SOLIDUM V PEOPLE : CIVIL LIABILITY ARISING FROM

OFFENSE IS DEEMED INSTITUTED

This appeal is taken by a physician-anesthesiologist who has
been pronounced guilty of reckless imprudence resulting in
serious physical injuries by the Regional Trial Court (RTC)
and the Court of Appeals (CA). He had been part of the team
of anesthesiologists during the surgical pull-through
operation conducted on a three-year old patient born with
an imperforate anus.1
The antecedents are as follows:
Gerald Albert Gercayo (Gerald) was born on June 2, 19922
with an imperforate anus. Two days after his birth, Gerald
underwent colostomy, a surgical procedure to bring one end
of the large intestine out through the abdominal wall,3
enabling him to excrete through a colostomy bag attached
to the side of his body.4
On May 17, 1995, Gerald, then three years old, was
admitted at the Ospital ng Maynila for a pull-through
operation.5 Dr. Leandro Resurreccion headed the surgical
team, and was assisted by Dr. Joselito Luceo, Dr. Donatella
Valea and Dr. Joseph Tibio. The anesthesiologists included
Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr.
Fernando Solidum (Dr. Solidum).6 During the operation,
Gerald experienced bradycardia,7 and went into a coma.8
His coma lasted for two weeks,9 but he regained
consciousness only after a month.10 He could no longer see,
hear or move.11

That on or about May 17, 1995, in the City of Manila,

Philippines, the said accused, being then an anesthesiologist
at the Ospital ng Maynila, Malate, this City, and as such was
tasked to administer the anesthesia on three-year old baby
boy GERALD ALBERT GERCAYO, represented by his mother,
MA. LUZ GERCAYO, the former having been born with an
imperforate anus [no anal opening] and was to undergo an
operation for anal opening [pull through operation], did then
and there willfully, unlawfully and feloniously fail and
neglect to use the care and diligence as the best of his
judgment would dictate under said circumstance, by failing
to monitor and regulate properly the levels of anesthesia
administered to said GERALD ALBERT GERCAYO and using
100% halothane and other anesthetic medications, causing
as a consequence of his said carelessness and negligence,
said GERALD ALBERT GERCAYO suffered a cardiac arrest and
consequently a defect called hypoxic encephalopathy
meaning insufficient oxygen supply in the brain, thereby
rendering said GERALD ALBERT GERCAYO incapable of
moving his body, seeing, speaking or hearing, to his
damage and prejudice.
Contrary to law.14
The case was initially filed in the Metropolitan Trial Court of
Manila, but was transferred to the RTC pursuant to Section 5
of Republic Act No. 8369 (The Family Courts Act of 1997),15
where it was docketed as Criminal Case No. 01-190889.
Judgment of the RTC

Agitated by her sons helpless and unexpected condition,

Ma. Luz Gercayo (Luz) lodged a complaint for reckless
imprudence resulting in serious physical injuries with the
City Prosecutors Office of Manila against the attending
physicians.12

On July 19, 2004, the RTC rendered its judgment finding Dr.
Solidum guilty beyond reasonable doubt of reckless
imprudence resulting to serious physical injuries,16
decreeing:

Upon a finding of probable cause, the City Prosecutors

Office filed an information solely against Dr. Solidum,13
alleging:

WHEREFORE, premises considered, the Court finds accused

DR. FERNANDO P. SOLIDUM GUILTY beyond reasonable
doubt as principal of the crime charged and is hereby

sentenced to suffer the indeterminate penalty of TWO (2)

MONTHS and ONE (1) DAY of arresto mayor as minimum to
ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision
correccional as maximum and to indemnify, jointly and
severally with the Ospital ng Maynila, Dr. Anita So and Dr.
Marichu Abella, private complainant Luz Gercayo, the
amount of P500,000.00 as moral damages and P100,000.00
as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his
provisional liberty is hereby CANCELLED.
SO ORDERED.17
Upon motion of Dr. Anita So and Dr. Marichu Abella to
reconsider their solidary liability,18 the RTC excluded them
from solidary liability as to the damages, modifying its
decision as follows:
WHEREFORE, premises considered, the Court finds accused
Dr. Fernando Solidum, guilty beyond reasonable doubt as
principal of the crime charged and is hereby sentenced to
suffer the indeterminate penalty of two (2) months and one
(1) day of arresto mayor as minimum to one (1) year, one
(1) month and ten (10) days of prision correccional as
maximum and to indemnify jointly and severally with Ospital
ng Maynila, private complainant Luz Gercayo the amount of
P500,000.00 as moral damages and P100,000 as exemplary
damages and to pay the costs.
Accordingly, the bond posted by the accused for his
provisional liberty is hereby cancelled.19
Decision of the CA
On January 20, 2010, the CA affirmed the conviction of Dr.
Solidum,20 pertinently stating and ruling:
The case appears to be a textbook example of res ipsa
loquitur.

xxxx
x x x [P]rior to the operation, the child was evaluated and
found fit to undergo a major operation. As noted by the
OSG, the accused himself testified that pre-operation tests
were conducted to ensure that the child could withstand the
surgery. Except for his imperforate anus, the child was
healthy. The tests and other procedures failed to reveal that
he was suffering from any known ailment or disability that
could turn into a significant risk. There was not a hint that
the nature of the operation itself was a causative factor in
the events that finally led to hypoxia.
In short, the lower court has been left with no reasonable
hypothesis except to attribute the accident to a failure in the
proper administration of anesthesia, the gravamen of the
charge in this case. The High Court elucidates in Ramos vs.
Court of Appeals 321 SCRA 584
In cases where the res ipsa loquitur is applicable, the court
is permitted to find a physician negligent upon proper proof
of injury to the patient, without the aid of expert testimony,
where the court from its fund of common knowledge can
determine the proper standard of care.
Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due
care had been exercised, an inference of negligence may be
drawn giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it
occurred. When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act
or omission complained of and the injury sustained while
under the custody and management of the defendant
without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and

