REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Cebu City

TWENTIETH (20th) DIVISION

DANIEL FAJARDO,
Petitioner,

-versus- CA-G.R. CEB SP No. 06025

PACITA T. GONZALEZ,
Respondent.
x--------------------------------------------x

MOTION FOR RECONSIDERATION

(TO THE DECISON DATED JULY 31, 2015)

Defendant, through the undersigned counsel, unto this Honorable

Court, most respectfully submits this MOTION FOR
RECONSIDERATION and in support thereof further avers that:

1. This Motion for reconsideration stemmed from the decision

handed down by this Honorable Appellate Court granting the Petition
for Review filed by the petitioner;

2. And that on September 2, 2015 the herein undersigned counsel

received a copy of the Decision dated July 31, 2015 of the Honorable
Appellate Court granting the said Petition for Review;

Hence, this Motion for Reconsideration;

3. With all due respect to the Honorable Appellate Court’s

decision dated 31 July 2015 it failed to appreciate pertinent facts of the
case and thus, contrary to law.

The said decision of the Honorable Appellate Court posits two

grounds. First: the complaint lacks jurisdictional facts so that it could
constitute an unlawful detainer case. Second: that Panay News was not
impleaded in the case it being the real party in interest.

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 4. Anent, the first argument laid down by the Honorable
Appellate Court, it elaborated that respondent’s complaint did not
characterized petitioner’s alleged entry into the land whether it was
illegal or legal, it made mentioned also that the complaint was also
silent on whether petitioner’s possession became legal before
respondent demanded from the petitioner to vacate the land. And
concluded that the allegation of the respondent in its complaint was a
general and sweeping averments.

Worthy of credence is that, respondent bought the property in

question from Metro bank dated 31 July 2009. By that time on,
respondent was the new owner of the property. Also, at that time
respondent has already knowledge that petitioner was already staying
and occupying on the property. Thus, it can be deduced on the
following facts that the occupancy of the petitioner on the subject
property was legal at the inception considering that respondent by
mere tolerance allowed the herein petitioner to stay at the property.
However, when respondent needed the subject property for its
improvement, it now notified petitioner to vacate the property. It is
settled that one whose stay is merely tolerated becomes a deforciant
illegally occupying the land the moment he is required to leave. It is
essential for unlawful detainer cases of this kind that, that petitioner’s
supposed acts of tolerance must have been present right from the start
of the possession which later sought to be recovered. Respondent in this
case had allowed petitioner to occupy and stay in the subject property
after the former bought the property from Metro Bank had it not
allowed the petitioner to occupy and stay in the property after the sale
then respondent would have immediately caused the petitioner to
vacate the premises of the property. Hence, in this case the possession
of the petitioner was legal at the beginning considering that respondent
allowed the same.

Further, in the decision of the Honorable Regional Trial Court,

Branch 31 dated 22 February 2011, it declared the following, in this
wise, to wit:

Xxx The allegation that the plaintiff failed to make out a case for
unlawful detainer has been put to rest by court’s Presiding Judge Enrique
Trespeces of MTCC, Branch 10 in its order dated 29 January 2010 denying
appellee’s Motion to Dismiss Ex Abundanti Cautelam dated 26 November
2009 for lack of merit.xxx

The requisites for unlawful detainer case was attendant in the

respondent’s complaint. This was shown on respondent’s exhibit “C”

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and “D”. For ready reference said attachments is already part of the
record of the case;

Also attached hereto is the copy of the order of the MTCC Branch
10, Iloilo City as ANNEX “1”;

5. Anent the second ground for which the petition for review
was granted, it must be taken note that when respondent bought the
property from Metro Bank, it was shown base on documents that
Daniel Fajardo was the one acting in behalf of Panay News, Inc.,. The
Real estate Mortgage and Amendment to the Real Estate Mortgage”
which was executed between Panay News, Inc., and Metropolitan Bank
and Trust Company, it was Daniel Fajardo signed in behalf of Panay
News, Inc., as its authorized representative. Also in the
VERIFICATION and CERTIFICATION AGAINST FORUM SHOPPING
which was attached to the complaint filed by Panay News, Inc., against
Metropolitan Bank and Trust, it would readily reveal that petitioner
Daniel Fajardo signed again the same. After the sale respondent now
stepped on to the shoes of Metro bank. In those instances, Daniel
Fajardo was acting in behalf of Panay News. Thus, no other conclusion
can be deduced there from but to tell that Daniel Fajardo was the real
party-in-interest in the case as he signed and acted in behalf of Panay
News Inc., in all their transactions;

