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REPUBLIC OF THE PHILIPPINES


SUPREME COURT
MANILA

FEDERICO ROSARIO
Petitioner

-versus- G.R No. Xxxxxx-xxxxxxxx
For: Petition for Review on
COURT OF APPEALS and Writ of Certiorari under Rule 45
JANE WADE
Respondents

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PETITION FOR REVIEW ON WRIT OF CERTIORARI
(under Section 1, Rule 45 of the Rules of Court)

Petitioner, by way of undersigned counsel, respectfully avers unto this Honourable Supreme
Court, that:

Nature of Action
1. This is a petition for review on writ of certiorari, as provided for in Rule 45 of our Rules of
Court, dated 31 January 2012;

Parties
2. Petitioner FEDERICO ROSARIO, is of legal age, single, Filipino, with residence at
ABCDEFG Don Vicente Madrigal Street, Corinthian Gardens, Quezon City and that private
respondent JANE WADE, is also of legal age, single, Filipino, with residence at 11116 Flamingo
Street, Greenmeadows Subdivision, Quezon City;

Statement of Facts

3. The following, in brief, are the facts of this case:

3.1 The petitioner and respondent-hereinafter referred to as the parties are both the true,
lawful, and registered owners of a piece of land located in 16061980 Banawe Street, Quezon City
measuring eight hundred (800) square meters (under Transfer Certificate of Title Number 131106, a
certified true copy of which is herein attached as Annex A), hereinafter referred to as the Banawe
Lot, having been devisees in a last will and testament (Annex B) duly executed by their distant
relative, Drake Carter III, and probated in a decision rendered by Branch 09, Regional Trial Court of
Quezon City, dated the nineteenth of April, Two Thousand and One (19 April 2001, Special
Proceedings 32006-F-1990, Annex C);

3.2 The parties entered into an Agreement (Annex D) on the thirtieth of June, Two
Thousand And One (30
th
June 2001) to ... observe the status quo and that no structure shall be built
nor any enterprise- aside from the necessary activities for preservation- be conducted on the premises
for a period of fifteen years (the thirtieth of June, Two Thousand Sixteen, 30
th
June, 2016,
Paragraph D, Annex D) and that the parties shall ...equally share the burden of taxes and other
similar expenses (Paragraph E, Annex D);

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3.3 Contrary to the agreement, the Banawe Lot was then used by the respondent as a
parking lot to house her fleet of buses (Photographs, taken on the sixth of August, Two Thousand
And One- 6
th
of August 2001- of which are attached herein as Annex E, Annex F and Annex G);

3.4 As a matter of goodwill and generosity on the part of petitioner, a Letter, dated the
fifteenth of August, Two Thousand And One (15
th
August 2001, Annex H) was sent to and duly
received (Annex H) by respondent, giving the same fifteen (15) days to cease and desist from using
the Banawe Lot as a parking area for her transportation business;

3.5 On the expiration of the grace period granted by the petitioner, respondent herein still
failed to comply with her obligation, resulting in the institution of a case for a writ of preliminary
injunction, specific performance and damages by petitioner (Complaint attached as Annex I) with
Branch 32 of the Regional Trial Court of Quezon City, pursuant to Rule 58 of the Rules of Court,
Articles 486 (quoted in verbatim : Each co-owner may use the thing owned in common, provided he
does so in accordance with the purpose for which it is intended and in such a way as not to injure the
interest of the co-ownership or prevent the other co-owners from using it according to their rights. The
purpose of the co-ownership may be changed by agreement, express or implied.), 1168 (quoted in
verbatim: When the obligation consists in not doing, and the obligor does what has been forbidden
him, it shall also be undone at his expense) and the pertinent provisions of the Civil Code in relation
to damages;

3.6 On the eleventh of November, Two Thousand and Three, Branch 32 of the Regional Trial
Court of Quezon City rendered a favourable decision for the petitioner (Civil Case No. 22121232, 11
th

November, 2003, Annex J), issuing the prayed for writ, ordering respondent to immediately comply
with the terms of the agreement between the parties and awarding moral damages for petitioner in the
amount of one million pesos (PhP 1,000,000) and attorneys fees and the costs of litigation;

3.7 Respondent timely exercised her right of appeal, and on the twentieth of January, Two
Thousand Twelve, the respondent Court of Appeals, in CA GR CR 190490, rendered a decision
adverse to the petitioner herein (20
th
January, 2012, Annex K), dissolving the injunctive writ and
dismissing the complaint, stating ... pursuant to Article 428 on the rights afforded to by ownership
and 486 of the Civil Code, a co-owner may use the thing owned in common... (Paragraph E, Annex
K) and ... the agreement was impliedly modified with the acquiescence of plaintiff-appellee
Federico Rosario for more than a month to the use of defendant-appellant Jane Wade of the
commonly owned property as a parking area for her transportation business (Paragraph G, Annex
K).

