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[G.R. No. 149567.January 28, 2002]

NATAS-YA ENTERPRISES, INC., vs. INTESTATE ESTATE OF ELIZALDE, JR.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated 28 JAN 2002.

G.R. No. 149567(Natas-Ya Enterprises, Inc., petitioner vs. Intestate Estate of Manuel Elizalde, Jr., Miguel Elizalde, Administrator, respondent.)

This is an appeal by certiorari from the decision of the Court of Appeals dated May 16, 2001 in CA-GR SP No. 56698 denying due course and dismissing the petition for certiorari filed by herein petitioner against the Intestate Estate of Manuel Elizalde, Jr.

The spouses Manuel Elizalde, Jr. and Maria Marti Elizalde, a Spanish citizen, had three children, namely, Miguel Elizalde, Manuel Elizalde III and Maria del Carmen Elizalde. In 1975, Maria Marti Elizalde filed and was granted a divorce from her husband by the Superior Court of California, County of San Diego. Two years after, or in 1977, she filed a petition for dissolution of conjugal partnership of gains and separation of properties with the Regional Trial Court of Makati. The petition was granted and judgment became final and executory.

On May 2, 1997, Manuel Elizalde, Jr. died intestate survived by his three children. On May 6, 1997, Miguel Elizalde filed a petition for the settlement of estate of his father with the Regional Trial Court of Pasig. During the hearing, Miguel adduced evidence that his father and mother were divorced and the conjugal partnership of gains had been dissolved.

With a special power of attorney given him by his sister Maria del Carmen, Miguel Elizalde filed a petition for letters of administration, docketed as S.P. Proc. No. 10750, and prayed that he be appointed regular administrator of the estate of Manuel Elizalde, Jr. This was granted on July 30, 1997.

On October 28, 1997, Miguel, as regular administrator, executed a deed of absolute sale over 4 parcels of land belonging to the estate in favor of Philippine Commercial International Bank.

Meanwhile, Maria Marti Elizalde returned to the Philippines and in 1999, she executed an unnotarized "deed of assignment with irrevocable special power of attorney" in favor of herein petitioner Natas-Ya Enterprises, Inc. authorizing the latter to, among others, prosecute assignor's claim to the assets of the conjugal partnership of gains, including the choice of attorney to handle the prosecution of her claim. Maria Marti Elizalde constituted petitioner as her attorney-in-fact with power and authority to receive her share in the conjugal partnership of gains and retain 40% thereof. The deed of assignment also provided that the "assignee shall have exclusive control in the prosecution of any legal action or proceedings to be commenced for the purpose of recovering the Assignor's shares in the assets of the aforementioned conjugal partnership of gains xxx."

On April 5, 1999, Maria Marti Elizalde filed, through Attys. Vicente Chuidian and Cesar Uy, an Amended Motion for Removal of Administrator with Counter- Petition claiming that she was a lawful heir of her deceased husband. Miguel opposed said motion.

On April 19, 1999, Maria Marti Elizalde wrote counsels instructing them to withdraw from the case. Instead, petitioner Natas-Ya, Inc. filed an omnibus motion for the removal of Miguel as administrator and prayed for its appointment as administrator, attaching thereof a copy of the deed of assignment executed by Maria Marti Elizalde in its favor.

On April 23, 1999, Maria Marti Elizalde, through a new counsel, filed a Motion for Withdrawal of the Amended Motion for Removal of Administrator. Petitioner manifested to the court that she was no longer a legitimate widow and heir of deceased Manuel Elizalde, Jr., because she has already obtained a divorce in the Superior Court of California. Petitioner opposed such motion arguing that it was an interested party as an assignee; that it held an irrevocable power of attorney; and that the withdrawal cannot prejudice 40% of the hereditary claim contractually assigned to it by Maria Marti Elizalde.

On May 7, 1999, Maria Marti Elizalde reiterated her desire to withdraw her previous Motion for Withdrawal of Amended Motion for Removal of Administrator, the effect of which is the retention of Miguel Elizalde as administrator of the intestate estate of Manuel Elizalde, Jr. On September 7, 1999, the trial court granted her motion and the motion for removal of administrator was deemed withdrawn. Petitioner filed a motion for reconsideration of the said order but the same was denied.

Hence, petitioner Natas-Ya, Inc. filed a petition for certiorari under Rule 65 of the Rules of Court with the Court of Appeals attributing grave abuse of discretion to the trial court for granting Maria Marti Elizalde's motion for retention of Miguel Elizalde, as administrator and denying petitioner's motion for reconsideration.

On May 16, 2001, the Court of Appeals denied due course to the petition and dismissed the same for (1) failure to implead Maria Marti Elizalde as an indispensable party; and (2) for being a wrong mode of appeal. The Court of Appeals ruled that petitioner erred in resorting to a petition for certiorari under Rule 65 because a plain and adequate remedy is an ordinary appeal under Rule 41. Hence, this petition.

The petition has no merit.

Petitioner assails the resolution of the trial court granting Maria Marti Elizalde's Motion to Withdraw the Motion for Removal of Administrator claiming that the latter cannot renounce her share in the conjugal partnership in view of the deed of assignment she executed in petitioner's favor. However, as pointed out by the Court of Appeals, petitioner failed to implead Maria Marti as an indispensable party in its petition. Section 7, Rule 3 of the Rules of Court mandates that "parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants." The Joinder of indispensable parties is compulsory; consequently, no action can proceed unless they are joined.[1]cralawIn this case, Maria Marti is an indispensable party because petitioner bases its action on the deed of assignment with irrevocable special power of attorney executed by said Maria Marti in its favor. No final resolution of the issue raised by petitioner can be had without joining Maria Marti as a party, the latter being the assignor in the subject deed of assignment relied upon by petitioner. Hence, the petition was properly dismissed for failure to implead Maria Marti. Moreover, a plain, speedy, and adequate remedy from the assailed Order is an appeal under Rule 41 and not a petition for certiorari. The Court of Appeals, thus, committed no error in dismissing the petition.

Finally, we also note that the petition was filed out of time. Petitioner received the Court of Appeals' denial of its motion for reconsideration on August 29, 2001 and had until September 13, 2001 to file the petition. On September 12, 2001, petitioner asked for an extension of 30 days from September 13, 2001 to file its petition. This was granted by this Court and petitioner had until October 15, 2001 to file the petition. However, said petition was filed only on October 17, 2001, hence, the same must be denied for being filed out of time.

IN VIEW OF THE FOREGOING, the petition is hereby denied and the decision of the Court of Appeals affirmed.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court



Endnotes:

[1]cralaw Galarosa vs. Valencia, 227 SCRA 728 (1993).


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