G.R. No. 192123               March 10, 2014

DR. FERNANDO P. SOLIDUM, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

BERSAMIN, J.:

This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of reckless imprudence resulting in serious physical injuries by the Regional Trial Court (RTC) and the Court of Appeals (CA). He had been part of the team of anesthesiologists during the surgical pull-through operation conducted on a three-year old patient born with an imperforate anus.1

The antecedents are as follows:

Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an imperforate anus. Two days after his birth, Gerald underwent colostomy, a surgical procedure to bring one end of the large intestine out through the abdominal wall,3 enabling him to excrete through a colostomy bag attached to the side of his body.4

On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a pull-through operation.5 Dr. Leandro Resurreccion headed the surgical team, and was assisted by Dr. Joselito Luceño, Dr. Donatella Valeña and Dr. Joseph Tibio. The anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr. Solidum).6 During the operation, Gerald experienced bradycardia,7 and went into a coma.8 His coma lasted for two weeks,9 but he regained consciousness only after a month.10 He could no longer see, hear or move.11

Agitated by her son’s helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a complaint for reckless imprudence resulting in serious physical injuries with the City Prosecutor’s Office of Manila against the attending physicians.12

Upon a finding of probable cause, the City Prosecutor’s Office filed an information solely against Dr. Solidum,13alleging: –

That on or about May 17, 1995, in the City of Manila, Philippines, the said accused, being then an anesthesiologist at the Ospital ng Maynila, Malate, this City, and as such was tasked to administer the anesthesia on three-year old

baby boy GERALD ALBERT GERCAYO, represented by his mother, MA. LUZ GERCAYO, the former having been born with an imperforate anus [no anal opening] and was to undergo an operation for anal opening [pull through operation], did then and there willfully, unlawfully and feloniously fail and neglect to use the care and diligence as the best of his judgment would dictate under said circumstance, by failing to monitor and regulate properly the levels of anesthesia administered to said GERALD ALBERT GERCAYO and using 100% halothane and other anesthetic medications, causing as a consequence of his said carelessness and negligence, said GERALD ALBERT GERCAYO suffered a cardiac arrest and consequently a defect called hypoxic encephalopathy meaning insufficient oxygen supply in the brain, thereby rendering said GERALD ALBERT GERCAYO incapable of moving his body, seeing, speaking or hearing, to his damage and prejudice.

Contrary to law.14

The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred to the RTC pursuant to Section 5 of Republic Act No. 8369 (The Family Courts Act of 1997),15 where it was docketed as Criminal Case No. 01-190889.

Judgment of the RTC

On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond reasonable doubt of reckless imprudence resulting to serious physical injuries,16 decreeing:

WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM GUILTY beyond reasonable doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of TWO (2) MONTHS and ONE (1) DAY of arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision correccional as maximum and to indemnify, jointly and severally with the Ospital ng Maynila, Dr. Anita So and Dr. Marichu Abella, private complainant Luz Gercayo, the amount of P500,000.00 as moral damages and P100,000.00 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby CANCELLED.

SO ORDERED.17

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary liability,18 the RTC excluded them from solidary liability as to the damages, modifying its decision as follows:

WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty beyond reasonable doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of two (2) months and one (1) day of arresto mayor as minimum to one (1) year, one (1) month and ten (10) days of prision correccional as maximum and to indemnify jointly and severally with Ospital ng Maynila, private complainant Luz Gercayo the amount of P500,000.00 as moral damages and P100,000 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby cancelled.19

Decision of the CA

On January 20, 2010, the CA affirmed the conviction of Dr. Solidum,20 pertinently stating and ruling:

The case appears to be a textbook example of res ipsa loquitur.

x x x x

x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major operation. As noted by the OSG, the accused himself testified that pre-operation tests were conducted to ensure that the child could withstand the surgery. Except for his imperforate anus, the child was healthy. The tests and other procedures failed to reveal that he was suffering from any known ailment or disability that could turn into a significant risk. There was not a hint that the nature of the operation itself was a causative factor in the events that finally led to hypoxia.

In short, the lower court has been left with no reasonable hypothesis except to attribute the accident to a failure in the proper administration of anesthesia, the gravamen of the charge in this case. The High Court elucidates in Ramos vs. Court of Appeals 321 SCRA 584 –

In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care.

Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is

appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

The lower court has found that such a nexus exists between the act complained of and the injury sustained, and in line with the hornbook rules on evidence, we will afford the factual findings of a trial court the respect they deserve in the absence of a showing of arbitrariness or disregard of material facts that might affect the disposition of the case. People v. Paraiso 349 SCRA 335.

The res ipsa loquitur test has been known to be applied in criminal cases. Although it creates a presumption of negligence, it need not offend due process, as long as the accused is afforded the opportunity to go forward with his own evidence and prove that he has no criminal intent. It is in this light not inconsistent with the constitutional presumption of innocence of an accused.

IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.

SO ORDERED.21

Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010.22

Hence, this appeal.

Issues

Dr. Solidum avers that:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT IN UPHOLDING THE PETITIONER’S CONVICTION FOR THE CRIME CHARGED BASED ON THE TRIAL COURT’S OPINION, AND NOT ON THE BASIS OF THE FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT TO THE ACQUITTAL OF THE PETITIONER. FURTHER, THE HONORABLE COURT ERRED IN AFFIRMING THE

SAID DECISION OF THE LOWER COURT, AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE PROSECUTION MUST PROVE THE ALLEGATIONS OF THE INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON THE BASIS OF ITS PRESUMPTIVE CONCLUSION.

II.

THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE TO PROVE THAT THERE IS NO NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO OVERDOSING IN THE APPLICATION OF THE ANESTHETIC AGENT BECAUSE THERE WAS NO 100% HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND THE APPLICATION THEREOF, WAS REGULATED BY AN ANESTHESIA MACHINE. THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA LOQUITOR (sic) CONTRADICTED THE ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE CASE.

III.

THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED THERE BEING NO NEGLIGENCE ON THE PART OF THE PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE, AND NO FACTUAL AND LEGAL BASIS.23

To simplify, the following are the issues for resolution, namely: (a) whether or not the doctrine of res ipsa loquitur was applicable herein; and (b) whether or not Dr. Solidum was liable for criminal negligence.

Ruling

The appeal is meritorious.

Applicability of the Doctrine of Res Ipsa Loquitur

Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself." The doctrine res ipsa loquitur means that "where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those

who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care."24 It is simply "a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself.

Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge."25

Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The doctrine, when applicable to the facts and circumstances of a given case, is not meant to and does not dispense with the requirement of proof of culpable negligence against the party charged. It merely determines and regulates what shall be prima facie evidence thereof, and helps the plaintiff in proving a breach of the duty. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available.27

The applicability of the doctrine of res ipsa loquitur in medical negligence cases was significantly and exhaustively explained in Ramos v. Court of Appeals,28 where the Court said –

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of that harm. The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given inference.

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill

and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient’s jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why

any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. If there was such extraneous intervention, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he could.

In order to allow resort to the doctrine, therefore, the following essential requisites must first be satisfied, to wit: (1) the accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured.29

The Court considers the application here of the doctrine of res ipsa loquitur inappropriate. Although it should be conceded without difficulty that the second and third elements were present, considering that the anesthetic agent and the instruments were exclusively within the control of Dr. Solidum, and that the patient, being then unconscious during the operation, could not have been guilty of contributory negligence, the first element was undeniably wanting. Luz delivered Gerald to the care, custody and control of his physicians for a pull-through operation. Except for the imperforate anus, Gerald was then of sound body and mind at the time of his submission to the physicians. Yet, he experienced bradycardia during the operation, causing loss of his senses and rendering him immobile. Hypoxia, or the insufficiency of oxygen supply to the brain that caused the slowing of the heart rate, scientifically termed as bradycardia, would not ordinarily occur in the process of a pull-through operation, or during the administration of anesthesia to the patient, but such fact alone did not prove that the negligence of any of his attending physicians, including the anesthesiologists, had caused the injury. In fact, the anesthesiologists attending to him had sensed in the course of the operation that the lack of oxygen could have been triggered by the vago-vagal reflex, prompting them to administer atropine to the patient.30

This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham,31 relevant portions of the decision therein being as follows:

On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for the treatment of infectious mononucleosis. The patient's symptoms had included a swollen throat and some breathing difficulty. Early in the

morning of January 9 the patient was restless, and at 1:30 a.m. Dr. Brigham examined the patient. His inspection of the patient's air passage revealed that it was in satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone call from the hospital, advising him that the patient was having respiratory difficulty. The doctor ordered that oxygen be administered and he prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital called a second time to advise the doctor that the patient was not responding. The doctor ordered that a medicine be administered, and he departed for the hospital. When he arrived, the physician who had been on call at the hospital had begun attempts to revive the patient. Dr. Brigham joined him in the effort, but the patient died.

The doctor who performed the autopsy concluded that the patient died between 4:25 a.m. and 4:30 a.m. of asphyxia, as a result of a sudden, acute closing of the air passage. He also found that the air passage had been adequate to maintain life up to 2 or 3 minutes prior to death. He did not know what caused the air passage to suddenly close.

x x x x

It is a rare occurrence when someone admitted to a hospital for the treatment of infectious mononucleosis dies of asphyxiation. But that is not sufficient to invoke res ipsa loquitur. The fact that the injury rarely occurs does not in itself prove that the injury was probably caused by someone's negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad result by itself enough to warrant the application of the doctrine. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser, The Negligence Case – Res Ipsa Loquitur § 24:10 (1972). The evidence presented is insufficient to establish the first element necessary for application of res ipsa loquitur doctrine. The acute closing of the patient’s air passage and his resultant asphyxiation took place over a very short period of time. Under these circumstances it would not be reasonable to infer that the physician was negligent. There was no palpably negligent act. The common experience of mankind does not suggest that death would not be expected without negligence. And there is no expert medical testimony to create an inference that negligence caused the injury.

Negligence of Dr. Solidum

In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines whether the CA correctly affirmed the conviction of Dr. Solidum for criminal negligence.

Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance that the circumstances justly demand, whereby such other person suffers

injury.32Reckless imprudence, on the other hand, consists of voluntarily doing or failing to do, without malice, an act from which material damage results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act.33

Dr. Solidum’s conviction by the RTC was primarily based on his failure to monitor and properly regulate the level of anesthetic agent administered on Gerald by overdosing at 100% halothane. In affirming the conviction, the CA observed:

On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the findings and conclusions in his report except for an observation which, to all intents and purposes, has become the storm center of this dispute. He wanted to correct one piece of information regarding the dosage of the anesthetic agent administered to the child. He declared that he made a mistake in reporting a 100% halothane and said that based on the records it should have been 100% oxygen.

The records he was relying on, as he explains, are the following:

(a) the anesthesia record – A portion of the chart in the record was marked as Exhibit 1-A and 1-B to indicate the administration at intervals of the anesthetic agent.

(b) the clinical abstract – A portion of this record that reads as follows was marked Exhibit 3A. 3B – Approximately 1 hour and 45 minutes through the operation, patient was noted to have bradycardia (CR = 70) and ATSO4 0.2 mg was immediately administered. However, the bradycardia persisted, the inhalational agent was shut off, and the patient was ventilated with 100% oxygen and another dose of ATSO4 0.2 mg was given. However, the patient did not respond until no cardiac rate can be auscultated and the surgeons were immediately told to stop the operation. The patient was put on a supine position and CPR was initiated. Patient was given 1 amp of epinephrine initially while continuously doing cardiac massage – still with no cardiac rate appreciated; another ampule of epinephrine was given and after 45 secs, patient’s vital signs returned to normal. The entire resuscitation lasted approximately 3-5 mins. The surgeons were then told to proceed to the closure and the child’s vital signs throughout and until the end of surgery were: BP = 110/70; CR = 116/min and RR = 20-22 cycles/min (on assisted ventilation).

Dr. Vertido points to the crucial passage in the clinical abstract that the patient was ventilated with 100% oxygen and another dose of ATSO4 when the bradycardia persisted, but for one reason or another, he read it as 100%

halothane. He was asked to read the anesthesia record on the percentage of the dosage indicated, but he could only sheepishly note I can’t understand the number. There are no clues in the clinical abstract on the quantity of the anesthetic agent used. It only contains the information that the anesthetic plan was to put the patient under general anesthesia using a nonrebreathing system with halothane as the sole anesthetic agent and that 1 hour and 45 minutes after the operation began, bradycardia occurred after which the inhalational agent was shut off and the patient administered with 100% oxygen. It would be apparent that the 100% oxygen that Dr. Vertido said should be read in lieu of 100% halothane was the pure oxygen introduced after something went amiss in the operation and the halothane itself was reduced or shut off.

The key question remains – what was the quantity of halothane used before bradycardia set in?

The implication of Dr. Vertido’s admission is that there was no overdose of the anesthetic agent, and the accused Dr. Solidum stakes his liberty and reputation on this conclusion. He made the assurance that he gave his patient the utmost medical care, never leaving the operating room except for a few minutes to answer the call of nature but leaving behind the other members of his team Drs. Abella and Razon to monitor the operation. He insisted that he administered only a point 1% not 100% halothane, receiving corroboration from Dr. Abella whose initial MA in the record should be enough to show that she assisted in the operation and was therefore conversant of the things that happened. She revealed that they were using a machine that closely monitored the concentration of the agent during the operation.

But most compelling is Dr. Solidum’s interpretation of the anesthesia record itself, as he takes the bull by the horns, so to speak. In his affidavit, he says, reading from the record, that the quantity of halothane used in the operation is one percent (1%) delivered at time intervals of 15 minutes. He studiedly mentions – the concentration of halothane as reflected in the anesthesia record (Annex D of the complaint-affidavit) is only one percent (1%) – The numbers indicated in 15 minute increments for halothane is an indication that only 1% halothane is being delivered to the patient Gerard Gercayo for his entire operation; The amount of halothane delivered in this case which is only one percent cannot be summated because halothane is constantly being rapidly eliminated by the body during the entire operation.

x x x x

In finding the accused guilty, despite these explanations, the RTC argued that the volte-face of Dr. Vertido on the question of the dosage of the anesthetic used on the child would not really validate the non-guilt of the anesthesiologist.

Led to agree that the halothane used was not 100% as initially believed, he was nonetheless unaware of the implications of the change in his testimony. The court observed that Dr. Vertido had described the condition of the child as hypoxia which is deprivation of oxygen, a diagnosis supported by the results of the CT Scan. All the symptoms attributed to a failing central nervous system such as stupor, loss of consciousness, decrease in heart rate, loss of usual acuity and abnormal motor function, are manifestations of this condition or syndrome. But why would there be deprivation of oxygen if 100% oxygen to 1% halothane was used? Ultimately, to the court, whether oxygen or halothane was the object of mistake, the detrimental effects of the operation are incontestable, and they can only be led to one conclusion – if the application of anesthesia was really closely monitored, the event could not have happened.34

The Prosecution did not prove the elements of reckless imprudence beyond reasonable doubt because the circumstances cited by the CA were insufficient to establish that Dr. Solidum had been guilty of inexcusable lack of precaution in monitoring the administration of the anesthetic agent to Gerald. The Court aptly explained in Cruz v. Court of Appeals35 that:

Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physician's conduct in the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.

x x x x

In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a causal connection of such breach and the resulting death of his patient. In Chan Lugay v. St Luke's Hospital, Inc., where the attending

physician was absolved of liability for the death of the complainant’s wife and newborn baby, this Court held that:

"In order that there may be a recovery for an injury, however, it must be shown that the ‘injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes.’ In other words, the negligence must be the proximate cause of the injury. For, ‘negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of.’ And ‘the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’"

An action upon medical negligence – whether criminal, civil or administrative – calls for the plaintiff to prove by competent evidence each of the following four elements, namely: (a) the duty owed by the physician to the patient, as created by the physician-patient relationship, to act in accordance with the specific norms or standards established by his profession; (b) the breach of the duty by the physician’s failing to act in accordance with the applicable standard of care; (3) the causation, i.e., there must be a reasonably close and causal connection between the negligent act or omission and the resulting injury; and (4) the damages suffered by the patient.36

In the medical profession, specific norms or standards to protect the patient against unreasonable risk, commonly referred to as standards of care, set the duty of the physician to act in respect of the patient. Unfortunately, no clear definition of the duty of a particular physician in a particular case exists. Because most medical malpractice cases are highly technical, witnesses with special medical qualifications must provide guidance by giving the knowledge necessary to render a fair and just verdict. As a result, the standard of medical care of a prudent physician must be determined from expert testimony in most cases; and in the case of a specialist (like an anesthesiologist), the standard of care by which the specialist is judged is the care and skill commonly possessed and exercised by similar specialists under similar circumstances. The specialty standard of care may be higher than that required of the general practitioner.37

The standard of care is an objective standard by which the conduct of a physician sued for negligence or malpractice may be measured, and it does not depend, therefore, on any individual physician’s own knowledge either. In attempting to fix a standard by which a court may determine whether the physician has properly performed the requisite duty toward the patient, expert medical testimony from both plaintiff and defense experts is required. The judge, as the trier of fact, ultimately determines the standard of care, after listening to the testimony of all medical experts.38

Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to provide guidance to the trial court on what standard of care was applicable. It would consequently be truly difficult, if not impossible, to determine whether the first three elements of a negligence and malpractice action were attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who served as the Chairman of the Committee on Ethics and Malpractice of the Philippine Society of Anesthesiologists that investigated the complaint against Dr. Solidum, his testimony mainly focused on how his Committee had conducted the investigation.39 Even then, the report of his Committee was favorable to Dr. Solidum,40 to wit:

Presented for review by this committee is the case of a 3 year old male who underwent a pull-thru operation and was administered general anesthesia by a team of anesthesia residents. The patient, at the time when the surgeons was manipulating the recto-sigmoid and pulling it down in preparation for the anastomosis, had bradycardia. The anesthesiologists, sensing that the cause thereof was the triggering of the vago-vagal reflex, administered atropine to block it but despite the administration of the drug in two doses, cardiac arrest ensued. As the records show, prompt resuscitative measures were administered and spontaneous cardiac function re-established in less than five (5) minutes and that oxygen was continuously being administered throughout, unfortunately, as later become manifest, patient suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the committee find that the same were all in accordance with the universally accepted standards of medical care and there is no evidence of any fault or negligence on the part of the anaesthesiologists.

Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of Investigation, was also presented as a Prosecution witness, but his testimony concentrated on the results of the physical examination he had conducted on Gerald, as borne out by the following portions of his direct examination, to wit:

FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?

WITNESS General Anesthetic Agent is a substance used in the conduction of Anesthesia and in this case, halothane was used as a sole anesthetic agent.

x x x x

Q Now under paragraph two of page 1 of your report you mentioned that after one hour and 45 minutes after the operation, the patient experienced a

bradycardia or slowing of heart rate, now as a doctor, would you be able to tell this Honorable Court as to what cause of the slowing of heart rate as to Gerald Gercayo?

WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia of time because is some reason one way or another that might caused bradycardia.

FISCAL CABARON What could be the possible reason?

A Well bradycardia can be caused by anesthetic agent itself and that is a possibility, we’re talking about possibility here.

Q What other possibility do you have in mind, doctor?

A Well, because it was an operation, anything can happen within that situation.

FISCAL CABARON Now, this representation would like to ask you about the slowing of heart rate, now what is the immediate cause of the slowing of the heart rate of a person?

WITNESS Well, one of the more practical reason why there is slowing of the heart rate is when you do a vagal reflex in the neck wherein the vagal receptors are located at the lateral part of the neck, when you press that, you produce the slowing of the heart rate that produce bradycardia.

Q I am pro[p]ounding to you another question doctor, what about the deficiency in the supply of oxygen by the patient, would that also cause the slowing of the heart rate?

A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a hypoxia or there is a low oxygen level in the blood, the normal thing for the heart is to pump or to do not a bradycardia but a … to counter act the Hypoxia that is being experienced by the patient

(sic).

x x x x

Q Now, you made mention also doctor that the use of general anesthesia using 100% halothane and other anesthetic medications probably were contributory to the production of hypoxia.

A Yes, sir in general sir.41

On cross-examination, Dr. Vertido expounded more specifically on his interpretation of the anesthesia record and the factors that could have caused Gerald to experience bradycardia, viz:

ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read to this Honorable court your last paragraph and if you will affirm that as if it is correct?

A "The use of General Anesthesia, that is using 100% Halothane probably will be contributory to the production of Hypoxia and - - - -"

ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?

WITNESS Based on the records, I know the - - -

Q 100%?

A 100% based on the records.

Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you kindly look at this and tell me where is 100%, the word "one hundred" or 1-0-0, will you kindly look at this Doctor, this Xerox copy if you can show to this Honorable Court and even to this representation the word "one hundred" or 1-0-0 and then call me.

x x x x

ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is, you just call me and even the attention of the Presiding Judge of this Court. Okay, you read one by one.

WITNESS Well, are you only asking 100%, sir?

ATTY. COMIA I’m asking you, just answer my question, did you see there 100% and 100 figures, tell me, yes or no?

WITNESS I’m trying to look at the 100%, there is no 100% there sir.

ATTY. COMIA Okay, that was good, so you Honor please, may we request also temporarily, because this is just a xerox copy presented by the fiscal, that the percentage here that the Halothane administered by Dr. Solidum to the patient is 1% only so may we request that this portion, temporarily your Honor, we are marking this anesthesia record as our Exhibit 1 and then this 1% Halothane also be bracketed and the same be marked as our Exhibit "1-A".

x x x x

ATTY. COMIA Doctor, my attention was called also when you said that there are so many factors that contributed to Hypoxia is that correct?

WITNESS Yes, sir.

Q I remember doctor, according to you there are so many factors that contributed to what you call hypoxia and according to you, when this Gerald suffered hypoxia, there are other factors that might lead to this Hypoxia at the time of this operation is that correct?

WITNESS The possibility is there, sir.

Q And according to you, it might also be the result of such other, some or it might be due to operations being conducted by the doctor at the time when the operation is being done might also contribute to that hypoxia is that correct?

A That is a possibility also.

x x x x

ATTY. COMIA How will you classify now the operation conducted to this Gerald, Doctor?

WITNESS Well, that is a major operation sir.

Q In other words, when you say major operation conducted to this Gerald, there is a possibility that this Gerald might [be] exposed to some risk is that correct?

A That is a possibility sir.

Q And which according to you that Gerald suffered hypoxia is that correct?

A Yes, sir.

Q And that is one of the risk of that major operation is that correct?

A That is the risk sir.42

At the continuation of his cross-examination, Dr. Vertido maintained that Gerald’s operation for his imperforate anus, considered a major operation, had

exposed him to the risk of suffering the same condition.43 He then corrected his earlier finding that 100% halothane had been administered on Gerald by saying that it should be 100% oxygen.44

Dr. Solidum was criminally charged for "failing to monitor and regulate properly the levels of anesthesia administered to said Gerald Albert Gercayo and using 100% halothane and other anesthetic medications."45However, the foregoing circumstances, taken together, did not prove beyond reasonable doubt that Dr. Solidum had been recklessly imprudent in administering the anesthetic agent to Gerald. Indeed, Dr. Vertido’s findings did not preclude the probability that other factors related to Gerald’s major operation, which could or could not necessarily be attributed to the administration of the anesthesia, had caused the hypoxia and had then led Gerald to experience bradycardia. Dr. Vertido revealingly concluded in his report, instead, that "although the anesthesiologist followed the normal routine and precautionary procedures, still hypoxia and its corresponding side effects did occur."46

The existence of the probability about other factors causing the hypoxia has engendered in the mind of the Court a reasonable doubt as to Dr. Solidum’s guilt, and moves us to acquit him of the crime of reckless imprudence resulting to serious physical injuries. "A reasonable doubt of guilt," according to United States v. Youthsey:47

x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt; not a doubt engendered merely by sympathy for the unfortunate position of the defendant, or a dislike to accept the responsibility of convicting a fellow man. If, having weighed the evidence on both sides, you reach the conclusion that the defendant is guilty, to that degree of certainty as would lead you to act on the faith of it in the most important and crucial affairs of your life, you may properly convict him. Proof beyond reasonable doubt is not proof to a mathematical demonstration. It is not proof beyond the possibility of mistake.

We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil liability.1âwphi1 But we cannot now find and declare him civilly liable because the circumstances that have been established here do not present the factual and legal bases for validly doing so. His acquittal did not derive only from reasonable doubt. There was really no firm and competent showing how the injury to Gerard had been caused. That meant that the manner of administration of the anesthesia by Dr. Solidum was not necessarily the cause of the hypoxia that caused the bradycardia experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on the cause of the hypoxia. We are not allowed to do so, for civil liability must not rest on speculation but on competent evidence.

Liability of Ospital ng Maynila

Although the result now reached has resolved the issue of civil liability, we have to address the unusual decree of the RTC, as affirmed by the CA, of expressly holding Ospital ng Maynila civilly liable jointly and severally with Dr. Solidum. The decree was flawed in logic and in law.

In criminal prosecutions, the civil action for the recovery of civil liability that is deemed instituted with the criminal action refers only to that arising from the offense charged.48 It is puzzling, therefore, how the RTC and the CA could have adjudged Ospital ng Maynila jointly and severally liable with Dr. Solidum for the damages despite the obvious fact that Ospital ng Maynila, being an artificial entity, had not been charged along with Dr. Solidum. The lower courts thereby acted capriciously and whimsically, which rendered their judgment against Ospital ng Maynila void as the product of grave abuse of discretion amounting to lack of jurisdiction.

Not surprisingly, the flawed decree raises other material concerns that the RTC and the CA overlooked. We deem it important, then, to express the following observations for the instruction of the Bench and Bar.

For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to be heard was not respected from the outset. The R TC and the CA should have been alert to this fundamental defect. Verily, no person can be prejudiced by a ruling rendered in an action or proceeding in which he was not made a party. Such a rule would enforce the constitutional guarantee of due process of law.

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be properly enforceable pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability seems far-fetched here. The conditions for subsidiary liability to attach to Ospital ng Maynila should first be complied with. Firstly, pursuant to Article 103 of the Revised Penal Code, Ospital ng Maynila must be shown to be a corporation "engaged in any kind of industry." The term industry means any department or branch of art, occupation or business, especially one that employs labor and capital, and is engaged in industry.49 However, Ospital ng Maynila, being a public hospital, was not engaged in industry conducted for profit but purely in charitable and humanitarian work.50Secondly, assuming that Ospital ng Maynila was engaged in industry for profit, Dr. Solidum must be shown to be an employee of Ospital ng Maynila acting in the discharge of his duties during the operation on Gerald. Yet, he definitely was not such employee but a consultant of the hospital. And, thirdly, assuming that civil liability was adjudged against Dr. Solidum as an employee (which did not happen here), the execution against him was unsatisfied due to his being insolvent.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND SETS ASIDE the decision promulgated on January 20, 2010; ACQUITS Dr. Fernando P. Solidum of the crime of reckless imprudence resulting to serious physical injuries; and MAKES no pronouncement on costs of suit.

SO ORDERED.

THIRD DIVISION

G.R. No. 191240               July 30, 2014

CRISTINA B. CASTILLO, Petitioner, vs.PHILLIP R. SALVADOR, Respondent.

D E C I S I O N

PERALTA, J.:

Before us is a petition for review on certiorari which assails the Decision1 dated February 11, 2010 of the Court of Appeals (CA) in CA-G.R. CR No. 30151 with respect only to the civil aspect of the case as respondent Phillip R. Salvador had been acquitted of the crime of estafa. Respondent Phillip Salvador and his brother Ramon Salvador were charged with estafa under Article 315, paragraph 2 (a) of the Revised Penal Code in an Information2 which reads:

That during the period from March 2001 up to May 2002, in the City of Las Piñas, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and both of them mutually helping and aiding one another, with intent to gain and by means of false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud, did then and there willfully, unlawfully and feloniously defraud the complainant CRISTINA B. CASTILLO, in the amount of US$100,000.00 in the following manner, to wit: Respondents convinced the complainant to invest into the remittance business in the name of accused PHILLIP R. SALVADOR in Hongkong, representing to her that they will personally take charge of the operations and marketing of the said business, assuring her with huge profits because of the popularity of accused PHILLIP R. SALVADOR, knowing very well that the said manifestations/representations and fraudulent manifestations were false and were intended only to exact money from the Complainant, and by reason of the said false representations made by both accused, the Complainant gave and entrusted to the accused the amount of US$100,000.00 as seed money to start the operations of the business and the said accused, once in the possession of the said amount of money, misappropriated, misapplied and/or converted the same to their own personal use and benefit, to the damage and prejudice of the Complainant in the aforementioned amount of US$100,000.00.

CONTRARY TO LAW.3

Upon their arraignment, respondentand his brother Ramon pleaded not guilty4 to the offense charged.

Trial on the merits thereafter ensued.

Petitioner Cristina B. Castillo testified that she is engaged in real estate business, educational institution, boutique, and trading business.5 She met respondent through a common friend in December 2000 and became close since then. Respondent had told her that his friends, Jinggoy Estrada and Rudy Fernandez, were engaged in the freight and remittance business and that Jinggoy even brought him toHong Kong and Singapore to promote the former's business.6 Petitioner eventually met respondent’s brother and manager, Ramon Salvador, to whom she volunteered to financially help respondent in his bid for the Vice-Mayoralty race in Mandaluyong.7 It was also in the same meeting that they talked about the matter of engaging in a freight and remittance business.8 Respondent enticed petitioner to go to Hong Kong to see for herself the viability of such business and Ramon suggested to use respondent’s name to attract the overseas contract workers.9

In March 2001, petitioner and her husband, together with respondent and a certain Virgilio Calubaquib wentto Hong Kong and they witnessed respondent’s popularity among the Filipino domestic helpers.10 In April 2001, the same group, with Ramon this time, went to Bangkok where respondent’s popularity was again shown among the overseas Filipinos.11 In both instances, respondent promoted their prospective business. In both trips, petitioner paid for all the travelexpenses and even gave respondent US$10,000.00 as pocket money for the Hong Kong trip and another US$10,000.00 for the Bangkok trip.12 Her accountant introduced her to a certain Roy Singun who is into the freight and money remittance business.13 In August 2001, respondent initiated a trip to Palau, to observe Singun’s business thereat to which petitioner acceded.14 Petitioner paid for the travel expenses and even gaverespondent US$20,000.00.15 In October 2001, she and respondent had a training at Western Union at First World Center in Makati City.16

As petitioner had deeply fallen in love with respondent and since she trusted him very much as heeven acted as a father to her children when her annulment was ongoing, she agreed to embark on the remittance business. In December 2001, she, accompanied by her mother, Zenaida G. Bondoc (Zenaida), and Ramon, went to Hong Kong and had the Phillip Salvador Freight and Remittance International Limited registered on December 27, 2001.17 A Memorandum of Articles of Incorporation and a Certificate of Incorporation were issued.18 They also rented an office space in Tsimshatsui, Kowloon, Hong Kong which they registered as their office address as a requirement for opening a business in Hong Kong, thus, a Notification of

Situation of Registered Office was also issued.19 She agreed with respondent and Ramon that any profit derived from the business would be equally divided among them and thatrespondent would be in charge of promotion and marketing in Hong Kong,while Ramon would take charge of the operations of business in the Philippines and she would be financing the business.20

The business has not operated yet as petitioner was still raising the amount of US$100,000.00 as capital for the actual operation.21 When petitioner already had the money, she handed the same to respondent in May 2002 at her mother’s house in Las Piñas City, which was witnessed by her disabled half-brother Enrico B. Tan (Enrico).22She also gave respondent P100,000.00 in cash to begiven to Charlie Chau, who is a resident of Hong Kong, as payment for the heart-shaped earrings she bought from him while she was there. Respondent and Ramon went to Hong Kong in May 2002. However, the proposed business never operated as respondent only stayed in Hong Kongfor three days. When she asked respondent about the money and the business, the latter told her that the money was deposited in a bank.23 However, upon further query, respondent confessed that he used the money to pay for his other obligations.24 Since then, the US$100,000.00 was not returned at all.

On cross-examination, petitioner testified that she fell deeply in love with respondent and was convinced thathe truly loved her and intended to marry her once there would beno more legal impediment;25 that she helped in financing respondent’s campaign in the May 2001 elections.26 As she loved respondent so much, she gave him monthly allowances amounting to hundreds of thousands of pesos because he had no work back then.27 She filed the annulment case against her husband on November 21, 2001 and respondent promised her marriage.28 She claimed that respondent and Ramon lured her with sweet words in going into the freight and remittance business, which never operated despite the money she had given respondent.29 She raised the US$100,000.00 by means of selling and pawning her pieces of diamond jewelry.30

Petitioner admitted being blinded by her love for respondent which made her follow all the advice given by him and his brother Ramon, i.e., to save money for her and respondent’s future because after the annulment, they would get married and to give the capital for the remittance business in cash so as not to jeopardize her annulment case.31 She did not ask for a receipt for the US$100,000.00 she gave to respondent as it was for the operational expenses of a business which will be for their future, as all they needed to do was to get married.32 She further testified that after the US$100,000.00 was not returned, she still deposited the amount of P500,000.00 in respondent’s UCPB bank account33 and also to Ramon’s bank accounts.34 And while respondent was in the United States in August 2003, she still gave him US$2,000.00as evidenced by a Prudential Telegraphic Transfer Application35 dated August 27, 2003.

