[ G.R. No. 138507. March 6, 2000]

ALBERTO ACHAPERO, et al. vs. HON LIBRADO CORREA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 6 2000.

G.R. No. 138507 (Alberto Achapero, et al. vs. Hon. Librado Correa, et al.)

In this petition for review for certiorari under Rule 45, petitioners seek to reverse the Decision and Resolution of the Court of Appeals which dismissed their special civil action for certiorari and denied their motion for reconsideration, respectively.

The antecedents of this case, as found by the Court of Appeals, are as follows:

On April 28, 1991, Carmen V. Lazaro filed an action for Rescission with Damages with Prayer for Quieting of Title, Mandamus, Preliminary injunction and/or Temporary Restraining Order against the petitioners herein, which was docketed as Civil Case No. 60740. The said action mainly sought to recover the possession of the house and lot located at 304 General Segundo, Little Baguio, San Juan, Metro Manila, and covered by TCT No. 54416. The petitioners-spouses in turn filed an action for Specific Performance with Damages against Lazaro, which was docketed as Civil Case No. 60765. Upon motion of Lazaro, the latter case was consolidated with the former, which was pending before Branch 164 of the Regional Trial Court (RTC) of Pasig City. During the pendency of the said cases, or on July 8, 1992, Lazaro died.

Hence on August 17, 1992, private respondent Atty. Herita L. Altamirano, the designated executrix in Lazaro's will, filed an Urgent Motion for Substitution of Deceased Party (p. 138, Rollo). The trial court, which was then presided by Hon. Apolonio Chavez, Jr., issued an order on the same date directing the private respondent to secure [an] authorization before Branch 67 of the RTC of Pasig, where the petition for probate of Lazaro's will was filed. On August 31, 1992, Hon. Apolinario B. Santos of Branch 67 granted the private respondent's motion for substitution empowering the latter as special administratrix of Lazaro's estate pending resolution of the petition for probate and civil cases subject herein.

Thereafter on July 7, 1993, Judge Chavez of Branch 164 rendered judgment in the consolidated civil actions, which had the following dispositive portion:

"ACCORDINGLY, the Spouses Alberto and Flora Achapero are hereby directed to pay Carmen Lazaro or her estate:

1. The amount of P100,000.00 as compensatory damages;

2. The amount of P250,000.00 as moral damages;

3. To pay the amount of P91,933.50 as exemplary damages to be set off with the same amount which was paid by them in installments to Carmen Lazaro;

4. To pay the equivalent of 20% of the total recoverable amount from defendants Achapero for and as attorney's fees;

5. To pay the costs of suit.

"Further, defendants-spouses Achapero are hereby directed to vacate the premises located at No. 304 General-Segundo Street, Little Baguio, San Juan, Metro Manila and covered by TCT No. 54416, together with all the family and companions of Flora Achapero also residing therein, as well as to refrain form further occupying said property.

"Flora Achapero is also directed to return all available copies of the aforementioned Deed of Absolute Sale witnessed by Ms. Cielo Macapagal-Salgado and Atty. Herita Altamirano which are still in her possession.

"Further, for the purpose of quieting of title, the Register of Deeds is hereby directed to cancel the Adverse Claim appearing at the back portion of TCT No. 54416 in the name of Carmen Lazaro and annotated as Entry No. 16548 dated March 25, 1991 filed by defendants Alberto and Flora Achapero for being null and void together with the affidavit of Adverse Claim executed by Flora Achapero for containing untruthful statements therein; and also hereby declares that the aforementioned Deed of Absolute Sale which was made the basis of the Adverse Claim above adverted to, as rescinded, annulled, and revoked for being falsified.

"As to the counterclaim of co-defendant Isidro S. Cruz against Carmen Lazaro and for the reasons above given, the same is hereby dismissed for lack of merit.

"SO ORDERED."

From such adverse decision, the petitioners then appealed to this Court, which appeal was docketed as CA-G.R. CV No. 43047. On August 28, 1996, this Court's former Tenth Division rendered judgment affirming the appealed decision.

Not content with the said decision, the petitioners filed a Petition for Review on Certiorari with the Supreme Court, which was docketed as G.R. No. 126327. In a resolution dated January 13, 1997, the High Court resolved to dismiss the petition for non-compliance with the requirements of the Rules of Court (pp. 122-123, Rollo). The petitioners filed a Motion for Reconsideration which was denied with finality by the Supreme Court in its resolution on March 19, 1997 (p. 124, Rollo). The resolution of dismissal on January 13, 1997 was then recorded in the Book of Entries of Judgments on May 16, 1997.

The petitioners subsequently filed a motion for leave to admit the attached second motion for reconsideration, but the said motion was likewise denied by the Supreme Court in a resolution dated August 13, 1997 (p. 125, Rollo). The high Court further noted without action the prayer for clarification on whether the heirs of Lazaro may enjoy the fruits of her victory considering the non-substitution of parties after her death which occurred during the trial.

