REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Manila

EASTERN ASSURANCE AND SURETY

CORPORATION (EASCO)
Petitioner,

- versus - CA G.R. 354709

For Certiorari under Rule 65
of Revised Rules of Court

THE HONORABLE SILVINO T.

PAMPILO, PRESIDING JUDGE,
BRANCH 26, REGIONAL TRIAL COURT
OF MANILA, and VIRGILIO D. MERCADO,
Respondents.
x- ------------------------------------------x

PETITION FOR CERTIORARI

PETITIONER, by counsel, unto this Honorable Court, most

respectfully avers:

I.
NATURE OF PETITION
AND GROUND THEREFORE

The instant petition is a special civil action filed under Rule 65

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

Sept 22, 2010 denying petitioners Motion for Reconsideration of said

decision on the ground they were issued by respondent judge with

grave abuse of discretion amounting to lack or excess of jurisdiction.

Certified True Copies of the assailed Orders dated August 30,

2010 and 22 September 2010 are attached as Annexes A and B,

respectively, to the original copy of this Petition and made integral

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

Motion for Reconsideration of the assailed decision on September 27,

2010. Petitioner was served notice of the assailed decision on

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

Motion for Reconsideration.

 III.

NON AVAILABILITY OF OTHER PLAIN, SPEEDY AND

ADEQUATE REMEDY

Pursuant to the decision of the Honorable Supreme

Court in Crisostomo vs. Endacia 1

and Caro vs. Court

of Appeals , the relevant part of which is stated

2

hereunder, the issue raised being the lack or excess of

jurisdiction of Respondent Court to issue the assailed

Orders, the present action has been brought on a Petition

for Certiorari.

The remedy of certiorari may be successfully invoked

both in cases wherein an appeal does not lie and in those

wherein the right to appeal have been lost with or

without the appellants negligence, where the court has

no jurisdiction to issue the order or decision which is the

subject matter of the remedy.

 IV.

THE PARTIES

Petitioner Eastern Assurance and Surety Corporation

[EASCO for brevity] is a corporation existing pursuant to the laws

of the Republic of the Philippines, and with business address at

Tower, 99 Kalamansi Road, Malate, Manila, Philippines

Petitioner may be served orders, notices and other court

processes of this Honorable Court through its counsel, ATTY.

JASMINE M. MONTERO at Suite 666, Jesuits Centre, Sampaloc,

Manila , Philippines.

Respondent HONORABLE SILVINO T. PAMPILO

[Respondent Judge for brevity] is the Presiding Judge of BRANCH

26, REGIONAL TRIAL COURT OF MANILA, with office at 2nd

Floor, Hall of Justice Building, Manila Government Center,

Intramuros, Manila, Philippines, where he may be served with orders

and processes of this Honorable Court;

 Respondent VIRGILIO MERCADO [Private Respondent

for brevity] is of legal age, single, with residence address at 88 Abaca

Drive, Santa Mesa, Manila, Philippines, where he may be served with

orders and processes of this Honorable Court, which may also be

served upon his counsel, ATTY. MARIO S. RAMOS, with business

address at Suite 555, Dela Cruz Center, Ayala Avenue, Makati City,

Philippines.

V.

STATEMENT OF FACTS AND OF THE CASE

On May 26, 2009, Private Respondent Virgilio Mercado (then

petitioner) filed with the Regional Trial Court of Manila (RTC-

Manila) a complaint for injunction with prayer for Temporary

Restraining Order (TRO) and Writ of Preliminary Injunction against

Eastern Assurance and Surety Corporation (EASCO). In his

complaint, private respondent Mercado prayed, first for the trial court

to enjoin petitioner from consolidating the titles of two foreclosed

parcels belonging to his deceased father in the name of petitioner

EASCO (then defendant) the properties mortgagee and, second, for

the court to order petitioner to allow private respondent Mercado to

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

Hon. Myra V. Garcia Fernandez.

During the hearing of defendants application for Temporary

Restraining Order on May 30, 2009, petitioner EASCO filed a motion

to dismiss citing four grounds, to wit 1) litis pendentia 2) violation of

rule against forum shopping 3) failure to implead indispensable

parties and 4) failure of complaint to state cause of action. On June

10, 2009, private respondent Mercado filed his opposition to the

Motion to Dismiss.

