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Republic of the Philippines

COURT OF APPEALS
Manila City



JINGGOY ENRILE

Petitioner

C.A. G.R. No: 1234455
-- versus -- RTC Civil Case No. 1234-2013
MCTC Civil Case No. 2012-
045
(For Specific Performance)


JOSEPH AQUINO

Respondent

PETITION FOR REVIEW


Petitioner, by Counsel and unto this Honorable Court of Appeals,
most respectfully alleges, that:

NATURE OF THE PETITION

1. This Petition for Review under Rule 42 of the 1997 Rules of
Court is a mode of appeal from the decision of the Regional Trial
Court;

2. The Final Judgment or Order of the Regional Trial Court in an
appeal from the from the Metropolitan Trial Court or Municipal
Trial Court, may be appealed to the Court of Appeals through a
Petition for Review under this rule, whether the appeal involves
questions of fact, of law, or both questions of fact and law.


THE PARTIES

3. Petitioner is JINGGOY ENRILE, of legal age, Filipino and a
resident of 626-B R.O. Santos St., Brgy. New Zaniga,
Mandaluyong City. Respondent-Appellant is a legitimate
contractor with PCAB License 2003-19879-23.

4. Respondent is JOSEPH AQUINO, of legal age, Filipino, and
residing at Lot 13, Block 24 Royal Residences, Antipolo City,
Rizal.

MATERIAL DATES SHOWING
THE TIMELINESS OF THE PETITION

5. This originated as a civil suit for specific performance direct
defendant-appellant Enrile to finish the construction of the
perimeter fence which plaintiff-appellee Aquino paid him to do at
the latters house pursuant to the Construction Agreement dated
05 October 2010.
1


6. The construction of the perimeter fence commenced in February
2011 but was criticized by Aquinos wife, ARACELI, as being
substandard,
2
and as such petitioner was told by the respondents
spouse to stop working on the fence.
3


7. Petitioner Enrile acceded to this as evidenced by a letter he sent
in March 2011.
4
However, the Construction Agreement does not
state that unlawful termination of the contract will free Enrile
therefrom.
5
As such, Respondent Aquino demanded the
completion of the said project.
6
A certified true copy of the
Complaint is hereto attached as Annex A.

8. After the service of the Summons and Complaint were served to
herein petitioner, the petitioner filed his Answer which was duly
replied to by herein respondent. Certified true copies of said
Answer and Reply are hereto attached as Annexes B and C,
respectively.

9. After the Pre-Trial Conference, the parties submitted their
respective Position Papers. Certified true copies of which are
hereto attached as Annexes D and E.

10. On 06 March 2013, the Municipal Trial Court of Antipolo City
issued its Decision in Civil Case No. 2012-045, directing
petitioner Enrile, among others, to finish the perimeter fence
which respondent Aquino paid him to do pursuant to the
Construction Agreement.


1
Exh. A.
2
TSN p. 7, 21 May 2012.
3
Ibid.
4
Exh. 1.
5
p. 8, RTC Decision.
6
p. 6, Memorandum for Aquino.
11. Thus, herein Enrile filed his Notice of Appeal to the Regional
Trial Court of Antipolo City on 27 March 2013. A certified copy
of which is hereto attached as Annex F.

12. Thereafter, the Court a quo required the parties to file their
respective Memoranda of Appeal which are attached herewith as
Annexes G and H.

13. On 07 February 2013, the Regional Trial Court a quo issued its
Decision affirming the findings of the Lower Court, a certified
copy of which as herein attached as Annex I.

14. Petitioner Enrile filed his Motion for Reconsideration from said
Decision on 20 February 2014, herein attached as Annex J.

15. Whereas, respondent Aquino filed his Opposition thereto, herein
attached as Annex K.

16. Petitioners Motion for Reconsideration was denied in a
Resolution dated 21 April 2014.

17. On 15 May 2014, Petitioner filed with the Honorable Court of
Appeals in CA-G.R. No. 2014-10677 a Motion for Extension of
Time within which to file a Petition for Review, or until 20 May,
2014, attached herein as Annex L. Said Motion for Extension
of Time was granted by the Court of Appeals.