Assignment of Error

4. The foregoing facts raise a sole question of law, namely:

Whether the Court of Appeals gravely misinterpreted Article 486, in relation to the rights
afforded by Article 428 of the Civil Code to the prejudice of petitioner Federico Rosario as co-owner
of the Banawe property?











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Arguments

5. The answer should be in the affirmative.

5.1 Firstly, Article 486 of the Civil Code states that Each co-owner may use the thing owned
in common, provided he does so in accordance with the purpose for which it is intended and in
such a way as not to injure the interest of the co-ownership or prevent the other co-owners from
using it according to their rights (emphasis supplied). Subsequently, this provision should be
construed as a limitation to the rights of a co-owner, in relation to Article 428, which in turn, states
that: The owner has the right to enjoy and dispose of a thing, without other limitations than
those established by law (emphasis supplied). In Cruz v Catapang, G.R. No. 164110, February
12, 2008, this Honourable Supreme Court held that: ...that a co-owner cannot devote common
property to his or her exclusive use to the prejudice of the co-ownership (emphasis supplied). As
such, contrary to the interpretation of respondent Court of Appeals, the usage of a co-owner of the
commonly held property is not absolute.

5.2 Accordingly, the intended usage of the property can be clearly determined from the
express agreement executed between the parties: to ... observe the status quo and that no structure
shall be built nor any enterprise- aside from the necessary activities for preservation- be
conducted on the premises for a period of fifteen years (emphasis supplied, Annex D). The use
therefore by respondent of the Banawe Lot as a parking lot for her fleet of buses is in contravention
of the parties agreement.

5.3 Moreover, the contention of the respondent Court of Appeals with regard to the implied
modification of the aforementioned agreement is not well-founded. The observations of noted jurist
Arturo M. Tolentino, in the 2004 reprinting of his famous Commentaries on the Civil Code, in
relation to Article 486 should be given more import, to wit: Mere tolerance on the part of the co-
owners cannot legalise the change in the use of a thing from that intended by the parties
(emphasis supplied, page 168). The erroneous conclusion therefore by respondent Court of Appeals
that the passage of a period slightly more than a month before petitioner demanded that respondent
cease her conduct immediately equated to an implied modification of the agreement is an unwarranted
and baseless non-sequitur. Additionally, it should be noted that such a construction is not in
consonance with Article 1159 of the Civil Code, which states: Obligations arising from contracts
have the force of law between the contracting parties and should be complied with in good
faith.

6. In summation, respondent Court of Appeals, in misconstruing the meaning of Article 486
in light of Article 428 of the Civil Code, committed a glaring error in the exercise of its jurisdiction to
the detriment of petitioner Federico Rosario.


7. Attached to this petition is a certified copy of the decision of the Court of Appeals herein
sought to be reviewed (marked as Annex K), together with twenty (20) printed copies of the record
of appeal.











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Prayer

WHEREFORE, after due process, it is respectfully prayed that the Petition for Review on
Writ of Certiorari (Exhibit A) be granted and that the Honourable Supreme Court reinstate the
decision of Branch 32 of the Regional Trial Court of Quezon City in Civil Case No. 22121232, dated
11
th
November, 2003 (Annex J) in toto.



Petitioner further prays for incidental reliefs as law and justice may require.

31 January 2012.






Counsel for the Petitioner
123456 Main Street
Rolling Stone Towers
Fort Bonifacio, Taguig 1234
ROA 10192506
PTR 10192506 19 April 2011 Taguig City
(63)1235678 (63)9171234567
RO.C@Felaw.com

























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VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

I, Federico Rosario, of legal age, after having been duly sworn in accordance with law,
depose and state that:

1. I am the petitioner in the above-stated case;
2. I have caused the preparation of the foregoing complaint;
3. I have read the contents thereof and the facts stated therein are true and correct of my personal
knowledge and/or on the basis of copies of documents and records in my possession;
4. I have not commenced any other action or proceeding involving the same issues in the Supreme
Court, the Court of Appeals, or any other tribunal or agency;
5. To the best of my knowledge and belief, no such action or proceeding is pending in the Supreme
Court, the Court of Appeals, or any other tribunal or agency;
6. If I should thereafter learn 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 undertake to report that fact
within five (5) days therefrom to this Honourable Court.


___________________________

Federico Rosario

SUBSCRIBED AND SWORN to before me this ___ day of __________ 200_ at
_________________ affiant exhibiting to me his Community Tax Certificate
No.____________________ issued on ________________ 200_ at ______________ City.

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