Escolar Documentos
Profissional Documentos
Cultura Documentos
COURT OF APPEALS
Manila
respectfully avers:
I.
NATURE OF PETITION
AND GROUND THEREFORE
of the Revised Rules of Court to set aside and annul the Decision in
Civil Case No. 09-119327 dated August 30, 2010 and the order dated
parts hereof.
II.
TIMELINESS OF THE PETITION
Petitioner has until November 24, 2010 within which to file the
instant petition having been served a copy of the order denying his
September 3, 2010, and on September 13, 2010 or ten (10) days after
its receipt of the August 30, 2010 order of Judge Pampilo, he filed a
ADEQUATE REMEDY
for Certiorari.
THE PARTIES
Manila , Philippines.
address at Suite 555, Dela Cruz Center, Ayala Avenue, Makati City,
Philippines.
V.
complaint, private respondent Mercado prayed, first for the trial court
exercise his right co heir of the mortgagor to redeem the two subject
properties. The case was raffled to Branch 18 then presided by the
Motion to Dismiss.
In the afternoon of the same day, he filed his motion for inhibition,
14, 2009 order dismissing his complaint. While the order was unclear
on what ground or grounds the dismissal was based, the tenor and
The three other grounds invoked by plaintiff EASCO were not even
mentioned in the trial courts discussion of the basis for the dismissal.
dismissal order but requested that the same be heard and resolved by
the new court should his motion for inhibition be granted. In an order
29, 2010, the case was re-raffled to Branch 26 of RTC- Manila where
In his one page order dated August 30, 2010, Judge Pampilo of
following reason:
parties.
with grave abuse of discretion when he issued the August 30, 2010
indubitable grounds for its dismissal as indicated in the July 14, 2009
VI.
GROUNDS IN SUPPORT OF THE PETITION
This Petition presents for resolution the following grounds for
INJUNCTION.
RECONSIDERATION.
VII.
DISCUSSIONS
FIRST, RESPONDENT COURT GRAVELY ABUSED ITS
the dismissal was based, the tenor and subject of the discussion
1) On litis pendentia
(then defendant) the properties mortgagee and, second, for the court to
Clearly, the rights asserted and the reliefs sought by the parties
is availing.
shopping where the elements of litis pendentia are present and where
a final judgment in one case will amount to res judicata in the other.
case.
omitted to implead his four (4) siblings, a fatal defect that warrants the
made under any and all condition, their presence being a sine qua non
what ground or grounds the dismissal was based, the tenor and
cause of action.
INJUNCTION.
Order was dismissed by Hon Judge Fernandez on July 14, 2009. The
Indeed, the main action was filed by petitioners herein for the
purpose of enjoining and prohibiting Tayag from constructing a
ricemill, so that upon the construction thereof, said action
would become futile. Besides, the intention of respondent Judge
to prohibit the continuance of the operation of said ricemill,
should it later be found to be a nuisance, is not sufficient to
offset the harm already done to the operation of the hospital,
specially the injury suffered by the patients therein and the
public in general, which are hardly susceptible of estimation or
compensation. Needless to say, by permitting Tayag to
construct his building, and purchase and install the machinery
for the operation of the ricemill, respondent Judge exposed him
to much greater damage than that which could possibly have
resulted had the writ of preliminary injunction been maintained
until the final disposition of the case.
originally issued should remain in force only until the main case has
remain in force until the main case has been finally heard and
RECONSIDERATION.
Respondent Judge could have regained the Petitioners trust and
Supreme Court in the 2002 case of Cirilo I. Mercado, et. al. vs. Judge
11
Hector F. Dysangco, et. al., where it observed this wise:
integrity.
VIII.
PRAYER
respectfully prayed that the present Petition be given due course, and
judgment be rendered:
Court dated August 30, 2010 and the order dated Sept 22, 2010;
and
JASMINE M. MONTERO
Counsel for Petitioner
Suite 666, Jesuits Centre,
Sampaloc, Manila , Philippines.
Roll of Attorneys No. 42647
PTR No. 3455917/1-3-10/Manila
IBP Lifetime No. 04313/01-13/03
MCLE Compliance No. I-0008992
SECRETARYS VERIFICATION AND CERTIFICATION OF
NON-FORUM SHOPPING
Philippines;
3) That the above resolution is existing and is still in force and effect.
CAITLYN REBOSA
Corporate Secretary
MAITA MAURICIO
Notary Public
My Commission expires Dec. 31, 2010
Roll of Attorney No. 39876
IBP LIFETIME MEMBER
PTR No. 7879876, (3-17-10) , (Manila)
Submitted to:
Atty. J. A. Obra
Submitted
by:
Jasmine M.
Montero
2005-0161