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SECOND DIVISION

Sirs and Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 16 2005.

G.R. No. 149734 (Dr. Daniel Vasquez and Ma. Luisa Vasquez vs. Ayala Corporation.)

What began as a simple agreement between friends evolved into an escalated dispute regarding the proper valuation of lots in tony Ayala Alabang Village. With money fanning the flames, even the ponentehas been dragged into the fray, doubts about his impartiality being loosely bandied about in the newspapers.

This resolution addresses petitioners' Motion for Partial Reconsideration dated December 28, 2004.

Notably, in their prefatory statement, petitioners allege that they were belatedly informed that respondent was once a client of the ponente , Justice Dante O. Tinga, but in the same breadth they concede that they are not in a position to confirm the veracity of the information.

Pursuing their move to cause Justice Tinga to voluntarily recuse himself, petitioners in their Reply to the Consolidated Comment/Opposition of respondent allege that Justice Tinga has a pattern of ruling in favor of respondent. They cite his action in 1988 as Chairman of the House Committee on Corporations and Franchises which recommended the approval of House Bill No. 32763 entitled "An. Act Approving the Merger Between Globe Mackay Cable and Radio Corporation and Clavecilla Radio System and the Consequent Transfer of the Franchise of Clavecilla Radio System Granted Under Republic Act Numbered Four Hundred and Two, as amended, to Globe Mackay Cable and Franchise, and Repealing Certain Sections of Republic Act Numbered Four Hundred, and Two, as amended," and subsequently as one of the sponsors of the bill. According to petitioners, Globe Mackay Cable and Radio Corporation, which eventually became Globe Telecom, Inc., is owned and controlled by herein respondent.

Petitioners also point to G.R. No. 143964 entitled "Globe Telecom, Inc. v. The National Telecommunications Commission, et al." wherein this Court promulgated a Decision on July 26, 2004, reversing the rulings of the Court of Appeals and the National Telecommunications Commission, with Justice Tinga as ponente.

The grounds relied upon by petitioners for Justice Tinga's inhibition are utterly unfounded. They themselves acknowledge that they have not confirmed the veracity of the information concerning Justice Tinga's alleged previous engagement as a lawyer for respondent. In fact, the alleged information is downright false.

The case of Globe Telecom, Inc. v. NTC ^[1] cralaw cited by petitioners likewise does not indicate that the ponenteis biased in favor of respondent. Notably, respondent Smart Communications, Inc. also prevailed in the case. The only other party, the National Telecommunications Commission, did not file a motion for reconsideration of the decision, indicating that it has no objection to the decision.

Neither does Justice Tinga's endorsement, as Chairman of a House Committee at the time, of the bill regarding the merger of two firms that eventually became Globe Telecom, Inc. signify partiality. The ponente , after all, merely recommended the approval of the merger, as he has recommended the approval of a host of other franchise bills. It is basic knowledge that the enactment into law of any bill cannot be the doing of one legislator alone but requires the action of the two chambers of Congress and the President of the Philippines.

The disqualification of a judge is a deprivation of his judicial power. ^[2] cralaw It should not be countenanced on the basis of speculations and surmises, let alone baseless insinuations as in this case.

It is also well-settled that seeking the disqualification of a judge as an aftermath of the decision he rendered is improper. ^[3] cralaw

The matter of voluntary inhibition is addressed to the sound discretion of the Justice concerned. ^[4] cralaw Justice Tinga believes in conscience that he can render justice fairly, partially and in good faith. We respect his stand.

Now, the merits of the motion for Partial Reconsideration.

By a unanimous vote, the Court denied petitioners' Petition for Review on Certiorari ^[5] cralaw dated October 11, 2001, ruling that: (a) petitioners did not breach their warranties under the Memorandum of Agreement (MOA) dated April 23, 1981; (b) paragraph 5.7 ^[6] cralaw of the MOA expresses an intention, not a commitment, on the part of respondent to complete the first phase under its amended development plan within three (3) years from the execution of the MOA; (c) respondent was not in delay; and (d) paragraph 5.15 ^[7] cralaw of the MOA embodies a mere right of first refusal, n5t an option contract, because the period within which the subject lots should be offered for sale and the price at which they shall be sold are not specified. ^[8] cralaw

Petitioners disagree with all but one of the foregoing findings. In their Motion for Partial Reconsideration petitioners insist that paragraph 5.15 of the MOA is an option; respondent was obliged to develop the property within three (3) years from the execution of the MOA; respondent incurred in delay in the performance of its obligations under the MOA; and they have not lost their right to purchase the subject lots.

