G.R. No. L-25134.

October 30, 1969

THE CITY OF BACOLOD, plaintiff-appellee, vs.

SAN MIGUEL BREWERY, INC., defendant-appellant.

BARREDO, J.:

FACTS:

On February 17, 1949, the City Council of Bacolod passed Ordinance No. 66, series of 1949 imposing upon "any
person, firm or corporation engaged in the manufacturer bottling of coca-cola, pepsi cola, tru orange, lemonade,
and other soft drinks within the jurisdiction of the City of Bacolod, a fee of ONE TWENTY-FOURTH (1/24) of a
centavo for every bottle thereof," plus "a surcharge of 2% every month, but in no case to exceed 24% for one
whole year," upon "such local manufacturers or bottler above-mentioned who will be delinquent on any amount of
fees due" under the ordinance.

In 1959, this ordinance was amended by Ordinance No. 150, series of 1959, by increasing the fee to "one-eighth
(1/8) of a centavo for every bottle thereof." Appellant refused to pay the additional fee and challenged the validity
of the whole ordinance.

On March 23, 1960, appellee sued appellant contending that the defendant only paid to the plaintiff herein the
P0.01 bottling tax per case of soft drinks thereby refusing to pay the P0.03 bottling tax per case of soft drinks which
amounted to P26,306.54 as per statement submitted by the Assistant City Treasurer of Bacolod City.

The court rendered judgment on November 12, 1960 ordering San Miguel Brewery Inc. to pay to the plaintiff the
sum of P26, 306.54 and the tax at the rate of three centavos per case levied in Ordinance No. 66 and 150 from
March, 1960, and thereafter.

Appellant appealed from the said decision to this Court where it pressed the question of the invalidity of the
abovementioned taxing ordinances. This Court affirmed the decision appealed from and upheld the
constitutionality of the questioned ordinances and the authority of the appellee to enact the same.

After this decision had become final, appellee moved for the reconsideration thereof, praying that the same be
amended so as to include the penalties and surcharges provided for in the ordinances. The said motion was
denied, for the reason that "the decision is already final and may not be amended."

When execution was had before the lower court, the appellee again sought the inclusion of the surcharges
referred to; and once again the move was frustrated by the Court of First Instance of Negros Occidental which
denied the motion.

Failing thus in its attempt to collect the surcharge provided for in the ordinances in question, appellee filed a
second action (Civil Case No. 7355) to collect the said surcharges alleging that soon after the decision of the
Honorable Supreme Court affirming the decision of the Hon. Court, the defendant paid to the City of Bacolod
P156,924.20 as taxes from July, 1959 to December, 1962 in compliance with the provision of Section 1, Ordinance
No. 66, Series of 1949, as amended by Ordinance No. 150, Series of 1959, which corresponds to the taxes due
under said section in the amount of P0.03 per case of soft drinks manufactured by the defendant, but refused and
still continued refusing to pay the surcharge which amounted to P36, 519.10 as shown by the certified statement
of the office of the City Treasurer of Bacolod City as provided under Section 4 of Ordinance No. 66, Series of 1949,
as amended by Ordinance No. 150, Series of 1959, which reads as follows:
"SEC. 4 — A surcharge of 2% every month, but in no case to exceed 24% for one whole year, shall be imposed on
such local manufacturer or bottlers above mentioned who will be delinquent on any amount of fees under the
ordinance."

On July 24, 1964, appellant filed a motion to dismiss the case on the grounds that: (1) the cause of action is barred
by a prior judgment, and (2) a party may not institute more than one suit for a single cause of action.

This motion was denied by the court a quo in its order dated August 22, 1964; so appellant filed its answer wherein
it substantially reiterated, as affirmative defenses, the above-mentioned grounds of its motion to dismiss.
Thereafter, the parties submitted the case for judgment on the pleadings, whereupon, the court rendered
judgment ordering the defendant San Miguel Brewery, Inc. to pay to the plaintiff the sum of P36,519.10
representing the surcharges as provided in section 4 of Ordinance 66, series of 1949 of the City of Bacolod. No
costs.