ordinary conditions, by which the patient can obtain redress

for injury suffered by him.
The lower court has found that such a nexus exists between
the act complained of and the injury sustained, and in line
with the hornbook rules on evidence, we will afford the
factual findings of a trial court the respect they deserve in
the absence of a showing of arbitrariness or disregard of
material facts that might affect the disposition of the case.
People v. Paraiso 349 SCRA 335.
The res ipsa loquitur test has been known to be applied in
criminal cases. Although it creates a presumption of
negligence, it need not offend due process, as long as the
accused is afforded the opportunity to go forward with his
own evidence and prove that he has no criminal intent. It is
in this light not inconsistent with the constitutional
presumption of innocence of an accused.
IN VIEW OF THE FOREGOING, the modified decision of the
lower court is affirmed.
SO ORDERED.21
Dr. Solidum filed a motion for reconsideration, but the CA
denied his motion on May 7, 2010.22
Hence, this appeal.
Issues
Dr. Solidum avers that:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE DECISION OF THE LOWER COURT IN UPHOLDING THE
PETITIONERS CONVICTION FOR THE CRIME CHARGED
BASED ON THE TRIAL COURTS OPINION, AND NOT ON THE
BASIS OF THE FACTS ESTABLISHED DURING THE TRIAL.

ALSO, THERE IS A CLEAR MISAPPREHENSION OF FACTS

WHICH IF CORRECTED, WILL RESULT TO THE ACQUITTAL OF
THE PETITIONER. FURTHER, THE HONORABLE COURT ERRED
IN AFFIRMING THE SAID DECISION OF THE LOWER COURT,
AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE
PROSECUTION MUST PROVE THE ALLEGATIONS OF THE
INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON
THE BASIS OF ITS PRESUMPTIVE CONCLUSION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING
THE PRINCIPLE OF RES IPSA LOQUITOR (sic) WHEN THE
DEFENSE WAS ABLE TO PROVE THAT THERE IS NO
NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO
OVERDOSING IN THE APPLICATION OF THE ANESTHETIC
AGENT BECAUSE THERE WAS NO 100% HALOTHANE
ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%)
PERCENT AND THE APPLICATION THEREOF, WAS REGULATED
BY AN ANESTHESIA MACHINE. THUS, THE APPLICATION OF
THE PRINCIPLE OF RES IPSA LOQUITOR (sic) CONTRADICTED
THE ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE
CASE.
III.
THE AWARD OF MORAL DAMAGES AND EXEMPLARY
DAMAGES IS NOT JUSTIFIED THERE BEING NO NEGLIGENCE
ON THE PART OF THE PETITIONER. ASSUMING THAT THE
CHILD IS ENTITLED TO FINANCIAL CONSIDERATION, IT
SHOULD BE ONLY AS A FINANCIAL ASSISTANCE, BECAUSE
THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF
ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO
EXCESSIVE, AND NO FACTUAL AND LEGAL BASIS.23
To simplify, the following are the issues for resolution,
namely: (a) whether or not the doctrine of res ipsa loquitur
was applicable herein; and (b) whether or not Dr. Solidum
was liable for criminal negligence.

Ruling
The appeal is meritorious.
Applicability of the Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as "the thing or the
transaction speaks for itself." The doctrine res ipsa loquitur
means that "where the thing which causes injury is shown to
be under the management of the defendant, and the
accident is such as in the ordinary course of things does not
happen if those who have the management use proper care,
it affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose from
want of care."24 It is simply "a recognition of the postulate
that, as a matter of common knowledge and experience, the
very nature of certain types of occurrences may justify an
inference of negligence on the part of the person who
controls the instrumentality causing the injury in the
absence of some explanation by the defendant who is
charged with negligence. It is grounded in the superior logic
of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with the
doctrine of common knowledge."25
Jarcia, Jr. v. People26 has underscored that the doctrine is
not a rule of substantive law, but merely a mode of proof or
a mere procedural convenience. The doctrine, when
applicable to the facts and circumstances of a given case, is
not meant to and does not dispense with the requirement of
proof of culpable negligence against the party charged. It
merely determines and regulates what shall be prima facie
evidence thereof, and helps the plaintiff in proving a breach
of the duty. The doctrine can be invoked when and only
when, under the circumstances involved, direct evidence is
absent and not readily available.27

The applicability of the doctrine of res ipsa loquitur in

medical negligence cases was significantly and exhaustively
explained in Ramos v. Court of Appeals,28 where the Court
said
Medical malpractice cases do not escape the application of
this doctrine. Thus, res ipsa loquitur has been applied when
the circumstances attendant upon the harm are themselves
of such a character as to justify an inference of negligence
as the cause of that harm. The application of res ipsa
loquitur in medical negligence cases presents a question of
law since it is a judicial function to determine whether a
certain set of circumstances does, as a matter of law, permit
a given inference.
Although generally, expert medical testimony is relied upon
in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard
medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself
provides the proof of negligence. The reason is that the
general rule on the necessity of expert testimony applies
only to such matters clearly within the domain of medical
science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone
familiar with the facts. Ordinarily, only physicians and
surgeons of skill and experience are competent to testify as
to whether a patient has been treated or operated upon with
a reasonable degree of skill and care. However, testimony
as to the statements and acts of physicians and surgeons,
external appearances, and manifest conditions which are
observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is
applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient, without
the aid of expert testimony, where the court from its fund of
common knowledge can determine the proper standard of
care. Where common knowledge and experience teach that
a resulting injury would not have occurred to the patient if

due care had been exercised, an inference of negligence

may be drawn giving rise to an application of the doctrine of
res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but how
and why it occurred. When the doctrine is appropriate, all
that the patient must do is prove a nexus between the
particular act or omission complained of and the injury
sustained while under the custody and management of the
defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res
ipsa loquitur is allowed because there is no other way, under
usual and ordinary conditions, by which the patient can
obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine
in the following situations: leaving of a foreign object in the
body of the patient after an operation, injuries sustained on
a healthy part of the body which was not under, or in the
area, of treatment, removal of the wrong part of the body
when another part was intended, knocking out a tooth while
a patients jaw was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient plaintiff was
under the influence of anesthetic, during or following an
operation for appendicitis, among others.
Nevertheless, despite the fact that the scope of res ipsa
loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to
show that he is not guilty of the ascribed negligence. Res
ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases where
a layman is able to say, as a matter of common knowledge
and observation, that the consequences of professional care
were not as such as would ordinarily have followed if due
care had been exercised. A distinction must be made
between the failure to secure results, and the occurrence of
something more unusual and not ordinarily found if the

