Sample petition for certiorari; ejectment case; execution pending appeal;

failure of appellant to post supersedeas bond.

x x x.

I.

PREFATORY STATEMENT.

1.
This petition respectfully seeks the review by this Honorable Court of
the ORDER, dated xxx, issued by the Hon. Xxx, Presiding Judge of the
Regional Trial Court (RTC), Branch xxx , of xxx City by way of
Certiorari under Rule 65.

1.1.
A certified true copy of which is attached hereto as Annex A
hereof, with sub-markings.

2. The petitioner respectfully submits that the Public Respondent acted

without or in excess of her jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction in the issuance of the questioned
Order.

3.
There is no appeal or any plain, speedy, and adequate remedy in the
ordinary course of law in seeking the reversal or nullification of the said
Order except this Rule 65 Petition.

4. This Petitioner submits that this Petition is meritorious, is not being

prosecuted manifestly for delay, and it raises substantial questions that
require consideration by this Honorable Court (Sec. 8, Rule 65).

X x x.

II.

5.

ISSUE.

The sole issue in this Petition is:

WHETHER THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING
THE QUESTIONED ORDER, DATED xxx.

III.

DISCUSSION.

6. The herein Petitioner admits the general doctrine on appeals in

Ejectment Cases (i.e., general in the sense that they are subject
toexceptions) is that, under Rule 70, to perfect an appeal within the 15-day
appeal period, three (3) things must be complied with by the Appellant:

6.1.
Filing of the Notice of Appeal with the MeTC, with payment thereat
of the corresponding Appeal Fees;

6.2.
Supersedeas Bond equivalent to the value of the damages awarded
by the MeTC (actual damages, attorneys fees, and costs of suit); and

6.3.
Regular deposits with the Appellate Court (i.e., RTC) of the amounts
of the monthly rentals determined by the MeTC.

7.
The herein Petitioner admits that she failed to comply with the above
requirements.

7.1.
The petitioner failed to post a supersedeas bond in the MeTC
within the 15-day appeal period.

7.2.
The Petitioner failed to make regular deposits of the monthly
rentals awarded.

8. Although it is ideal to post the Supersedeas Bond at the MeTC level

within the 15-day appeal period, there are jurisprudence where the Supreme
Court had, in the past, allowed the delayed posting thereofat the RTC
(appellate)-level.

8.1.
In the case of the Petitioner, considering her old age, sicknesses,
disabilities, financial straits, and economic sufferings, assisted by her new
Counsel, she filed with Branch 253 (appellate court) the
aforementioned urgent verified motion for reduction. (Annex E, supra).

8.2.
The objective of her motion was precisely to comply with the
requirements of Supersedeas Bond and Regular Deposits of Monthly
Rentals of Rule 70, albeit on a reduced amount, subject to motion hearings in
and the merciful approval of Branch 253.

8.3.
The spirit was to invoke the sense of compassion justice of Branch
xxx to allow her to post a reduced Bond and Monthly Deposits.

8.4.
At the time of the filing by Petitioner of the said urgent verified
motion for reduction only one (1) month had lapsed from the end of the
15-day appeal period.

8.5.
The issue of complying with the requirement of makingregular
deposits was minor and insignificant and not substantially harmful to the
Private Respondent as of that time.

9. The Public Respondent held, in her questioned Order, dated xxx, that
she could have positively considered the plight of the Petitionerhad the latter
filed her motion for reduction of supersedeas bond much earlier without
clearly mentioning the proper time to do so.

9.1.
The Public Respondent considered against the Petitioner the fact
that the Petitioner had filed her motion for reduction of supersedeas bond
almost one (1) month (actually, 27 days, per the computation of undersigned
Counsel) from the end of the 15-day appeal period.

10.
ruling:

The Public Respondent gravely abused her discretion in

(a) That the motion for reduction of supersedeas bond should be filedwithin
the 15-day appeal period, or

(b) That the appellate court (RTC) had no power to exercise its sound
discretion to entertain and approve a belated motion for reduction of
supersedeas bond while the appeal is pending before it.

11. Nothing in Rule 70 supports the restrictive conclusions of Public

Respondent.

11.1.
On the contrary, Sec. 6, Rule 1, of the Rules of Court speak
of liberality (to read as compassionate justice) in court litigations. Thus:

SEC. 6. Construction.These Rules shall beliberally construed in order to

promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding.

12.RTC (APPELLATE COURT IN EJECTMENT APPEALS) MAY APPROVE MOTIONS

RELATED TO ALL ISSUES INVOLVING (A) THE MATTER OF SUPERSEDEAS BOND
AND (B) THE MATTER OF REGULAR MONTHLY DEPOSITS.

