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[ G.R. No. 142964. October 9, 2000]
TITAN-IKEDA CONST. & DEV'T CORP. vs. PRIMETOWN PROPERTY GROUP, INC.
FIRST DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated OCT 9 2000.
G.R. No 142964 (Titan-Ikeda Construction & Development Corporation vs. Primetown property Group, Inc.)
On 5 August 1998, the Regional Trial Court (RTC) of Makati rendered its decision in Civil Case No. 75-1501, dismissing the complaint of plaintiff (respondent herein) Primetown Property Group and sustaining the counterclaim of defendant Titan-Ikeda Construction (now petitioner).
On 8 September 1998, Primetown filed a timely notice of appeal.
On 11 September 1998, Titan-Ikeda filed before the RTC a motion for execution pending appeal. A hearing on the motion was set for 17 September 1998 at 8:30 a.m. but Primetown's counsel did not appear for said hearing. Instead, counsel sent a messenger, one Paul Lacdao, to inform the trial Court that he had a previous commitment in another court. Counsel for Primetown, through said messenger, submitted a written manifestation and notion praying that Primetown be allowed ten (10) days within which to file a written opposition to the motion for execution.
In an order issued in open court, the RTC denied Primetown's motion to file a written opposition and granted Titan-Ikeda's motion for execution, thus:
On the hearing of the motion for execution pending appeal, Atty. Jose Angelito B. Bulao, counsel for defendant-movant appeared and reiterated the arguments in support thereof.
For his part, Atty. Reynaldo Dizon failed to appear and by the simple expedient of sending his messenger in the person of one Paul Lacdao, he moves that plaintiff be given 10 days from today within which to submit his comment on defendant's motion for execution pending appeal.
Law and jurisprudence dictate that a motion for execution pending appeal can be taken cognizance of by the Trial Court only well within the 15-day reglementary period within which to appeal.
Considering that plaintiff through counsel received a copy of the Decision on September 02, 1998, while defendant received a copy thereof on September 04, 1998, the last day to resolve the instant motion is on September 19, 1998, a Saturday.
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WHEREFORE, finding the motion for execution pending appeal impressed with merit, the same is hereby GRANTED, on condition that defendant-movant shall post a surety bond in the amount of P75,000,000.00 within 24 hours from today. It is heretofore clarified that the posting of the bond is a condition sine qua non to the grant of the motion for execution pending appeal.
Let Atty. Jose Angelito Bulao, defendant-movant and Paul Lacdao, representing Atty. Reynaldo Dizon[,] who are both notified of this open court order[,] sign the minutes hereof.
SO ORDERED. (Rollo, p. 25.)
On 18 September 1998, the RTC issued the writ of execution pending appeal even without the required bond, which Primetown filed only on 28 September 1998.
Primetown filed a petition for certiorari in the Court of Appeals assailing the RTC Order. Primetown contended that it was denied due process and that there were no good reasons for issuing the writ of execution pending appeal.
In a Decision dated 18 August 1999, the Court of Appeals granted certiorari holding:
First, it is patently serious error amounting to grave abuse of discretion or lack or in excess of jurisdiction on the part of the respondent court in refusing to grant the motion of petitioner-plaintiff for a period within which to file its written opposition to respondent-defendant's motion because it had only up to September 19, 1998 within which to act on the subject motion for execution pending appeal.
The rules on the jurisdiction of the trial court in entertaining and resolving motions for execution pending appeal are explicit and do not need or are not susceptible to any other king of interpretation by the courts. Section 2, Rule 39 and Section 9, Rule 41 of the 1997 Rules of Civil Procedure provide:
SEC. 2. Discretionary execution. -
(a) Execution of a judgment or final order pending appeal.- On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be[,] at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction the motion for execution pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.
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(Emphasis supplied).
SEC. 9. Perfection of appeal; effect thereof. - A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time.
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In appeals by notice of appeal, the court losses jurisdiction over the case upon the perfection of the appeals filed in due time and expiration of the time to appeal of the other parties.
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In either case, prior to the transmittal of the original record or the record on appeal, the court may issues orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeal of indigent litigants order execution pending appeal in accordance with section 2 of Rule 39, x x x. ([E]mphasis ours)
As Retired Justice Feria has clearly pointed out:
The prevailing party may file a motion for execution pending appeal with the court which rendered the judgment before it loses jurisdiction over the case or the subject matter thereof. (See Belgado vs. IAC, 147 SCRA 258; Abe Industries, Inc. vs. IAS, 162 SCRA 48; Sonida Industries, Inc. vs. Wagan, 179 SCRA 763.)