service or treatment rendered followed the usual procedure

of those skilled in that particular practice. It must be
conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which
involves the merits of a diagnosis or of a scientific
treatment. The physician or surgeon is not required at his
peril to explain why any particular diagnosis was not correct,
or why any particular scientific treatment did not produce
the desired result. Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result
of an operation or treatment was not accomplished. The real
question, therefore, is whether or not in the process of the
operation any extraordinary incident or unusual event
outside of the routine performance occurred which is beyond
the regular scope of customary professional activity in such
operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent
cause or causes of the untoward consequence. If there was
such extraneous intervention, the doctrine of res ipsa
loquitur may be utilized and the defendant is called upon to
explain the matter, by evidence of exculpation, if he could.
In order to allow resort to the doctrine, therefore, the
following essential requisites must first be satisfied, to wit:
(1) the accident was of a kind that does not ordinarily occur
unless someone is negligent; (2) the instrumentality or
agency that caused the injury was under the exclusive
control of the person charged; and (3) the injury suffered
must not have been due to any voluntary action or
contribution of the person injured.29
The Court considers the application here of the doctrine of
res ipsa loquitur inappropriate. Although it should be
conceded without difficulty that the second and third
elements were present, considering that the anesthetic
agent and the instruments were exclusively within the
control of Dr. Solidum, and that the patient, being then
unconscious during the operation, could not have been
guilty of contributory negligence, the first element was
undeniably wanting. Luz delivered Gerald to the care,

custody and control of his physicians for a pull-through

operation. Except for the imperforate anus, Gerald was then
of sound body and mind at the time of his submission to the
physicians. Yet, he experienced bradycardia during the
operation, causing loss of his senses and rendering him
immobile. Hypoxia, or the insufficiency of oxygen supply to
the brain that caused the slowing of the heart rate,
scientifically termed as bradycardia, would not ordinarily
occur in the process of a pull-through operation, or during
the administration of anesthesia to the patient, but such fact
alone did not prove that the negligence of any of his
attending physicians, including the anesthesiologists, had
caused the injury. In fact, the anesthesiologists attending to
him had sensed in the course of the operation that the lack
of oxygen could have been triggered by the vago-vagal
reflex, prompting them to administer atropine to the
patient.30
This conclusion is not unprecedented. It was similarly
reached in Swanson v. Brigham,31 relevant portions of the
decision therein being as follows:
On January 7, 1973, Dr. Brigham admitted 15-year-old
Randall Swanson to a hospital for the treatment of infectious
mononucleosis. The patient's symptoms had included a
swollen throat and some breathing difficulty. Early in the
morning of January 9 the patient was restless, and at 1:30
a.m. Dr. Brigham examined the patient. His inspection of the
patient's air passage revealed that it was in satisfactory
condition. At 4:15 a.m. Dr. Brigham received a telephone
call from the hospital, advising him that the patient was
having respiratory difficulty. The doctor ordered that oxygen
be administered and he prepared to leave for the hospital.
Ten minutes later, 4:25 a.m., the hospital called a second
time to advise the doctor that the patient was not
responding. The doctor ordered that a medicine be
administered, and he departed for the hospital. When he
arrived, the physician who had been on call at the hospital
had begun attempts to revive the patient. Dr. Brigham
joined him in the effort, but the patient died.

The doctor who performed the autopsy concluded that the

patient died between 4:25 a.m. and 4:30 a.m. of asphyxia,
as a result of a sudden, acute closing of the air passage. He
also found that the air passage had been adequate to
maintain life up to 2 or 3 minutes prior to death. He did not
know what caused the air passage to suddenly close.
xxxx
It is a rare occurrence when someone admitted to a hospital
for the treatment of infectious mononucleosis dies of
asphyxiation. But that is not sufficient to invoke res ipsa
loquitur. The fact that the injury rarely occurs does not in
itself prove that the injury was probably caused by
someone's negligence. Mason v. Ellsworth, 3 Wn. App. 298,
474 P.2d 909 (1970). Nor is a bad result by itself enough to
warrant the application of the doctrine. Nelson v. Murphy, 42
Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser, The
Negligence Case Res Ipsa Loquitur 24:10 (1972). The
evidence presented is insufficient to establish the first
element necessary for application of res ipsa loquitur
doctrine. The acute closing of the patients air passage and
his resultant asphyxiation took place over a very short
period of time. Under these circumstances it would not be
reasonable to infer that the physician was negligent. There
was no palpably negligent act. The common experience of
mankind does not suggest that death would not be expected
without negligence. And there is no expert medical
testimony to create an inference that negligence caused the
injury.
Negligence of Dr. Solidum
In view of the inapplicability of the doctrine of res ipsa
loquitur, the Court next determines whether the CA correctly
affirmed the conviction of Dr. Solidum for criminal
negligence.

Negligence is defined as the failure to observe for the

protection of the interests of another person that degree of
care, precaution, and vigilance that the circumstances justly
demand, whereby such other person suffers injury.32
Reckless imprudence, on the other hand, consists of
voluntarily doing or failing to do, without malice, an act from
which material damage results by reason of an inexcusable
lack of precaution on the part of the person performing or
failing to perform such act.33
Dr. Solidums conviction by the RTC was primarily based on
his failure to monitor and properly regulate the level of
anesthetic agent administered on Gerald by overdosing at
100% halothane. In affirming the conviction, the CA
observed:
On the witness stand, Dr. Vertido made a significant
turnaround. He affirmed the findings and conclusions in his
report except for an observation which, to all intents and
purposes, has become the storm center of this dispute. He
wanted to correct one piece of information regarding the
dosage of the anesthetic agent administered to the child. He
declared that he made a mistake in reporting a 100%
halothane and said that based on the records it should have
been 100% oxygen.
The records he was relying on, as he explains, are the
following:
(a) the anesthesia record A portion of the chart in the
record was marked as Exhibit 1-A and 1-B to indicate the
administration at intervals of the anesthetic agent.
(b) the clinical abstract A portion of this record that reads
as follows was marked Exhibit 3A. 3B Approximately 1 hour
and 45 minutes through the operation, patient was noted to
have bradycardia (CR = 70) and ATSO4 0.2 mg was
immediately administered. However, the bradycardia
persisted, the inhalational agent was shut off, and the
patient was ventilated with 100% oxygen and another dose