In the case of Planas vs. Judge Ernesto A. Reyes, RTC Branch III, Pasay City, A.
M. RTJ-05-1905, February 23, 2005, the Supreme Court:

(1) allowed the appellate RTC Judge to exercise its sound judgment or
discretion in approving the supersedeas bond filed before it;

(2) affirmed the denial by the appellate RTC Judge of the immediate
execution of ejectment judgment for lack of compelling reasons, despite
posting of the required supersedeas bond with the appellate RTC.

12.1.
The real issue in the said case was whether or not immediate
execution could be had after defendant-appellant has perfected its appeal
but failed to post a supersedeas bond before the trial court.

12.2. Sec. 19 of Rule 70 of the Revised Rules of Civil Procedure speaks of

immediate execution in case of failure of defendant to perfect and appeal
within the mandatory appeal period.

12.3.
In the said case, the Supreme Court stated that the plaintiff tarried
and did not immediately file a motion for execution below upon the rendition
and before defendant-appellant perfected its appeal. Rather the plaintiff
allowed the defendant to perfect its appeal leaving the trial court without
option but to elevate the case for review to the Regional Trial Court.

12.4. It was held that after the perfection of an appeal, the lower court can
no longer require the filing of a supersedeas bond and execution based
thereon is void. (citing Singson v. Babida, 79 SCRA 111).

12.5.
With the approval by the appellate court (RTC), in the exercise of its
sound judgment or discretion of the supersedeas bond posted by the
defendant-appellant and it appearing that there was no compelling and
urgent reason to order immediate execution pending appeal, the motion for
immediate execution of the judgment of the MeTC should be denied, the
Supreme Court held.

12.6. The abovecited case supports the EXERCISE OF DISCRETION by the

RTC (appellate court in Ejectment Appeal) on:

(a) Approval of the supersedeas bond to stay execution; and

(b) Denial of execution pending appeal for lack of compelling reasons shown.

13. In the case of Tagulimot vs. Makalintal and Tanangunan, 85 Phil 40,
reiterated in Acibo vs. Hon. Higinio Macadaeg, et. al, G. R. No. L-19701,
June 30, 1964, the Supreme Court ruled that the RTC may allow the filing of
the supersedeas bond (which should have been filed in the MeTC) if the
judgment is not yet executed and, to this end, the RTC has the discretion to
allow a reasonable time within which the supersedeas bond may be filed.
The discretion is to allow or deny a supersedeas bond.

14. In the case of Quan vs. Sheriff of Manila, et. al., G. R. No. L-27160, May
30, 1974, the Supreme Court ruled while Section 8 of Rule 70 requires the
filing of a supersedeas bond with, and its approval by, the inferior court, it
was been held that the RTC, which has acquired jurisdiction over the case by
the perfection of the appeal , has the power to permit the appellant to post
the supersedeas bond which he had failed to submit to the inferior court.

15. In the case of Galan Realty Co., Inc. vs. Hon. Arranz, et. al, A. M. No. MTJ93-878, October 27, 1994, the Supreme Court ruled that the RTC, in its
discretion and upon good cause shown, as the appellate court in Ejectment
Appeals, may allow the defendant to file the supersedeas bond in the said
court.

16.COMPASSIONATE JUSTICE.

The doctrine of social and compassionate justice is so well enshrined in our

Jurisprudence that it needs no voluminous citations.

16.1.
Equity considerations provide an exception to technical and
restrictive interpretation of procedural rules. Equity is justice outside the law.

16.2.

16.3.

Equity is ethical rather than juridical.

It belongs to the sphere of morals than of law.

16.4. It is grounded on the precepts of conscience and not on any sanction

of positive law.

16.5.
Weighed in the scales of justice, conscience and reason tip in favor
of the herein Petitioner who is old, sickly, widow, jobless, poor, and helpless.

16.6. Social and compassionate justice dictate that her case be considered
with mercy and compassion.

16.7.
Indeed, equity should be accorded due weight because the
administration of justice is:

(a) not only secundum rationem (according to reason) but

(b) also secundum caritatem (according to charitable heart).

17. PENDENCY OF RELATED CIVIL CASE (Civil Case No. xxx-0091).

The herein Petitioner admits the doctrine that, as a general rule, the
pendency of an ordinary civil action involving ownership, quieting of title,
and similar issues will not suspend or enjoin the enforcement of a final and
executory Ejectment Decision. But admits of exceptions, in the interest of
justice.

18. In the first place, the MeTC Decision is not yet final and executory.

18.1.

It is still under appeal in Branch xxx.