On July 21, 2009, citing the presiding judges allegedly evident

partiality in favor of petitioner Eastern Assurance and Surety

Corporation (EASCO) as indicated by the courts refusal to act on his

Temporary Restraining Order (TRO) application for 53 days already,

private respondent formally moved for Judge Fernandezs inhibition.

In the afternoon of the same day, he filed his motion for inhibition,

private respondent received by mail a copy of Judge Fernandezs July

14, 2009 order dismissing his complaint. While the order was unclear

on what ground or grounds the dismissal was based, the tenor and

subject of the discussion therein suggested it was based solely on the

purported ground of failure of the complaint to state a cause of action.

The three other grounds invoked by plaintiff EASCO were not even

mentioned in the trial courts discussion of the basis for the dismissal.

On August 4, 2009, private respondent filed with the trial court

(RTC- Manila, Branch 18) a Motion for Reconsideration of the

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

dated September 19, 2009, Judge Fernandez inhibited herself. On July

29, 2010, the case was re-raffled to Branch 26 of RTC- Manila where

the Hon. Silvino T. Pampilo, Jr., was presiding judge.

In his one page order dated August 30, 2010, Judge Pampilo of

RTC-Manila, Branch 26, reconsidered the July 14, 2009 order of

dismissal issued by Branch 18 of RTC- Manila thereby reinstating

private respondent Mercados complaint for injunction. In reinstating

respondents complaint for injunction, Judge Pampilo cited only the

following reason:

This Court is of the opinion that plaintiff should not be

deprived of his right to be heard on the merits of his

 complaint and to review anew the issues raised by the

parties.

On September 13, 2010 or ten days after its receipt of the

August 30, 2010 order of Judge Pampilo, petitioner EASCO filed a

Motion for Reconsideration. On September 27, 2010, petitioner

EASCO was served copy of Judge Pampilos order dated September

22, 2010 denying its Motion for Reconsideration.

Petitioner EASCO is of the opinion that Judge Pampilo acted

with grave abuse of discretion when he issued the August 30, 2010

order reinstating plaintiffs complaint for injunction there being

indubitable grounds for its dismissal as indicated in the July 14, 2009

order of Judge Fernandez.

Hence, this instant Petition for Certiorari before this Honorable

Court.

VI.
GROUNDS IN SUPPORT OF THE PETITION
 This Petition presents for resolution the following grounds for

the issuance of a Writ of Certiorari:

I. RESPONDENT COURT GRAVELY ABUSED ITS

DISCRETION AMOUNTING TO LACK OF JURISDICTION IN

SUMMARILY DISMISSING JULY 14, 2009 ORDER OF

DIMISSAL ISSUED BY HONORABLE JUDGE MYRA V.

GARCIA FERNANDEZ OF BRANCH 18 OF RTC-MANILA.

II. RESPONDENT COURT GRAVELY ABUSED ITS

DISCRETION AMOUNTING TO LACK OF JURISDICTION IN

REINSTATING RESPONDENTS COMPLAINT FOR

INJUNCTION.

III. RESPONDENT COURT GRAVELY ABUSED ITS

DISCRETION AMOUNTING TO LACK OF JURISDICTION IN

NOT GRANTING THE PETITIONERS MOTION FOR

RECONSIDERATION.

VII.

DISCUSSIONS
FIRST, RESPONDENT COURT GRAVELY ABUSED ITS

DISCRETION AMOUNTING TO LACK OF JURISDICTION IN

SUMMARILY DISMISSING JULY 14, 2009 ORDER OF

DIMISSAL ISSUED BY HONORABLE JUDGE MYRA V.

GARCIA FERNANDEZ OF BRANCH 18 OF RTC-MANILA.

Respondent court gravely abused its discretion amounting to

lack of jurisdiction in summarily dismissing July 14, 2009. Judge

Fernandezs July 14, 2009 order dismissed private respondents

complaint, while the order was unclear on what ground or grounds

the dismissal was based, the tenor and subject of the discussion

therein suggested it was based solely on the purported ground of

failure of the complaint to state a cause of action. The three other

grounds invoked by plaintiff EASCO were not even mentioned in the

trial courts discussion of the basis for the dismissal.