18. Thus, this Petition for Review pursuant to Rule 42 of the 1997
Rules on Civil Procedure.


STATEMENT OF THE FACTS

19. Petitioner JINGGOY ENRILE respectfully states that sometime
in September 2010, Respondent JOSEPH AQUINO approached
the Respondent-Appellant in his office located in 3
rd
Floor
OMM-CITRA Bldg., #39 San Miguel Ave., Ortigas Center,
Pasig City. Respondent expressed his intention to engage the
services of Enrile to construct fence surround the formers house
and lot in Antipolo City.

20. A Construction Agreement was then entered by both parties
dated 05 October 2010, whereby the petitioner Enrile undertook
construct a perimeter fence on the respondents lot for
P100,000.00 as consideration.
7



7
Exh. B.
21. The construction commenced on February 2011. However,
Enriles work was criticized by Aquinos wife, Araceli, for which
reason Enrile was told by Araceli to halt the construction.
8
Enrile
acceded to this when he sent Aquino a letter in March 2011.
9

However, Aquino insisted that Enrile finish the construction of
the fence.

22. As such, Aquino filed a civil action for specific performance to
direct Enrile to finish the perimeter fence.


STATEMENT OF ISSUES

23. The Regional Trial Court committed the following errors, to wit:

I. The RTC erred in ruling that the Construction Industry
Arbitration Commission (CIAC) has no jurisdiction in the case
at bar

II. The RTC erred in affirming the MTC decision that the MTC
has jurisdiction over the civil case for specific performance

III. Specific Performance is not the proper remedy in the instant
case

IV. Petitioner was freed of his obligations when his services were
terminated by the Respondents wife

The issues shall be addressed in seriatim.

DISCUSSION OF ISSUES

I. The CIAC has original and
exclusive jurisdiction over
construction disputes in the
Philippines.

24. Disputes involving construction in the Philippines are governed
by the Executive Order No. 1008, otherwise known as the
Construction Industry Arbitration Law. Section 4 of E.O. 1008
provides:

The CIAC shall have original and exclusive
jurisdiction over disputes, arising from, or
connected with, contracts entered into by parties

8
p. 7, TSN, 21 May 2012.
9
Exh. 1.
involved in the construction in the Philippines,
whether the dispute arises before or after the
completion of the contract, or after the
abandonment or breach thereof

The jurisdiction of the CIAC may include but is not
limited to violation of specifications for materials
and workmanship; violation of the terms of the
agreement; interpretation and/or application of
contractual time and delays; maintenance and
defects; payment, default of employer or
contractor and changes in contract cost. (Emphasis
added)

25. CIAC's jurisdiction extends, not only to claims or disputes
specifically or directly involving, but also those arising from or
connected with contracts of construction in the Philippines. The
term "arise" means to spring from, to originate, to come into
being from a specified source; to become operative, while the
term "connected" means joined; united by an intervening
medium, dependence or relation.
10


26. Even if the Construction Agreement did not provide for an
Arbitration Clause, such defect does not divest the CIAC of its
original and exclusive jurisdiction. Under the present Rules of
Procedure on Construction Disputes, for a particular construction
contract to fall within the jurisdiction of CIAC, it is merely
required that the parties agree to submit the same to voluntary
arbitration. Unlike in the original version of Section 1, as applied
in the Tesco case, the law as it now stands does not provide that
the parties should agree to submit disputes arising from their
agreement specifically to the CIAC for the latter to acquire
jurisdiction over the same. Rather, it is plain and clear that as
long as the parties agree to submit to voluntary arbitration,
regardless of what forum they may choose, their agreement will
fall within the jurisdiction of the CIAC, such that, even if they
specifically choose another forum, the parties will not be
precluded from electing to submit their dispute before the CIAC
because this right has been vested upon each party by law, i.e.,
E.O. No. 1008.
11


27. It is clear that the absence of an Arbitration clause in a
Construction Agreement does not deprive CIAC of its
jurisdiction. All that is necessary is for the parties to elect to
submit their dispute before the CIAC. It is evident in the case at

10
Stronghold v. Borlagdan, G.R. No. 165964 (16 February 2005).
11
Huengwa Industry Co. Ltd. v. DJ Builders Construction, G.R. No. 169095 (08 December 2008).
bar that petitioner Enrile was very much willing to undergo
arbitration and peaceful settlement of the dispute before the
CIAC. This was offered by the petitioner to Aquino several
times.
12


28. It is worthy to stress ruling in Uniwide v. Titan-Ikeda
Construction
13
: the Executive Order No. 1008 created an
arbitration facility to which the construction industry in
the Philippines can have recourse. The Executive Order was
enacted to encourage the early and expeditious settlement of
disputes in the construction industry, a public policy the
implementation of which is necessary and important for the
realization of national development goals.