18.2. The parties in the Ejectment Appeal have yet to file their respective
Memoranda in Branch xxx.

19.EXCEPTION:

The case of MID PASIG LAND DEVELOPMENT CORPORATION vs. COURT OF

APPEALS, HON.RODRIGO B. LORENZO, in his capacity as Presiding Judge of
RTC-Pasig City, Branch 266 and ROCKLAND CONSTRUCTION COMPANY, INC.,
G.R. No. 153751, October 8, 2003, is illuminating.

19.1.
Litis Pendentia. - In order to sustain a dismissal of an action on the
ground of litis pendentia, the following requisites must concur:

(a) identity of parties, or at least such as representing the same interest in

both actions;

(b) identity of rights asserted and relief prayed for, the relief being founded
on the same facts, and

(c) identity in the two cases should be such that the judgment that may be
rendered in the pending case would, regardless of which party is successful,
amount to res judicata in the other.

19.2.
In the said case, the Supreme Court noted that a perusal of the
complaint for specific performance shows that its main purpose was to
prevent petitioner from ejecting respondent from the leased property.

19.2.1.
Although the complaint sought to compel petitioner to execute
a formal lease contract, its ultimate intent is to preclude petitioner from

filing a complaint for ejectment and for respondent to maintain possession of

the property, the Supreme Court noted.

19.2.2.
The right to the execution of a formal agreement was hinged
upon the more fundamental issue of whether respondent has a right to the
possession of the property under the alleged implied contract of lease, the
Supreme Court stated.

19.2.3.
In other words, according to the Supreme Court, the central
issue to be resolved in the specific performance case unmistakably boiled
down to respondents right to continued possession of the premises, which
issue is essentially similar, if not identical, to the one raised in the unlawful
detainer case before the MeTC.

19.3.
Hence, the Supreme Court in the abovecited case held that the Court
of Appeals erred in finding that RTC Civil Case No. 68213 and MeTC Civil
Case No. 8788 have different causes of action.

19.3.1.
The ultimate relief sought in the RTC was not really to compel
the defendant to formalize in a public instrument its lease agreement with
plaintiff but to enjoin petitioner from filing the proper action for
respondents ejectment so that it could remain in possession of the
property, the Supreme Court stated.

19.3.2.
This was evident in respondents prayer in the complaint for
specific performance, where it expressly sought for the issuance of an order
from the trial court prohibiting defendant from instituting any action for the
ejectment of plaintiff from the leased premises, the Supreme Court noted.

19.4. Since the question of possession of the subject property is at the

core of the two actions, the Supreme Court stated that the parties in the
said case were actually litigating over the same subject matter, which is
the leased site, and on the same issue respondents right of possession
by virtue of the alleged contract.

Note: This is exactly the scenario in Civil Case No. xxx-0074 in relation to
Civil Case No. xxx-0091 referred to in the Statement of Facts in this Petition.

19.5.
In the aforecited case of MID PASIG LAND DEVELOPMENT
CORPORATION, at the time of the filing of the RTC case, petitioner had
communicated to respondent that it had filed an ejectment against it for
violation of the original lease agreement.

19.5.1.
Thus, the RTC case, while purportedly one for specific
performance was in reality a preemptive maneuver intended to block the
complaint for ejectment, considering that it was brought merely three days
after respondent received the communication from petitioner, according to
the Supreme Court.

19.5.2.
The RTC case was instituted in anticipation of its forthcoming
move to eject respondent from the property, said the Supreme Court.

Note:

Consider this ruling in relation to Civil Case No. xxx-0091 that was filed by
herein Petitioner against the Private Respondent in Branch xxx.

19.5.3.
It was filed to bind petitioners hands, so to speak, and to lay
the ground for dismissal of any subsequent action that the latter may take
pursuant to the notice of eviction, stated the Supreme Court.
To repeat:

This was one of the main purposes for the commencement by herein
Petitioner of Civil Case No. xxx-0091 (annulment of agreement to sell, etc.)
against the Private Respondent involving the same subject matter.

IV.
PRAYER FOR TEMPORARY RESTRAINING ORDER (TRO) AND WRIT OF
PRELIMINARY INJUNCTION (WPI).

20.
The Petitioner respectfully seeks from this Honorable Court
the issuance of the following injunctive reliefs:

(a) An urgent ex parte TEMPORARY RESTRAINING ORDER (TRO)immediately

upon filing of this Petition, and

(b) A WRIT OF PRELIMINARY INJUNCTION (WPI) upon notice to and upon filing
of a Comment by the Private Respondent.

21. Sec. 7, Rule 65 grants to this Honorable Court the power to issue x x x
a temporary restraining order or a writ of preliminary injunction for the
preservation of the rights of the parties pending this proceeding.

22.
The Petitioner admits that the filing of this petition shall
not interrupt the course of the principal case unless a temporary restraining
order or a writ of preliminary injunction has been issued against the public
respondent from further proceeding in the case (Id.).