of ATSO4 0.2 mg was given. However, the patient did not

respond until no cardiac rate can be auscultated and the
surgeons were immediately told to stop the operation. The
patient was put on a supine position and CPR was initiated.
Patient was given 1 amp of epinephrine initially while
continuously doing cardiac massage still with no cardiac
rate appreciated; another ampule of epinephrine was given
and after 45 secs, patients vital signs returned to normal.
The entire resuscitation lasted approximately 3-5 mins. The
surgeons were then told to proceed to the closure and the
childs vital signs throughout and until the end of surgery
were: BP = 110/70; CR = 116/min and RR = 20-22
cycles/min (on assisted ventilation).
Dr. Vertido points to the crucial passage in the clinical
abstract that the patient was ventilated with 100% oxygen
and another dose of ATSO4 when the bradycardia persisted,
but for one reason or another, he read it as 100% halothane.
He was asked to read the anesthesia record on the
percentage of the dosage indicated, but he could only
sheepishly note I cant understand the number. There are no
clues in the clinical abstract on the quantity of the
anesthetic agent used. It only contains the information that
the anesthetic plan was to put the patient under general
anesthesia using a nonrebreathing system with halothane as
the sole anesthetic agent and that 1 hour and 45 minutes
after the operation began, bradycardia occurred after which
the inhalational agent was shut off and the patient
administered with 100% oxygen. It would be apparent that
the 100% oxygen that Dr. Vertido said should be read in lieu
of 100% halothane was the pure oxygen introduced after
something went amiss in the operation and the halothane
itself was reduced or shut off.
The key question remains what was the quantity of
halothane used before bradycardia set in?
The implication of Dr. Vertidos admission is that there was
no overdose of the anesthetic agent, and the accused Dr.
Solidum stakes his liberty and reputation on this conclusion.

He made the assurance that he gave his patient the utmost

medical care, never leaving the operating room except for a
few minutes to answer the call of nature but leaving behind
the other members of his team Drs. Abella and Razon to
monitor the operation. He insisted that he administered only
a point 1% not 100% halothane, receiving corroboration
from Dr. Abella whose initial MA in the record should be
enough to show that she assisted in the operation and was
therefore conversant of the things that happened. She
revealed that they were using a machine that closely
monitored the concentration of the agent during the
operation.
But most compelling is Dr. Solidums interpretation of the
anesthesia record itself, as he takes the bull by the horns, so
to speak. In his affidavit, he says, reading from the record,
that the quantity of halothane used in the operation is one
percent (1%) delivered at time intervals of 15 minutes. He
studiedly mentions the concentration of halothane as
reflected in the anesthesia record (Annex D of the
complaint-affidavit) is only one percent (1%) The numbers
indicated in 15 minute increments for halothane is an
indication that only 1% halothane is being delivered to the
patient Gerard Gercayo for his entire operation; The amount
of halothane delivered in this case which is only one percent
cannot be summated because halothane is constantly being
rapidly eliminated by the body during the entire operation.
xxxx
In finding the accused guilty, despite these explanations,
the RTC argued that the volte-face of Dr. Vertido on the
question of the dosage of the anesthetic used on the child
would not really validate the non-guilt of the
anesthesiologist. Led to agree that the halothane used was
not 100% as initially believed, he was nonetheless unaware
of the implications of the change in his testimony. The court
observed that Dr. Vertido had described the condition of the
child as hypoxia which is deprivation of oxygen, a diagnosis
supported by the results of the CT Scan. All the symptoms

attributed to a failing central nervous system such as

stupor, loss of consciousness, decrease in heart rate, loss of
usual acuity and abnormal motor function, are
manifestations of this condition or syndrome. But why would
there be deprivation of oxygen if 100% oxygen to 1%
halothane was used? Ultimately, to the court, whether
oxygen or halothane was the object of mistake, the
detrimental effects of the operation are incontestable, and
they can only be led to one conclusion if the application of
anesthesia was really closely monitored, the event could not
have happened.34
The Prosecution did not prove the elements of reckless
imprudence beyond reasonable doubt because the
circumstances cited by the CA were insufficient to establish
that Dr. Solidum had been guilty of inexcusable lack of
precaution in monitoring the administration of the
anesthetic agent to Gerald. The Court aptly explained in
Cruz v. Court of Appeals35 that:
Whether or not a physician has committed an "inexcusable
lack of precaution" in the treatment of his patient is to be
determined according to the standard of care observed by
other members of the profession in good standing under
similar circumstances bearing in mind the advanced state of
the profession at the time of treatment or the present state
of medical science. In the recent case of Leonila GarciaRueda v. Wilfred L. Pacasio, et. al., this Court stated that in
accepting a case, a doctor in effect represents that, having
the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such
training, care and skill in the treatment of his patients. He
therefore has a duty to use at least the same level of care
that any other reasonably competent doctor would use to
treat a condition under the same circumstances. It is in this
aspect of medical malpractice that expert testimony is
essential to establish not only the standard of care of the
profession but also that the physician's conduct in the
treatment and care falls below such standard. Further,
inasmuch as the causes of the injuries involved in

malpractice actions are determinable only in the light of

scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as
to causation.
xxxx
In litigations involving medical negligence, the plaintiff has
the burden of establishing appellant's negligence and for a
reasonable conclusion of negligence, there must be proof of
breach of duty on the part of the surgeon as well as a causal
connection of such breach and the resulting death of his
patient. In Chan Lugay v. St Luke's Hospital, Inc., where the
attending physician was absolved of liability for the death of
the complainants wife and newborn baby, this Court held
that:
"In order that there may be a recovery for an injury,
however, it must be shown that the injury for which
recovery is sought must be the legitimate consequence of
the wrong done; the connection between the negligence and
the injury must be a direct and natural sequence of events,
unbroken by intervening efficient causes. In other words,
the negligence must be the proximate cause of the injury.
For, negligence, no matter in what it consists, cannot create
a right of action unless it is the proximate cause of the injury
complained of. And the proximate cause of an injury is that
cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and
without which the result would not have occurred."
An action upon medical negligence whether criminal, civil
or administrative calls for the plaintiff to prove by
competent evidence each of the following four elements,
namely: (a) the duty owed by the physician to the patient,
as created by the physician-patient relationship, to act in
accordance with the specific norms or standards established
by his profession; (b) the breach of the duty by the
physicians failing to act in accordance with the applicable
standard of care; (3) the causation, i.e., there must be a

