February 2010 - Philippine Supreme Court Resolutions
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[G.R. No. 190420 : February 03, 2010] JOSEPHINE TUTOR AND ADAM ADUGALSKI, PETITIONERS, VS. ATTY. JOHNSON B. HONTANOSAS, RESPONDENT:
[G.R. No. 190420 : February 03, 2010]
JOSEPHINE TUTOR AND ADAM ADUGALSKI, PETITIONERS, VS. ATTY. JOHNSON B. HONTANOSAS, RESPONDENT
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this Court dated 03 February 2010:
G.R. No. 190420 - JOSEPHINE TUTOR and ADAM ADUGALSKI, petitioners, -versus- ATTY. JOHNSON B. HONTANOSAS, respondent.
In this petition for review on certiorari under Rule 45, the petitioners seek to reverse the two interlocutory orders of the Regional Trial Court {RTC), Branch 47, Tagbilaran City[1] dated September 14, 2009 and November 3, 2009 in Civil Case No. 7354. The September 14, 2009 Order denied the petitioners' motion to hold in abeyance the implementation of the RTC's order of consignation pending resolution of their petition for certiorari with the Court of Appeals (CA) in CA-SP No. 04477; the November 3, 2009 Order denied the petitioners' motion for reconsideration and directed the petitioners to explain within 5 days from receipt why they should not be cited in contempt of court for failure to obey the lawful order of the court.
The petitioners argue that the RTC erred in denying their motion to hold in abeyance the implementation of its order requiring the consignation of �1,775,000.00 because the RTC was already aware that the petitioners have a pending application for a temporary restraining order (TRO) with the CA. They further argue that the RTC erred in immediately issuing a show cause order against the petitioners for contempt of court in the same order where their motion for reconsideration was also resolved.
We deny the petition.
At the outset, this petition should be dismissed outright for adopting the wrong mode of appeal. The petitioners principally assail the RTC Order dated September 14, 2009 that denied the motion to hold in abeyance the implementation of the order of consignation. This Order is an interlocutory order since it is merely ruled on an incidental issue and did not terminate or finally dispose of the case.[2] A petition for review on certiorari under Rule 45 is inappropriate to assail an interlocutory order. The proper subject of a petition for review on certiorari under Rule 45 is a final judgment or order that finally disposes of a case, leaving nothing more to be done by the court.[3]
Even if we assume that the petitioners can appeal the RTC's order under Rule 45, the petition would still fail. The RTC acted in accordance with law and jurisprudence in denying the petitioners' motion to hold in abeyance the implementation of its Orders dated June 26, 2009 and August 19, 2009. Mere elevation of an interlocutory matter to the CA through a petition for certiorari under Rule 65 does not by itself merit a suspension of the proceedings before a lower court, unless a TRO or a writ of preliminary injunction has been issued against the lower court.[4] Section 7 of A.M. No. 07-7-12 SC dated December 4, 2007, amending Rule 65, Section 7 of the Rules of Court so provides:
While there are instances where a lower court may suspend its proceedings even if there is no writ of preliminary injunction or TRO issued by a higher court and on the basis solely of judicial courtesy,[5] we explained in Go v. Judge Abrogar,[6] that the rule on "judicial courtesy" applies only where "there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the lower court."[7] The petitioners failed to show that this instance apply here.
The RTC likewise did not err in including the show cause order in the denial of the motion for reconsideration since the petitioners were fully apprised of the respondent's pending motion to cite them in contempt of court when they filed their comment and opposition thereto.
WHEREFORE, we resolve to deny the petition for review on certiorari for being a wrong mode of review from an interlocutory order under the 1997 Rules of Civil Procedure, as amended; in any event, the RTC committed no reversible error in denying the motion to hold in abeyance the implementation of the order of consignation.
SO ORDERED.
WITNESS the Honorable Antonio T. Carpio, Chairperson, Honorable Arturo D. Brion, Roberto A. Abad, Mariano C. Del Castillo and Jose P. Perez, Members, Second Division, this 3rd day of February, 2010.
G.R. No. 190420 - JOSEPHINE TUTOR and ADAM ADUGALSKI, petitioners, -versus- ATTY. JOHNSON B. HONTANOSAS, respondent.