Appellants moved for reconsideration but its motion was denied, hence, the instant appeal.

ISSUE:

WHETHER OR NOT A PARTY MAY INSTITUTE MORE THAN ONE SUIT FOR A SINGLE CAUSE OF ACTION

HELD:

We find appellant's position essentially correct. There is no question that appellee split up its cause of action when
it filed the first complaint on March 23, 1960, seeking the recovery of only the bottling taxes or charges plus legal
interest, without mentioning in any manner the surcharges.

The rule on the matter is clear. Sections 3 and 4 of Rule 2 of the Rules of Court of 1940 which were still in force
then provided:

SEC. 3. Splitting a cause of action, forbidden. — A single cause of action cannot be split up into two or
more parts so as to be made the subject of different complaints. .

SEC. 4. Effect of splitting. — If separate complaints were brought for different parts of a single cause of
action, the filing of the first may be pleaded in abatement of the others, and a judgment upon the merits
in either is available as a bar in the other

The rule against splitting a single cause of action is intended "to prevent repeated litigation between the same
parties in regard to the same subject of controversy; to protect defendant from unnecessary vexation; and to avoid
the costs and expenses incident to numerous suits." And it developed, certainly not as an original legal right of the
defendant, but as an interposition of courts upon principles of public policy to prevent inconvenience and hardship
incident and unnecessary litigations.

In the light of these precedents, it cannot be denied that appellant's failure to pay the bottling charges or taxes and
the surcharges for delinquency in the payment thereof constitutes but one single cause of action which under the
above rule can be the subject of only one complaint, under pain of either of them being barred if not included in
the same complaint with the other.
A cause of action is basically an act or an omission or several acts or omissions. A single act or omission can be
violative of various rights at the same time, as when the act constitutes juridically a violation of several separate
and distinct legal obligations.

In the case at bar, when appellant failed and refused to pay the difference in bottling charges from July 1, 1959,
such act of appellant in violation of the right of appellee to be paid said charges in full under the Ordinance, was
one single cause of action, but under the Ordinance, appellee became entitled, as a result of such non-payment, to
two reliefs, namely: (1) the recovery of the balance of the basic charges; and (2) the payment of the corresponding
surcharges, the latter being merely a consequence of the failure to pay the former. Stated differently, the
obligation of appellant to pay the surcharges arose from the violation by said appellant of the same right of
appellee from which the obligation to pay the basic charges also arose. Upon these facts, it is obvious that appellee
has filed separate complaints for each of two reliefs related to the same single cause of action, thereby splitting up
the said cause of action.

Section 4 of Rule 2, above-quoted, is unmistakably clear as to the effect of the splitting up of a cause of action. It
says, "if separate complaints are brought for different parts (reliefs) of a single cause of action, the filing of the first
(complaint) may be pleaded in abatement of the others, and a judgment upon the merits in either is available as a
bar in the others." In other words, whenever a plaintiff has filed more than one complaint for the same violation of
a right, the filing of the first complaint on any of the reliefs born of the said violation constitutes a bar to any action
on any of the other possible reliefs arising from the same violation, whether the first action is still pending, in
which event, the defense to the subsequent complaint would be litis pendentia, or it has already been finally
terminated, in which case, the defense would be res adjudicata.2 Indeed, litis pendentia and res adjudicata, on the
one hand, and splitting up a cause of action on the other, are not separate and distinct defenses, since either of the
former is by law only the result or effect of the latter, or, better said, the sanction for or behind it.

It thus results that the judgment of the lower court must be, as it is hereby reversed and the complaint of appellee
is dismissed.
 [G.R. No. 117929. November 26, 1999]
CORA VERGARA, petitioner, vs. THE COURT OF APPEALS, HON. CAMILO O. MONTESA, JR., Presiding Judge, RTC-
Malolos, Br. 19 and SPS. NAZARIO and ZENAIDA BARRETO, respondents.