reasonably close and causal connection between the

negligent act or omission and the resulting injury; and (4)
the damages suffered by the patient.36
In the medical profession, specific norms or standards to
protect the patient against unreasonable risk, commonly
referred to as standards of care, set the duty of the
physician to act in respect of the patient. Unfortunately, no
clear definition of the duty of a particular physician in a
particular case exists. Because most medical malpractice
cases are highly technical, witnesses with special medical
qualifications must provide guidance by giving the
knowledge necessary to render a fair and just verdict. As a
result, the standard of medical care of a prudent physician
must be determined from expert testimony in most cases;
and in the case of a specialist (like an anesthesiologist), the
standard of care by which the specialist is judged is the care
and skill commonly possessed and exercised by similar
specialists under similar circumstances. The specialty
standard of care may be higher than that required of the
general practitioner.37
The standard of care is an objective standard by which the
conduct of a physician sued for negligence or malpractice
may be measured, and it does not depend, therefore, on any
individual physicians own knowledge either. In attempting
to fix a standard by which a court may determine whether
the physician has properly performed the requisite duty
toward the patient, expert medical testimony from both
plaintiff and defense experts is required. The judge, as the
trier of fact, ultimately determines the standard of care,
after listening to the testimony of all medical experts.38
Here, the Prosecution presented no witnesses with special
medical qualifications in anesthesia to provide guidance to
the trial court on what standard of care was applicable. It
would consequently be truly difficult, if not impossible, to
determine whether the first three elements of a negligence
and malpractice action were attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an

anesthesiologist himself who served as the Chairman of the
Committee on Ethics and Malpractice of the Philippine
Society of Anesthesiologists that investigated the complaint
against Dr. Solidum, his testimony mainly focused on how
his Committee had conducted the investigation.39 Even
then, the report of his Committee was favorable to Dr.
Solidum,40 to wit:
Presented for review by this committee is the case of a 3
year old male who underwent a pull-thru operation and was
administered general anesthesia by a team of anesthesia
residents. The patient, at the time when the surgeons was
manipulating the recto-sigmoid and pulling it down in
preparation for the anastomosis, had bradycardia. The
anesthesiologists, sensing that the cause thereof was the
triggering of the vago-vagal reflex, administered atropine to
block it but despite the administration of the drug in two
doses, cardiac arrest ensued. As the records show, prompt
resuscitative measures were administered and spontaneous
cardiac function re-established in less than five (5) minutes
and that oxygen was continuously being administered
throughout, unfortunately, as later become manifest, patient
suffered permanent irreversible brain damage.
In view of the actuations of the anaesthesiologists and the
administration of anaesthesia, the committee find that the
same were all in accordance with the universally accepted
standards of medical care and there is no evidence of any
fault or negligence on the part of the anaesthesiologists.
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the
National Bureau of Investigation, was also presented as a
Prosecution witness, but his testimony concentrated on the
results of the physical examination he had conducted on
Gerald, as borne out by the following portions of his direct
examination, to wit:
FISCAL CABARON Doctor, what do you mean by General
Anesthetic Agent?

WITNESS General Anesthetic Agent is a substance used in

the conduction of Anesthesia and in this case, halothane
was used as a sole anesthetic agent.
xxxx
Q Now under paragraph two of page 1 of your report you
mentioned that after one hour and 45 minutes after the
operation, the patient experienced a bradycardia or slowing
of heart rate, now as a doctor, would you be able to tell this
Honorable Court as to what cause of the slowing of heart
rate as to Gerald Gercayo?
WITNESS Well honestly sir, I cannot give you the reason why
there was a bradycardia of time because is some reason one
way or another that might caused bradycardia.
FISCAL CABARON What could be the possible reason?
A Well bradycardia can be caused by anesthetic agent itself
and that is a possibility, were talking about possibility here.
Q What other possibility do you have in mind, doctor?
A Well, because it was an operation, anything can happen
within that situation.
FISCAL CABARON Now, this representation would like to ask
you about the slowing of heart rate, now what is the
immediate cause of the slowing of the heart rate of a
person?
WITNESS Well, one of the more practical reason why there is
slowing of the heart rate is when you do a vagal reflex in the
neck wherein the vagal receptors are located at the lateral
part of the neck, when you press that, you produce the
slowing of the heart rate that produce bradycardia.

Q I am pro[p]ounding to you another question doctor, what

about the deficiency in the supply of oxygen by the patient,
would that also cause the slowing of the heart rate?

A 100% based on the records.

A Well that is a possibility sir, I mean not as slowing of the

heart rate, if there is a hypoxia or there is a low oxygen level
in the blood, the normal thing for the heart is to pump or to
do not a bradycardia but a to counter act the Hypoxia
that is being experienced by the patient

Q I will show you doctor a clinical record. I am a lawyer I am

not a doctor but will you kindly look at this and tell me
where is 100%, the word "one hundred" or 1-0-0, will you
kindly look at this Doctor, this Xerox copy if you can show to
this Honorable Court and even to this representation the
word "one hundred" or 1-0-0 and then call me.

(sic).

xxxx

xxxx

ATTY. COMIA Doctor tell this Honorable Court where is that

100, 1-0-0 and if there is, you just call me and even the
attention of the Presiding Judge of this Court. Okay, you read
one by one.