Petitioner EASCO filed a motion to dismiss citing four

grounds, to wit 1) litis pendentia 2) violation of rule against forum

shopping 3) failure to implead indispensable parties and 4) failure of

complaint to state cause of action. On June 10, 2009, defendant

Mercado filed his opposition to the Motion to Dismiss.

1) On litis pendentia

2) Respondent is guilty of forum shopping

One of the grounds for dismissing an action is when there

is litis pendentia as provided under Section 1(e), Rule 16, of the

1997 Rules of Civil Procedure, as amended, thus:

SECTION 1. Grounds. ' Within the time for but before

filing the answer to the complaint or pleading asserting a claim,
a motion to dismiss may be made on any of the following
grounds:
xxx
(e) That there is another action pending between the same
parties for the same cause;
x x x.
For litis pendentia to lie as a ground for a motion to
dismiss, the following requisites must be present: (1) that the
parties to the action are the same; (2) that there is substantial
identity in the causes of action and reliefs sought; and (3) that
the result of the first action is determinative of the second in
any event and regardless of which party is successful.

Respondent Mercado prayed, first for the trial court to enjoin

petitioner from consolidating the titles of two foreclosed parcels

belonging to his deceased father in the name of petitioner EASCO

(then defendant) the properties mortgagee and, second, for the court to

order petitioner to allow respondent Mercado to exercise his right co

heir of the mortgagor to redeem the two subject properties.

Clearly, the rights asserted and the reliefs sought by the parties

in both cases are identical. Thus, respondents' claim of litis pendentia

is availing.

Private Respondent Virgilio Mercado is even guilty of forum

shopping by filing these two (2) cases successively. There is forum

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.

The penalty for a violation of forum shopping is

dismissal of the case:

The grave evil sought to be avoided by the rule against

forum shopping is the rendition by two competent tribunals of

two separate, and contradictory decisions. Unscrupulous party

litigants, taking advantage of a variety of competent tribunals,

may repeatedly try their luck in several different for a until a

favorable result is reached. To avoid the resultant confusion,

this court adhere strictly to the rules against forum shopping,

 and any violation of these rules results in the dismissal of a

case.

3) failure to implead indispensable parties

Plaintiff alleged in his complaint that he is one of the five

children of the late father Leonides Mercado.

However, the complaint named him as the sole plaintiff and

omitted to implead his four (4) siblings, a fatal defect that warrants the

dismissal of the same. Joinder of all indispensable parties must be

made under any and all condition, their presence being a sine qua non

for the exercise of judicial power:

Under Rule 3, Section 7 of the 1997 Rules of Civil

Procedure, an indispensable party is a part-in-interest without

whom there can be no final determination of an action. As a

rule, an indispensable party-in-interest in the subject matter is

such that a complete and efficient determination of the equities

and rights of the parties is not possible if he is not joined.

4) failure of complaint to state cause of action.

 Judge Fernandezs July 14, 2009 dismissal order on

private responents complaint, while the order was unclear on

what ground or grounds the dismissal was based, the tenor and

subject of the discussion therein suggested it was based solely

on the purported ground of failure of the complaint to state a

cause of action.

The lack of a cause of action as a ground for dismissal

must appear on the face of the complaint, and to determine

whether the complaint states a cause of action only the facts

alleged therein, and no other, should be considered.

II. RESPONDENT COURT GRAVELY ABUSED ITS

DISCRETION AMOUNTING TO LACK OF JURISDICTION IN

REINSTATING RESPONDENTS COMPLAINT FOR

INJUNCTION.

The private respondents application for Temporary Restraining

Order was dismissed by Hon Judge Fernandez on July 14, 2009. The

tenor and subject of the discussion therein suggested it was based

solely on the purported ground of failure of the complaint to state a

cause of action. As we held in

 CANLAS vs.THE JUDGE OF THE COURT OF
FIRST INSTANCE OF TARLAC (G.R. No. L-19733
November 28, 1964)

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.

In effect, therefore, it was thought best that the preliminary injunction

originally issued should remain in force only until the main case has

been finally heard and decision therein rendered on the merits.

The preliminary injunction of Judge Fernandez should

remain in force until the main case has been finally heard and

decision therein rendered on merits.