GONZAGA_REYES, J.:

FACTS:

A complaint for recovery of sum of money with damages was filed by herein private respondents Nazario and
Zenaida Baretto against petitioner Cora Vergara alleging that on May 28, 1993, petitioners husband borrowed the
amount of P50, 000.00 from the private respondents and executed a promissory note to pay at any time within the
month of June of that year. On June 25, 1993, petitioner’s husband died without paying the amount loaned. On
July 15, 1993, herein petitioner executed another promissory note undertaking to pay the loan.
Petitioner filed a motion to dismiss the complaint on the ground that the complaint states no cause of action
pursuant to Section 1(g), Rule 16 of the Rules of Court. Petitioner reasoned out in said motion that the complaint
being a money claim against her deceased husband should be filed in accordance with the procedure laid down in
Section 1, Rule 87 of the Rules of Court which provides that all money claims against deceased persons should be
recovered in the estate proceedings. The motion was denied by the court a quo and required the petitioner Cora
Vergara to file her answer within ten (10) days from receipt thereof.
Subsequently, a motion for reconsideration was filed which was likewise denied.
Petitioner filed a special civil action for certiorari before the Court of Appeals which affirmed the above rulings of
the RTC.
Hence, the instant petition

ISSUE/ISSUES:

WHETHER OR NOT RESPONDENT CA ERRED IN SUSTAINING THE ORDERS OF RESPONDENT JUDGE DEFERRING
RESOLUTION OF PETITIONERS MOTION TO DISMISS GROUNDED ON FAILURE TO STATE A SUFFICIENT CAUSE OF
ACTION UNTIL AFTER TRIAL ON THE MERITS.

WHETHER OR NOT RESPONDENT CA ERRED IN SUSTAINING RESPONDENT JUDGES ORDERS SHORTENING

PETITIONERS PERIOD TO ANSWER FROM FIFTEEN (15) DAYS TO TEN (10) DAYS FROM RECEIPT OF THE ORDER
DENYING (DEFERRING) THE MOTION TO DISMISS.[4]

HELD:

The Court of Appeals did not err in upholding the court a quos denial of petitioners motion to dismiss for the
reason that a motion to dismiss based on the fact that the complaint states no cause of action can only be
determined by considering the facts alleged in the complaint and no other.

A cause of action exists if the following elements are present: (1) a right in favor of the plaintiff by whatever means
and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or
not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of the
plaintiff or constituting a breach of the obligation of defendant to the plaintiff for which the latter may maintain an
action for recovery of damages.

In determining whether allegations of a complaint are sufficient to support a cause of action, it must be borne in
mind that the complaint does not have to establish or allege facts proving the existence of a cause of action at the
outset; this will have to be done at the trial on the merits of the case. To sustain a motion to dismiss for lack of
cause of action, the complaint must show that the claim for relief does not exist, rather than that a claim has been
defectively stated, or is ambiguous, indefinite or uncertain.[7]

Briefly stated, lack of cause of action, as a ground for a motion to dismiss, must appear on the face of the
complaint itself, meaning that it must be determined from the allegations of the complaint and from none other. A
perusal of the complaint reveals that it sufficiently alleges an actionable breach of an obligation on the part of
petitioner. The complaint against herein petitioner as defendant alleges that petitioners husband loaned a
specified sum of money from the private respondents; that a promissory note was executed by the husband in
evidence thereof; that upon the death of petitioners husband, petitioner herself executed a promissory note
undertaking to pay the indebtedness. The reasons in support of the motion to dismiss that petitioner could not
have assumed the obligation of her husband, and that novation could not have taken place, are defenses that
could not be taken into consideration in ruling on the motion. It does not appear clearly from the face of the
complaint that the private respondents are not entitled to any relief under any state of facts which could be
proved within the facts alleged therein warranting the outright dismissal of the same. Hence, the denial of the
motion to dismiss is not only justified but is necessary since the issue as to whether petitioner is liable to pay the
loan is a question which can better be resolved after trial on the merits where each party can present evidence to
prove their respective allegations and defenses.

ii

The summons was received by her on December 15, 1993, and she had been granted by the court another fifteen
(15) days after the reglementary period of fifteen (15) days, or up to January 14, 1994. On said date of January 14,
1994, defendant/petitioner filed her motion to dismiss.