Petitioner’s mother, Zenaida, corroborated her daughter’s testimony that she was with her and Ramon when they went to Hong Kong in December 2001 to register the freight and remittance business.36 She heard Charlie Chau, her daughter's friend, that a part of his office building will be used for the said remittance business.37 Enrico Tan, also corroborated her sister's claim that she handed the money to respondent in his presence.38

Respondent testified that he and petitioner became close friends and eventually fell in love and had an affair.39They traveled to Hong Kong and Bangkok where petitioner saw how popular he was among the Filipino domestic helpers,40 which led her to suggest a remittance business. Although hesitant, he has friends with such business.41He denied that petitioner gave him US$10,000.00 whenhe went to Hong Kong and Bangkok.42 In July 2001, after he came back from the United States, petitioner had asked him and his brother Ramon for a meeting.43 During the meeting, petitioner brought up the money remittance business, but Ramon told her that they should make a study of it first.44 He was introduced to Roy Singun, owner of a money remittance business in Pasay City.45 Upon the advise of Roy, respondent and petitioner, her husband and Ramon went to Palau in August 2001.46 He denied receiving US$20,000.00 from petitioner but admitted that it was petitioner who paid for the plane tickets.47 After their Palau trip, they went into training at Western Union at the First World Center in Makati City.48 It was only in December 2001 that Ramon, petitioner and her mother went to Hong Kong to register the business, while he took care of petitioner’s children here.49 In May 2002, he and Ramon went back to Hong Kong but deniedhaving received the amount of US$100,000.00 from petitioner but then admitted receipt of the amount of P100,000.00 which petitioner asked him to give to Charlie Chau as payment for the pieces of diamond jewelry she got from him,50 which Chau had duly acknowledged.51 He denied Enrico’s testimony that petitioner gave him the amount of US$100,000.00 in his mother’s house.52 He claimed that no remittance business was started in Hong Kong as they had no license, equipment, personnel and money to operate the same.53 Upon his return to the Philippines, petitioner never asked him about the business as she never gave him such amount.54 In October 2002, he intimated that he and petitioner even went to Hong Kong again to buy some goods for the latter’s boutique.55 He admitted that he loved petitioner and her children very much as there was a time when petitioner’s finances were short, he gave her P600,000.00 for the enrollment of her children in very expensive schools.56 It is also not true that he and Ramon initiated the Hong Kong and Bangkok trips.57

Ramon testified that it was his brother respondent who introduced petitioner to him.58 He learned of petitioner’s plan of a remittance business in July 2001 and even told her that they should study it first.59 He was introduced to Roy Singun who operates a remittancebusiness in Pasay and who suggested that their group observehis remittance business in Palau. After their Palau trip, petitioner decided to put up a similar business in Hong Kong and it was him who

suggested to use respondent’s name because of name recall.60 It was decided thathe would manage the operation in Manila and respondent would be in charge of promotion and marketing in Hong Kong, while petitioner would be in charge of all the business finances.61 He admitted that he wentto Hong Kong with petitioner and her mother to register said business and also to buy goods for petitioner’s boutique.62 He said that it was also impossible for Chau to offer a part of his office building for the remittance business because there was no more space to accommodate it.63 He and respondent went to Hong Kong in May 2002 to examine the office recommended by Chau and the warehouse of Rudy Fernandez thereatwho also offered to help.64 He then told Chau that the remittance office should be in Central Park, Kowloon, because majority of the Filipinos in Hong Kong live there.65 He concluded that it was impossible for the business to operate immediately because they had no office, no personnel and no license permit.66 He further claimed that petitioner never mentioned to him about the US$100,000.00 she gave to respondent,67 and that he even traveled again with petitioner to Bangkok in October 2002, and in August 2003.68 He denied Enrico’s allegation that he saw him at his mother’s house as he only saw Enrico for the first time in court.69

On April 21, 2006, the RTC rendered a Decision,70 the dispositive portion of which reads: WHEREFORE, accused PHILLIP SALVADOR is found GUILTY beyond reasonable doubt of the crime ofEstafa under Article 315, par. 2 (a) of the Revised Penal Code and is hereby sentenced to suffer the indeterminate sentence of four (4) years, two (2) months and one (1) day of prisyon (sic) correctional (sic)maximum as minimum to twenty (20) years of reclusion temporal maximumas maximum and to indemnify the private complainant in the amount of ONE HUNDRED THOUSAND DOLLARS (US$100,000.00) or its equivalent in Philippine currency. With respect to accused RAMON SALVADOR, he is ACQUITTED for insufficiency of evidence. SO ORDERED.71

Respondent appealed his conviction to the CA. The parties filed their respective pleadings, after which, the case was submitted for decision.

On February 11, 2010, the CA rendered its Decision reversing the decision of the RTC, the decretal portion of which reads:

WHEREFORE, premises considered, the appealed decision of Branch 202 of the RTC of Las Piñas City, dated April 21, 2006, is hereby REVERSED AND SET ASIDE and accused appellant PHILLIP R. SALVADOR is ACQUITTED of the crime of Estafa.72

Petitioner files the instant petition onthe civil aspect of the case alleging that:

THE TRIAL COURT WAS CORRECT IN CONVICTING THE RESPONDENT SO THAT EVEN IF THE COURT OF APPEALS DECIDED TO ACQUIT HIM IT SHOULD HAVE AT LEAST RETAINED THE AWARD OF DAMAGES TO THE PETITIONER.73

We find no merit in the petition.

To begin with, in Manantan v. CA,74 we discussed the consequences of an acquittal on the civil liability of the accused as follows:

Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused. First is an acquittal on the ground that the accused is not the author of the actor omission complained of. This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such act oromission. There being no delict, civil liability ex delictois out of the question, and the civil action, if any, which may be instituted must be based on grounds other than the delict complained of. This is the situation contemplated in Rule III of the Rules of Court. The second instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved by preponderance of evidence only. This is the situation contemplated in Article 29 of the Civil Code, where the civil action for damages is "for the same act or omission." x x x.75

A reading of the CA decision would show that respondent was acquitted because the prosecution failed to prove his guilt beyond reasonable doubt. Said the CA:

The evidence for the prosecution being insufficient to prove beyond reasonable doubt that the crime as charged had been committed by appellant, the general presumption, "that a person is innocent of the crime or wrong, stands in his favor. The prosecution failed to prove that all the elements of estafa are present in this case as would overcome the presumption of innocence in favor of appellant. For in fact, the prosecution's primary witness herself could not even establish clearly and precisely how appellant committed the alleged fraud. She failed to convince us that she was deceived through misrepresentations and/or insidious actions, in venturing into a remittance business. Quite the contrary, the obtaining circumstance inthis case indicate the weakness of her submissions.76

Thus, since the acquittal is based on reasonable doubt, respondent is not exempt from civil liability which may be proved by preponderance of evidence only. In Encinas v. National Bookstore, Inc.,77 we explained the concept of preponderance of evidence as follows:

x x x Preponderance of evidence is the weight, credit, and value of the aggregate evidence on either side and is usually considered to be synonymous with the term "greater weight of the evidence" or "greater weight of the credible evidence." Preponderance of evidence is a phrase which, in the last analysis, means probability of the truth. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.78

The issue of whether petitioner gave respondent the amount of US$100,000.00 is factual. While we are not a trier of facts, there are instances, however, when we are called upon to re-examine the factual findings of the trial court and the Court of Appeals and weigh, after considering the records of the case, which of the conflicting findings is more in accord with law and justice.79 Such is the case before us.

In discrediting petitioner’s allegation that she gave respondent US$100,000.00 in May 2002, the CA found that: (1) petitioner failed to show how she was able to raise the money in such a short period of time and even gave conflicting versions on the source of the same; (2) petitioner failed to require respondent to sign a receipt so she could have a record of the transaction and offered no plausible reason why the money was allegedly hand-carried toHong Kong; (3) petitioner’s claim of trust as reason for not requiring respondent to sign a receipt was inconsistent with the way she conducted her previous transactions with him; and (4) petitioner’s behavior after the alleged fraud perpetrated against her was inconsistent with the actuation ofsomeone who had been swindled.

We find no reversible error committed by the CA in its findings.

Petitioner failed to prove on how she raised the money allegedly given to respondent. She testified that from December 2001 to May 2002, she was raising the amount of US$100,000.00 as the capital for the actual operation of the Phillip Salvador Freight and Remittance International Limited in Hong Kong,80 and that she was ableto raise the same in May 2002.81 She did so by selling82 or pawning83 her pieces of diamond jewelry. However, there was no documentary evidence showing those transactions within the period mentioned. Upon further questioning on cross-examination on where she got the money, she then said that she had plenty of dollars as she is a frequent traveler to Hong Kong and Bangkok to shop for her boutique in Glorietta and Star Mall.84 Such testimony contradicts her claim that she was still raising the money for 5 months and that she was only able to formally raise the money in May 2002.

There was also no receipt that indeed US$100,000.00 was given by petitioner to respondent.1âwphi1 Petitioner in her testimony, both in the direct and cross

examinations, said that the US$100,000.00 given to respondent was for the actual expenses for setting up the office and the operation of the business in Hong Kong.85 She claimed that she treated the freight and remittance business like any of her businesses;86 that she, respondent, and the latter’s brother even agreed to divide whatever profits they would have from the business;87 and that giving US$100,000.00 to respondent was purely business to her.88 She also said that she kept records of all her business, such that, if there are no records, there are no funds entrusted89 . Since petitioner admitted that giving the money to respondent was for business, there must be some records ofsuch transaction as what she did in her other businesses.

In fact, it was not unusual for petitioner to ask respondent for some documents evidencing the latter's receipt of money for the purpose of business as this was done in her previous business dealings with respondent. She had asked respondent to execute a real estate mortgage on his condominium unit90 for the P5 million she loaned him in August 2001. Also, when petitioner gave respondent an additional loan of P10 million in December 2001, for the latter to redeem the title to his condominium unit from the bank, she had asked him to sign an acknowledgment receipt for the total amount of P15 million he got from her.91 She had done all these despite her testimony that she trusted respondent from the day they met in December 2000 until the day he ran away from her in August 2003.92

Petitioner insists that she did not ask for any acknowledgment receipt from respondent, because the latter told her not to have traces that she was giving money to him as it might jeopardize her then ongoing annulment proceedings. However, petitioner's testimony would belie such claim of respondent being cautious of the annulment proceedings. She declared that when she and her husband separated, respondent stood as a father to her children.93 Respondent attended school programs of her children,94 and fetched them from school whenever the driver was not around.95 In fact, at the time the annulment case was already pending, petitioner registered the freight and remittance business under respondent’s name and the local branch office of the business would be in petitioner's condominium unit in Makati.96 Also, when petitioner went with her mother and Ramon to Hong Kong to register the business, it was respondent who tookcare of her children. She intimated that it was respondent who was insistent in going to their house.

Worthy to mention is that petitioner deposited the amount of P500,000.00 to respondent's account with United Coconut Planters Bank (UCPB) in July 2003.97 Also, when respondent was in New York in August 2003, petitioner sent him the amount of US$2,000.00 by telegraphic transfer.98 Petitioner's act ofdepositing money to respondent's account contradicted her claim that there should be no traces that she was giving money to respondent during the pendency of the annulment case.

Petitioner conceded that she could have either bought a manager's check in US dollars from the bank orsend the money by bank transfer, but she did not do so on the claim that there might be traces of the transaction.99However, the alleged US$100,000.00was supposed to be given to respondent because of the freight and remittance business; thus, there is nothing wrong to have a record of the same, specially since respondent had to account for the valid expenseshe incurred with the money.100

The testimony of Enrico, petitioner's brother, declaring that he was present when petitioner gave respondent the US$100,000.00 did not help. Enrico testified that when petitioner filed the instant case in September 2004, another case was also filed by petitioner against respondent and his brother Ramon in the same City Prosecutor's office in Las Piñas where Enrico had submitted his affidavit. Enrico did not submit an affidavit in this case even when he allegedly witnessed the giving of the money to respondent as petitioner told him that he could just testify for the other case. However, when the other case was dismissed, it was then that petitioner told him to be a witness in this case. Enrico should have been considered at the first opportunity if he indeed had personal knowledge of the alleged giving of money to respondent. Thus, presenting Enrico as a witness only after the other case was dismissed would create doubt as to the veracity of his testimony.

WHEREFORE, the petition for review is DENIED. The Decision dated February 11, 2010, of the Court of Appeals in CA-G.R. CR No. 30151, is hereby AFFIRMED.

SO ORDERED.

FIRST DIVISION

G.R. No. 175256               August 23, 2012

LILY LIM, Petitioner, vs.KOU CO PING a.k.a. CHARLIE CO, Respondent.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 179160

KOU CO PING a.k.a. CHARLIE CO, Petitioner, vs.LILY LIM, Respondent.

LEONARDO-DE CASTRO,*

PERLAS-BERNABE,**

D E C I S I O N

DEL CASTILLO, J.:

Is it forum shopping for a private complainant to pursue a civil complaint for specific performance and damages, while appealing the judgment on the civil aspect of a criminal case for estafa?

Before the Court are consolidated Petitions for Review assailing the separate Decisions of the Second and Seventeenth Divisions of the Court of Appeals (CA) on the above issue.

Lily Lim’s (Lim) Petition for Review1 assails the October 20, 2005 Resolution2 of the Second Division in CA-G.R. CV No. 85138, which ruled on the above issue in the affirmative:

Due to the filing of the said civil complaint (Civil Case No. 5112396), Charlie Co filed the instant motion to dismiss [Lily Lim’s] appeal, alleging that in filing said civil case, Lily Lim violated the rule against forum shopping as the elements of litis pendentia are present.

This Court agrees.3

x x x x

IN VIEW OF THE FOREGOING, the appeal is DISMISSED.

SO ORDERED.4

On the other hand, Charlie Co’s (Co) Petition for Review5 assails the April 10, 2007 Decision6 of the Seventeenth Division in CA-G.R. SP No. 93395 for ruling on the same issue in the negative:

We find no grave abuse of discretion committed by respondent judge. The elements of litis pendentiaand forum-shopping were not met in this case.7

x x x x

WHEREFORE, in view of the foregoing, the instant petition is DENIED. This case is REMANDED to the court of origin for further proceedings.

SO ORDERED.8

Factual Antecedents

In February 1999, FR Cement Corporation (FRCC), owner/operator of a cement manufacturing plant, issued several withdrawal authorities9 for the account of cement dealers and traders, Fil-Cement Center and Tigerbilt. These withdrawal authorities state the number of bags that the dealer/trader paid for and can withdraw from the plant. Each withdrawal authority contained a provision that it is valid for six months from its date of issuance, unless revoked by FRCC Marketing Department.

Fil-Cement Center and Tigerbilt, through their administrative manager, Gail Borja (Borja), sold the withdrawal authorities covering 50,000 bags of cement to Co for the amount of P 3.15 million or P 63.00 per bag.10 On February 15, 1999, Co sold these withdrawal authorities to Lim allegedly at the price of P 64.00 per bag or a total of P 3.2 million.11

Using the withdrawal authorities, Lim withdrew the cement bags from FRCC on a staggered basis. She successfully withdrew 2,800 bags of cement, and sold back some of the withdrawal authorities, covering 10,000 bags, to Co.

Sometime in April 1999, FRCC did not allow Lim to withdraw the remaining 37,200 bags covered by the withdrawal authorities. Lim clarified the matter with Co and Borja, who explained that the plant implemented a price increase

and would only release the goods once Lim pays for the price difference or agrees to receive a lesser quantity of cement. Lim objected and maintained that the withdrawal authorities she bought were not subject to price fluctuations. Lim sought legal recourse after her demands for Co to resolve the problem with the plant or for the return of her money had failed.

The criminal case

An Information for Estafa through Misappropriation or Conversion was filed against Co before Branch 154 of the Regional Trial Court (RTC) of Pasig City. The accusatory portion thereof reads:

On or about between the months of February and April 1999, in San Juan, Metro Manila and within the jurisdiction of this Honorable Court, the accused, with intent to defraud Lily Lim, with grave abuse of confidence, with unfaithfulness, received in trust from Lily Lim cash money in the amount of P2,380,800.00 as payment for the 37,200 bags of cement, under obligation to deliver the 37,200 bags of cement to said Lily Lim, but far from complying with his obligation, misappropriated, misapplied and converted to his own personal use and benefit the said amount of P 2,300,800.00 [sic] and despite demands, the accused failed and refused to return said amount, to the damage and prejudice of Lily Lim in the amount of P 2,380,800.00.

Contrary to Law.12

The private complainant, Lily Lim, participated in the criminal proceedings to prove her damages. She prayed for Co to return her money amounting to P 2,380,800.00, foregone profits, and legal interest, and for an award of moral and exemplary damages, as well as attorney’s fees.13

On November 19, 2003, the RTC of Pasig City, Branch 154, rendered its Order14 acquitting Co of the estafa charge for insufficiency of evidence. The criminal court’s Order reads:

The first and second elements of the crime of estafa [with abuse of confidence under Article 315, paragraph 1(b)] for which the accused is being charged and prosecuted were not established by the prosecution’s evidence.

x x x x

In view of the absence of the essential requisites of the crime of estafa for which the accused is being charged and prosecuted, as above discussed, the Court has no alternative but to dismiss the case against the accused for insufficiency of evidence.15

WHEREFORE, in view of the foregoing, the Demurrer to Evidence is GRANTED, and the accused is hereby ACQUITTED of the crime of estafa charged against him under the present information for insufficiency of evidence.

Insofar as the civil liability of the accused is concerned, however, set this case for the reception of his evidence on the matter on December 11, 2003 at 8:30 o’clock [sic] in the morning.