If the motion for execution pending appeal is filed on time, it may be granted even after the court has lost jurisdiction but before the transmission of the records to the appellate court. (See Sec. 9 of Rule 41 and Universal Far East Corp. vs. CA, 131 SCRA 642) ([E])mphasis supplied).
The herein subject motion for execution pending appeal was filed by respondent-defendant on September 11, 1998, eight days before the last day, that is September 19, 1998, within which it may appeal; petitioner-plaintiff's last day to appeal was September 17, 1998. Consequently, applying the above rules, considering that the subject motion is filed on time, public respondent could resolve said motion even beyond September 19, 1998 x x x. Thus, the RTC had no valid ground to deny petitioner-plaintiff the opportunity to submit a written opposition especially considering that the judgment award involves millions of pesos. The refusal of the RTC to give petitioner said opportunity, being unjust and invalid, constitutes a denial of due process.
Second, respondent court likewise committed grave abuse of discretion in not specifically stating the "good reasons" justifying the issuance of the writ of execution pending appeal as mandated by the above-quoted Section 2, Rule 39. In Provident International Resources Corp. vs. Court of Appeals [259 SCRA 510 (1996)], the Supreme Court stressed:
Obviously, the execution of judgment pending appeal is an exception to the general rule and must therefore, be strictly construed. While the grant thereof is discretionary, the aforesaid Section prescribes the following requisites for the valid exercise of the discretion: (a) there must be a motion by the prevailing party with notice to the adverse party; (b) there must be a good reason for execution pending appeal; and (c) the good reason must be stated in a special order. (Emphasis ours).
Not having expressly stated a "good reason" in the assailed order, respondent court exceeded its jurisdiction in issuing the order granting the motion for execution pending appeal and therefore, certiorari lies. Where special reasons do not appear in the order, the same is legally ineffective.
We will not endeavor to as to ascertain whether the reasons stated in the motion for execution pending appeal are "good reasons" as contemplated under the Rules considering that respondent court failed to give petitioner the proper opportunity to refute respondent defendant's grounds in support of its motion as herein earlier discussed. What is fatal to private respondent's position is that said reasons were not stated in the assailed order, a gross violation of Section 2, Rule 39.
Third, it is a clear case of abuse of discretion and a disregard of justice and fair play on the part of respondent court to have issued the writ of execution even before respondent-defendant had filed a bond notwithstanding its Order dated September 17, 1998 that "the posting of the bond is a condition sine qua non to the grant of the motion for execution pending appeal". Moreover, the posting of a bond to answer for damages does not cure the lack of good reason in the assailed order.
Fourth, respondent defendant's claim that petitioner failed to exhaust the proper in staying the execution pending appeal by filing a supersedeas bond under Section 3, Rule 39 of the 1997 Rules is without merit. The filing of a supersedeas bond us not mandatory. We agree with petitioner's counter-argument in its Reply that the filing of supersedeas bond "would only be proper if the court had properly and correctly granted the motion for execution pending appeal. In the instant petition, the petitioner is precisely alleging that the public respondent committed grave abuse of discretion or acted in excess of the jurisdiction when he issued the assailed order." (Id., at pp. 29-32.)
Primetown subsequently filed a motion to lift levy before the Court of Appeals while Titan-Ikeda moved for reconsideration of the decision. The Court of Appeals, in a Resolution dated 10 April 2000, granted Primetown's motion to lift levy and denied Titan-Ikeda's motion for reconsideration.
Titan-Ikeda now contends that the Court of Appeals erred in ruling that the RTC:
(1) Failed to state good reasons why the motion for execution pending appeal should be granted.
(2) Deprived respondent of due process when it refused to grant 10 days to file its opposition.
(3) Gravely abused its discretion in issuing a writ of execution although petitioner had not yet filed its bond.
The Court of Appeals, however, has sufficiently addressed in the assailed decision the above issues raised by petitioner Titan-Ikeda. The Court finds the disquisition of the Court of Appeals, as reproduced above, to be consistent with the pertinent laws and jurisprudence, and adopts the same.
ACCORDINGLY, finding no reversible error, the Court Resolved to DENY the petition.
Very truly yours,
(Sgd.) VIRGINIA ANCHETA-SORIANO
Clerk of Court
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