When the respondent court denied petitioners motion to dismiss and was ordered to file her answer within ten
(10) days from receipt thereof on February 7, 1994, she was not deprived of her day in court. Petitioner received
said order of denial of February 7, 1994 on February 14, 1994. She filed her motion for reconsideration to said
denial on February 23, 1994 and the same was denied by the respondent court on March 7, 1994, which order was
received by petitioner on March 17, 1994. She filed her answer on March 28, 1994 or 1 day late of the second ten-
day period required by the court from date of her receipt of the questioned order on March 17, 1994. 

Consequently, petitioner was declared in default and trial proceeded ex-parte and a judgment in default rendered
against her. Petitioner filed a Notice of Appeal.
The provision in question, Section 4 of Rule 16 of the Rules of Court, cannot be any clearer:

Sec. 4. Time to plead. If the motion to dismiss is denied or if determination thereof is deferred, the movant
shall file his answer within the period prescribed by Rule 11, computed from the time he received notice of the
denial or deferment, unless the court provides a different period.[11]

Under this provision, where the motion to dismiss is denied, the defendant has the entire reglementary period all
over again within which to file his answer reckoned from his receipt of the courts’ order, unless otherwise
provided by said court. In the instant case, the court a quo gave petitioner ten (10) days to file answer and this is
reasonable as correctly pointed out by the Court of Appeals considering that from the date respondent received
the summons up to the time she filed her answer on March 29, 1994, she had a total of one hundred three (103)
days.
We also note that petitioners counsel did not bother to seek relief from the order of default in accordance with
Section 3, Rule 18 of the Rules of Court. Counsel did not even attempt to have the order of default set aside as
provided for in said rule.
In fine, the Court of Appeals committed no reversible error in affirming the court a quos orders denying the
dismissal of the complaint.
WHEREFORE, the instant petition is hereby DENIED. The decision and resolution of the Court of Appeals dated July
27, 1994 and November 7, 1994, respectively, in CA G.R. SP No. 33889 are AFFIRMED.
 G.R. No. 129371. October 4, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ROMEO SANTIAGO, SOLIS DE LEON and JAIME ILLESCAS, accused, 
JAIME ILLESCAS, accused-appellant.

YNARES-SANTIAGO, J.:

FACTS:

Accused Romeo Santiago, Solis De Leon and Jaime Illescas were charged with murder in an Information stating that
on or about the 18th day of December, 1993, in the municipality of Baliuag, province of Bulacan, the above-named
accused, conspiring, confederating together and mutually helping one another, armed with a gun and with intent
to kill one Antonio Dionisio, did then and there wilfully, unlawfully and feloniously with evident premeditation and
treachery, attack, assault and shoot with the said gun the said Antonio Dionisio, hitting the latter on his head,
thereby inflicting serious physical injuries which directly caused his death.

Only Illescas was arrested while his co-accused remained at large. Upon arraignment, Illescas pleaded "not guilty"
to the charge.

The trial court found that on December 18, 1993 at around 8:45 to 9:00 o'clock in the evening, Antonio Dionisio,
together with his daughters Mary Ann, Girlie, Maria Paz and Mariel, were on board a blue mini cruiser on their way
to attend a party. Their car hit an Enduro motorcycle ridden by the three accused. One of the accused uttered
expletives at them. Mary Ann clearly remembered Illescas' face and later identified him as the driver of the
motorcycle.

After the minor collision, Dionisio dropped off Mary Ann, Maria Paz and Girlie at the party while he and Mariel
proceeded to the service station to buy gas for the mini cruiser. Sometime later, Mary Ann learned from a tricycle
driver that her father had been shot.

Four-year old Mariel Dionisio who was with her father in the mini cruiser identified Illescas as among the three
persons who killed her father, although she said he was not the triggerman.

Miguel Lopez, a tricycle driver, corroborated Mariel's testimony. He testified that he saw the three accused prior to
the incident. Then he heard a gunshot a few minutes after seeing them. He again saw the three accused near the
foot of the bridge with two of them aboard the motorcycle while the other one was pushing it, apparently trying to
jumpstart the motorcycle. Lopez was facing sideways to the three accused and light coming from a nearby spare
parts store was illuminating the area where he saw them. He remembered Illescas as the driver of the motorcycle.
Lopez knew the victim, Antonio Dionisio, as he was related to his father.