SO ORDERED.16

After the trial on the civil aspect of the criminal case, the Pasig City RTC also relieved Co of civil liability to Lim in its December 1, 2004 Order.17 The dispositive portion of the Order reads as follows:

WHEREFORE, premises considered, judgment is hereby rendered holding the accused CHARLIE CO not civilly liable to the private complainant Lily Lim.

SO ORDERED.18

Lim sought a reconsideration of the above Order, arguing that she has presented preponderant evidence that Co committed estafa against her.19

The trial court denied the motion in its Order20 dated February 21, 2005.

On March 14, 2005, Lim filed her notice of appeal21 on the civil aspect of the criminal case. Her appeal was docketed as CA-G.R. CV No. 85138 and raffled to the Second Division of the CA.

The civil action for specific performance

On April 19, 2005, Lim filed a complaint for specific performance and damages before Branch 21 of the RTC of Manila. The defendants in the civil case were Co and all other parties to the withdrawal authorities, Tigerbilt, Fil-Cement Center, FRCC, Southeast Asia Cement, and La Farge Corporation. The complaint, docketed as Civil Case No. 05-112396, asserted two causes of action: breach of contract and abuse of rights. Her allegations read:

ALLEGATIONS COMMONTO ALL CAUSES OF ACTION

x x x x

23. Charlie Co obligated himself to deliver to Lily Lim 50,000 bags of cement of P 64.00 per bag on an x-plant basis within 3 months from the date of their transaction, i.e. February 15, 1999. Pursuant to said agreement, Lily Lim paid Charlie Co P 3.2 Million while Charlie Co delivered to Lily Lim FR Cement Withdrawal Authorities representing 50,000 bags of cement.

24. The withdrawal authorities issued by FR Cement Corp. allowed the assignee or holder thereof to withdraw within a six-month period from date a certain amount of cement indicated therein. The Withdrawal Authorities given to Lily Lim were dated either 3 February 1999 or 23 February 1999. The Withdrawal Authorities were first issued to Tigerbilt and Fil-Cement Center which in turn assigned them to Charlie Co. Charlie Co then assigned the Withdrawal Authorities to Lily Lim on February 15, 1999. Through these series of assignments, Lily Lim acquired all the rights (rights to withdraw cement) granted in said Withdrawal Authorities.

25. That these Withdrawal Authorities are valid is established by the fact that FR Cement earlier allowed Lily Lim to withdraw 2,800 bags of cement on the basis thereof.

26. However, sometime 19 April 1999 (within the three (3)-month period agreed upon by Charlie Co and Lily Lim and certainly within the six (6)-month period indicated in the Withdrawal Authorities issued by FR Cement Corp.), Lily Lim attempted but failed to withdraw the remaining bags of cement on account of FR Cement’s unjustified refusal to honor the Withdrawal Authorities. x x x

x x x x

FIRST CAUSE OF ACTION:BREACH OF CONTRACT

30. Charlie Co committed and is therefore liable to deliver to Lily Lim 37,200 bags of cement. If he cannot, then he must pay her the current fair market value thereof.

31. FR Cement Corporation is also liable to deliver to Lily Lim the amount of cement as indicated in the Withdrawal Authorities it issued. xxx FR Cement Corporation has no right to impose price adjustments as a qualification for honoring the Withdrawal Authorities.

32. Fil-Cement Center, Tigerbilt and Gail Borja as the original holders/ assignees of the Withdrawal Authorities repeatedly assured Lily Lim that the same were valid and would be honored. They are liable to make good on their assurances.

SECOND CAUSE OF ACTION:ABUSE OF RIGHTS AND UNJUST ENRICHMENT

33. Charlie Co’s acts of falsely representing to Lily Lim that she may be able to withdraw the cement from FR Cement Corp. caused Lily Lim to incur expenses and losses. Such act was made without justice, without giving Lily Lim what is due her and without observing honesty and good faith, all violative of the law, more specifically Articles 19 and 20 of the Civil Code. Such willful act was also made by Charlie Co in a manner contrary to morals, good customs or public policy, in violation of Article 21 of the Civil Code.

34. FR Cement Corporation’s unjust refusal to honor the Withdrawal Authorities they issued also caused damage to Lily Lim. Further, FR Cement Corporation’s act of withholding the 37,200 bags of cement despite earning income therefor constitutes as an unjust enrichment because FR Cement Corporation acquired income through an act or performance by another or any other means at the expense of another without just or legal ground in violation of Article 22 of the Civil Code.

35. Fil-Cement Center, Tigerbilt and Gail Borja’s false assurances that Lily Lim would be able to withdraw the remaining 37,200 bags of cement caused Lily Lim to incur expenses and losses. x x x Moreover, Fil-Cement Center admitted receiving payment for said amount of cement, thus they are deemed to have come into possession of money at the expense of Lily Lim without just or legal ground, in violation of Article 22 of the Civil Code.

THIRD CAUSE OF ACTION:MORAL AND EXEMPLARY DAMAGES and

ATTORNEY’S FEES AND COSTS OF SUIT22

Lim prayed for Co to honor his contractual commitments either by delivering the 37,200 bags of cement, making arrangements with FRCC to allow Lim to withdraw the cement, or to pay for their value. She likewise asked that the defendants be held solidarily liable to her for the damages she incurred in her failed attempts to withdraw the cement and for the damages they inflicted on her as a result of their abuse of their rights.23

Motions to dismiss both actions

In reaction to the filing of the civil complaint for specific performance and damages, Co filed motions to dismiss the said civil case24 and Lim’s appeal in the civil aspect of the estafa case or CA-G.R. CV No. 85138.25 He maintained that the two actions raise the same issue, which is Co’s liability to Lim for her inability to withdraw the bags of cement,26 and should be dismissed on the ground of lis pendens and forum shopping.

Ruling of the Court of Appeals Second Division in CA-G.R CV No. 85138

The appellate court (Second Division) favorably resolved Co’s motion and dismissed Lim’s appeal from the civil aspect of the estafa case. In its Resolution dated October 20, 2005, the CA Second Division held that the parties, causes of action, and reliefs prayed for in Lim’s appeal and in her civil complaint are identical. Both actions seek the same relief, which is the payment of the value of the 37,200 bags of cement.27 Thus, the CA Second Division dismissed Lim’s appeal for forum shopping.28 The CA denied29 Lim’s motion for reconsideration.30

Lim filed the instant petition for review, which was docketed as G.R. No. 175256.

Ruling of the Manila Regional Trial Court in Civil Case No. 05-112396

Meanwhile, the Manila RTC denied Co’s Motion to Dismiss in an Order31 dated December 6, 2005. The Manila RTC held that there was no forum shopping because the causes of action invoked in the two cases are different. It observed that the civil complaint before it is based on an obligation arising from contract and quasi-delict, whereas the civil liability involved in the appeal of the criminal case arose from a felony.

Co filed a petition for certiorari,32 docketed as CA-G.R. SP No. 93395, before the appellate court. He prayed for the nullification of the Manila RTC’s Order in Civil Case No. 05-112396 for having been issued with grave abuse of discretion.33

Ruling of the Court of Appeals Seventeenth Division in CA-G.R. SP No. 93395

The CA Seventeenth Division denied Co’s petition and remanded the civil complaint to the trial court for further proceedings. The CA Seventeenth Division agreed with the Manila RTC that the elements of litis pendentia and forum shopping are not met in the two proceedings because they do not share the same cause of action.34

The CA denied35 Co’s motion for reconsideration.36

Co filed the instant Petition for Review, which was docketed as G.R. No. 179160.

Upon Co’s motion,37 the Court resolved to consolidate the two petitions.38

Kou Co Ping’s arguments

Co maintains that Lim is guilty of forum shopping because she is asserting only one cause of action in CA-G.R. CV No. 85138 (the appeal from the civil aspect of Criminal Case No. 116377) and in Civil Case No. 05-112396, which is for Co’s violation of her right to receive 37,200 bags of cement. Likewise, the reliefs sought in both cases are the same, that is, for Co to deliver the 37,200 bags of cement or its value to Lim. That Lim utilized different methods of presenting her case – a criminal action for estafa and a civil complaint for specific performance and damages – should not detract from the fact that she is attempting to litigate the same cause of action twice.39

Co makes light of the distinction between civil liability ex contractu and ex delicto. According to him, granting that the two civil liabilities are independent of each other, nevertheless, the two cases arising from them would have to be decided using the same evidence and going over the same set of facts. Thus, any judgment rendered in one of these cases will constitute res judicata on the other.40

In G.R. No. 179160, Co prays for the annulment of the CA Decision and Resolution in CA-G.R. SP No. 93395, for a declaration that Lim is guilty of forum shopping, and for the dismissal of Civil Case No. 05-112396.41

In G.R. No. 175256, Co prays for the affirmation of the CA Decision in CA-G.R. CV No. 85138 (which dismissed Lim’s appeal from the trial court’s decision in Criminal Case No. 116377).42

Lily Lim’s arguments

Lim admits that the two proceedings involve substantially the same set of facts because they arose from only one transaction.43 She is quick to add, however, that a single act or omission does not always make a single cause of action.44 It can possibly give rise to two separate civil liabilities on the part of the offender – (1) ex delicto or civil liability arising from crimes, and (2) independent civil liabilities or those arising from contracts or intentional torts. The only caveat provided in Article 2177 of the Civil Code is that the offended party cannot recover damages twice for the same act or omission.45 Because the law allows her two independent causes of action, Lim contends that it is not forum shopping to pursue them.46

She then explains the separate and distinct causes of action involved in the two cases. Her cause of action in CA-G.R CV No. 85138 is based on the crime of estafa. Co violated Lim’s right to be protected against swindling. He represented to Lim that she can withdraw 37,200 bags of cement using the authorities she bought from him. This is a fraudulent representation because

Co knew, at the time that they entered into the contract, that he could not deliver what he promised.47 On the other hand, Lim’s cause of action in Civil Case No. 05-112396 is based on contract. Co violated Lim’s rights as a buyer in a contract of sale. Co received payment for the 37,200 bags of cement but did not deliver the goods that were the subject of the sale.48

In G.R. No. 179160, Lim prays for the denial of Co’s petition.49 In G.R. No. 175256, she prays for the reversal of the CA Decision in CA-G.R. CV No. 85138, for a declaration that she is not guilty of forum shopping, and for the reinstatement of her appeal in Criminal Case No. 116377 to the CA.50

Issue

Did Lim commit forum shopping in filing the civil case for specific performance and damages during the pendency of her appeal on the civil aspect of the criminal case for estafa?

Our Ruling

A single act or omission that causes damage to an offended party may give rise to two separate civil liabilities on the part of the offender51 - (1) civil liability ex delicto, that is, civil liability arising from the criminal offense under Article 100 of the Revised Penal Code,52 and (2) independent civil liability, that is, civil liability that may be pursued independently of the criminal proceedings. The independent civil liability may be based on "an obligation not arising from the act or omission complained of as a felony," as provided in Article 31 of the Civil Code (such as for breach of contract or for tort53). It may also be based on an act or omission that may constitute felony but, nevertheless, treated independently from the criminal action by specific provision of Article 33 of the Civil Code ("in cases of defamation, fraud and physical injuries").

The civil liability arising from the offense or ex delicto is based on the acts or omissions that constitute the criminal offense; hence, its trial is inherently intertwined with the criminal action. For this reason, the civil liability ex delicto is impliedly instituted with the criminal offense.54 If the action for the civil liability ex delicto is instituted prior to or subsequent to the filing of the criminal action, its proceedings are suspended until the final outcome of the criminal action.55 The civil liability based on delict is extinguished when the court hearing the criminal action declares that "the act or omission from which the civil liability may arise did not exist."56

On the other hand, the independent civil liabilities are separate from the criminal action and may be pursued independently, as provided in Articles 31 and 33 of the Civil Code, which state that:

ART. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. (Emphasis supplied.)

ART. 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. (Emphasis supplied.)

Because of the distinct and independent nature of the two kinds of civil liabilities, jurisprudence holds that the offended party may pursue the two types of civil liabilities simultaneously or cumulatively, without offending the rules on forum shopping, litis pendentia, or res judicata.57 As explained in Cancio, Jr. v. Isip:58

One of the elements of res judicata is identity of causes of action. In the instant case, it must be stressed that the action filed by petitioner is an independent civil action, which remains separate and distinct from any criminal prosecution based on the same act. Not being deemed instituted in the criminal action based on culpa criminal, a ruling on the culpability of the offender will have no bearing on said independent civil action based on an entirely different cause of action, i.e., culpa contractual.

In the same vein, the filing of the collection case after the dismissal of the estafa cases against the offender did not amount to forum-shopping. The essence of forum shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment. Although the cases filed by [the offended party] arose from the same act or omission of [the offender], they are, however, based on different causes of action. The criminal cases for estafa are based on culpa criminal while the civil action for collection is anchored on culpa contractual. Moreover, there can be no forum-shopping in the instant case because the law expressly allows the filing of a separate civil action which can proceed independently of the criminal action.59

Since civil liabilities arising from felonies and those arising from other sources of obligations are authorized by law to proceed independently of each other, the resolution of the present issue hinges on whether the two cases herein involve different kinds of civil obligations such that they can proceed independently of each other. The answer is in the affirmative.

The first action is clearly a civil action ex delicto, it having been instituted together with the criminal action.60

On the other hand, the second action, judging by the allegations contained in the complaint,61 is a civil action arising from a contractual obligation and for tortious conduct (abuse of rights). In her civil complaint, Lim basically alleges that she entered into a sale contract with Co under the following terms: that she bought 37,200 bags of cement at the rate of P 64.00 per bag from Co; that, after full payment, Co delivered to her the withdrawal authorities issued by FRCC corresponding to these bags of cement; that these withdrawal authorities will be honored by FRCC for six months from the dates written thereon. Lim then maintains that the defendants breached their contractual obligations to her under the sale contract and under the withdrawal authorities; that Co and his co-defendants wanted her to pay more for each bag of cement, contrary to their agreement to fix the price at P 64.00 per bag and to the wording of the withdrawal authorities; that FRCC did not honor the terms of the withdrawal authorities it issued; and that Co did not comply with his obligation under the sale contract to deliver the 37,200 bags of cement to Lim. From the foregoing allegations, it is evident that Lim seeks to enforce the defendants’ contractual obligations, given that she has already performed her obligations. She prays that the defendants either honor their part of the contract or pay for the damages that their breach has caused her.

Lim also includes allegations that the actions of the defendants were committed in such manner as to cause damage to Lim without regard for morals, good customs and public policy. These allegations, if proven, would constitute tortious conduct (abuse of rights under the Human Relations provisions of the Civil Code).

Thus, Civil Case No. 05-112396 involves only the obligations arising from contract and from tort, whereas the appeal in the estafa case involves only the civil obligations of Co arising from the offense charged. They present different causes of action, which under the law, are considered "separate, distinct, and independent"62 from each other. Both cases can proceed to their final adjudication, subject to the prohibition on double recovery under Article 2177 of the Civil Code.63

WHEREFORE, premises considered, Lily Lim’s Petition in G.R. No. 175256 is GRANTED. The assailed October 20, 2005 Resolution of the Second Division of the Court of Appeals in CA-G.R. CV No. 85138 is REVERSED and SET ASIDE. Lily Lim’s appeal in CA-G.R. CV No. 85138 is ordered REINSTATED and the Court of Appeals isDIRECTED to RESOLVE the same with DELIBERATE DISPATCH.

Charlie Co’s Petition G.R. No. 179160 is DENIED. The assailed April 10, 2007 Decision of the Seventeenth Division of the Court of Appeals in CA-G.R. SP No. 93395 is AFFIRMED in toto.

SO ORDERED.

[G.R. No. 145391. August 26, 2002]

AVELINO CASUPANAN and ROBERTO CAPITULO, petitioners, vs. MARIO LLAVORE LAROYA, respondent.

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for review on certiorari to set aside the Resolution[1] dated December 28, 1999 dismissing the petition for certiorari and the Resolution[2] dated August 24, 2000 denying the motion for reconsideration, both issued by the Regional Trial Court of Capas, Tarlac, Branch 66, in Special Civil Action No. 17-C (99).

The Facts

Two vehicles, one driven by respondent Mario Llavore Laroya (Laroya for brevity) and the other owned by petitioner Roberto Capitulo (Capitulo for brevity) and driven by petitioner Avelino Casupanan (Casupanan for brevity), figured in an accident. As a result, two cases were filed with the Municipal Circuit Trial Court (MCTC for brevity) of Capas, Tarlac. Laroya filed a criminal case against Casupanan for reckless imprudence resulting in damage to property, docketed as Criminal Case No. 002-99. On the other hand, Casupanan and Capitulo filed a civil case against Laroya for quasi-delict, docketed as Civil Case No. 2089.

When the civil case was filed, the criminal case was then at its preliminary investigation stage. Laroya, defendant in the civil case, filed a motion to dismiss the civil case on the ground of forum-shopping considering the pendency of the criminal case. The MCTC granted the motion in the Order of March 26, 1999 and dismissed the civil case.

On Motion for Reconsideration, Casupanan and Capitulo insisted that the civil case is a separate civil action which can proceed independently of the

criminal case. The MCTC denied the motion for reconsideration in the Order of May 7, 1999. Casupanan and Capitulo filed a petition for certiorari under Rule 65 before the Regional Trial Court (Capas RTC for brevity) of Capas, Tarlac, Branch 66,[3] assailing the MCTCs Order of dismissal.

