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[ A.M. No. OCA-IPI-98-514-MTJ. March 1, 2000]

ATTY. ALBERT M. VELASCO vs. JUDGE AIDA RANGEL ROQUE

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 1 2000.

A.M. No. OCA-IPI-98-514-MTJ (Atty. Albert M. Velasco vs. Judge Aida Rangel Roque, MeTC, Branch 24, Manila.)

This is a complaint filed by Atty. Albert M. Velasco against Judge Aida Rangel Roque of the Metropolitan Trial Court (MeTC), Branch 24, Manila, charging the latter with gross ignorance of the law, grave abuse of discretion, and gross misconduct. The charges stem from the case for ejectment filed by Florita B. Vitangol against complainant and his father, Feliciano A. Velasco, docketed as Civil Case No. 151495-CV, in respondent's court.

It appears that on June 25, 1996, complainant had moved to dismiss Criminal Case No. 151495-CV for lack of jurisdiction, alleging that: (1) plaintiff Florita B. Vitangol's cause of action was based on her alleged right of possession over the subject premises as the registered owner of the same which should be ventilated in an accion publiciana or an accion reinvindicatoria, both of which are within the original and exclusive jurisdiction of the Regional Trial Court; and (2) the complaint did not state that plaintiff was in prior possession of the property.

In an order, dated July 17, 1997, respondent required both parties to submit their respective position papers, affidavits, documents, and annexes.

On November 14, 1997, respondent rendered judgment in favor of the plaintiff and ordered the defendants (herein complainant, his father, and all persons claiming rights under them) to surrender possession of the premises to the plaintiff; and to pay jointly and severally the plaintiff P30,000.00 a month as compensation for their use of the premises from February, 1996 until they should have actually vacated the same, as well as P15,000.00 in attorney's fees and costs.

Complainant alleges that instead of resolving his motion to dismiss in the scheduled hearing on January 15, 1997, respondent called the parties to her chambers to consider the possibility of reaching an amicable settlement which, however, did not materialize. He claims that respondent's failure to resolve his motion is contrary to Rule 16, �3 of the 1997 Rules of Civil Procedure which provides that:

Resolution of motion. - After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable.

In every case, the resolution shall state clearly and distinctly the reasons therefor.

He also claims that respondent's decision is "seriously flawed" inasmuch as it speaks of "the positive testimony of the caretaker of the plaintiff" when no witness ever testified in court. Besides, it contains a finding that the plaintiff was in constructive possession of the premises when what is required in ejectment suits is that the plaintiff be in prior, actual, physical, and material possession of the subject property. Complainant expresses his doubts that the case was resolved "on the level" by respondent.

In her comment, dated May 25, 1998, respondent alleges that the allegations in the complainant in Civil Case No. 151495-CV clearly make out a case for ejectment which is within the jurisdiction of her court; that in her order, dated July 17, 1997, she had, contrary to complainant's contention, resolved his motion to dismiss when she ordered the parties to submit their respective position papers; that the "positive testimony" mentioned in her decision refers to the affidavit given by plaintiff's caretaker which was submitted in evidence and falls under the definition of "testimony" as "a declaration made by a witness under oath or affirma[tion]"; that she had "rendered the assailed decision based on the available factual evidence on record and existing laws and jurisprudence with no taint of fraud, dishonesty, and corruption contrary to the insinuation of the complaint."

In its memorandum, dated February 1, 2000, the Office of the Court Administrator recommends that the instant complaint be dismissed for lack of merit.

The Court finds the recommendation well taken. There was really no need to make an express resolution of complainant's motion to dismiss (although it would have been preferable if this was done) because it had become moot and academic when respondent directed the parties to file their position papers on July 17, 1997 and later rendered a decision on November 14, 1997.

The Court cannot see why complainant cannot raise his objections to the manner by which respondent resolved his motion to dismiss and decided the case in an appeal rather than in administrative case like the present one. It is settled that an administrative complaint is not the appropriate remedy for every act of a judge deemed erroneous or irregular where a judicial remedy exists and is available to complainant. (Santos v. Orlino, 296 SCRA 101 (1998)) Even if it is later proved that respondent indeed erred, this fact will not necessarily make her administratively liable absent any proof that she acted with malice. (Punio v. Go, 296 SCRA 1 (1998))

WHEREFORE, the complaint is DISMISSED for lack of merit.

Very truly yours,

(Sgd.) TOMASITA M. DRIS

Clerk of Court

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