Edgardo Dungao, a jeepney driver, also saw the three accused prior to the shooting. While driving his jeepney he
heard a shot. Thereafter, he saw a person on a motorcycle with two other persons running after it. After the two
persons caught up with the motorcycle, they all fled. One of the accused was wearing a black jacket. Upon
reaching the end of the bridge, he saw the bloodied victim whom he recognized to be Tony Dionisio.

The defense relied solely on the testimony of Illescas who denied participation in the crime. He claimed he was
merely a backrider on the motorcycle together with his brother-in-law, Solis de Leon, and Romeo Santiago. While
they were on their way to a birthday party aboard a black motorcycle, an owner-type jeepney suddenly overtook
them causing them to fall down. The driver of said vehicle alighted and told them, "Napakayabang n'yong
magpatakbo ng motor, parang sa inyo ang daan." Thereafter, the driver of the jeepney forced Romeo Santiago to
board his jeepney at gunpoint. While trying to set the motorcycle upright, he heard a gunshot. He did not see who
fired the shot. Immediately, he left the premises and went home on a tricycle.

The trial court rendered judgement finding accused Jaime Illescas guilty beyond reasonable doubt of the crime of
murder pursuant to Art. 248 of the Revised Penal Code because of the attending qualifying circumstances of
treachery and evident pre-meditation and hereby sentenced him and imposed the penalty of RECLUSION
PERPETUA and to indemnify the heirs of the offended party in the amount of Fifty Thousand Pesos P50,000.00 as
actual and moral damages and to set an example and sense of prevention to others not to commit the same
offense"

Hence, this appeal.

ISSUE/ISSUES:

I. WHETHER OR NOT THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAS AMPLY AND
SUFFICIENTLY PROVED THAT TREACHERY ATTENDED THE SHOOTING AND KILLING OF VICTIM ANTONIO
DIONISIO.

II. WHETHER OR NOT THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAS AMPLY AND
SUFFICIENTLY PROVED THAT EVIDENT PREMEDITATION ATTENDED THE SHOOTING AND KILLING OF
VICTIM ANTONIO DIONISIO.

III. WHETHER OR NOT THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAS AMPLY AND
SUFFICIENTLY PROVED THE PRESENCE OF CONSPIRACY BETWEEN YOUR ACCUSED-APPELLANT AND THE
TWO OTHER CO-ACCUSED IN THE SHOOTING AND KILLING OF VICTIM ANTONIO DIONISIO.

IV. WHETHER OR NOT THE TRIAL COURT ERRED IN CONVICTING YOUR ACCUSED-APPELLANT OF THE
CRIME OF MURDER.

HELD:

There is treachery when the following conditions are present: (a) employment of means, methods or manner of
execution to ensure the safety of the malefactor from defensive or retaliatory acts on the part of the victim, and
(b) deliberate adoption by the offender of such means, methods or manner of execution.

The trial court's conclusion has no basis considering that no evidence was presented to show that the accused
deliberately employed means, methods or manner of execution to ensure their safety from the defensive or
retaliatory acts of the victim.3 In fact, the trial court merely concluded that the attack was treacherous because it
was sudden and unexpected but it failed to cite any evidence to show that the attack was indeed sudden and
unexpected.

This Court has held that where all indicia tend to support the conclusion that the attack was sudden and
unexpected but there are no precise data on this point, treachery cannot be taken into account. Treachery cannot
be established from mere suppositions drawn from the circumstances prior to the moment of the aggression that
the accused perpetrated the killing with treachery.4 When the witnesses did not see how the attack was carried out
and cannot testify on how it began, the trial court cannot presume from the circumstances of the case that there
was treachery. Circumstances which qualify criminal responsibility cannot rest on mere conjectures, no matter how
reasonable or probable, but must be based on facts of unquestionable existence. Mere probabilities cannot
substitute for proof required to establish each element necessary to convict. Treachery must be proved by clear
and convincing evidence, or as conclusively as the killing itself.

