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[A.M. No. RTJ-01-1614.February 19, 2001]

BRAGAL vs. JUDGE ERNACIO

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 19 2001.

A.M. No. RTJ-01-1614(Epitacia R. Bragal vs. Judge Josue F. Ernacio, RTC, Branch 60, Iriga City.)

This is a complaint filed by Epitacia R. Bragal against respondent Judge Josue F. Ignacio of the Regional Trial Court. Branch 60. Iriga City, for gross ignorance of the law, grave abuse of authority, misconduct, and conduct unbecoming a judge.

It appears that complainant Epitacia R. Bragal and Emmanuel H. Noble were candidates for director of the Camarines Sur III Electric Cooperative, Inc. (CASURECO III). Complainant filed a complaint for disqualification of Noble before the National Electrification Administration (NEA) on the ground that Noble was not a bonafide member of CASURECO III. However, her complaint was dismissed and the CASURECO III Board of Directors was directed to recognize Noble as the duly-elected director.

Aggrieved, complainant filed before the Court of Appeals on December 27, 1998 a petition for review and obtained from it a temporary restraining order enjoining the parties to maintain the status quo pending hearing on the prayer for a writ of preliminary injunction.

On September 28, 1999, Noble filed before the Regional Trial Court, Branch 60, Iriga City, presided by respondent judge Josue F. Ernacio, a petition for injunction and/or mandamus with a prayer for a preliminary mandatory/prohibitory injunction with damages. In an order, dated October 1, 1999, respondent judge granted Noble's prayer for a temporary restraining order and to be exempt from filing a bond. On November 12, 1999, respondent judge denied complainant's motion for intervention.

In her complaint, Epitacia R. Bragal alleges that respondent judge issued the temporary restraining order without due notice and hearing and without requiring Noble to post the requisite injunction bond. Complainant further claims that Noble is guilty of forum shopping in filing the petition for injunction despite the pendency of her case in the Court of Appeals.

In his comment, respondent judge explains that an order was issued on September 30, 1999 setting a hearing on the application for TRO and issuing a notice thereof to the parties. If complainant was not notified, it was because she was not named as a respondent in the petition for injunction of Noble. Respondent judge avers that the TRO issued by the Court of Appeals was effective only for sixty (60) days, and that, at the time Noble filed the petition for injunction on September 28, 1999 in the RTC, the TRO issued by the Court of Appeals had already expired. Respondent judge argued there was no violation of the rule against forum shopping as there was no identity of parties and cause of action in the two cases. Complainant's petition before the appellate court sought to declare herself as the duly elected representative of Buhi District to the CASURECO III, while in Noble's petition before RTC, he sought to enjoin the respondents therein from excluding him from the meetings of the board of directors of CASURECO III.

The Office of the Court Administrator, agreeing with the comment of respondent judge, recommends that the complaint against respondent judge be dismissed for lack of merit.

The recommendation is well taken. We find no irregularity in the order, dated October 1, 1999, issued by respondent judge granting Noble's application for TRO. As respondent judge adequately explains in his comment:

On September 28, 1999, this court received the petition filed by Mr. Emmanuel H. Noble, docketed as Special Civil Action No. Ir-3093, for Injunction and/or mandamus with Writ of Preliminary Prohibitory Injunction With Damages.

Section 4 (d) of Rule 58 of the Rules of Court provides, viz:

"The application for a Temporary Restraining Order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty four (24) hours after the sheriff's return of service and/or records are received by the branch selected by raffle and to which the records shall be transmitted immediately."

On September 29, 1999, pursuant to the above-quoted provision of the rules, an order was issued by the undersigned respondent setting the summary hearing on the application for Temporary Restraining Order on the next day, September 30, 1999, at 2:00 o'clock in the afternoon (Annex 1). The corresponding notice of hearing on the application for TRO was also issued on the same date (Annex 2).

On September 30, 1999, an order was made in open court, thus:

"The presentation of evidence by both parties and the arguments thereto in the Summary Hearing for the Issuance of Temporary Restraining Order having been concluded, the incident is considered submitted for resolution.

SO ORDERED." (Annex 3)

Thus, the TRO was issued after considering the evidence presented by both parties during the summary hearing, as shown in the transcript of stenographic notes on the hearing of September 30, 1999. In any case, complainant had no reason to question the issuance of the TRO as the same was not issued against her since she was not one of the respondents in the case filed by Noble.

With regard to Noble's ex-parte motion for exemption from filing a bond, respondent judge found merit in the motion and granted it in his order, dated October 1, 1999, stating that the respondents therein cannot sustain damages in the event that the TRO is found to be not justified because the TRO merely prohibits them from excluding Noble from attending the board meetings of CASURECO III.

Anent the order of respondent judge, dated November 12, 1999, denying the motion for intervention, we find the same to have been done by him in the exercise of his judicial functions. Under the rules on intervention, the allowance or disallowance of a motion to intervene is addressed to the sound discretion of the court. The discretion of the court, once exercised, cannot be reviewed by certiorari nor controlled by mandamus unless shown to be arbitrary or capricious (San Miguel Corp., et al. vs. Sandiganbayan, et al., G.R. No. 109797, September 14, 2000).

Finally, proceedings and criminal actions against judges are not a substitute for these judicial remedies, whether ordinary or extraordinary. Resort to and exhaustion of these judicial remedies, as well as the entry of judgment in the corresponding action or proceeding, are pre-requisites for the taking of other measures against the person of the judges concerned, whether of civil, administrative, or criminal nature. It is only after the available judicial remedies have been exhausted and the appellate tribunals have spoken with finality that the door to an inquiry into their criminal, civil, or administrative liability may be said to have opened, or closed (Ang Kek Chen vs. Judge Amalia K. Andrade, A.M. No. RTJ-99-1504, November 16, 1999).

WHEREFORE, the administrative case against respondent judge Josue F. Ernacio is DISMISSED for lack of merit.

Very truly yours,

(Sgd.) TOMASITA M. DRIS
Clerk of Court


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