The Trial Courts Ruling

The Capas RTC rendered judgment on December 28, 1999 dismissing the petition for certiorari for lack of merit. The Capas RTC ruled that the order of dismissal issued by the MCTC is a final order which disposes of the case and therefore the proper remedy should have been an appeal.The Capas RTC further held that a special civil action for certiorari is not a substitute for a lost appeal. Finally, the Capas RTC declared that even on the premise that the MCTC erred in dismissing the civil case, such error is a pure error of judgment and not an abuse of discretion.

Casupanan and Capitulo filed a Motion for Reconsideration but the Capas RTC denied the same in the Resolution of August 24, 2000.

Hence, this petition.

The Issue

The petition premises the legal issue in this wise:

In a certain vehicular accident involving two parties, each one of them may think and believe that the accident was caused by the fault of the other. x x x [T]he first party, believing himself to be the aggrieved party, opted to file a criminal case for reckless imprudence against the second party. On the other hand, the second party, together with his operator, believing themselves to be the real aggrieved parties, opted in turn to file a civil case for quasi-delict against the first party who is the very private complainant in the criminal case.[4]

Thus, the issue raised is whether an accused in a pending criminal case for reckless imprudence can validly file, simultaneously and independently, a separate civil action for quasi-delict against the private complainant in the criminal case.

The Courts Ruling

Casupanan and Capitulo assert that Civil Case No. 2089, which the MCTC dismissed on the ground of forum-shopping, constitutes a counterclaim in the criminal case. Casupanan and Capitulo argue that if the accused in a criminal case has a counterclaim against the private complainant, he may file the counterclaim in a separate civil action at the proper time. They contend that an action on quasi-delict is different from an action resulting from the crime of reckless imprudence, and an accused in a criminal case can be an aggrieved party in a civil case arising from the same incident. They maintain that under Articles 31 and 2176 of the Civil Code, the civil case can proceed independently of the criminal action.Finally, they point out that Casupanan was not the only one who filed the independent civil action based on quasi-delict but also Capitulo, the owner-operator of the vehicle, who was not a party in the criminal case.

In his Comment, Laroya claims that the petition is fatally defective as it does not state the real antecedents. Laroya further alleges that Casupanan and Capitulo forfeited their right to question the order of dismissal when they failed to avail of the proper remedy of appeal. Laroya argues that there is no question of law to be resolved as the order of dismissal is already final and a petition for certiorari is not a substitute for a lapsed appeal.

In their Reply, Casupanan and Capitulo contend that the petition raises the legal question of whether there is forum-shopping since they filed only one action - the independent civil action for quasi-delict against Laroya.

Nature of the Order of Dismissal

The MCTC dismissed the civil action for quasi-delict on the ground of forum-shopping under Supreme Court Administrative Circular No. 04-94.The MCTC did not state in its order of dismissal[5] that the dismissal was with prejudice. Under the Administrative Circular, the order of dismissal is without prejudice to refiling the complaint, unless the order of dismissal expressly states it is with prejudice.[6] Absent a declaration that the dismissal is with prejudice, the same is deemed without prejudice. Thus, the MCTCs dismissal, being silent on the matter, is a dismissal without prejudice.

Section 1 of Rule 41[7] provides that an order dismissing an action without prejudice is not appealable. The remedy of the aggrieved party is to file a special civil action under Rule 65. Section 1 of Rule 41 expressly states that where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. Clearly, the Capas RTCs order dismissing the petition for certiorari, on the ground that the proper remedy is an ordinary appeal, is erroneous.

Forum-Shopping

The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment.[8] Forum-shopping is present when in the two or more cases pending, there is identity of parties, rights of action and reliefs sought.[9] However, there is no forum-shopping in the instant case because the law and the rules expressly allow the filing of a separate civil action which can proceed independently of the criminal action.

Laroya filed the criminal case for reckless imprudence resulting in damage to property based on the Revised Penal Code while Casupanan and Capitulo filed the civil action for damages based on Article 2176 of the Civil Code. Although these two actions arose from the same act or omission, they have different causes of action. The criminal case is based on culpa criminal punishable under the Revised Penal Code while the civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of the Civil Code. These articles on culpa aquiliana read:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.

Any aggrieved person can invoke these articles provided he proves, by preponderance of evidence, that he has suffered damage because of the fault or negligence of another. Either the private complainant or the accused can file a separate civil action under these articles. There is nothing in the law or rules that state only the private complainant in a criminal case may invoke these articles.

Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure (2000 Rules for brevity) expressly requires the accused to litigate his counterclaim in a separate civil action, to wit:

SECTION 1. Institution of criminal and civil actions. (a) x x x.

No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (Emphasis supplied)

Since the present Rules require the accused in a criminal action to file his counterclaim in a separate civil action, there can be no forum-shopping if the accused files such separate civil action.

Filing of a separate civil action

Section 1, Rule 111 of the 1985 Rules on Criminal Procedure (1985 Rules for brevity), as amended in 1988, allowed the filing of a separate civil action independently of the criminal action provided the offended party reserved the right to file such civil action. Unless the offended party reserved the civil action before the presentation of the evidence for the prosecution, all civil actions arising from the same act or omission were deemed impliedly instituted in the criminal case. These civil actions referred to the recovery of civil liability ex-delicto, the recovery of damages for quasi-delict, and the recovery of damages for violation of Articles 32, 33 and 34 of the Civil Code on Human Relations.

Thus, to file a separate and independent civil action for quasi-delict under the 1985 Rules, the offended party had to reserve in the criminal action the right to bring such action. Otherwise, such civil action was deemed impliedly instituted in the criminal action. Section 1, Rule 111 of the 1985 Rules provided as follows:

Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.

A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of said civil actions separately waives the others.

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

In no case may the offended party recover damages twice for the same act or omission of the accused.

x x x. (Emphasis supplied)

Section 1, Rule 111 of the 1985 Rules was amended on December 1, 2000 and now provides as follows:

SECTION 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.

The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

x x x

(b) x x x

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this rule governing consolidation of the civil and criminal actions. (Emphasis supplied)

Under Section 1 of the present Rule 111, what is deemed instituted with the criminal action is only the action to recover civil liability arising from the crime or ex-delicto. All the other civil actions under Articles 32, 33, 34 and 2176 of the Civil Code are no longer deemed instituted, and may be filed separately and prosecuted independently even without any reservation in the criminal action. The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the Civil Code. The prescriptive period on the civil actions based on these articles of the Civil Code continues to run even with the filing of the criminal action. Verily, the civil actions based on these articles of the Civil Code are separate, distinct and independent of the civil action deemed instituted in the criminal action.[10]

Under the present Rule 111, the offended party is still given the option to file a separate civil action to recover civil liability ex-delicto by reserving such right in the criminal action before the prosecution presents its evidence. Also, the offended party is deemed to make such reservation if he files a separate civil action before filing the criminal action. If the civil action to recover civil liability ex-delicto is filed separately but its trial has not yet commenced, the civil action may be consolidated with the criminal action. The consolidation under this Rule does not apply to separate civil actions arising from the same act or omission filed under Articles 32, 33, 34 and 2176 of the Civil Code.[11]

Suspension of the Separate Civil Action

Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, if reserved in the criminal action, could not be filed until after final judgment was rendered in the criminal action. If the separate civil action was filed before the commencement of the criminal action, the civil action, if still pending, was suspended upon the filing of the criminal action until final judgment was rendered in the criminal action. This rule applied only to the separate civil action filed to recover liability ex-delicto. The rule did not apply to independent civil actions based on Articles 32, 33, 34 and 2176 of the Civil Code, which could proceed independently regardless of the filing of the criminal action.

The amended provision of Section 2, Rule 111 of the 2000 Rules continues this procedure, to wit:

SEC. 2. When separate civil action is suspended. After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action.

If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly.

During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled.

x x x. (Emphasis supplied)

Thus, Section 2, Rule 111 of the present Rules did not change the rule that the separate civil action, filed to recover damages ex-delicto, is suspended upon the filing of the criminal action. Section 2 of the present Rule 111 also prohibits the filing, after commencement of the criminal action, of a separate civil action to recover damages ex-delicto.

When civil action may proceed independently

The crucial question now is whether Casupanan and Capitulo, who are not the offended parties in the criminal case, can file a separate civil action

against the offended party in the criminal case. Section 3, Rule 111 of the 2000 Rules provides as follows:

SEC 3. When civil action may proceed independently. - In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. (Emphasis supplied)

Section 3 of the present Rule 111, like its counterpart in the amended 1985 Rules, expressly allows the offended party to bring an independent civil action under Articles 32, 33, 34 and 2176 of the Civil Code. As stated in Section 3 of the present Rule 111, this civil action shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action.

There is no question that the offended party in the criminal action can file an independent civil action for quasi-delict against the accused.Section 3 of the present Rule 111 expressly states that the offended party may bring such an action but the offended party may not recover damages twice for the same act or omission charged in the criminal action. Clearly, Section 3 of Rule 111 refers to the offended party in the criminal action, not to the accused.

Casupanan and Capitulo, however, invoke the ruling in Cabaero vs. Cantos[12] where the Court held that the accused therein could validly institute a separate civil action for quasi-delict against the private complainant in the criminal case. In Cabaero, the accused in the criminal case filed his Answer with Counterclaim for malicious prosecution. At that time the Court noted the absence of clear-cut rules governing the prosecution on impliedly instituted civil actions and the necessary consequences and implications thereof. Thus, the Court ruled that the trial court should confine itself to the criminal aspect of the case and disregard any counterclaim for civil liability. The Court further ruled that the accused may file a separate civil case against the offended party after the criminal case is terminated and/or in accordance with the new Rules which may be promulgated. The Court explained that a cross-claim, counterclaim or third-party complaint on the civil aspect will only unnecessarily complicate the proceedings and delay the resolution of the criminal case.

Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000 Rules precisely to address the lacuna mentioned in Cabaero.Under this provision, the accused is barred from filing a counterclaim, cross-claim or third-party complaint in the criminal case. However, the same provision states that any cause of action which could have been the subject (of the counterclaim, cross-claim or third-party complaint) may be litigated in a separate civil

action. The present Rule 111 mandates the accused to file his counterclaim in a separate civil action which shall proceed independently of the criminal action, even as the civil action of the offended party is litigated in the criminal action.

Conclusion

Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation. The commencement of the criminal action does not suspend the prosecution of the independent civil action under these articles of the Civil Code. The suspension in Section 2 of the present Rule 111 refers only to the civil action arising from the crime, if such civil action is reserved or filed before the commencement of the criminal action.

Thus, the offended party can file two separate suits for the same act or omission. The first a criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a civil case for quasi-delict - without violating the rule on non-forum shopping. The two cases can proceed simultaneously and independently of each other. The commencement or prosecution of the criminal action will not suspend the civil action for quasi-delict. The only limitation is that the offended party cannot recover damages twice for the same act or omission of the defendant. In most cases, the offended party will have no reason to file a second civil action since he cannot recover damages twice for the same act or omission of the accused. In some instances, the accused may be insolvent, necessitating the filing of another case against his employer or guardians.

Similarly, the accused can file a civil action for quasi-delict for the same act or omission he is accused of in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present Rule 111 which states that the counterclaim of the accused may be litigated in a separate civil action. This is only fair for two reasons. First, the accused is prohibited from setting up any counterclaim in the civil aspect that is deemed instituted in the criminal case. The accused is therefore forced to litigate separately his counterclaim against the offended party. If the accused does not file a separate civil action for quasi-delict, the prescriptive period may set in since the period continues to run until the civil action for quasi-delict is filed.

Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in the same way that the offended party can avail of this remedy which is independent of the criminal action. To disallow the accused from filing a separate civil action for quasi-delict, while refusing to recognize his counterclaim in the criminal case, is to deny him due process of law, access to the courts, and equal protection of the law.

Thus, the civil action based on quasi-delict filed separately by Casupanan and Capitulo is proper. The order of dismissal by the MCTC of Civil Case No. 2089 on the ground of forum-shopping is erroneous.

We make this ruling aware of the possibility that the decision of the trial court in the criminal case may vary with the decision of the trial court in the independent civil action. This possibility has always been recognized ever since the Civil Code introduced in 1950 the concept of an independent civil action under Articles 32, 33, 34 and 2176 of the Code. But the law itself, in Article 31 of the Code, expressly provides that the independent civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. In Azucena vs. Potenciano,[13] the Court declared:

x x x. There can indeed be no other logical conclusion than this, for to subordinate the civil action contemplated in the said articles to the result of the criminal prosecution whether it be conviction or acquittal would render meaningless the independent character of the civil action and the clear injunction in Article 31 that this action 'may proceed independently of the criminal proceedings and regardless of the result of the latter.

More than half a century has passed since the Civil Code introduced the concept of a civil action separate and independent from the criminal action although arising from the same act or omission. The Court, however, has yet to encounter a case of conflicting and irreconcilable decisions of trial courts, one hearing the criminal case and the other the civil action for quasi-delict. The fear of conflicting and irreconcilable decisions may be more apparent than real. In any event, there are sufficient remedies under the Rules of Court to deal with such remote possibilities.

One final point. The Revised Rules on Criminal Procedure took effect on December 1, 2000 while the MCTC issued the order of dismissal on December 28, 1999 or before the amendment of the rules. The Revised Rules on Criminal Procedure must be given retroactive effect considering the well-settled rule that -

x x x statutes regulating the procedure of the court will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent.[14]

WHEREFORE, the petition for review on certiorari is hereby GRANTED. The Resolutions dated December 28, 1999 and August 24, 2000 in Special Civil Action No. 17-C (99) are ANNULLED and Civil Case No. 2089 is REINSTATED.

SO ORDERED.

[G. R. No. 112985. April 21, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARTIN L. ROMERO and ERNESTO C. RODRIGUEZ, accused-appellants.

D E C I S I O N

PARDO, J.:

The case before the Court is an appeal of accused Martin L. Romero and Ernesto C. Rodriguez from the Joint Judgment[1] of the Regional Trial Court, Branch 2, Butuan City, convicting each of them of estafa under Article 315, par. 2 (d) of the Revised Penal Code, in relation to PresidentialDecree No. 1689, for widescale swindling, and sentencing each of them to suffer the penalty of life imprisonment and to jointly and severally payErnesto A. Ruiz the amount of one hundred fifty thousand pesos (P150,000.00), with interest at the rate of twelve percent (12%) per annum, starting September 14, 1989, until fully paid, and to pay ten thousand pesos (P10,000.00), as moral damages.

On October 25, 1989, Butuan City acting fiscal Ernesto M. Brocoy filed with the Regional Trial Court, Butuan City, an Information against the two (2) accused for estafa,[2] as follows:

That on or about September 14, 1989, at Butuan City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being the General Manager and Operation Manager which solicit funds from the general public for investment, conspiring, confederating together and mutually helping one another, by means of deceit and false pretense, did then and there willfully, unlawfully and feloniously deliberately defraud one Ernesto A. Ruiz by convincing the latter to invest his money in the amount of P150,000.00 with a promise return of 800% profit within 21 days and in the process caused the issuance of Butuan City Rural Rural [sic] Bank Check No. 158181 postdated to October 5, 1989 in the amount of One Million Two Hundred Thousand Pesos (P1,200,000.00) Philippine Currency, that upon presentation of said check to the drawee bank for payment the same was dishonored and that notwithstanding repeated demands made on said accused to pay and/or change the check to cash, they consistently failed and refused and still fail and refuse to pay or redeem the check, to the damage and prejudice of the complainant in the aforestated amount of P1,200,000.00.[3]

On the same day, the city fiscal filed with the same court another information against the two (2) accused for violation of Batas Pambansa Bilang 22, arising from the issuance of the same check.[4]

On January 11, 1990, both accused were arraigned before the Regional Trial Court, Branch 5,[5] Butuan City, where they pleaded not guilty to both informations.

The prosecution presented its evidence on January 10, 1991, with complainant, Ernesto A. Ruiz, and Daphne Parrocho, the usher/collector of the corporation being managed by accused, testifying for the prosecution.

On August 12, 1991, the defense presented its only witness, accused Martin L. Romero.

On November 13, 1992, the parties submitted a joint stipulation of facts, signed only by their respective counsels. Thereafter, the case was submitted for decision.

On March 30, 1993, the trial court promulgated a Joint Judgment dated March 25, 1993. The trial court acquitted the accused in Criminal Case No. 3806[6] based on reasonable doubt, but convicted them in Criminal Case No. 3808[7] and accordingly sentenced each of them, as follows:

IN VIEW OF THE FOREGOING, the Court hereby renders judgment, finding or declaring -

(a) Accused Martin L. Romero and Ernesto C. Rodriguez innocent on reasonable doubt in Criminal Case No. 3806, for violation of Batas Pambansa Bilang 22;

(b) Accused Martin L. Romero and Ernesto C .Rodriguez guilty beyond reasonable doubt in Criminal Case No. 3808 for estafa under P.D. 1689 for wide scale [sic] swindling and accordingly sentences them to suffer life imprisonment (Section 1 P.D. 1689) and ordered jointly and severally to return to Ernesto A. Ruiz the amount of One Hundred Fifty Thousand Pesos (P150,000.00) with interest thereon at the rate of Twelve percent (12%) per annum starting from September 14, 1989 until fully paid and to pay the amount of Ten Thousand Pesos (P10,000.00) as moral damages.