ii

The three requisites needed to prove evident premeditation are the following: (a) the time when the offender
determined to commit the crime; (b) an act manifestly indicating that the offender had clung to his determination;
and (c) a sufficient interval of time between the determination and the execution of the crime to allow him to
reflect upon the consequences of his act.7

None of the above requisites exist in this case. The record is bereft of any evidence to show when the accused
decided to kill the victim. It was not shown that the accused meditated and reflected upon their decision to kill the
victim. Likewise, there is a dearth of evidence that the accused persisted in their plan to kill the victim.

As this Court has repeatedly held, the premeditation to kill must be plain notorious and sufficiently proven by the
evidence of outward acts showing the intent to kill.8 In the absence of clear and positive evidence, mere
presumptions and inferences of evident premeditation, no matter how logical and probable, are insufficient.9

We cannot agree with the prosecution's theory that the 15-minute interval is sufficient time for the accused to
cooly reflect on their plan to kill the victim. It has been held in one case that even the lapse of 30 minutes between
the determination to commit a crime and the execution thereof is insufficient for full meditation on the
consequences of the act.10

iii

Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it. It may be deduced from the manner in which the offense is committed, as when the accused
acted in concert to achieve the same objective.11 In order to hold an accused liable as co-principal by reason of
conspiracy, he must be shown to have performed an overt act in pursuance or in furtherance of conspiracy. The
overt act may consist of active participation in the actual commission of the crime itself or it may consist of moral
assistance to his co-conspirators by exerting moral ascendancy over the other co-conspirators by moving them to
execute or implement the conspiracy.12 Mere presence at the scene of the incident, knowledge of the plan or
acquiescence thereto are not sufficient grounds to hold a person liable as a conspirator. As such, conspiracy must
be established as any element of the crime and evidence of the conspiracy must be beyond reasonable
doubt.13Neither joint nor simultaneous action per se sufficient indicium of conspiracy, unless proved to have been
motivated by a common design.14

As shown by the evidence presented by the prosecution, Illescas was driving the motorcycle in the company of his
co-accused immediately prior to and after the shooting incident. Illescas' participation in the crime was limited to
driving the motorcycle as testified to by Mariel, the four-year old daughter of the victim; Illescas was not the
triggerman, although he was the one driving the motorcycle.

The prosecution failed to adduce sufficient evidence to completely establish the existence of conspiracy among the
three accused .The acts of Illescas vis-a-vis those of his co-accused failed to establish beyond reasonable doubt the
presence of conspiracy. It bears stressing that conspiracy must be proved as convincingly and indubitably as the
crime itself.15 Nonetheless, the failure of the prosecution to prove the existence of conspiracy does not eliminate
any criminal liability on the part of Illescas. Although he could not be convicted as a co-principal by reason of the
conspiracy he could still be held as an accomplice. We have previously held that the liability of one whose
participation in crime was limited to driving for the killers is only that of an accomplice. The rationale for these
rulings is that where the quantum of proof required to establish conspiracy is lacking, the doubt created as to
whether accused acted as principal or accomplice will always be resolved in favor of the milder form of criminal
liability, that of a mere accomplice.

iv

Based on the foregoing disquisition, it is clear that the court below erred in convicting accused-appellant of
murder. Absent the qualifying circumstances of treachery and evident premeditation accused-appellant could only
be held liable for homicide. In addition, lacking sufficient evidence of conspiracy and there being doubt as to
whether accused-appellant acted as principal or just a mere accomplice, the doubt should be resolved in his favor
and is thus held liable only as an accomplice.

Under Article 249 of the Revised Penal Code the penalty for homicide is reclusion temporal. Since accused-
appellant is only an accomplice, the imposable penalty is one degree lower than that imposable for the principal,
i.e., prision mayor. There being neither aggravating nor mitigating circumstances, the said penalty shall be imposed
in its medium period.17 Applying the Indeterminate Sentence Law, accused-appellant Illescas is accordingly
sentenced to suffer the prison term of four (4) years, two (2) months and one (1) day of prision correccional, as
minimum, to eight (8) years and one (1) day of prision mayor, as maximum.

