose and say: 1. That I am the petitioner in this case and that I have read the same and found the contents thereof to be true and correct according to the best of my own personal knowledge and belief; 2. That I have not commenced any other action before the Supreme Court, the Court of Appeals, nay other court, tribunal or agency that there is no case pending between the same parties for the same cause before any judicial or quasi-judicial bodies; 3. That if I come to know of the existence of any case between the same parties for the same cause pending before any such court, I shall endeavor to so notify the Court within five (5) days from acquisition of such information. IN WITNESS WHEREOF, I have hereunto affix my signature in behalf of other plaintiffs this 26th day of November, 2014, in the City of Makati, Metro Manila, Philippines.

DANIEL BADILLA Affiant License No. 1111111

Issued on March 17, 2013 Valid up to March 17, 2015

SUBSCRIBED AND SWORN to before me this 14th day of November, 2014 in Makati City, Metro Manila, affiant indentifying himself by the document indicated under his name.

Doc. No. 1; JULIA MONTEZ Page No. 10; Notary Public Book No. V; Until December 31,2017 Series of 2011. PTR No. 1111111, 1-11-10, issued at Makati City