In the service of their sentence, the accused pursuant to R.A. 6127, shall be credited for the preventive imprisonment they have undergone (PP vs. Ortencio, 38 Phil 941; PP vs. Gabriel, No. L-13756, October 30, 1959, cited in

Gregorios Fundamentals of Criminal Law Review, P. 178, Seventh Edition, 1985).[8]

On March 31, 1993, accused filed their notice of appeal, which the trial court gave due course on April 5, 1993. On March 16, 1994, this Court ordered the accused to file their appellants brief.

Accused-appellants filed their brief on October 30, 1995, while the Solicitor General filed the appellees brief on March 8, 1996.

During the pendency of the appeal, on November 12, 1997, accused Ernesto Rodriguez died.[9] As a consequence of his death before final judgment, his criminal and civil liability ex delicto, were extinguished.[10]

Complainant Ernesto A. Ruiz was a radio commentator of Radio DXRB, Butuan City. In August, 1989, he came to know the business of Surigao San Andres Industrial Development Corporation (SAIDECOR), when he interviewed accused Martin Romero and Ernesto Rodriguez regarding the corporations investment operations in Butuan City and Agusan del Norte. Romero was the president and general manager of SAIDECOR, while Rodriguez was the operations manager.

SAIDECOR started its operation on August 24, 1989 as a marketing business. Later, it engaged in soliciting funds and investments from the public. The corporation guaranteed an 800% return on investment within fifteen (15) or twenty one (21) days. Investors were given coupons containing the capital and the return on the capital collectible on the date agreed upon. It stopped operations in September, 1989.

On September 14, 1989, complainant Ernesto A. Ruiz went to SAIDECOR office in Butuan City to make an investment, accompanied by his friend Jimmy Acebu, and SAIDECOR collection agent Daphne Parrocho. After handing over the amount of one hundred fifty thousand pesos (P150,000.00) to Ernesto Rodriguez, complainant received a postdated Butuan City Rural Bank check instead of the usual redeemable coupon.The check indicated P1,000,200.00 as the amount in words, but the amount in figures was for P1,200,000.00, as the return on the investment. Complainant did not notice the discrepancy.

When the check was presented to the bank for payment on October 5, 1989, it was dishonored for insufficiency of funds, as evidenced by the check return slip issued by the bank.[11] Both accused could not be located and demand for payment was made only sometime in November 1989 during the preliminary investigation of this case. Accused responded that they had no money.

Daphne Parrocho,[12] testified that on September 14, 1989, complainant, with his friend Jimmy Acebu, approached her to invest the amount of P150,000.00 at SAIDECOR. As she has reached her quota, and therefore, no

longer authorized to receive the amount, she accompanied them to the office of SAIDECOR at Ong Yiu District, Butuan City. Accused Ernesto Rodriguez accepted the investment and issued the check signed by him and Martin Romero.

For their defense, accused Martin Romero[13] testified that on September 14, 1989, he issued a check in the amount of P1,200,000.00 corresponding to the total of the P150,000.00 investment and the 800% return thereon. He claimed that the corporation had a deposit of fourteen million pesos (P14,000,000.00) at the time of the issuance of the check and four million pesos (P4,000,000.00) at the time SAIDECOR stopped operations. Romero knew these things because he used to monitor the funds of the corporation with the bank. He was not aware that the check he issued was dishonored because he never had the occasion to meet the complainant again after the September 14, 1989 transaction. He only came to know about this when the case was already filed in court sometime in the second or third week of January 1990.[14]

In this appeal, both accused did not deny that complainant made an investment with SAIDECOR in the amount of P150,000.00. However, they denied that deceit was employed in the transaction. They assigned as errors: (1) their conviction under P.D. 1689 due to the prosecutions failure to establish their guilt beyond reasonable doubt; and (2) the trial courts failure to consider the joint stipulation of facts in their favor.[15] There is no merit in this appeal. We sustain accused-appellants conviction.

Under paragraph 2 (d) of Article 315, as amended by R.A. 4885,[16] the elements of estafa are: (1) a check was postdated or issued in payment of an obligation contracted at the time it was issued; (2) lack or insufficiency of funds to cover the check; (3) damage to the payee thereof.[17] The prosecution has satisfactorily established all these elements.

Fraud, in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust, or confidences justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another.[18] It is a generic term embracing all multifarious means which human ingenuity can device, and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling and any unfair way by which another is cheated.[19]

Deceit is a specie of fraud. It is actual fraud, and consists in any false representation or contrivance whereby one person overreaches and misleads another, to his hurt. Deceit excludes the idea of mistake.[20] There is deceit when one is misled, either by guide or trickery or by other means, to believe to be true what is really false.[21] In this case, there was deception when accused

fraudulently represented to complainant that his investment with the corporation would have an 800% return in 15 or 21 days.

Upon receipt of the money, accused-appellant Martin Romero issued a postdated check. Although accused-appellant contends that sufficient funds were deposited in the bank when the check was issued, he presented no officer of the bank to substantiate the contention. The check was dishonored when presented for payment, and the check return slip submitted in evidence indicated that it was dishonored due to insufficiency of funds.

Even assuming for the sake of argument that the check was dishonored without any fraudulent pretense or fraudulent act of the drawer, the latters failure to cover the amount within three days after notice creates a rebuttable presumption of fraud.[22]

Admittedly (1) the check was dishonored for insufficiency of funds as evidenced by the check return slip; (2) complainant notified accused of the dishonor; and (3) accused failed to make good the check within three days. Presumption of deceit remained since accused failed to prove otherwise. Complainant sustained damage in the amount of P150,000.00.

Accused-appellant also contends that had the trial court admitted the Admission and Stipulation of Facts of November 9, 1992, it would prove that SAIDECOR had sufficient funds in the bank.

Accused-appellant relies on the fact that there was a discrepancy between the amount in words and the amount in figures in the check that was dishonored. The amount in words was P1,000,200.00, while the amount in figures was P1,200,000.00. It is admitted that the corporation had in the bank P1,144,760.00 on September 28,1989, and P1,124,307.14 on April 2, 1990. The check was presented for payment on October 5, 1989. The rule in the Negotiable Instruments Law is that when there is ambiguity in the amount in words and the amount in figures, it would be the amount in words that would prevail.[23]

However, this rule of interpretation finds no application in the case. The agreement was perfectly clear that at the end of twenty one (21) days, the investment of P150,000.00 would become P1,200,000.00. Even if the trial court admitted the stipulation of facts, it would not be favorable to accused-appellant.

The factual narration in this case established a kind of Ponzi scheme.[24] This is an investment swindle in which high profits are promised from fictitious sources and early investors are paid off with funds raised from later ones. It is sometimes called a pyramid scheme because a broader base of gullible investors must support the structure as time passes.

In the recent case of People vs. Priscilla Balasa,[25] this Court held that a transaction similar to the case at hand is not an investment strategy but a

gullibility scheme, which works only as long as there is an ever increasing number of new investors joining the scheme. It is difficult to sustain over a long period of time because the operator needs an ever larger pool of later investors to continue paying the promised profits to early investors. The idea behind this type of swindle is that the con-man collects his money from his second or third round of investors and then absconds before anyone else shows up to collect. Necessarily, these schemes only last weeks, or months at most, just like what happened in this case.

The Court notes that one of the accused-appellants, Ernesto Rodriguez, died pending appeal. Pursuant to the doctrine established in People vs. Bayotas,[26] the death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability ex delicto. The criminal action is extinguished inasmuch as there is no longer a defendant to stand as the accused, the civil action instituted therein for recovery of civil liability ex delicto is ipso facto extinguished, grounded as it is on the criminal case. Corollarily, the claim for civil liability survives notwithstanding the death of the accused, if the same may also be predicated on a source of obligation other than delict.[27]

Thus, the outcome of this appeal pertains only to the remaining accused-appellant, Martin L. Romero. The trial court considered the swindling involved in this case as having been committed by a syndicate[28] and sentenced the accused to life imprisonment based on the provisions of Presidential Decree 1689, which increased the penalty for certain forms of swindling or estafa.[29] However, the prosecution failed to clearly establish that the corporation was a syndicate, as defined under the law. The penalty of life imprisonment cannot be imposed. What would be applicable in the present case is the second paragraph of Presidential Decree No. 1689, Section 1, which provides that:

When not committed by a syndicate as above defined, the penalty imposable shall be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos.

Article 77 of the Revised Penal Code on complex penalties provides that whenever the penalty prescribed does not have one of the forms specially provided for in this Code, the periods shall be distributed, applying by analogy the prescribed rules, that is, those in Articles 61 and 76.[30]Hence, where as in this case, the penalty provided by Section 1 of Presidential Decree No. 1689 for estafa under Articles 315 and 316 of the Code is reclusion temporal to reclusion perpetua, the minimum period thereof is twelve (12) years and one (1) day to sixteen (16) years of reclusion temporal; the medium period is sixteen (16) years and one (1) day to twenty (20) years of reclusion temporal; and the maximum period is reclusion perpetua.

In the case at bar, no mitigating or aggravating circumstance has been alleged or proved. Applying the rules in the Revised Penal Code for graduating

penalties by degrees[31] to determine the proper period,[32] the penalty for the offense of estafa under Article 315, 2(d) as amended by P.D. 1689 involving the amount of P150,000.00 is the medium of the period of the complex penalty in said Section 1, that is, sixteen (16) years and one (1) day to twenty (20) years. This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general prescription under the law, shall be the maximum range of the indeterminate sentence.[33] The minimum thereof shall be taken, as aforesaid, from any period of the penalty next lower in degree, which is, prision mayor.

To enable the complainant to obtain means, diversion or amusements that will serve to alleviate the moral sufferings undergone by him, by reason of the failure of the accused to return his money, moral damages are imposed against accused-appellant Martin L. Romero in the amount of twenty thousand pesos (P20,000.00).[34] To serve as an example for the public good, exemplary damages are awarded against him in the amount of fifteen thousand pesos (P15,000.00).[35]

WHEREFORE, the Court hereby AFFIRMS WITH MODIFICATION the appealed judgment. The Court hereby sentences accused-appellant Martin Romero to suffer an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to sixteen (16) years and one (1) day of reclusion temporal, as maximum, to indemnify Ernesto A. Ruiz in the amount of one hundred fifty thousand pesos (P150,000.00) with interest thereon at six (6%) per centum per annum from September 14, 1989, until fully paid, to pay twenty thousand pesos (P20,000.00) as moral damages and fifteen thousand pesos (P15,000.00), as exemplary damages, and the costs.

SO ORDERED.

SYNOPSIS

Appellants Romero and Rodriguez, General Manager and Operation Manager, respectively, of Surigao San Andres Industrial Development Corporation (SAIDECOR), were charged with widescale estafa and violation of Batas Pambansa Bilang 22 based on a complaint filed by Ernesto A. Ruiz, a radio commentator.  SAIDECOR,  engaged in solicitation of funds and investments from the public, guaranteed an 800% return on investment within fifteen (15) or twenty one (21) days.  Appellants issued postdated a check in the amount of One Million Two Hundred Thousand Pesos (P1,200,000.00) Philippine Currency, but when presented, was dishonored for insufficiency of funds.  The trial court, after joint trial, acquitted appellants of violation of BP 22 but convicted them of Estafa for widescale swindling.  The trial court held that the crime was committed by a syndicate and sentenced appellants to life imprisonment.  Hence, this appeal.  During the pendency of the appeal, appellant Rodriguez died.

The appealed decision was affirmed by the Supreme Court but modified the penalty to an indeterminate one for failure of the prosecution to establish that the corporation was a syndicate as defined under the law.  The Court found that deception was employed on Ruiz by appellants and entered into a Ponzi scheme where appellant fraudulently represented that Ruiz investment would have an 800% return in 15 or 21 days.  It is sometimes called a pyramid scheme because a broader base of gullible investors must support the structure as time passes.

Death of the accused pending appeal extinguishes his criminal liability as well as the civil liability ex delicto.  However, the claim for civil liability survives if based on a source of obligation other than delict.

SYLLABUS

1. CRIMINAL LAW; ESTAFA; ELEMENTS. -- Under paragraph 2 (d) of Article 315, as amended by R. A. 4885, the elements of estafa are: (1) a check was postdated or issued in payment of an obligation contracted at the time it was issued;  (2) lack or insufficiency of funds to cover the check; and (3) damage to the payee thereof.

2. ID.; ID.; ID.; CASE AT BAR. -- In this case, there was deception when accused fraudulently represented to complainant that his investment with the corporation would have an 800% return in 15 or 21 days.  Upon receipt of the money, accused-appellant Martin Romero issued a postdated check.  Although accused-appellant contends that sufficient funds were deposited in the bank when the check was issued, he presented no officer of the bank to substantiate the contention.  The check was dishonored when presented for payment, and the check return slip submitted in evidence indicated that it was dishonored due to insufficiency of funds.  Even assuming for the sake of argument that the check was dishonored without any fraudulent pretense or fraudulent act of the drawer, the latter's failure to cover the amount within three days after notice creates a rebuttable presumption of fraud.  Admittedly (1) the check was dishonored for insufficiency of funds as evidenced by the check return slip; (2) complainant notified accused of the dishonor; and (3) accused failed to make good the check within three days.  Presumption of deceit remained since accused failed to prove otherwise.  Complainant sustained damage in the amount of P150,000.00.

3. MERCANTILE LAW; NEGOTIABLE INSTRUMENTS LAW; RULE THAT AMOUNT IN WORDS PREVAIL OVER AMOUNT IN FIGURE, NOT APPLICABLE TO CASE AT BAR. -- Accused-appellant relies on the fact that there was a discrepancy between the amount in words and the amount in figures in the check that was dishonored.  The amount in words was P1,000,200.00, while the amount in figures was P1,200,000.00.  It is admitted that the  corporation had in the bank P1,144,760.00 on September 28,1989, and P1,124,307.14 on April 2, 1990.  The check was presented for payment on October 5, 1989.  The rule in the Negotiable Instruments Law is that when there is ambiguity in the amount in words and the amount in figures, it would be the amount in words that would prevail.  However, this rule of interpretation finds no

application in the case.  The agreement was  perfectly clear that at the end of twenty one (21) days, the investment of P150,000.00 would become P1,200,000.00.  Even if the trial court admitted the stipulation of facts, it would not be favorable to accused-appellant.

4. CRIMINAL LAW; SWINDLING OR ESTAFA; PONZI OR PYRAMID SCHEME, CONSTRUED. -- The factual narration in this case established a  kind of Ponzi scheme.  This is an investment  swindle in which high profits are promised from fictitious sources and early investors are paid off with funds raised from later ones. It is sometimes called a pyramid scheme because a broader base of gullible investors must support the structure as time passes.  In the recent case of People vs. Priscilla Balasa, this Court held that a transaction similar to the case at hand is not an investment strategy but a gullibility scheme, which works only as long as there is an ever increasing number of new investors joining the scheme.  It is difficult to sustain over a long period of time because the operator needs an ever larger pool of later investors to continue paying the promised profits to early investors.  The idea behind this type of swindle is that the con-man  collects his money from his second or third round of investors and then absconds before anyone else shows up to collect.  Necessarily, these schemes only last weeks, or months at most, just like what happened in this case.

5. ID.; DEATH OF ACCUSED PENDING APPEAL; EXTINGUISHES CRIMINAL AND CIVIL LIABILITIES. -- The Court notes that one of the accused-appellants, Ernesto Rodriguez, died pending appeal.  Pursuant to the doctrine established in People vs. Bayotas, the death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability ex delicto.  The criminal action is extinguished inasmuch as there is no longer a defendant to stand as the accused, the civil action instituted therein for recovery of civil liabilityex delicto is ipso facto extinguished, grounded as it is on the criminal case.  Corollarily, the claim for civil liability survives notwithstanding the death of the accused, if the same may also be predicated on a source of obligation other than delict.

6. ID.; SWINDLING OR ESTAFA; PENALTY WHEN NOT COMMITTED BY A SYNDICATE. - The trial court considered the swindling involved in this case as having been committed by a syndicate and sentenced the accused to life imprisonment based on the provisions of Presidential Decree 1689, which increased the penalty for certain forms of swindling or estafa.  However, the prosecution failed to clearly establish that the corporation was a syndicate, as defined under the law.  The penalty of life imprisonment cannot be imposed.  What would be applicable in the present case is the second paragraph of Presidential Decree No. 1689, Section 1.