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Bulacan, Branch 79,
is AFFIRMED with the MODIFICATION that accused-appellant Jaime Illescas is held guilty of homicide and is
accordingly sentenced to a prison term of four (4) years, two (2) months and one (1) day of prision correccional, as
minimum, to eight (8) years and one (1) day of prision mayor, as maximum, and to indemnify the heirs of Dionisio
Antonio the amount of P50,000.00.

With costs.

SO ORDERED.
 G.R. No. 183239. June 2, 2014

GREGORIO DE LEON, doing business as G.D.L. MARKETING, Petitioner, vs.

HERCULES AGRO INDUSTRIAL CORPORATION and/or JESUS CHUAAND RUMI RUNGIS MILK,Respondents.

PERALTA, J.:

FACTS:

Petitioner filed with the Regional Trial Court (RTC) of Manila an action for breach of contract with damages and a
prayer for a writ of preliminary attachment against respondent Hercules Agro Industrial Corporation, represented
by Jesus Chua, and respondent Rumi Rungis Milk.

RTC promulgated its judgment finding defendant RUMI RUNGIS liable to the herein plaintiff, as follows:

1. $142,080 at the conversion rate of ₱26.41 to a dollar plus legal interest

2. ₱100,000.00 in attorney's fees

3. ₱477,622.00 for customs duties and taxes

4. ₱6,358.40 representing payment for the analysis of the delivered milk and the milk sample.

The case against defendants Hercules Agro Industrial Corporation and Jesus Chua are hereby DISMISSED for want
of evidence. The counterclaims of defendants Hercules Agro Industrial Corporation and Jesus Chua is hereby
DISMISSED absent concrete evidence to support it.

On October 19, 2005, petitioner, through counsel, filed a Motion for Time, 5 asking for an additional period of 10
days from October 19, 2005 to file a motion for reconsideration. Petitioner, subsequently, filed on October 24,
2005 his Motion for Partial Reconsideration6 of the September 23, 2005 decision. In an Order7 dated October 27,
2005, the RTC denied the Motion for Time, as the period for filing a motion for reconsideration is non-extendible.

On November 2, 2005, respondent Rumi Rungis Milk filed its Motion for Reconsideration 8 of the September 23,
2005 decision and to dismiss the complaint for lack of jurisdiction over the defendant foreign corporation not
doing business in the Philippines. The RTC denied respondent Rumi Rungis Milk's motion for reconsideration.

Petitioner filed a Notice of Partial Appeal

The RTC issued an Order11 which stated that petitioner's notice of partial appeal cannot be given due course as the
same had been filed beyond the reglementary period to appeal. Petitioner filed a Motion for Reconsideration,
Supplement to Petitioner's Motion for Reconsideration and Reply to respondent's comment.

Earlier, on February 13, 2006,petitioner also moved for partial Execution 12 of the RTC Decision dated September
23, 2005. The RTC denied the motion, since the case against respondent Rumi Rungis Milk was not yet final and
executory as its notice of appeal13 had been timely filed. Petitioner’s partial reconsideration was denied for failure
of petitioner or counsel to appear on the date the motion was set for hearing. Petitioner had also filed a Notice of
Appeal.

On November 16, 2006, petitioner received a notice 16 from the CA requiring him to file appellant's brief which he
did on December 28, 2006.17 On the other hand, respondent Rumi Rungis Milk filed a motion for extension of time
to file its appellant’s brief, which the CA denied.

Respondent Hercules Agro Industrial Corporation filed a Motion18 to strike out or dismiss petitioner's appeal and
motion for leave of court to lift the amended order of attachment and release the properties in custodia legis.
Petitioner filed his Opposition thereto with motion for refund of overpayment of fees.

On January 7, 2008, the CA issued its first assailed Resolution, which ordered petitioner’s brief stricken off the
records and dismissing the appeal.

