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Republic of the Philippines

CA-G.R. SP. NO._____
As Presiding Judge, Branch 83,
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Plaintiff, by counsel and to this Honorable Court, alleges:
This is an action to set aside the order dated 8 November 2014 (Annex
A) issued by respondent Judge in Civil Case 12345, Branch 83, Makati City,
entitled Daniel Badilla vs. Vice Pogi, ordering the dismissal of the case and
ordering Plaintiff therein to pay damages to Vice Pogi in spite of the
absence of a counterclaim filed by the latter, as well as the order of 20
November 2014, which denied petitioners motion for reconsideration, on
the ground that said questioned order is null and void, for grave abuse of
discretion amounting to lack of jurisdiction in issuing said order.
1. Petitioner is of legal age and with residence at 608 C Cordillera St. Brgy
Malamig, Makati City. He is the plaintiff in the Civil Case No. 12345,
Branch 83, RTC, Makati.
2. Respondent Abakada Egaha is of legal age and is the Presiding Judge of
of Branch 83, RTC, Makati, who issued the questioned orders and is
sued in his official capacity as such. He may be served with legal
processes at said Branch 83, RTC Makati.

On 8 November 2014, respondent Judge issued an order dismissing
petitioners civil case against Vice Pogi involving an action for damages.
Petitioner received a copy of said order on 10 November 2014, and certified
true copy of which is attached hereto as Annex A.
On 20 November 2014, or within 15 days from receipt of said order
Annex A, petitioner filed a motion for reconsideration. On 22 November
2014, the trial court denied said motion for reconsideration, and a copy
thereof was served petitioner on 24 November 2014. Certified true copy of
said order of denial is attached hereto as Annex B
The instant petition is filed with the Court of Appeals within 60 days from
receipt of said order Annex B.
1. On December 17, 2008, at around one oclock in the morning, Badilla
was driving and on board a Honda CRV 2009 vehicle, bearing the
plate number ABS 222.
2. Badilla was traversing the stretch of EDSA at a steady speed with due
regard for traffic regulations.
3. Vice Pogi, defendant in Civil Case 12345, was the driver of a Toyota
Altis 2008 model bearing the plate number AHH 246. He blatantly
disregarded major traffic rules and acted with gross negligence
resulting the collision of the vehicles.
4. The collision between the two cars was so strong resulting to
considerable damage in the body and engine of the Honda CRV.
5. Badilla had to undergo medical treatment.
6. Prior to the institution of the Civil Case the parties entered into a
settlement, where plaintiff therein agreed not to pursue any legal
action in exchange for the sum of Php 500,000, representing actual
damages including car repair and medical expenses.
7. Plaintiff therein was only paid Php 200,000. The remaining balance
is still unpaid despite demand. The demand letter was dated 15
December 2011, which tolled the running of the prescriptive period.
8. Badilla institued the civil action to collect payment 6 October 2014.
9. Respondent Judge granted therein defendants motion to dismiss on
the ground of prescription on 8 November 2014.

10. Said order also ordered petitioner to pay damages to defendant

therein for malicious prosecution. Said relief was never prayed for by
defendant therein in any of the pleadings.
11. Petitioners motion for reconsideration was denied.
12. Defendant Pogi is set to leave abroad. His application for U.S.
citizenship is pending as of date.
The issue of law raised are:
1. Whether or not the respondent Judge committed grave abuse of
discretion in issuing the said orders Annexes A and B.
1. The respondent Judge acted with grave abuse of discretion in
dismissing the civil case instituted by petitioner herein against Vice
Pogi on the ground of prescription considering that the running of the
prescriptive period has been tolled by the demand letter.
2. The respondent Judge erred in awarding damages to the defendant in
the Civil Case since the same was not prayed for by the defendant in
its answer.
3. There is no appeal, nor any plain, and speedy in the ordinary course of
law other than the instant petition.
Ground No. 1.
Article 1155 of the New Civil Code provides that the prescription of
actions is interrupted when they are filed before the court, when there is a
written extrajudicial demand by the creditor, and when there is any
written acknowledgment of the debt by the debtor. Petitioner wrote a
demand letter addressed to defendant therein on 15 December 2011.
Pursuant to Article 1155, the running of the prescriptive period has been
suspended. The obligation to satisfy the remaining balance remains
subsisting and it was error on the part of Respondent Judge to have
dismissed the case.
Ground No. 2.

Respondent Judge erred in awarding relief to defendant in view of the

fact that such relief was not prayed for. Rule 9 of the Rules of Civil
Procedure provides:
Section 1. Defenses and objections not pleaded. Defenses and
objections not pleaded either in a motion to dismiss or in the
answer are deemed waived. However, when it appears from the
pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that the
action is barred by a prior judgment or by statute of limitations,
the court shall dismiss the claim. (2a)
Section 2. Compulsory counterclaim, or cross-claim, not set up
barred. A compulsory counterclaim, or a cross-claim, not set
up shall be barred. (4a)

WHEREFORE, petitioner prays for judgment:

1. The petition be given due course
2. After proceedings, setting aside and nullifying the questioned orders
Annexes A and B.
3. Petitioner prays for such other reliefs as may be just and equitable in
the premisies.
26 November 2014, Makati City

Counsel for Plaintiffs
Dela Rosa St., Legaspi Village
Makati City, Metro Manila
IBP Lifetime Member 11111
Attorneys Roll No. 11111
PTR No. 11111, 1-11-10,(MC)



METRO MANILA . . . . . . . . . .

I, DANIEL BADILLA, Filipino citizen, 35 years of age, married and

a resident of 608 C Cordillera St., Makati City, Metro Manila, after having
been duly sworn to in accordance with law depose and say:
1. That I am the petitioner in this case and that I have read the same
and found the contents thereof to be true and correct according to the best
of my own personal knowledge and belief;
2. That I have not commenced any other action before the Supreme
Court, the Court of Appeals, nay other court, tribunal or agency that there
is no case pending between the same parties for the same cause before any
judicial or quasi-judicial bodies;
3. That if I come to know of the existence of any case between the
same parties for the same cause pending before any such court, I shall
endeavor to so notify the Court within five (5) days from acquisition of
such information.
IN WITNESS WHEREOF, I have hereunto affix my signature in
behalf of other plaintiffs this 26th day of November, 2014, in the City of
Makati, Metro Manila, Philippines.

License No. 1111111
Issued on March 17, 2013
Valid up to March 17, 2015

SUBSCRIBED AND SWORN to before me this 14th day of

November, 2014 in Makati City, Metro Manila, affiant indentifying
himself by the document indicated under his name.

Doc. No. 1;
Page No. 10;
Book No. V;
Series of 2011.

Notary Public
Until December 31,2017
PTR No. 1111111, 1-11-10,
issued at Makati City