In support of their motion, petitioners filed two (2) motions to admit ^[9] cralaw respectively dated January 7, 2005 and January 19, 2005. The first motion to admit attaches a letter-agreement executed simultaneously with the MOA on April 23, 1981. Although this letter pertains to properties different from those subjects of the MOA, petitioners insist that the letter is proof that respondent intended paragraph 5.15 of the MOA to be an option not a mere right of first refusal because the letter expressly used the term "right of first refusal" in contrast with the MOA which mentions an "option." The second motion to admit attaches two letters dated March 15, 1990 and June 18, 1990 from respondent allegedly showing that the latter intended to grant petitioners an option and not a mere right of first refusal.

In a Consolidated Comment/Opposition dated January 28, 2005, respondent asserts that the motion for reconsideration is unmeritorious. According to respondent, it did not commit to complete the development of the area where the subject lots are located within three (3) years from the execution of the MOA; it was never in delay; it never admitted that the MOA contains a valid option contract; the alleged option in the MOA is not valid for lack of valuable consideration and an agreement with respect to a price certain; the motions to admit contain false information and are not allowed under the Rules of Court; and that petitioners' prayer that they should be allowed to purchase the subject lots at P5,000.00 per square meter is belatedly made and baseless.

Respondent also contends that Atty. Ramon S. Esguerra and the law firm of Esguerra & Blanco are disqualified to represent petitioners in this case allegedly because Atty. Esguerra was previously counsel to respondent in the proceedings a quo. Thus, the motion for reconsideration and motions to admit have no legal effect.

Petitioners filed a Reply dated March 3, 2005 essentially insisting that paragraph 5.15 of the MOA was a valid option contract. They further argue that they did not refuse to purchase the subject lots but merely disagreed with respondent as to the selling price. As regards the alleged disqualification of Atty. Esguerra, petitioners cite the Notice of Withdrawal of Appearance dated March 1, 2005 filed by Atty. Esguerra with petitioners' conformity.

The basic issues raised by petitioners have been thoroughly passed upon by the Court in its Decision. Even for this reason alone, the instant motion for reconsideration should be denied.

Nonetheless, the Court's pronouncement that paragraph 5.15 of the MOA is-a right of first refusal and not an option contract mainly because the exercise of the right would be dependent not only on respondent's eventual intention to enter into a binding juridical relation with another but also on terms, including the price, that are yet to be firmed up, ^[10] cralaw bears emphasizing.

Petitioners' contention that the price at which the subject lots were to be sold was fixed because it was to be based on "the prevailing market price at the time of the purchase" is clearly erroneous. On the contrary, this phrase reinforces the fact that there is no price certain at which the subject lots will be offered for sale. The price is considered certain if it may be determined with reference to another thing certain or if the determination thereof is left to the judgment of a specified person or persons. ^[11] cralaw In this case, both the price and the time at which the subject lots would be available for sale are undetermined and indefinite.

Petitioners' attempt to introduce new evidence in the form of the letter-agreement dated April 23, 1981 and the letters dated March 15, 1990 and June 18, 1990 should also be rejected.

In the first place, the letter-agreement dated April 23, 1981 is extraneous to the instant case as it does not refer to the same properties. Secondly, Sec. 34, Rule 132 of the Rules of Court proscribes consideration of evidence which has not been formally offered. Certainly, the letters attached to the motions to admit cannot be introduced in evidence for the first time in the instant motion for reconsideration. Moreover, the introduction of new evidence at this stage is futile considering that the Court is not a trier of facts. ^[12] cralaw Documents forming no part of the proofs before the appellate court will not be considered in disposing of the issues in an action. ^[13] cralaw Piecemeal presentation of evidence is not in accord with orderly justice. ^[14] cralaw

Even assuming that these letters are admissible, they do not in themselves evince that paragraph 5.15 of the MOA was an option contract or that respondent intended it to be an option contract.

The letter-agreement dated April 23, 1981, for instance, loosely refers to and interchanges the terms "right of first refusal" and "option." It states:

...we have agreed to give you, Enrique and Jaime Zobel, and/or your direct descendants the right of first refusal in the event that we decide to sell or have others develop (excluding construction contracts) our 5.5 hectares of land located in Alabang adjoining the Alabang Highway, covered by TCT No. S-31690, issued in the name of Maria Luisa Madrigal Vasquez which Ayala is developing as a commercial district. This option is given to you and Jaime personally and to your direct descendants who may assign it to other parties after the terms and conditions for the exercise of the option shall have been agreed upon. ^[15] cralaw [Emphasis supplied]

Likewise unmeritorious is petitioners' argument that they did not refuse to purchase the subject lots but merely disagreed with regard to the selling price. Since what was granted was a mere right of first refusal, petitioners' rejection of respondent's offer precluded the perfection of any agreement for the purchase of the subject lots.

IN VIEW OF THE FOREGOING, the motion for the voluntary inhibition of Justice Dante O. Tinga in this case is DENIED for lack of merit. The Motion for Partial Reconsideration dated December 28, 2004 is DENIED WITH FINALITY also for lack of merit. The Motion to Admit dated January 7, 2005, as well as the Motion to Admit dated January 19, 2005, are likewise DENIED.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court