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[ G.R. No. 105770. June 14, 2000]

OSCAR C. FERNANDEZ, vs. HON. CA, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 14 2000.

G.R. No. 105770 (Oscar C. Fernandez, vs. Hon. Court of Appeals, Fredisvinda Fernandez, Segio Fernandez, Genoveva Coquia, and Fausto Meneses.)

G.R. No. 106029 (Benjamin S. Abalos and Arsenio Arellano, vs. Hon. Court of Appeals, Fredisvinda Fernandez, Segio Fernandez, Genoveva Coquia, and Fausto Meneses.)

For resolution is the Motion for Reconsideration interposed by the petitioner, Oscar C. Fernandez, of the Decision rendered in these cases on October 19, 1999, holding that the petitions raise factual issues not proper for consideration in an appeal on certiorari, that there was no renewal of the lease agreement of petitioner Benjamin S. Abalos (petitioner Abalos) for another five (5) years, that petitioner Benjamin S. Abalos and Oscar C. Fernandez were jointly and severally liable, and that petitioner Abalos cross-claim was properly dismissed.

Petitioner Fernandez contends that he is not jointly and severally liable with petitioner Abalos because he had done everything to convince petitioner Abalos to vacate the leased premises, that there was non-joinder of indispensable parties as the private respondents represented only a minority of the co-owners, and that Branch 3 of the Municipal Trial Court in Cities (MTCC) of Dagupan City had no jurisdiction over the subject matter of the case as the Fishpond in question is mainly within the territory of municipality of Binmaley, Pangasinan and only a small portion thereof is within Dagupan City.

The Motion is without any merit and must be denied.

The issue on the joint and several liability of petitioners has been amply discussed in the Decision, and the Court finds no basis to reconsider the same. With respect to the issue on non-joinder, Article 487 of the Civil Code provides that '[a]ny one of the co-owners may [to] bring an action in ejectment". Anent the absence of jurisdiction of the MTCC of Dagupan City, Section 1 of Rule 4 of the Rules of Court provides that "[I]f the property be found in two or more municipalities or cities, actions may be brought in any of them, at the option of the plaintiff." Moreover, the said issue was neither alleged in the pleadings nor raised during the proceedings below and therefore, cannot be raised for the first time on appeal before this Court.1 Abella vs. Court of Appeals, 257 SCRA 482; C. Alcantara & Sons, Inc. vs. National Labor Relations Commission, 229 SCRA 109.

The Court need not discuss the other issues raised by petitioner Fernandez as they are basically factual matters not proper in an appeal on certiorari. 2 Alicbusan vs. Court of Appeals, 269 SCRA 336.

WHEREFORE, the Motion for Reconsideration under consideration of petitioner Fernandez is hereby DENIED for lack of merit.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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