Q Now, you made mention also doctor that the use of

general anesthesia using 100% halothane and other
anesthetic medications probably were contributory to the
production of hypoxia.
A Yes, sir in general sir.41
On cross-examination, Dr. Vertido expounded more
specifically on his interpretation of the anesthesia record
and the factors that could have caused Gerald to experience
bradycardia, viz:
ATTY. COMIA I noticed in, may I see your report Doctor, page
3, will you kindly read to this Honorable court your last
paragraph and if you will affirm that as if it is correct?
A "The use of General Anesthesia, that is using 100%
Halothane probably will be contributory to the production of
Hypoxia and - - - -"
ATTY COMIA And do you affirm the figure you mentioned in
this Court Doctor?
WITNESS Based on the records, I know the - - Q 100%?

WITNESS Well, are you only asking 100%, sir?

ATTY. COMIA Im asking you, just answer my question, did
you see there 100% and 100 figures, tell me, yes or no?
WITNESS Im trying to look at the 100%, there is no 100%
there sir.
ATTY. COMIA Okay, that was good, so you Honor please, may
we request also temporarily, because this is just a xerox
copy presented by the fiscal, that the percentage here that
the Halothane administered by Dr. Solidum to the patient is
1% only so may we request that this portion, temporarily
your Honor, we are marking this anesthesia record as our
Exhibit 1 and then this 1% Halothane also be bracketed and
the same be marked as our Exhibit "1-A".
xxxx
ATTY. COMIA Doctor, my attention was called also when you
said that there are so many factors that contributed to
Hypoxia is that correct?

WITNESS Yes, sir.

Q I remember doctor, according to you there are so many
factors that contributed to what you call hypoxia and
according to you, when this Gerald suffered hypoxia, there
are other factors that might lead to this Hypoxia at the time
of this operation is that correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of such
other, some or it might be due to operations being
conducted by the doctor at the time when the operation is
being done might also contribute to that hypoxia is that
correct?
A That is a possibility also.
xxxx
ATTY. COMIA How will you classify now the operation
conducted to this Gerald, Doctor?
WITNESS Well, that is a major operation sir.
Q In other words, when you say major operation conducted
to this Gerald, there is a possibility that this Gerald might
[be] exposed to some risk is that correct?
A That is a possibility sir.
Q And which according to you that Gerald suffered hypoxia
is that correct?
A Yes, sir.
Q And that is one of the risk of that major operation is that
correct?
A That is the risk sir.42

At the continuation of his cross-examination, Dr. Vertido

maintained that Geralds operation for his imperforate anus,
considered a major operation, had exposed him to the risk
of suffering the same condition.43 He then corrected his
earlier finding that 100% halothane had been administered
on Gerald by saying that it should be 100% oxygen.44
Dr. Solidum was criminally charged for "failing to monitor
and regulate properly the levels of anesthesia administered
to said Gerald Albert Gercayo and using 100% halothane
and other anesthetic medications."45 However, the
foregoing circumstances, taken together, did not prove
beyond reasonable doubt that Dr. Solidum had been
recklessly imprudent in administering the anesthetic agent
to Gerald. Indeed, Dr. Vertidos findings did not preclude the
probability that other factors related to Geralds major
operation, which could or could not necessarily be attributed
to the administration of the anesthesia, had caused the
hypoxia and had then led Gerald to experience bradycardia.
Dr. Vertido revealingly concluded in his report, instead, that
"although the anesthesiologist followed the normal routine
and precautionary procedures, still hypoxia and its
corresponding side effects did occur."46
The existence of the probability about other factors causing
the hypoxia has engendered in the mind of the Court a
reasonable doubt as to Dr. Solidums guilt, and moves us to
acquit him of the crime of reckless imprudence resulting to
serious physical injuries. "A reasonable doubt of guilt,"
according to United States v. Youthsey:47
x x x is a doubt growing reasonably out of evidence or the
lack of it. It is not a captious doubt; not a doubt engendered
merely by sympathy for the unfortunate position of the
defendant, or a dislike to accept the responsibility of
convicting a fellow man. If, having weighed the evidence on
both sides, you reach the conclusion that the defendant is
guilty, to that degree of certainty as would lead you to act
on the faith of it in the most important and crucial affairs of

your life, you may properly convict him. Proof beyond

reasonable doubt is not proof to a mathematical
demonstration. It is not proof beyond the possibility of
mistake.
We have to clarify that the acquittal of Dr. Solidum would
not immediately exempt him from civil liability.1wphi1 But
we cannot now find and declare him civilly liable because
the circumstances that have been established here do not
present the factual and legal bases for validly doing so. His
acquittal did not derive only from reasonable doubt. There
was really no firm and competent showing how the injury to
Gerard had been caused. That meant that the manner of
administration of the anesthesia by Dr. Solidum was not
necessarily the cause of the hypoxia that caused the
bradycardia experienced by Gerard. Consequently, to
adjudge Dr. Solidum civilly liable would be to speculate on
the cause of the hypoxia. We are not allowed to do so, for
civil liability must not rest on speculation but on competent
evidence.
Liability of Ospital ng Maynila
Although the result now reached has resolved the issue of
civil liability, we have to address the unusual decree of the
RTC, as affirmed by the CA, of expressly holding Ospital ng
Maynila civilly liable jointly and severally with Dr. Solidum.
The decree was flawed in logic and in law.
In criminal prosecutions, the civil action for the recovery of
civil liability that is deemed instituted with the criminal
action refers only to that arising from the offense
charged.48 It is puzzling, therefore, how the RTC and the CA
could have adjudged Ospital ng Maynila jointly and severally
liable with Dr. Solidum for the damages despite the obvious
fact that Ospital ng Maynila, being an artificial entity, had
not been charged along with Dr. Solidum. The lower courts
thereby acted capriciously and whimsically, which rendered
their judgment against Ospital ng Maynila void as the