On August 18, 1997, the private respondent filed a Motion for the issuance of a Writ of Execution, to which the petitioners filed an opposition. The Lower court, which is now presided by Hon. Librado S. Correa (Public respondent herein) issued an order on September 25, 1997 denying the said motion for being premature. After the timely filing of a Motion for Reconsideration by the private respondent, which attached thereto a certified true copy of the Entry of Judgment of the Supreme Court resolution dated January 13, 1997, the public respondent reconsidered the earlier order and granted the motion for execution in the questioned order dated October 23, 1997. Pursuant thereto, a writ of execution was issued on November 12, 1997 against the petitioners herein.

Sheriff Marcial Estrellado issued and served on November 25, 1997 a Notice to Vacate and Compliance to the petitioners, giving them five (5) days from receipt thereof within which to voluntarily vacate the premises in question (p. 79, Rollo). The notice further ordered the petitioners to return all available copies of the Deed of Absolute Sale indicated in the judgment which were still in their possession. On the same date, Sheriff Estrellado also attached and levied personal properties found in the physical possession of the petitioners (please see Sheriff's Report, p. 134, Rollo)."1 Decision, Rollo, pp. 27-29.

On 26 November 1997, petitioners filed a special civil action for certiorari, mandamus and prohibition before the Court of Appeals wherein the central issue raised was whether the trial court acquired jurisdiction over the person of respondent administratrix, Atty. Herita Altamirano, in the absence of an order of substitution issued by the said court. On 16 December 1998, the Court of Appeals issued the questioned Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the instant petition is DENIED and hereby DISMISSED for lack of merit. Costs against the petitioners.

SO ORDERED.

Petitioners filed a motion for reconsideration. On 26 April 1999, the Court of Appeals issued the questioned Resolution denying petitioners' motion.

Hence, the present petition where the following assignment of errors are raised:

I

THE COURT OF APPEALS ERRED IN RULING THAT PETITIONERS WERE PRECLUDED FROM RAISING THE ISSUE OF LACK OF JURISDICTION OVER THE PERSON OF PRIVATE RESPONDENT ON THE GROUND OF ESTOPPEL.

II

THE COURT OF APPEALS ERRED IN SUSTAINING THE COURT A QUO'S ORDER DATED 23 OCTOBER 1997 AND THE WRIT OF EXECUTION DATED 12 NOVEMBER 1997 WITH ACCOMPANYING UNDATED NOTICE TO VACATE, DESPITE THE FACT THAT IT DID NOT ACQUIRE JURISDICTION OVER THE SO-CALLED LEGAL REPRESENTATIVE, ATTY. HERITA L. ALTAMIRANO, OF THE DECEDENT IN VIEW OF THE ABSENCE OF [AN] ORDER OF SUBSTITUTION (IN ACCORDANCE WITH THE MANATE OF SECTION 17, RULE 3 OF THE REVISED RULES OF COURT) THEREFOR.

We find the petition utterly devoid of merit.

We shall first discuss petitioners' second assignment of error. Petitioners contend that since the trial court failed to issue an order for the substitution of the deceased Carmen Lazaro by respondent administratrix, the trial court did not acquire jurisdiction over the said administratrix and, as such, the decision rendered by the said court is null and void.2 Petition, id., at 20. In support of this contention, petitioners rely on Section 17 of Rule 33 Now Section 16, Rule 3 pursuant to Bar Matter No. 803 which took effect on 1 July 1997. of the Revised Rules of Court in relation to the case of Vda. De Haberer vs. Court of Appeals 4 104 SCRA 536 (1981). We are not persuaded.

A cursory reading of Section 17 of Rule 3 readily shows that petitioners' reliance on the said rule is misplaced, to wit:

Death of a party.- After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty day (30) days or within such time as may be granted. If the legal representative of the deceased fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased, may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

It is clear from the above that the rule requires is for the court to issue an order for the legal representative of the deceased to appear before it so that, when the said representative appears, the trial court would be apprised of who the new real party-in-interest is and, at the same time, acquire jurisdiction over his person. Logically then, when the legal representative voluntarily appears before the trial court, there is no longer a need for the court to issue an order for his appearance and, since the court already has jurisdiction over his person, the substitution of the legal representative in lieu of the deceased will then follow as a matter of course. Clearly, the import and effect of the said rule cannot be stretched to mean that the failure of the trial court to issue a categorical order of substitution of the deceased by his legal representative, would necessarily result in the non-acquisition of jurisdiction over the person of the legal representative and, as such, would render the consequent decision issued by the trial court null and void. Although, it would be ideal for the court concerned to issue an order of substitution even after the legal representative voluntarily submitted to its jurisdiction, the significance of the same can only be seen when viewed in the desirability of having a paper trail of the proceedings conducted before it. Thus, the non-issuance of an order of substitution would, in no way, affect the court's jurisdiction over the legal representative since, upon his voluntary appearance in court, the said court automatically acquires jurisdiction over his person. In fact, under the new version of the above rule, found in Section 16 of Rule 3, it is quite clear that only an order requiring the legal representative to appear is prescribed and that there is no mention of the necessity for the court to issue an order of substitution. The new version reads:

Death of a party; duty of counsel. - Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be aground for disciplinary action.

x x x.