7. ID.; ID.; ID.; CASE AT BAR. -- Article 77 of the Revised Penal Code on complex penalties provides that whenever the penalty prescribed does not have one of the forms specially provided for in this Code, the  periods  shall  be distributed,  applying by analogy the prescribed rules, that is, those in Articles 61 and 76.  Hence, where as in this case, the penalty provided by Section 1 of Presidential

Decree No.  1689 for estafa under Articles 315 and 316 of the Code is reclusion temporal to reclusion perpetua, the minimum period thereof is twelve (12) years and one (1) day to sixteen (16) years of reclusion temporal; the medium period is sixteen (16) years and one (1) day to twenty (20) years of reclusion temporal; and the maximum period is reclusion perpetua.  In the case at bar, no mitigating or aggravating circumstance has been alleged or proved.  Applying the rules in the Revised Penal Code for graduating penalties by degrees to determine the proper period, the penalty for the offense of estafa under Article 315, 2(d) as amended by P.D. 1689 involving the amount of P150,000.00 is the medium of the period of the complex penalty in said Section 1, that is, sixteen (16) years and one (1) day to twenty (20) years.  This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general prescription under the law, shall be the maximum range of the indeterminate sentence.  The minimum thereof shall be taken, as aforesaid, from any period of the penalty next lower in degree, which is, prision mayor.

8. CIVIL LAW; DAMAGES; MORAL AND EXEMPLARY DAMAGES IN ESTAFA. -- To enable the complainant to obtain means, diversion or amusements that will serve to alleviate the moral sufferings undergone by him, by reason of the failure of the accused to return his money, moral damages are imposed against accused-appellant Martin L. Romero in the amount of twenty thousand pesos (P20,000.00).  To serve as an example for the public good, exemplary damages are awarded against him in the amount of fifteen thousand pesos (P15,000.00).

THIRD DIVISION  

FRANCISCO MAGESTRADO,Petitioner,

- versus -

PEOPLE OF THE PHILIPPINESand ELENA M. LIBROJORespondents.

G.R. No. 148072

Present:

YNARES-SANTIAGO, J.,Chairperson,AUSTRIA-MARTINEZ,CHICO-NAZARIO, andNACHURA, JJ.

Promulgated:

July 10, 2007x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x  

D E C I S I O N

  CHICO-NAZARIO, J.:

 

This Petition for Review on Certiorari seeks to reverse the (1) Resolution[1] dated 5

March 2001 of the Court of Appeals in CA-G.R. SP No. 63293 entitled, Francisco

Magestrado v. Hon. Estrella T. Estrada, in her capacity as the Presiding Judge of

Regional Trial Court, Branch 83 of Quezon City, People of the Philippines and Elena

M. Librojo, which dismissed petitioner Francisco Magestrados Petition

forCertiorari for being the wrong remedy; and (2) Resolution[2] dated 3 May 2001 of

the same Court denying petitioners motion for reconsideration.

 

Private respondent Elena M. Librojo filed a criminal complaint[3] for perjury

against petitioner with the Office of the City Prosecutor of Quezon City, which was

docketed as I.S. No. 98-3900.

 

After the filing of petitioners counter-affidavit and the appended pleadings,

the Office of the City Prosecutor recommended the filing of an information for

perjury against petitioner. Thus, Assistant City Prosecutor Josephine Z. Fernandez

filed an information for perjury against petitioner with the Metropolitan Trial Court

(MeTC) of Quezon City. Pertinent portions of the information are hereby quoted as

follows:

 That on or about the 27th day of December, 1997, in Quezon City, Philippines, the said accused, did then and there willfully, unlawfully and feloniously and knowingly make an untruthful statement under oath upon a material matter before a competent officer authorized to receive and administer oath and which the law so require, to wit: the said accused subscribe and swore to an Affidavit of Loss before Notary Public Erlinda B. Espejo of Quezon City, per Doc. No. 168, Page No. 35, Book No. CLXXIV of her notarial registry, falsely alleging that he lost Owners Duplicate Certificate of TCT No. N-173163, which document was used in support of a Petition For Issuance of New Owners Duplicate Copy of Certificate of Title and filed with the Regional Trial Court of Quezon City, docketed as LRC# Q-10052 (98) on January 28, 1998 and assigned to Branch 99 of the said court, to which said Francisco M. Mag[e]strado signed and swore on its verification, per Doc. 413 Page 84 Book No. CLXXV Series of 1998 of Notary Public Erlinda B. Espejo of Quezon City; the said accused knowing fully well that the allegations in the said affidavit and petition are false, the truth of the matter being that the property subject of Transfer Certificate of Title No. N-173163 was mortgaged to complainant Elena M. Librojo as collateral for a loan in the amount of P 758,134.42 and as a consequence of which said title to the property was surrendered by him to the said complainant by virtue of said loan, thus, making untruthful and deliberate assertions of falsehoods, to the damage and prejudice of the said Elena M. Librojo.[4]

The case was raffled to the MeTC of Quezon City, Branch 43, where it was docketed

as Criminal Case No. 90721 entitled, People of thePhilippines v. Francisco

Magestrado.

On 30 June 1999, petitioner filed a motion[5] for suspension of proceedings based on

a prejudicial question. Petitioner alleged that Civil Case No. Q-98-34349, a case for

recovery of a sum of money pending before the Regional Trial Court (RTC) of Quezon

City, Branch 84, and Civil Case No. Q-98- 34308, a case for Cancellation of

Mortgage, Delivery of Title and Damages, pending before the RTC of Quezon City,

Branch 77, must be resolved first before Criminal Case No. 90721 may proceed since

the issues in the said civil cases are similar or intimately related to the issues raised in

the criminal action.

 

On 14 July 1999, MeTC-Branch 43 issued an Order[6] denying petitioners motion for

suspension of proceedings, thus:

 Acting on the Motion for Suspension of Proceedings filed

by the [herein petitioner Magestrado], thru counsel, and the Comment and Opposition thereto, the Court after an evaluation of the same, finds the aforesaid motion without merit, hence, is hereby DENIED, it appearing that the resolution of the issues raised in the civil actions is not determinative of the guilt or innocence of the accused.

Hence, the trial of this case shall proceed as previously scheduled on July 19 and August 2, 1993 at 8:30 in the morning.

  

On 17 August 1999, a motion[7] for reconsideration was filed by petitioner but

was denied by the MeTC in an Order[8] dated 19 October 1999.

 

Aggrieved, petitioner filed a Petition for Certiorari[9] under Rule 65 of the

Revised Rules of Court, with a prayer for Issuance of a Writ of Preliminary Injunction

before the RTC of Quezon City, Branch 83, docketed as Civil Case No. Q-99-39358,

on the ground thatMeTC Judge Billy J. Apalit committed grave abuse of discretion

amounting to lack or excess of jurisdiction in denying his motion to suspend

the proceedings in Criminal Case No. 90721.

 

On 14 March 2000, RTC-Branch 83 dismissed the petition and denied the

prayer for the issuance of a writ of preliminary injunction, reasoning thus:

 Scrutinizing the complaints and answers in the civil cases

abovementioned, in relation to the criminal action for PERJURY, this Court opines and so holds that there is no prejudicial question involved as to warrant the suspension of the criminal action to await the outcome of the civil cases. The civil cases are principally for

determination whether or not a loan was obtained by petitioner and whether or not he executed the deed of real estate mortgage involving the property covered by TCT No. N-173163, whereas the criminal case is for perjury which imputes upon petitioner the wrongful execution of an affidavit of loss to support his petition for issuance of a new owners duplicate copy of TCT No. 173163. Whether or not he committed perjury is the issue in the criminal case which may be resolved independently of the civil cases. Note that the affidavit of loss was executed in support of the petition for issuance of a new owners duplicate copy of TCT No. N-173163 which petition was raffled to Branch 99 of the RTC. x x x.[10]

  

Again, petitioner filed a motion for reconsideration[11] but this was denied by

RTC- Branch 83 in an Order[12] dated 21 December 2000.

 

Dissatisfied, petitioner filed with the Court of Appeals a Petition

for Certiorari[13] under Rule 65 of the Revised Rules of Court, which was docketed as

CA-G.R. SP No. 63293. Petitioner alleged that RTC Judge Estrella T. Estrada

committed grave abuse of discretion amounting to lack or excess of jurisdiction in

denying the Petition for Certiorari in Civil Case No. Q-99-39358, and in effect

sustaining the denial by MeTC-Branch 43 of petitioners motion to suspend the

proceedings in Criminal Case No. 90721, as well as his subsequent motion for

reconsideration thereof.

 

On 5 March 2001, the Court of Appeals dismissed[14] the Petition in CA-G.R.

SP No. 63293 on the ground that petitioners remedy should have been an appeal from

the dismissal by RTC-Branch 83 of his Petition for Certiorari in Q-99-39358. The

Court of Appeals ruled that:

 Is this instant Petition for Certiorari under Rule 65 the

correct and appropriate remedy?

We rule negatively.

The resolution or dismissal in special civil actions, as in the instant petition, may be appealed x x x under Section 10, Rule 44 of the 1997 Rules of Civil Procedure and not by petition for certiorari under Rule 65 of the same rules. Thus, the said rule provides:

Section 10. Time for filing memoranda on special cases. In certiorari, prohibition, mandamus, quo warranto and habeas corpus

cases, the parties shall file in lieu of briefs, their respective memoranda within a non-extendible period of thirty (30) days from receipt of the notice issued by the clerk that all the evidence, oral and documentary, is already attached to the record x x x.

WHEREFORE, in consideration of the foregoing premises, the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure is hereby DISMISSED.[15]

  

The Court of Appeals denied petitioners Motion for Reconsideration [16] in a

Resolution[17] dated 3 May 2001.

 

Hence, petitioner comes before us via a Petition for Review on Certiorari under Rule

45 of the Revised Rules of Court raising the following issues:

 1.      Whether or not the Orders of Judge Estrella T. Estrada dated

March 14, 2000 denying petitioners Petition for Certiorari under Rule 65 of the Rules of Court, and her subsequent Order dated December 21, 2000, denying the Motion for Reconsideration thereafter filed can only be reviewed by the Court of Appeals thru appeal under Section 10, Rule 44 of the 1997 Rules of Civil Procedure.

 2.      Whether or not Judge Estrella T. Estrada of the Regional Trial

Court, Branch 83, Quezon City, had committed grave abuse of discretion amounting to lack or in excess of her jurisdiction in denying the Petition for Certiorari and petitioners subsequent motion for reconsideration on the ground of a prejudicial question pursuant to the Rules on Criminal Procedure and the prevailing jurisprudence.

  

After consideration of the procedural and substantive issues raised by

petitioner, we find the instant petition to be without merit.

 

The procedural issue herein basically hinges on the proper remedy which

petitioner should have availed himself of before the Court of Appeals: an ordinary

appeal or a petition for certiorari.  Petitioner claims that he correctly questioned RTC-

Branch 83s Order of dismissal of his Petition for Certiorari in Civil Case No. Q-99-

39358 through a Petition for Certiorari before the Court of Appeals.  Private

respondent and public respondent People of the Philippines insist that an ordinary

appeal was the proper remedy. 

 

We agree with respondents. We hold that the appellate court did not err in

dismissing petitioners Petition for Certiorari, pursuant to Rule 41, Section 2 of the

Revised Rules of Court (and not under Rule 44, Section 10, invoked by the Court of

Appeals in its Resolution dated 5 March 2001).

 

The correct procedural recourse for petitioner was appeal, not only because

RTC-Branch 83 did not commit any grave abuse of discretion in dismissing petitioners

Petition for Certiorari in Civil Case No. Q-99-39358 but also because RTC-Branch

83s Order of dismissal was a final order from which petitioners should have appealed

in accordance with Section 2, Rule 41 of the Revised Rules of Court.

 

An order or a judgment is deemed final when it finally disposes of a pending

action, so that nothing more can be done with it in the trial court.   In other words, the

order or judgment ends the litigation in the lower court.  Au contraire, an interlocutory

order does not dispose of the case completely, but leaves something to be done as

regards the merits of the latter.[18] RTC-Branch 83s Order dated 14 March

2001 dismissing petitioners Petition for Certiorari in Civil Case No. Q-99-39358

finally disposes of the said case and RTC-Branch 83 can do nothing more with the

case.

 

Under Rule 41 of the Rules of Court, an appeal may be taken from a

judgment or final order that completely disposes of the case, or of a particular matter

therein when declared by the Revised Rules of Court to be appealable. The manner of

appealing an RTC judgment or final order is also provided in Rule 41 as follows:

 

Section 2.  Modes of appeal.

 (a)     Ordinary appeal. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party.  No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require.  In such cases, the record on appeal shall be filed and served in like manner.  

Certiorari generally lies only when there is no appeal nor any other plain,

speedy or adequate remedy available to petitioners. Here, appeal was available. It was

adequate to deal with any question whether of fact or of law, whether of error of

jurisdiction or grave abuse of discretion or error of judgment which the trial court

might have committed. But petitioners instead filed a special civil action for certiorari.

 

We have time and again reminded members of the bench and bar that a

special civil action for certiorari under Rule 65 of the Revised Rules of Court lies only

when there is no appeal nor plain, speedy and adequate remedy in the ordinary course

of law.[19]Certiorari cannot be allowed when a party to a case fails to appeal a

judgment despite the availability of that remedy,[20] certiorari not being a substitute for

lost appeal.[21]

As certiorari is not a substitute for lost appeal, we have repeatedly

emphasized that the perfection of appeals in the manner and within the period

permitted by law is not only mandatory but jurisdictional, and that the failure to perfect

an appeal renders the decision of the trial court final and executory.  This rule is

founded upon the principle that the right to appeal is not part of due process of law but

is a mere statutory privilege to be exercised only in the manner and in accordance with

the provisions of the law. Neither can petitioner invoke the doctrine that rules of

technicality must yield to the broader interest of substantial justice. While every

litigant must be given the amplest opportunity for the proper and just determination of

his cause, free from constraints of technicalities, the failure to perfect an appeal within

the reglementary period is not a mere technicality. It raises a jurisdictional problem as

it deprives the appellate court of jurisdiction over the appeal.[22]

 

The remedies of appeal and certiorari are mutually exclusive and not

alternative or successive.[23] A party cannot substitute the special civil action

of certiorari under Rule 65 of the Rules of Court for the remedy of appeal. The

existence and availability of the right of appeal are antithetical to the availability of the

special civil action for certiorari.[24] As this Court held in Fajardo v. Bautista[25]:

 Generally, an order of dismissal, whether right or wrong, is a final order, and hence a proper subject of appeal, not certiorari. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. Accordingly, although the special civil action of certiorari is not proper when an ordinary appeal is available, it may be granted where it is shown that the appeal would be inadequate, slow, insufficient, and will not promptly relieve a party from the injurious effects of the order complained of, or where appeal is inadequate and ineffectual. Nevertheless, certiorari cannot be a substitute for the lost or lapsed remedy of appeal, where such loss is occasioned by the petitioners own neglect or error in the choice of remedies.

  

On 21 December 2000, petitioner received a copy of the Order of the RTC-

Branch 83 denying his motion for reconsideration of the dismissal of his Petition

for Certiorari in Civil Case No. Q-99-39358; hence, he had until 18 January

2001 within which to file an appeal with the Court of Appeals. The Petition

for Certiorari filed by petitioner on 19 February 2001 with the Court of Appeals

cannot be a substitute for the lost remedy of appeal. As petitioner failed to file a timely

appeal, RTC-Branch 83s dismissal of his Petition for Certiorarihad long become final

and executory.

 

For this procedural lapse, the Court of Appeals correctly denied outright the

Petition for Certiorari filed by petitioner before it.

 

Moreover, there are even more cogent reasons for denying the instant Petition

on the merits.

 

In the Petition at bar, petitioner raises several substantive issues. Petitioner

harps on the need for the suspension of the proceedings in Criminal Case No. 90721

for perjury pending before MeTC-Branch 43 based on a prejudicial question still to be

resolved in Civil Case No. Q-98-34308 (for cancellation of mortgage) and Civil Case

No. Q-98-34349 (for collection of a sum of money) which are pending before other

trial courts.

 

For clarity, we shall first discuss the allegations of petitioner in his complaint

in Civil Case No. Q-98-34308 (for cancellation of mortgage) and that of private

respondent in her complaint in Civil Case No. Q-98-34349 (for collection of a sum of

money).

 

Civil Case No. Q-98-34308 is a complaint for Cancellation of Mortgage,

Delivery of Title and Damages filed on 8 May 1988 by petitioner against private

respondent with RTC-Branch 77. Petitioner alleges that he purchased a parcel of land

covered by Transfer Certificate of Title No. N-173163 thru private respondent, a real

estate broker. In the process of negotiation, petitioner was pressured to sign a Deed of

Sale prepared by private respondent. Upon signing the Deed of Sale, he noticed that

the Deed was already signed by a certain Cristina Gonzales as attorney-in-fact of

vendor Spouses Guillermo and Amparo Galvez. Petitioner demanded from private

respondent a special power of attorney and authority to sell, but the latter failed to

present one. Petitioner averred that private respondent refused to deliver the certificate

of title of the land despite execution and signing of the Deed of Sale and payment of

the consideration.Petitioner was thus compelled to engage the services of one Modesto

Gazmin, Jr. who agreed, for P100,000.00 to facilitate the filing of cases against private

respondent; to deliver to petitioner the certificate of title of the land; and/or to cancel

the certificate of title in possession of private respondent. However, Mr. Gazmin, Jr.,

did nothing upon receipt of the amount of P100,000.00 from petitioner. In fact,

petitioner was even charged with perjury before the Office of the City Prosecutor, all

because of Mr. Gazmin, Jr.s wrongdoing.Petitioner further alleged that he discovered

the existence of a spurious Real Estate Mortgage which he allegedly signed in favor of

private respondent. Petitioner categorically denied signing the mortgage document and

it was private respondent who falsified the same in order to justify her unlawful

withholding of TCT No. N-173163 from petitioner. Thus, petitioner prayed for:

 1. The cancellation of Real Estate Mortgage dated August

2, 1997 as null and void; 2. As well as to order [herein private respondent] to

DELIVER the Owners Duplicate Copy of Transfer Certificate of Title No. N-173163 to [herein petitioner];

 3. Condemning [private respondent] to pay [petitioner] the

sums of a) P100,000.00 as MORAL DAMAGES;

 b) P50,000.00 as EXEMPLARY DAMAGES;

 c) P50,000.00 as Attorneys fees andd) Cost of suit.