product of grave abuse of discretion amounting to lack of

jurisdiction.
Not surprisingly, the flawed decree raises other material
concerns that the RTC and the CA overlooked. We deem it
important, then, to express the following observations for
the instruction of the Bench and Bar.
For one, Ospital ng Maynila was not at all a party in the
proceedings. Hence, its fundamental right to be heard was
not respected from the outset. The R TC and the CA should
have been alert to this fundamental defect. Verily, no person
can be prejudiced by a ruling rendered in an action or
proceeding in which he was not made a party. Such a rule
would enforce the constitutional guarantee of due process of
law.
Moreover, Ospital ng Maynila could be held civilly liable only
when subsidiary liability would be properly enforceable
pursuant to Article 103 of the Revised Penal Code. But the
subsidiary liability seems far-fetched here. The conditions
for subsidiary liability to attach to Ospital ng Maynila should
first be complied with. Firstly, pursuant to Article 103 of the
Revised Penal Code, Ospital ng Maynila must be shown to be
a corporation "engaged in any kind of industry." The term
industry means any department or branch of art, occupation
or business, especially one that employs labor and capital,
and is engaged in industry.49 However, Ospital ng Maynila,
being a public hospital, was not engaged in industry
conducted for profit but purely in charitable and
humanitarian work.50 Secondly, assuming that Ospital ng
Maynila was engaged in industry for profit, Dr. Solidum must
be shown to be an employee of Ospital ng Maynila acting in
the discharge of his duties during the operation on Gerald.
Yet, he definitely was not such employee but a consultant of
the hospital. And, thirdly, assuming that civil liability was
adjudged against Dr. Solidum as an employee (which did not
happen here), the execution against him was unsatisfied
due to his being insolvent.

WHEREFORE, the Court GRANTS the petition for review on

certiorari; REVERSES AND SETS ASIDE the decision
promulgated on January 20, 2010; ACQUITS Dr. Fernando P.
Solidum of the crime of reckless imprudence resulting to
serious physical injuries; and MAKES no pronouncement on
costs of suit.
SO ORDERED.

CASTILLO V SALVADOR
Before us is a petition for review on certiorari which assails
the Decision1 dated February 11, 2010 of the Court of
Appeals (CA) in CA-G.R. CR No. 30151 with respect only to
the civil aspect of the case as respondent Phillip R. Salvador
had been acquitted of the crime of estafa. Respondent
Phillip Salvador and his brother Ramon Salvador were
charged with estafa under Article 315, paragraph 2 (a) of
the Revised Penal Code in an Information2 which reads:
That during the period from March 2001 up to May 2002, in
the City of Las Pias, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
conspiring and confederating together and both of them
mutually helping and aiding one another, with intent to gain
and by means of false pretenses or fraudulent acts executed
prior to or simultaneously with the commission of the fraud,
did then and there willfully, unlawfully and feloniously
defraud the complainant CRISTINA B. CASTILLO, in the
amount of US$100,000.00 in the following manner, to wit:
Respondents convinced the complainant to invest into the
remittance business in the name of accused PHILLIP R.
SALVADOR in Hongkong, representing to her that they will
personally take charge of the operations and marketing of
the said business, assuring her with huge profits because of
the popularity of accused PHILLIP R. SALVADOR, knowing
very well that the said manifestations/representations and
fraudulent manifestations were false and were intended only
to exact money from the Complainant, and by reason of the
said false representations made by both accused, the
Complainant gave and entrusted to the accused the amount
of US$100,000.00 as seed money to start the operations of
the business and the said accused, once in the possession of
the said amount of money, misappropriated, misapplied
and/or converted the same to their own personal use and
benefit, to the damage and prejudice of the Complainant in
the aforementioned amount of US$100,000.00.
CONTRARY TO LAW.3

Upon their arraignment, respondentand his brother Ramon

pleaded not guilty4 to the offense charged.
Trial on the merits thereafter ensued.
Petitioner Cristina B. Castillo testified that she is engaged in
real estate business, educational institution, boutique, and
trading business.5 She met respondent through a common
friend in December 2000 and became close since then.
Respondent had told her that his friends, Jinggoy Estrada
and Rudy Fernandez, were engaged in the freight and
remittance business and that Jinggoy even brought him
toHong Kong and Singapore to promote the former's
business.6 Petitioner eventually met respondents brother
and manager, Ramon Salvador, to whom she volunteered to
financially help respondent in his bid for the Vice-Mayoralty
race in Mandaluyong.7 It was also in the same meeting that
they talked about the matter of engaging in a freight and
remittance business.8 Respondent enticed petitioner to go
to Hong Kong to see for herself the viability of such business
and Ramon suggested to use respondents name to attract
the overseas contract workers.9
In March 2001, petitioner and her husband, together with
respondent and a certain Virgilio Calubaquib wentto Hong
Kong and they witnessed respondents popularity among the
Filipino domestic helpers.10 In April 2001, the same group,
with Ramon this time, went to Bangkok where respondents
popularity was again shown among the overseas Filipinos.11
In both instances, respondent promoted their prospective
business. In both trips, petitioner paid for all the
travelexpenses and even gave respondent US$10,000.00 as
pocket money for the Hong Kong trip and another
US$10,000.00 for the Bangkok trip.12 Her accountant
introduced her to a certain Roy Singun who is into the
freight and money remittance business.13 In August 2001,
respondent initiated a trip to Palau, to observe Singuns
business thereat to which petitioner acceded.14 Petitioner
paid for the travel expenses and even gaverespondent
US$20,000.00.15 In October 2001, she and respondent had

a training at Western Union at First World Center in Makati

City.16
As petitioner had deeply fallen in love with respondent and
since she trusted him very much as heeven acted as a
father to her children when her annulment was ongoing, she
agreed to embark on the remittance business. In December
2001, she, accompanied by her mother, Zenaida G. Bondoc
(Zenaida), and Ramon, went to Hong Kong and had the
Phillip Salvador Freight and Remittance International Limited
registered on December 27, 2001.17 A Memorandum of
Articles of Incorporation and a Certificate of Incorporation
were issued.18 They also rented an office space in
Tsimshatsui, Kowloon, Hong Kong which they registered as
their office address as a requirement for opening a business
in Hong Kong, thus, a Notification of Situation of Registered
Office was also issued.19 She agreed with respondent and
Ramon that any profit derived from the business would be
equally divided among them and thatrespondent would be
in charge of promotion and marketing in Hong Kong,while
Ramon would take charge of the operations of business in
the Philippines and she would be financing the business.20
The business has not operated yet as petitioner was still
raising the amount of US$100,000.00 as capital for the
actual operation.21 When petitioner already had the money,
she handed the same to respondent in May 2002 at her
mothers house in Las Pias City, which was witnessed by
her disabled half-brother Enrico B. Tan (Enrico).22 She also
gave respondent P100,000.00 in cash to begiven to Charlie
Chau, who is a resident of Hong Kong, as payment for the
heart-shaped earrings she bought from him while she was
there. Respondent and Ramon went to Hong Kong in May
2002. However, the proposed business never operated as
respondent only stayed in Hong Kongfor three days. When
she asked respondent about the money and the business,
the latter told her that the money was deposited in a
bank.23 However, upon further query, respondent confessed
that he used the money to pay for his other obligations.24
Since then, the US$100,000.00 was not returned at all.