In this petition for review on certiorari under Rule 45, the petitioners seek to reverse the two interlocutory orders of the Regional Trial Court {RTC), Branch 47, Tagbilaran City[1] dated September 14, 2009 and November 3, 2009 in Civil Case No. 7354. The September 14, 2009 Order denied the petitioners' motion to hold in abeyance the implementation of the RTC's order of consignation pending resolution of their petition for certiorari with the Court of Appeals (CA) in CA-SP No. 04477; the November 3, 2009 Order denied the petitioners' motion for reconsideration and directed the petitioners to explain within 5 days from receipt why they should not be cited in contempt of court for failure to obey the lawful order of the court.
The petitioners argue that the RTC erred in denying their motion to hold in abeyance the implementation of its order requiring the consignation of �1,775,000.00 because the RTC was already aware that the petitioners have a pending application for a temporary restraining order (TRO) with the CA. They further argue that the RTC erred in immediately issuing a show cause order against the petitioners for contempt of court in the same order where their motion for reconsideration was also resolved.
We deny the petition.
At the outset, this petition should be dismissed outright for adopting the wrong mode of appeal. The petitioners principally assail the RTC Order dated September 14, 2009 that denied the motion to hold in abeyance the implementation of the order of consignation. This Order is an interlocutory order since it is merely ruled on an incidental issue and did not terminate or finally dispose of the case.[2] A petition for review on certiorari under Rule 45 is inappropriate to assail an interlocutory order. The proper subject of a petition for review on certiorari under Rule 45 is a final judgment or order that finally disposes of a case, leaving nothing more to be done by the court.[3]
Even if we assume that the petitioners can appeal the RTC's order under Rule 45, the petition would still fail. The RTC acted in accordance with law and jurisprudence in denying the petitioners' motion to hold in abeyance the implementation of its Orders dated June 26, 2009 and August 19, 2009. Mere elevation of an interlocutory matter to the CA through a petition for certiorari under Rule 65 does not by itself merit a suspension of the proceedings before a lower court, unless a TRO or a writ of preliminary injunction has been issued against the lower court.[4] Section 7 of A.M. No. 07-7-12 SC dated December 4, 2007, amending Rule 65, Section 7 of the Rules of Court so provides:
Sec. 7. Expediting proceedings; injunctive relief. - The court in which the petition [for Certiorari, Prohibition and Mandamus] is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a, writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case.
The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge. (Emphasis and underscoring supplied)
While there are instances where a lower court may suspend its proceedings even if there is no writ of preliminary injunction or TRO issued by a higher court and on the basis solely of judicial courtesy,[5] we explained in Go v. Judge Abrogar,[6] that the rule on "judicial courtesy" applies only where "there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the lower court."[7] The petitioners failed to show that this instance apply here.
The RTC likewise did not err in including the show cause order in the denial of the motion for reconsideration since the petitioners were fully apprised of the respondent's pending motion to cite them in contempt of court when they filed their comment and opposition thereto.
WHEREFORE, we resolve to deny the petition for review on certiorari for being a wrong mode of review from an interlocutory order under the 1997 Rules of Civil Procedure, as amended; in any event, the RTC committed no reversible error in denying the motion to hold in abeyance the implementation of the order of consignation.
SO ORDERED.
WITNESS the Honorable Antonio T. Carpio, Chairperson, Honorable Arturo D. Brion, Roberto A. Abad, Mariano C. Del Castillo and Jose P. Perez, Members, Second Division, this 3rd day of February, 2010.
Very truly yours,
(Sgd)MA.LUISA L. LAUREA
Clerk of Court
(Sgd)MA.LUISA L. LAUREA
Clerk of Court
Endnotes:
[1] Presided by Judge Suceso A. Arcamo.
[2] Caliwan v. Ocampo, G.R. No. 183270, February 13, 2009, 579 SCRA 500, 506; Repol v. COMELEC, G.R. No. 161418, April 28, 2004,428 SCRA 321, 327-328.
[3] Del Rosario v. Sandiganbayan, G.R. No. 143419, June 22, 2006, 492 SCRA 170, 176; Denso (Phils.), Inc. v. Intermediate Appellate Court, No. L-75000, February 27, 1987, 148 SCRA 280, 286.
[4] Republic v. Sandiganbayan, G.R. No. 166859, June 26, 2006, 492 SCRA 747, 750.
[5] See Joy Mart Consolidated Corp. v. Court of Appeals, G.R. No. 88705, June 11, 1992, 209 SCRA 738 and Eternal Gardens Memorial Corp. v. Court of Appeals, No. L-50054, August 17, 19S8, 164 SCRA 421.
[6] 446 Phil. 227 (2003).
[7] Id. at 238.