[ G.R. No. 141401. February 21, 2000]

RICHBAY REALTY, INC. et al. vs. PENTACAPITAL INVESTMENTS, INC. et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 21 2000.

G.R. No. 141401 (Richbay Realty, Inc., et al. vs. Pentacapital Investments, Inc. et al.)

This is a special civil action for certiorari to set aside the decision, dated August 23, 1999, of the Regional Trial Court, Branch 4, Manila which dismissed a complaint for specific performance filed by petitioners Richbay Realty, Inc. (RRI) and its President, Romeo C. Alfredo, against respondents Pentacapital Investment, Inc. (PII), Pentacapital Finance, Inc. (PFI), and Jovencio F. Cinco.

It appears that on July 5, 1995, PII, through its Vice-President and Corporate Secretary, Claro P. Ison, entered into an agreement with RRI, represented by Alfredo, whereby the latter was authorized to sell 16 lots of the former in Barangay Lewin, Lumban, Laguna at the price of P150.00 per square meter. Instead of getting a commission for its efforts, RRI was allowed to place a mark-up on the price indicated in the agreement.

On July 14, 1995, RRI informed PII that it had found buyers for three of the lots at the price of P500.00 per square meter. PII objected in view of the substantial disparity between the price indicated in the agreement and the mark-up placed by RRI. After some discussion, RRI agreed to received the amount of P200,000.00 as its commission instead of placing the mark-up.

Upon delivery of a check for the amount of P200,000.00, Ison asked Alfredo to sign a quitclaim on behalf of RRI, but Alfredo declined, giving assurance that the amount paid fully settled the claim of RII. Despite the assurance given, petitioners filed a complaint for specific performance against respondents. However, the trial court dismissed the complaint in its decision, dated August 23, 1999, now the subject of this petition.

The petition has no merit. In the first place, although styled as a "Petition for Certiorari," it is actually an appeal from the final order of the trial court dismissing the complaint for specific performance filed by petitioner. This is clear from the assignment of errors contained in the petition which reads:

The Judgment Was Contrary to Law

a.) The Judge erred in ignoring provision of the Authority To Sell ("Exh. C") as the law between the Parties.

b.) The Judge erred in restricting himself only on RESPONDENTS' pure allegations in the making of his decision while completely ignoring PETITIONERS' clear pieces of trustworthy documentary exhibits and testimonies. A case of railroading PETITIONERS' evidence in favor of RESPONDENTS' empty and fabricated oral claims.

The Judgment Was Not Supported With Evidence

a.) The Judge erred in holding that, just because the Broker's Fee is higher than the selling price, Exh. "C", was anomalous.

b.) The Judge erred in deliberately implying that RCA - as RESPONDENTS' Agent - committed fraud in the performance of his obligation.

c.) The Judge erred in making up technical words not said by RESPONDENTS.

d.) The Judge erred in swallowing hook, line[,] and sinker [RESPONDENT CPI's] claims despite the multitude of fabrications such witness has said, as shown by the detailed documentary evidence presented by PETITIONER.

The Judgment Was Rendered With Abuse of Discretion

a.) The Judge erred in ignoring to resolve [PETITIONER RCA's] Cause of Action for slander versus RESPONDENT-JFC.

b.) The Judge vehemently refused to inhibit himself from the Case despite PETITIONERS' Motion to that effect, prompted by a detailed apprehension of the magistrate's partiality - as clearly shown by his exceedingly biased Decision;

Thus, petitioners should have filed an ordinary appeal in the Court of Appeals.

Nevertheless, even if the petition is considered a special civil action for certiorari under Rule 65, it should be dismissed as it is merely being used in lieu of the lost remedy of appeal. It appears that petitioners received the decision of the trial court dismissing their complaint for specific performance on September 2, 1999; that they filed a motion for reconsideration on September 14, 1999; and that they received the order of the trial court denying their motion for reconsideration on January 17, 2000. Accordingly, petitioners had only until January 20, 2000 within which to perfect an appeal with the Court of Appeals. No appeal was filed, however. Instead, this petition was filed on January 26, 2000.

WHEREFORE, the petition is DISMISSED.

Very truly yours,

(Sgd.) TOMASITA M. DRIS

Clerk of Court


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