22.1. Hence, she invokes the sense of compassionate justice of this

Honorable Court by issuing the urgent injunctive reliefssought hereinabove.

23.
The miserable, pitiable, and unfortunate personal
circumstances of the Petitioner are as follows:

23.1.

She is 79 years old now.

23.2. She has been a widow since 2001.

23.3.

She is jobless.

23.4. Her old age and poor health prohibits her from engaging in gainful
work.

23.5. She relies on the financial support of her child, xxx (who has her own
family to support, too).

23.6. She is afflicted with various geriatric-related diseasesconsidering her

old age, e.g. hypertension, diabetes, etc.

23.7. She has resided and continues to reside for almost 25 years now in
the property subject matter of the underlying (a) Civil Case No. xxx-0071
(Ejectment Appeal) and (b) Civil Case No. xxx-0091 (annulment of agreement
to sell, etc.) since 1991 or thereabout.

23.8. She has no wealth of her own.

23.9. She owns no real property except for a small memorial lot gifted to
her by her children in the past.

23.10.
To enforce the questioned Order, dated xxx would have
the unjust effect of ejecting her from the property subject matter of the
underlying Civil Case No. xxx-0074 in relation to Civil Case No. xxx0091while the said two related cases are still pending before the Trial Court a
quo.

23.10.1. It will be unjust, cruel, inhuman, unkind, and premature to allow

such an unfair scenario (i.e., execution pending appeal).

24.
The Petitioner respectfully submits that she is entitled to
the TRO and WPI she seeks in this Petition against the questioned Order,
dated xxx.

24.1. The enforcement pendente lite by the Respondents of the said Order
during the pendency of this Petition and during the pendency a quo of the
underlying Civil Case No. xxx-0074 in relation to the related Civil Case No.
xxx-0091 would surely work injustice to the Petitioner.

24.2. The enforcement pendente lite by the Respondents of the questioned

Order would violate the constitutional and human rights of the Petitioner
to compassionate justice, merciful due process of law, and benevolent equal
protection of the lawwith respect to this Petition and in relation to the
pending underlying Civil Case No. xxx-0074 (Ejectment Appeal) and the
pending related Civil Case No. xxx-0091.

24.3. If the TRO and the WPI prayed for above are not issued y the
Honorable Court, whatever judgment this Honorable Court may promulgate
in this action would be rendered ineffectual. (Sec. 3, Rule 58).

25.
The Petitioner is prepared to post a BOND at such amount
and under such terms and conditions as may be fixed by this Honorable
Court.

25.1.
The Bond would adequately protect the rights and interests of the
Private Respondent in this action in relation to the underlying Civil Case No.
xxx-0074 (Ejectment Appeal) vis--vis the related Civil Case No. xxx-0091.

26.
This Petition is duly verified to serve as the AFFIDAVIT OF
MERIT of the Petitioner at the same time, pursuant to Rule 58.

V.

RELIEF.

WHEREFORE, premises considered, it is respectfully prayed that:

1.
Upon filing of this Petition with this Honorable Court, anurgent ex parte
Temporary Restraining Order (TRO) be issued enjoining the Public
Respondent to suspend further proceedings in the underlying Civil Case No.
xxx-0074;

2. Upon notice to and filing of a Comment by Private Respondent, aWrit of

Preliminary Injunction (WPI) be issued by this Honorable Court enjoining the
Public Respondent from implementing its Order, dated xxx, in the matter of
the execution pending appeal of the Judgment of the Metropolitan Trial Court
vis--vis Civil Case No. xxx-0074 until this Honorable Court shall have
resolved this Petition with finality;

3.

This Petition be given DUE COURSE;

4. The questioned ORDER, dated xxx (Annex A, supra) of the Public

Respondent be SET ASIDE, REVERSED AND NULLIFIEDwithout prejudice to
the continuation of the proceedings on the merits in Civil Case No. xxx-0074
(Ejectment Appeal), in relation to Civil Case No. xxx-0091, before the Public
Respondent for final adjudication.

5.
The Writ of Preliminary Injunction (WPI) against the questioned Order,
dated xxx, AND AGAINST THE Public Respondent be
declared PERMANENT insofar as the matter of execution pending appeal by
Public Respondent is concerned.

FURTHER, the Petitioner respectfully prays for such and other reliefs as may
be deemed just and equitable in the premises.

xxx City, July xxx, 2015.

LASERNA CUEVA-MERCADER
LAW OFFICES

Counsel for Petitioner

Unit 15, Star Arcade, C. V. Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel. Nos. 8725443 & 8462539
X x x.

MANUEL LASERNA JR.

X x x.

x x x.