In so ruling, the CA found that the appeal could not be legally entertained, since it was filed out of time and denied
due course by the RTC. With regards to petitioner’s contention of overpayment of appeal and docket fees, his
claim of refund should be referred to the Chief Justice through the Court Administrator. Respondent’s Motion to
Lift the Amended Order of Attachment dated September 25,2000 and release the properties in custodia legis
should be filed before the trial court. Leave of court to file said motion is, therefore, denied.

The CA also ordered the Appellant's Brief dated March 5, 2007, filed by respondent Rumi Rungis Milk, expunged
from the records taking into account the Resolution promulgated on March 15, 2007 denying respondent Rumi
Rungis Milk's motion for extension of time to file appellant's brief and dismissing its appeal.

Both petitioner and respondent Rumi Rungis Milk filed their respective motions for reconsideration, which the CA
denied in its second assailed Resolution.

Hence, this petition.

ISSUE:

Whether or not the CA erred when it ordered petitioner's appellant's brief filed with it be stricken off the records.

HELD:

We find no merit in the petition.

The records show that the RTC Decision dated September 23, 2005 was received by petitioner on October 4, 2005;
thus, he had until October 19, 2005 within which to file an appeal or a motion for reconsideration. Petitioner,
however, filed on October 19,2005 a motion for time praying for an additional 10 days or until October 29, 2005 to
file his motion for partial reconsideration. The RTC denied the motion to which we agree, since such motion is a
transgression of the mandatory prohibition on the filing of a motion for extension to file a motion for
reconsideration.

Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion
for extension of time to file a motion for new trial or reconsideration may be filed with the Metropolitan or
Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed
only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either
grant or deny the extension requested.20

It has, likewise, been explicitly stated in Section 2, Rule 40 and Section 3, Rule 41 of the 1997 Rules of Civil
Procedure that in appeals from municipal trial courts or regional trial courts, no motion for extension of time to file
a motion for reconsideration shall be allowed.

As the period to file a motion for reconsideration is non-extendible, petitioner's motion for extension of time to file
a motion for reconsideration did not toll the reglementary period to appeal; thus, petitioner had already lost his
right to appeal the September 23, 2005 decision. As such, the RTC decision became final as to petitioner when no
appeal was perfected after the lapse of the prescribed period.

Doctrinally-entrenched is that the right to appeal is a statutory right and the one who seeks to avail that right must
comply with the statute or rules. The requirements for perfecting an appeal within the reglementary period
specified in the law must be strictly followed as they are considered indispensable interdictions against needless
delays. Moreover, the perfection of appeal in the manner and within the period set by law is not only mandatory
but jurisdictional as well, hence, failure to perfect the same renders the judgment final and executory.23

The CA correctly ordered that petitioner's appellant's brief be stricken off the records. As the CA said, the parties
who have not appealed in due time cannot legally ask for the modification of the judgment or obtain affirmative
relief from the appellate court. A party who fails to question an adverse decision by not filing the proper remedy
within the period prescribed by law loses his right to do so.24 As petitioner failed to perfect his appeal within the
period for doing so, the September 23, 2005 decision has become final as against him. The rule is clear that no
modification of judgment could be granted to a party who did not appeal. It is enshrined as one of the basic
principles in our rules of procedure, specifically to avoid ambiguity in the presentation of issues, facilitate the
setting forth of arguments by the parties, and aid the court in making its determinations. It is not installed in the
rules merely to make litigations laborious and tedious for the parties. It is there for a reason.

The Order dated January 9, 2006 denying respondent Rumi Rungis Milk's motion for reconsideration of the
Decision dated September 23, 2005 could not be relied upon by petitioner to make it appear that he can still
appeal the said decision. Petitioner had already lost his right to appeal the September 23, 2005 decision as early as
October 19, 2005 when he failed to file his motion for partial reconsideration of such decision within the
reglementary period. He cannot be allowed to appeal the decision at any time he might choose as it would violate
the rule on perfection of appeal. Perfection of appeal is not an empty procedural rule, but is grounded on
fundamental considerations of public policy and sound practice.

WHEREFORE, the petition for review is DENIED. The Resolutions dated January 7, 2008 and June 2, 2008 of the
Court of Appeals are hereby AFFIRMED.