29. Section 39 of the ADR Act also provides that A regional trial
court before which a construction dispute is filed shall, upon
becoming aware, not later than the pre-trial conference, that the
parties had entered into an arbitration agreement, dismiss the case
and refer the parties to an arbitration to be conducted by the
CIAC, unless both parties, assisted by their respective counsels,
shall submit to the RTC a written agreement exclusively for the
Court, rather than the CIAC, to resolve the dispute.

30. Sec. 39 clearly states that in the event a case is filed with the
Regional Trial Court involving a construction dispute, despite the
existence of an arbitration agreement between the parties,
dismissal of the case is called for and referral of the same to
arbitration is proper.

31. In the case at bar, Enrile offered arbitration to resolve the dispute.
Given this, the RTC should not have divested the CIAC of its
original and exclusive jurisdiction over the instant case, since it
clearly falls within the cases covered by the CIAC under Sec. 35
of the ADR Law.

II. The MCTC has no jurisdiction
to hear and decide actions for
specific performance

32. Even assuming that CIAC has no jurisdiction over the instant
case, the MCTC does not acquire jurisdiction. The Construction
Agreement expressly provides that any dispute arising therefrom
or in the performance of the obligations thereunder, the value of

12
Annex B.
13
Uniwide Sales Realty and Resources Corp. v. Titan-Ikeda Construction and Development Corp., G.R. No.
126619 (20 December 2006).
such dispute not exceeding P100,000.00 shall be resolved by the
filing the proper action in the MCTC Antipolo City.

33. It is well-established that the jurisdiction over the subject matter
is conferred by law either by the Constitution or a statute.
14
Since
jurisdiction over the subject matter is conferred by the
Constitution or by law, it cannot be (1) granted by the agreement
of the parties; (2) acquired, waived enlarged, or diminished by
any act or omission of the parties; or (3) conferred by the
acquiescence of the courts.
15


34. In the case of Mijares v. Adigue,
16
the Supreme Court held that
the jurisdiction of a justice of peace and judge of a municipal
court shall not extend to civil actions in which the subject of
litigation is not capable of pecuniary estimation, except in
forcible entry and detainer cases. In fact, B.P. 128, otherwise
known as the Judiciary Reorganization Act of 1980 provides that
the Regional Trial Court shall exercise exclusive original
jurisdiction in all civil actions in which the subject of the
litigation is incapable of pecuniary estimation.
17


35. Settled jurisprudence considers some civil actions as incapable of
pecuniary estimation, viz:
(a) Actions for specific performance;
(b) Actions for support which will require the determination
of the civil status;
(c) The right to support of the plaintiff;
(d) Those for the annulment of decisions of lower courts;
(e) Those for the rescission or reformation of contracts;
(f) Interpretation of a contractual obligation.
18


36. Since the principal action sought in Aquinos Complaint is an
action for specific performance, the action is incapable of
pecuniary estimation and thus, cognizable by the RTC.

III. Specific Performance is not the
proper remedy in positive
personal obligation.


14
Dela Cruz v. Court of Appeals, 510 SCRA 103 (2006).
15
De Jesus v. Garcia, 19 SCRA 554, 558 (1967).
16
Mijares v. Adigue, G.R. No. L-14241 (26 February 1962).
17
An Act Reorganizing The Judiciary, Appropriating Funds Therefor, And For Other Purposes [The Judiciary
Reorganization Act of 1980] Batas Pambansa Blg. 129 19, 1. (1980).
18
Heirs of Alfredo Bautista v. Francisco Lindo et al., G.R. No. 208232 (10 March 2014).
37. Assuming arguendo, the MCTC acquired jurisdiction over the
case at bar, the relief prayed for by the respondent is not the
proper remedy. Article 1167 of the New Civil Code provides:

If a person obliged to do something fails to do it,
the same shall be executed at his cost.

This same rule shall be observed if he does it in
contravention of the tenor of the obligation.
Furthermore, it may be decreed that what has been
poorly done be undone.