Also, in the decision of the Regional Trial Court Branch 31 dated

22 February 2011 Iloilo City, the Honorable Court made a categorical
declaration, to wit:

“xxx
Consequently, appellee cannot now deny
that he is the real party in interest, he is bound as
occupant of the property without the benefit of any
Contract of Lease and only upon tolerance and
generosity of the owner, by an implied promise that
he will vacate premises upon proper demand.
Xxx”

Said decision of the Honorable court must have been followed by

the Honorable Appellate Court as it was based on the facts and law of
the case;

6. On the ruling of the Honorable Appellate Court declaring

that Daniel Fajardo was not the real party in interest has no legal leg to
stand on, the general rule provides that judgment in an action in

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personam is binding only upon parties properly impleaded and given
opportunity to be heard. The exception to the rules are as follows; (1) a,
trespasser, squatter or agent of the defendant fraudulently occupying
the property to frustrate the judgment; (2) a guess or occupant of the
premises with the permission of the defendant; (3) a transferee
pendent lite; (4) a sub lessee; (5) a co-lessee or (6) a member of the
family, relative or privy of the defendant.

The undersigned would like to invite the Honorable Appellate

Court that the case herein is one of the exceptions mentioned above.
Panay News can be considered as an occupant in the subject property
and Daniel Fajardo being the owner of Panay News necessarily allowed
the occupancy or stay of the same. Hence, the undersigned respectfully
submits that the circumstance or facts of the case squarely falls on the
exemption.

The top most court has already enlighten us, in this wise, to wit:

“judgment is binding against the parties

and all parties claiming under, vis:

Guess or other occupant of the premises

with the permission of the defendant
(Gozon v. dela Rosa, 77 Phil. 919)

7. On that score Panay News, Inc., a juridical entity, was the

one who occupies the subject property and logically said occupancy
was with the permission of Daniel Fajardo considering that it was
Daniel Fajardo was the one transacting in favor of Panay News Inc., in a
series of transactions regarding the subject property. It behooves then
that said act of petitioner Daniel Fajardo allowed or permitted Panay
News to stay or occupy the subject property. Hence, Panay News Inc.,
is deemed included in the phrase “and all persons claiming rights
under petitioner”. And, undeniably Panay News Inc., will likely be
affected or benefited by the outcome of the case herein;

8. Another thing worthy of consideration is that, the “Real

estate Mortgage and Amendment to the Real Estate Mortgage” which
was executed between Panay News, Inc., and Metropolitan Bank and
Trust Company, it was Daniel Fajardo signed in behalf of Panay News,
Inc., as its authorized representative. Also in the VERIFICATION and
CERTIFICATION AGAINST FORUM SHOPPING which was attached
to the complaint filed by Panay News, Inc., against Metropolitan Bank

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and Trust, it would readily reveal that petitioner Daniel Fajardo signed
again the same.

Further, the “Third Amended Complaint with Preliminary

Mandatory Injunction” filed by Panay News, Inc., against spouses Raul
M. Gonzalez and Pacita T. Gonzalez before Regional Trial Court Branch
37 of Iloilo, it was stated therein reads as follows:

“The defendant-in-intervention, Daniel G.

Fajardo, herein referred to as Fajardo, is of
legal age, married and a resident of of Iloilo
City, Philippines with post office address at
the Panay News, Inc., at the Panay News,
3rd Flr., La Salette Building, Valeria St.,
Iloilo City Philippines,”

Analyzing the foregoing facts of the case, prudent reason would

dictate us that the doctrine of piercing the veil of corporate fiction be
applied considering that Daniel Fajardo and Panay News, Inc., were
conniving so as to evade obligation or liability against respondent. It
can be shown that Daniel Fajardo was using Panay News, Inc., as
mantle to hide his liability. It is evident now that Daniel Fajardo, the
petitioner, is utilizing the separate personality of Panay News Inc., in
order to avoid his liability. By invoking the separate personality of
Panay News Inc., The act of Daniel Fajardo amounted to fraud This
cannot be done. In Monica Industrial and Development Corporation
v. DAR Director for Region II, 555 SCRA 97, the top most court had
the occasion to rule that the use of corporate fiction as a means to evade
legal liability is not new;

Likewise, in the case of Philippine Commercial bank and

International bank v. Custodio 545 SCRA 367, the top most court
made a declaration, in this wise, to wit;

“While the corporation is clothed with a

personality separate and distinct from the
persons composing it, the veil of the separate
corporate personality may be lifted when it
is used as a shield to confuse legitimate
issues, or where lifting the veil is necessary
to achieve equity of for the protection of
creditor.”