Thus, based on the new version of the rule, when the court is apprised by the lawyer of the deceased of the said party's demise and the identity and whereabouts of his legal representative, the court will then summon the said person to appear before it and, upon the legal representative's appearance in court, his substitution in lieu of the decedent will follow as a matter of course without the need for an order of substitution.

We now come to petitioners' reliance on the case of Vda. De Haberer, 5 Ibid. the Court notes that their dependence on the said case was brought about by an isolated reading of a specific sentence therein without considering the other statements made by the Court in the same. The way petitioners distorted the judicial significance of Vda. De Haberer exemplifies the dangers of taking a specific sentence in a case in isolation and not reading the same in the context of the statements surrounding the same. The specific sentence relied upon by petitioners reads as follows:

x x x Thus, it has been held that when a party dies in an action that survives, and no order is issued by the court for the appearance of the legal representative or of the heirs of the deceased in substitution of the deceased, and as a matter of fact no such substitution has ever been effected, the trial held by the court without such legal representatives or heirs and the judgement rendered after such trial are null and void because the court acquired no jurisdiction over the person of the legal representative or of the heirs upon whom the trial and the judgment would be binding. 6 Id., at 542.

Taking the above-quoted sentence in isolation, one can easily be misled in giving credence to petitioners' argument that an order of substitution is indispensable to cases where one of the original parties died. However, when viewed in the light of the entire paragraph where the above sentence is contained, the true meaning of the Court's statement is revealed. Reproduced hereunder is the entirety of the pertinent paragraph:

Respondent court gravely erred in not following the Rule and (sic) requiring the appearance of the legal representative of the deceased and instead dismissing the appeal of the deceased who yet had to be substituted in the pending appeal. Thus, it has been held that when a party dies in an action that survives, and no order is issued by the court for the appearance of the legal representative or of the heirs of the deceased in substitution of the deceased, and as a matter of fact no such substitution has ever been effected, the trial held by the court without such legal representative or heirs and the judgment rendered after such trial are null and void because the court acquired no jurisdiction over the persons of the legal representatives or of the heirs upon whom the trial and the judgment would be binding. 7 Id., at 541-542 (underscoring supplied).

Based on the more comprehensive quotation made above, it is quite clear that what is highlighted in the said case is the detrimental effect which will result from the lower court's failure to issue an order for the appearance of the legal representative of the deceased who fails or refuses to voluntarily appear in court. Evidently, if the legal representative does not or cannot appear before the court concerned, as what happened in the Vda. De Haberer case since no legal representative was yet, during the pendency of the said case, appointed by the probate court, and no court order is issued requiring the appearance of the legal representative, the proceedings conducted by the court in the absence of such representative would indeed be null and void since no one will replace the decedent in prosecuting or defending his case. Clearly, the case of Vda. De Haberer is not all fours with the circumstances surrounding the instant petition since, in this case, respondent administratrix voluntarily appeared before the trial court and, thereafter, submitted to the said court a copy of her appointment as the special administratrix of the estate of the deceased. As such, there can be no question that the trial court acquired jurisdiction over the person of respondent administratrix.

We come now to petitioners' first assignment of error. We quote with approval the discussion of the Court of Appeals on why petitioners are already estopped from questioning the jurisdiction of the trial court over respondent administratrix, to wit:

x x x It is fundamental that while lack of jurisdiction may be assailed at any stage of the proceedings, a party's participation therein estops such party from raising the issue (People's Industrial and Commercial Corp. vs. Court of Appeals, 281 SCRA 206). It is an undesirable practice of a party participating in the proceedings and submitting his case for decision and when accepting the judgment, only if favorable, and attacking it for lack of jurisdiction, when adverse (Quintanilla vs. Court of Appeals, 279 SCRA 397). This principle of estoppel should thus deter those who are disposed to trifle with the courts by taking inconsistent positions contrary to the elementary principles of right dealing and good faith (Sesbre�o vs. Court of Appeals 240 SCRA 606).

Finally. We agree with the observation of the Court of Appeals that the present petition is merely a "last-ditch effort to prevent or delay execution of a final judgment."8 Supra, note 1 at 31. This Court in G. R. No. 126327 has long passed upon the original case from which the present petition emanated. In our Resolution, dated 13 August 1997, we denied the petition in G. R. No. 126327 with finality and merely noted without action the issue raised by petitioners in their second motion for reconsideration. The issue raised in their second motion for reconsideration is exactly the same as that raised in the present petition - the validity of the trial court's decision in view of the failure of the said court to issue an order of substitution. Thus, petitioners should have realized that reiterating this issue anew in the present petition in order to delay the inevitable execution of the judgment against them, which became final as far back as 16 May 1997, would not merit this Court's approval. The filing of dilatory cases such as this merely clogs the Court's dockets and deprives the Court of its tine in resolving more important and meritorious cases.

WHEREFORE, the petition is denied. Pardo, J., is on official leave.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court


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