38. Article 1167 refers to an obligation to do, i.e. to perform an act or
render a service. It contemplates three situations: (1) the debtor
fails to perform an obligation to do; (2) the debtor performs an
obligation to do but contrary to the terms thereof; or (3) the
debtor performs an obligation to do but in a poor manner. In such
cases, the creditor has the right: (1) to have the obligation
performed by himself, or by another unless personal
considerations are involved, at the debtors expense; and to
recover damages (Article 1170 NCC). While a debtor can be
compelled to make the delivery of a specific thing (Article 1165
NCC), a specific performance cannot be ordered in a personal
obligation to do because this may amount to involuntary
servitude which, as a rule, is prohibited under the Constitution
(Art. III, Sec. 18[2] thereof). Given that the obligation in
question is an obligation to perform an action or render a service,
specific performance is not the proper remedy.

IV. Respondents spouses act of
terminating Aquinos services
in effect freed him from his
obligation.

39. Article 96 of the Family Code states that the administration of the
community property shall belong to both spouses jointly. The
object of the Construction Agreement i.e., the construction of
perimeter fence at the respondents house is a community
property and the administration of which belongs to the
respondent and his wife jointly. Thus, the order of the
respondents wife, as an administrator of the community
property, to stop working on the fence coupled with a letter sent
by the petitioner to the respondent are sufficient cause to
terminate the contract. Such act of respondents wife is not
prohibited under Art. 96 as it only prohibits alienation of the
community property without the consent of the other spouse.
Hence, the petitioner is free from his contractual obligation with
the respondent by virtue of the respondent wifes act terminating
the contract.


PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this
Honorable Court that the decision of the Regional Trial Court affirming in
toto the decision of the Municipal Trial Court in Civil Case No. 2012-045 be
reversed and set aside, and the case be DISMISSED.

Other reliefs just and equitable under the premises are likewise prayed
for.

RESPECTFULLY SUBMITTED.

City of Makati, 17 May 2014




MEJIA & MEJIA LAW OFFICE
Counsel for the Defendant-Appellant
Unit 220 Lafayette Bldg.
23 Tordesillas St., Salcedo Village
Makati City, Philippines
Telefax: (632) 816-3135


By:



ATTY. MELANIE P. MEJIA
PTR No. 1432035 Makati 01-08-2013
IBP Lifetime No. 02604; Quezon City; 06-28-2001
MCLE Compliance No. IV 0004843; 03/05/12
Roll of Attorneys No. 39332






VERIFICATION AND CERTIFICATION
AGAINST NON-FORUM SHOPPING

I, JINGGOY ENRILE, of legal age, Filipino citizen and with
postal address 3
rd
Floor OMM-CITRA Bldg., #39 San Miguel Ave., Ortigas
Center, Pasig City, after being duly sworn to in accordance with the law
hereby depose and declare that:

I am the petitioner in the above entitled case and I have caused
the preparation of and read this PETITION, and the
allegations therein are true and correct to the best of my own
personal knowledge and as culled from the records.

Petitioner has not commenced any other action or proceedings
involving the same issues contained in this complaint, whether
in the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or quasi-judicial agency
and that to the best of my knowledge, no such other action or
claim pending therein and should I learn thereafter that a similar
action or proceeding is pending therein and should I learn
thereafter that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or
any other tribunal or agency, I shall notify this Honorable Court
of such fact within five (5) days from discovery of such fact.

SIGNED this 20
th
day of May 2014 at Makati City Metro
Manila.

SUBSCRIBED and SWORN to before me this 20
th
day
of May 2014; affiant having exhibited before me his SSS ID No. 33-
7455716-3, issued in Quezon City on January 23, 2003.

___________________________________
My Commission Expires until 31 December 2016
PTR No. 1432035 Makati 01-08-2013
IBP Lifetime No. 02604; Quezon City; 06-28-
2001
Roll of Attorneys No. 39332









COPY FURNISHED

COURT OF APPEALS
Ma. Orosa St., Ermita Manila

HON. JUDGE DON QUIXOTE
Regional Trial Court Branch 73
Antipolo City, Rizal

GABIONZA LAW OFFICE
Counsel for Plaintiff-Appellee
29
th
Floor, Metrobank Tower, 128 Valero St.
Salcedo Village, Makati City



EXPLANATION
(Pursuant to Section 11, Rule 13 of
the 1997 Rules on Civil Procedure)

___________________________________


The undersigned counsel was forced to each file the foregoing
pleading with the Court and furnish the appellant through registered mail as
personal delivery is not practicable due to lack of material time and
messengerial staff.





MELANIE P. MEJIA