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 WHEREFORE, premises considered it is most respectfully prayed
unto this Honorable Appellate Court to modify its Decision dated July
31, 2015 and that a new Order/Decision be issued giving due course to
this Motion for Reconsideration of herein Respondent by dismissing the
petition for review and affirmed the decision of the Regional Trial
Court Branch 31, Iloilo City dated 22 February 2011as said decision is in
accordance with the facts and law of the case.

Such other reliefs and/or remedies, which are just and equitable
under the foregoing premises, are likewise prayed for.

Pasig City, September 14, 2015.

GONZALEZ AND ASSOCIATES LAW OFFICES

Unit 505 Fifth Floor OMM-CITRA Building
No. 39 San Miguel Avenue,
Ortigas Center, Pasig City

By:

ATTY. JORICO FAVOR BAYAUA

Counsel for the Respondent
IBP Life Member No. 09572
PTR No. 4759324 / 01/09/15 Makati City
Roll of Attorney No. 47842
MCLE Compliance IV No. 0009973
December 5, 2012

And

ATTY. CLIMARK D. DASAYON

IBP No.963578/ 01/12/15
PTR No. 9979031/ 01/14/15 Kalinga
Roll No. 63556
Exempted MCLE Compliance
Board Order No. 1, Series of 2008
July 4, 2008

COPY FURNISHED:

ATTY. ABDIEL ELIJAH S. FAJARDO

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SOLIS MEDINA LIMPINGCO & FAJARDO
Counsel for the Petitioner
11th Floor East Tower, PSE Center,
Exchange Road, Ortigas Business Center,
Pasig City

HON. PRESIDING JUDGE

RTC, Branch 31
5000 Iloilo City

DIVISION CLERK OF COURT

Court of Appeals
Twentieth (20th) Division

EXPLANATION

That the foregoing MOTION FOR RECONSIDERATION of the

Respondent-Movant was served to the Petitioner through registered
mail due to distance to effect personal service.

CLIMARK DASAYON

VERIFICATION AND CERTIFICATION

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 I, PACITA T. GONZALEZ, of legal age, widow, Filipino
citizen and presently residing at # 28 Butterfly Street, Valle Verde VI,
Pasig City, after having been duly sworn to in accordance with law
do hereby depose and states:

I am the respondent in the above-entitled case;

I have caused the preparation of the foregoing MOTION FOR

RECONSIDERATION having supplied all the materials allegation
contained therein and hereby attest that they are true and correct to the
best of my own personal knowledge or based on authentic records;

There is no other action or proceeding involving the same issues

raised in this case has been filed or is pending before the Supreme
Court, Court of Appeals, or different Divisions thereof, Regional Trial
Courts, Metropolitan Trial Courts or other tribunal or agency.

I hereby undertake and bind myself to inform this Honorable

Court of any similar case filed or pending in any court or quasi-judicial
agency that may come to my knowledge.

Affiant further sayeth none.

IN WITNESS WHEREOF, I have hereunto affixed my signature

this ____ day of September 2015, in ____________ City.

PACITA T. GONZALEZ
Affiant

SUBSCRIBED AND SWORN to before me this ___ day of September 2015

at ___________ City, Philippines.
□ is personally known to the notary public
□ was identified by notary public through Competent Evidence of Identity as
defined by Rules of Notarial Practice of 2004, thru the presentation of the ff:

□ Drivers License No._________ □ Passport No.____________

□ PRC No.__________________
□ SSS ID No._______________
□ GSIS ID No.______________
□ Postal ID No._____________
□ OTHER/S
□TIN No. _________________
□ Company ID No.________
□ CTC No. ________________
Issued on _________________
Issued in ________________