 4. A general relief is likewise prayed for (sic) just and

equitable under the premises.  

Civil Case No. Q-98-34349,[26] on the other hand, is a complaint for a sum of

money with a motion for issuance of a writ of attachment filed by private respondent

against petitioner on 14 May 1988 before RTC-Branch 84. Private respondent alleges

that petitioner obtained a loan from her in the amount of P758,134.42 with a promise

to pay on or before 30 August 1997. As security for payment of the loan, petitioner

executed a Deed of Real Estate Mortgage covering a parcel of land registered under

TCT No. N-173163. Petitioner pleaded for additional time to pay the said obligation,

to which respondent agreed. But private respondent discovered sometime in February

1998 that petitioner executed an affidavit of loss alleging that he lost the owners

duplicate copy of TCT No. N-173163, and succeeded in annotating said affidavit on

the original copy of TCT No. N-173163 on file with the Registry of Deeds of Quezon

City. Private respondent further alleges that she also discovered that petitioner filed a

petition for issuance of a new owners duplicate copy of TCT No. N-173163 with the

RTC of Quezon City, Branch 98, docketed as LRC Case No. Q-10052. Private

respondent demanded that petitioner pay his obligation, but the latter refused to do

so. Resultantly, private respondent prayed for the following:

 A.                 That upon filing of this Complaint as well as the

Affidavit of attachment and a preliminary hearing thereon, as well as bond filed, a writ of preliminary attachment is (sic) by the Honorable Court ordering the Sheriff to levy [herein petitioner] property sufficient to answer [herein private respondents] claim in this action;

 B.                 That after due notice and hearing, judgment be rendered

in [private respondents] favor as against [petitioner], ordering the latter to pay the former the sum of P758,134.42 plus interest thereon at 5% per month from September 1997 up to the date of actual payment; actual damages in the sums of P70,000.00 each under paragraphs 11 and 12 of the complaint; P200,000.00 as moral damages; P100,000.00 as exemplary damages; twenty (20%) of the principal claim as attorneys fees plus P2,500.00 per appearance honorarium; and P60,000.00 as litigation expense before this Honorable Court.

 [Petitioner] prays for such further relief in law, justice and equity.

  

As to whether it is proper to suspend Criminal Case No. 90721 for perjury

pending final outcome of Civil Case No. Q-98-34349 and Civil Case No. Q-98-34308,

we take into consideration Sections 6 and 7, Rule 111 of the Revised Rules of Court,

which read:

 Sec. 6.  Suspension by reason of prejudicial question. A

petition for suspension of the criminal action based upon the

pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation.  When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests.

 Sec. 7.  Elements of prejudicial question. The elements of a

prejudicial question are:  (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed.

  

The rationale behind the principle of suspending a criminal case in view of a

prejudicial question is to avoid two conflicting decisions.[27]

 

A prejudial question is defined as that which arises in a case the resolution of

which is a logical antecedent of the issue involved therein, and the cognizance of

which pertains to another tribunal. The prejudicial question must be determinative of

the case before the court but the jurisdiction to try and resolve the question must be

lodged in another court or tribunal. It is a question based on a fact distinct and separate

from the crime but so intimately connected with it that it determines the guilt or

innocence of the accused.[28]

 

For a prejudicial question in a civil case to suspend criminal action, it must

appear not only that said case involves facts intimately related to those upon which the

criminal prosecution would be based but also that in the resolution of the issue or

issues raised in the civil case, the guilt or innocence of the accused would necessarily

be determined.

 

Thus, for a civil action to be considered prejudicial to a criminal case as to

cause the suspension of the criminal proceedings until the final resolution of the civil

case, the following requisites must be present: (1) the civil case involves facts

intimately related to those upon which the criminal prosecution would be based; (2) in

the resolution of the issue or issues raised in the civil action, the guilt or innocence of

the accused would necessarily be determined; and (3) jurisdiction to try said question

must be lodged in another tribunal.[29]

 

If the resolution of the issue in the civil action will not determine the criminal

responsibility of the accused in the criminal action based on the same facts, or there is

no necessity that the civil case be determined first before taking up the criminal case,

therefore, the civil case does not involve a prejudicial question.[30] Neither is there

a prejudicial question if the civil and the criminal action can, according to law, proceed

independently of each other.[31]

 

However, the court in which an action is pending may, in the exercise of

sound discretion, and upon proper application for a stay of that action, hold the action

in abeyance to abide by the outcome of another case pending in another court,

especially where the parties and the issues are the same, for there is power inherent in

every court to control the disposition of cases on its dockets with economy of time and

effort for itself, for counsel, and for litigants.  Where the rights of parties to the second

action cannot be properly determined until the questions raised in the first action are

settled, the second action should be stayed.[32]

 

The power to stay proceedings is incidental to the power inherent in every

court to control the disposition of the cases on its dockets, considering its time and

effort, those of counsel and the litigants.  But if proceedings must be stayed, it must be

done in order to avoid multiplicity of suits and prevent vexatious litigations,

conflicting judgments, confusion between litigants and courts.  It bears stressing that

whether or not the trial court would suspend the proceedings in the criminal case

before it is submitted to its sound discretion.[33]

 

Indeed, a judicial order issued pursuant to the courts discretionary authority is

not subject to reversal on review unless it constitutes an abuse of discretion. As the

United States Supreme Court aptly declared in Landis v. North American Co., the

burden of making out the justice and wisdom from the departure from the beaten truck

lay heavily on the petitioner, less an unwilling litigant is compelled to wait upon the

outcome of a controversy to which he is a stranger.  It is, thus, stated that only in rare

circumstances will a litigant in one case is compelled to stand aside, while a litigant in

another, settling the rule of law that will define the rights of both is, after all, the

parties before the court are entitled to a just, speedy and plain determination of their

case undetermined by the pendency of the proceedings in another case.  After all,

procedure was created not to hinder and delay but to facilitate and promote the

administration of justice.[34]

 

As stated, the determination of whether the proceedings may be suspended on

the basis of a prejudicial question rests on whether the facts and issues raised in the

pleadings in the civil cases are so related with the issues raised in the criminal case

such that the resolution of the issues in the civil cases would also determine the

judgment in the criminal case.

 

A perusal of the allegations in the complaints show that Civil Case No. Q-98-

34308 pending before RTC-Branch 77, and Civil Case No. Q-98-34349, pending

before RTC-Branch 84, are principally for the determination of whether a loan was

obtained by petitioner from private respondent and whether petitioner executed a real

estate mortgage involving the property covered by TCT No. N-173163. On the other

hand, Criminal Case No. 90721 before MeTC-Branch 43, involves the determination

of whether petitioner committed perjury in executing an affidavit of loss to support his

request for issuance of a new owners duplicate copy of TCT No. N-173163.

 

It is evident that the civil cases and the criminal case can proceed

independently of each other. Regardless of the outcome of the two civil cases, it will

not establish the innocence or guilt of the petitioner in the criminal case for

perjury. The purchase by petitioner of the land or his execution of a real estate

mortgage will have no bearing whatsoever on whether petitioner knowingly and

fraudulently executed a false affidavit of loss of TCT No. N-173163.

 

MeTC-Branch 43, therefore, did not err in ruling that the pendency of Civil

Case No. Q-98-34308 for cancellation of mortgage before the RTC-Branch 77; and

Civil Case No. Q-98-34349 for collection of a sum of money before RTC-Branch

84, do not pose aprejudicial question in the determination of whether petitioner is

guilty of perjury in Criminal Case No. 90721. RTC-Branch 83, likewise, did not err in

ruling that MeTC-Branch 43 did not commit grave abuse of discretion in denying

petitioners motion for suspension of proceedings in Criminal Case No. 90721.

 

WHEREFORE, premises considered, the assailed Resolutions dated 5

March 2001 and 3 May 2001of the Court of Appeals in CA-G.R. SP No. 63293 are

hereby AFFIRMED and the instant petition is DISMISSED for lack of

merit. Accordingly, the Metropolitan Trial Court of Quezon City, Branch 43, is hereby

directed to proceed with the hearing and trial on the merits of Criminal Case No.

90721, and to expedite proceedings therein, without prejudice to the right of the

accused to due process. Costs against petitioner.

 SO ORDERED

JOSELITO R. PIMENTEL, G.R. No. 172060Petitioner,Present: CARPIO, J., Chairperson,- versus - PERALTA,BERSAMIN,*

ABAD, andVILLARAMA, JR.,** JJ.MARIA CHRYSANTINEL. PIMENTEL and PEOPLE Promulgated:OF THE PHILIPPINES,Respondents. September 13, 2010x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 

 

D E C I S I O N

 CARPIO, J.:

 

The Case

 

Before the Court is a petition for review[1] assailing the Decision[2] of the Court of

Appeals, promulgated on 20 March 2006, in CA-G.R. SP No. 91867.

 

The Antecedent Facts

 

The facts are stated in the Court of Appeals decision:

On 25 October 2004, Maria Chrysantine Pimentel y Lacap (private respondent) filed

an action for frustrated parricide against Joselito R. Pimentel (petitioner), docketed as

Criminal Case No. Q-04-130415, before the Regional Trial Court of Quezon City,

which was raffled to Branch 223 (RTC Quezon City).

 

On 7 February 2005, petitioner received summons to appear before the Regional Trial

Court of Antipolo City, Branch 72 (RTC Antipolo)for the pre-trial and trial of Civil

Case No. 04-7392 (Maria Chrysantine Lorenza L. Pimentel v. Joselito Pimentel) for

Declaration of Nullity of Marriage under Section 36 of the Family Code on the ground

of psychological incapacity.

 

On 11 February 2005, petitioner filed an urgent motion to suspend the proceedings

before the RTC Quezon City on the ground of the existence of a prejudicial

question. Petitioner asserted that since the relationship between the offender and the

victim is a key element in parricide, the outcome of Civil Case No. 04-7392 would

have a bearing in the criminal case filed against him before the RTC Quezon City.

 

The Decision of the Trial Court

 

The RTC Quezon City issued an Order dated 13 May 2005[3] holding that the

pendency of the case before the RTC Antipolo is not a prejudicial question that

warrants the suspension of the criminal case before it. The RTC Quezon City held

that the issues in Criminal Case No. Q-04-130415 are the injuries sustained by

respondent and whether the case could be tried even if the validity of petitioners

marriage with respondent is in question. The RTC Quezon City ruled:

 

 WHEREFORE, on the basis of the foregoing, the Motion to Suspend Proceedings On the [Ground] of the Existence of a Prejudicial Question is, for lack of merit, DENIED. SO ORDERED.[4]

 

Petitioner filed a motion for reconsideration. In its 22 August 2005 Order,[5] the RTC

Quezon City denied the motion.

 

Petitioner filed a petition for certiorari with application for a writ of preliminary

injunction and/or temporary restraining order before the Court of Appeals, assailing

the 13 May 2005 and 22 August 2005 Orders of the RTC Quezon City.

 

The Decision of the Court of Appeals

 

In its 20 March 2006 Decision, the Court of Appeals dismissed the petition. The Court

of Appeals ruled that in the criminal case for frustrated parricide, the issue is whether

the offender commenced the commission of the crime of parricide directly by overt

acts and did not perform all the acts of execution by reason of some cause or accident

other than his own spontaneous desistance. On the other hand, the issue in the civil

action for annulment of marriage is whether petitioner is psychologically incapacitated

to comply with the essential marital obligations. The Court of Appeals ruled that even

if the marriage between petitioner and respondent would be declared void, it would be

immaterial to the criminal case because prior to the declaration of nullity, the alleged

acts constituting the crime of frustrated parricide had already been committed. The

Court of Appeals ruled that all that is required for the charge of frustrated parricide is

that at the time of the commission of the crime, the marriage is still subsisting.

 

Petitioner filed a petition for review before this Court assailing the Court of Appeals

decision.

 

The Issue

 

The only issue in this case is whether the resolution of the action for annulment of

marriage is a prejudicial question that warrants the suspension of the criminal case for

frustrated parricide against petitioner.

 

The Ruling of this Court

 

The petition has no merit.

 Civil Case Must be Instituted

Before the Criminal Case

 

Section 7, Rule 111 of the 2000 Rules on Criminal Procedure[6] provides:

 Section 7. Elements of Prejudicial Question. - The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action and (b) the resolution of such issue determines whether or not the criminal action may proceed.

 

The rule is clear that the civil action must be instituted first before the filing of the

criminal action. In this case, the Information[7] for Frustrated Parricide was dated 30

August 2004. It was raffled to RTC Quezon City on 25 October 2004 as per the

stamped date of receipt on the Information. The RTC Quezon City set Criminal Case

No. Q-04-130415 for pre-trial and trial on 14 February 2005. Petitioner was served

summons in Civil Case No. 04-7392 on 7 February 2005.[8] Respondents petition[9] in

Civil Case No. 04-7392 was dated 4 November 2004 and was filed on 5 November

2004. Clearly, the civil case for annulment was filed after the filing of the criminal

case for frustrated parricide. As such, the requirement of Section 7, Rule 111 of the

2000 Rules on Criminal Procedure was not met since the civil action was filed

subsequent to the filing of the criminal action.

 Annulment of Marriage is not a Prejudicial Question

in Criminal Case for Parricide

 

Further, the resolution of the civil action is not a prejudicial question that would

warrant the suspension of the criminal action.

 

There is a prejudicial question when a civil action and a criminal action are both

pending, and there exists in the civil action an issue which must be preemptively

resolved before the criminal action may proceed because howsoever the issue raised in

the civil action is resolved would be determinative of the guilt or innocence of the

accused in the criminal case.[10] A prejudicial question is defined as:

 x x x one that arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined.[11]

 

The relationship between the offender and the victim is a key element in the crime of

parricide,[12] which punishes any person who shall kill his father, mother, or child,

whether legitimate or illegitimate, or any of his ascendants or descendants, or his

spouse.[13] The relationship between the offender and the victim distinguishes the

crime of parricide from murder[14] or homicide.[15] However, the issue in the annulment

of marriage is not similar or intimately related to the issue in the criminal case for

parricide. Further, the relationship between the offender and the victim is not

determinative of the guilt or innocence of the accused.

 

The issue in the civil case for annulment of marriage under Article 36 of the Family

Code is whether petitioner is psychologically incapacitated to comply with the

essential marital obligations. The issue in parricide is whether the accused killed the

victim. In this case, since petitioner was charged with frustrated parricide, the issue is

whether he performed all the acts of execution which would have killed respondent as

a consequence but which, nevertheless, did not produce it by reason of causes

independent of petitioners will.[16] At the time of the commission of the alleged crime,

petitioner and respondent were married. The subsequent dissolution of their marriage,

in case the petition in Civil Case No. 04-7392 is granted, will have no effect on the

alleged crime that was committed at the time of the subsistence of the marriage. In

short, even if the marriage between petitioner and respondent is annulled, petitioner

could still be held criminally liable since at the time of the commission of the alleged

crime, he was still married to respondent.

 

 

We cannot accept petitioners reliance on Tenebro v. Court of Appeals[17] that the

judicial declaration of the nullity of a marriage on the ground of psychological

incapacity retroacts to the date of the celebration of the marriage insofar as

the vinculum between the spouses is concerned x x x. First, the issue in Tenebro is the

effect of the judicial declaration of nullity of a second or subsequent marriage on the

ground of psychological incapacity on a criminal liability for bigamy. There was no

issue of prejudicial question in that case. Second, the Court ruled in Tenebro that

[t]here is x x x a recognition written into the law itself that such a marriage, although

void ab initio, may still produce legal consequences.[18] In fact, the Court declared in

that case that a declaration of the nullity of the second marriage on the ground of

psychological incapacity is of absolutely no moment insofar as the States penal laws

are concerned.[19]

 

In view of the foregoing, the Court upholds the decision of the Court of Appeals. The

trial in Criminal Case No. Q-04-130415 may proceed as the resolution of the issue

in Civil Case No. 04-7392 is not determinative of the guilt or innocence of petitioner

in the criminal case.

 

WHEREFORE, we DENY the petition. We AFFIRM the 20 March 2006 Decision

of the Court of Appeals in CA-G.R. SP No. 91867.

SO ORDERED.