THIRD, RESPONDENT COURT GRAVELY ABUSED ITS

DISCRETION AMOUNTING TO LACK OF JURISDICTION IN

NOT GRANTING THE PETITIONERS MOTION FOR

RECONSIDERATION.
 Respondent Judge could have regained the Petitioners trust and

confidence through the latters Motion for Reconsideration. But when

Respondent Judge issued his second assailed Order dismissing the

same such opportunity was lost. In issuing said Order, Respondent

Judge highlighted the lament made by no less than the Honorable

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:

It needs to be reiterated over and over again, until it

sinks into the consciousness of every judge, that litigants

are entitled to nothing less than the cold neutrality of an

impartial judge. The other elements of due process, like

notice and hearing, would become meaningless if the

ultimate decision is rendered by a partial or biased judge.

Judges must not only render just, correct and

impartial decisions, but must do so in a manner free

of any suspicion as to their fairness, impartiality and

integrity.

The reminder applies all the more sternly to trial judges,

like herein respondent, because they are the judicial

front-liners. They have direct contact with the litigating

 parties. They are the intermediaries between conflicting

interests and the embodiments of the people's sense of

justice. Thus, their official conduct should be beyond

reproach. [emphasis ours]

VIII.
PRAYER

WHEREFORE, PREMISES CONSIDERED, it is most

respectfully prayed that the present Petition be given due course, and

judgment be rendered:

1. Declaring as null and void ab initio the Orders of Respondent

Court dated August 30, 2010 and the order dated Sept 22, 2010;

and

2. Ordering Respondent Judge to dismiss Civil Case No. 09-

119327 entitled Virgilio D. Mercado, Plaintif vs. Eastern

Assurance and Surety Corporation (EASCO), Defendant

pending before the Respondent Court.

 Petitioner prays for such other reliefs as may be just and equitable

under the circumstances.

Sampaloc, Metro Manila for Manila, 22 October 2010.

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

I, CAITLYN REBOSA, Filipino, of legal age, after having

been sworn in accordance with law, depose and say:

1) That I am the Corporate Secretary of EASTERN ASSURANCE

AND SURETY CORPORATION (EASCO), a corporation duly

organized and existing under the laws of the Philippines, with

principal offices at Tower, 99 Kalamansi Road, Malate, Manila,

Philippines;

2) That on September 10, 2010, the Board of Directors of said

corporation, in a special meeting at its office, at which there was a

quorum, adopted and approved a resolution, which reads as follows:

RESOLVED, as it is hereby resolved, by the Board of

Directors of EASTERN ASSURANCE AND SURETY
CORPORATION (EASCO), that Atty. Jasmine M. Montero,
its legal counsel or Mr. Raymond Taguibao, its vice president,
be as he is hereby authorized to execute and sign the
verification and certification against forum shopping of the
Petition for Certiorari in Court of Appeals CA G.R. 354709
entitled EASTERN ASSURANCE AND SURETY
CORPORATION (EASCO) versus THE HONORABLE
SILVINO T. PAMPILO, PRESIDING JUDGE, BRANCH
26, REGIONAL TRIAL COURT OF MANILA, and
 VIRGILIO D. MERCADO, of which said corporation is a
party litigant.

3) That the above resolution is existing and is still in force and effect.

CAITLYN REBOSA
Corporate Secretary

SUBSCRIBED AND A SWORN TO before me on this (20) of

(October ) 2010 at Santa Mesa, Manila; Caitlyn Rebosa the Corporate

Secretary having exhibited to me her Passport No. FF4793763 issued

on June 11, 2010 at Pasay, Manila

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)

Doc. No. 713;

Page No. 53 ;
Book No. 70;
Series of 2010;
COPY FURNISHED:

HONORABLE SILVINO T. PAMPILO

Presiding Judge of BRANCH 26,
REGIONAL TRIAL COURT OF MANILA
2nd Floor, Hall of Justice Building,
Manila Government Center, Intramuros,
Manila, Philippines

ATTY. MARIO S. RAMOS

Counsel for Private Respondent
Suite 555, Dela Cruz Center,
Ayala Avenue, Makati City, Philippines.
PETITION FOR
CERTIORARI

Submitted to:
Atty. J. A. Obra

Submitted
by:
Jasmine M.
Montero
2005-0161