On cross-examination, petitioner testified that she fell

deeply in love with respondent and was convinced thathe
truly loved her and intended to marry her once there would
beno more legal impediment;25 that she helped in financing
respondents campaign in the May 2001 elections.26 As she
loved respondent so much, she gave him monthly
allowances amounting to hundreds of thousands of pesos
because he had no work back then.27 She filed the
annulment case against her husband on November 21, 2001
and respondent promised her marriage.28 She claimed that
respondent and Ramon lured her with sweet words in going
into the freight and remittance business, which never
operated despite the money she had given respondent.29
She raised the US$100,000.00 by means of selling and
pawning her pieces of diamond jewelry.30
Petitioner admitted being blinded by her love for respondent
which made her follow all the advice given by him and his
brother Ramon, i.e., to save money for her and respondents
future because after the annulment, they would get married
and to give the capital for the remittance business in cash
so as not to jeopardize her annulment case.31 She did not
ask for a receipt for the US$100,000.00 she gave to
respondent as it was for the operational expenses of a
business which will be for their future, as all they needed to
do was to get married.32 She further testified that after the
US$100,000.00 was not returned, she still deposited the
amount of P500,000.00 in respondents UCPB bank
account33 and also to Ramons bank accounts.34 And while
respondent was in the United States in August 2003, she
still gave him US$2,000.00as evidenced by a Prudential
Telegraphic Transfer Application35 dated August 27, 2003.
Petitioners mother, Zenaida, corroborated her daughters
testimony that she was with her and Ramon when they went
to Hong Kong in December 2001 to register the freight and
remittance business.36 She heard Charlie Chau, her
daughter's friend, that a part of his office building will be
used for the said remittance business.37 Enrico Tan, also

corroborated her sister's claim that she handed the money

to respondent in his presence.38
Respondent testified that he and petitioner became close
friends and eventually fell in love and had an affair.39 They
traveled to Hong Kong and Bangkok where petitioner saw
how popular he was among the Filipino domestic helpers,40
which led her to suggest a remittance business. Although
hesitant, he has friends with such business.41 He denied
that petitioner gave him US$10,000.00 whenhe went to
Hong Kong and Bangkok.42 In July 2001, after he came back
from the United States, petitioner had asked him and his
brother Ramon for a meeting.43 During the meeting,
petitioner brought up the money remittance business, but
Ramon told her that they should make a study of it first.44
He was introduced to Roy Singun, owner of a money
remittance business in Pasay City.45 Upon the advise of Roy,
respondent and petitioner, her husband and Ramon went to
Palau in August 2001.46 He denied receiving US$20,000.00
from petitioner but admitted that it was petitioner who paid
for the plane tickets.47 After their Palau trip, they went into
training at Western Union at the First World Center in Makati
City.48 It was only in December 2001 that Ramon, petitioner
and her mother went to Hong Kong to register the business,
while he took care of petitioners children here.49 In May
2002, he and Ramon went back to Hong Kong but
deniedhaving received the amount of US$100,000.00 from
petitioner but then admitted receipt of the amount of
P100,000.00 which petitioner asked him to give to Charlie
Chau as payment for the pieces of diamond jewelry she got
from him,50 which Chau had duly acknowledged.51 He
denied Enricos testimony that petitioner gave him the
amount of US$100,000.00 in his mothers house.52 He
claimed that no remittance business was started in Hong
Kong as they had no license, equipment, personnel and
money to operate the same.53 Upon his return to the
Philippines, petitioner never asked him about the business
as she never gave him such amount.54 In October 2002, he
intimated that he and petitioner even went to Hong Kong
again to buy some goods for the latters boutique.55 He

admitted that he loved petitioner and her children very

much as there was a time when petitioners finances were
short, he gave her P600,000.00 for the enrollment of her
children in very expensive schools.56 It is also not true that
he and Ramon initiated the Hong Kong and Bangkok trips.57
Ramon testified that it was his brother respondent who
introduced petitioner to him.58 He learned of petitioners
plan of a remittance business in July 2001 and even told her
that they should study it first.59 He was introduced to Roy
Singun who operates a remittancebusiness in Pasay and
who suggested that their group observehis remittance
business in Palau. After their Palau trip, petitioner decided to
put up a similar business in Hong Kong and it was him who
suggested to use respondents name because of name
recall.60 It was decided thathe would manage the operation
in Manila and respondent would be in charge of promotion
and marketing in Hong Kong, while petitioner would be in
charge of all the business finances.61 He admitted that he
wentto Hong Kong with petitioner and her mother to register
said business and also to buy goods for petitioners
boutique.62 He said that it was also impossible for Chau to
offer a part of his office building for the remittance business
because there was no more space to accommodate it.63 He
and respondent went to Hong Kong in May 2002 to examine
the office recommended by Chau and the warehouse of
Rudy Fernandez thereatwho also offered to help.64 He then
told Chau that the remittance office should be in Central
Park, Kowloon, because majority of the Filipinos in Hong
Kong live there.65 He concluded that it was impossible for
the business to operate immediately because they had no
office, no personnel and no license permit.66 He further
claimed that petitioner never mentioned to him about the
US$100,000.00 she gave to respondent,67 and that he even
traveled again with petitioner to Bangkok in October 2002,
and in August 2003.68 He denied Enricos allegation that he
saw him at his mothers house as he only saw Enrico for the
first time in court.69

On April 21, 2006, the RTC rendered a Decision,70 the

dispositive portion of which reads: WHEREFORE, accused
PHILLIP SALVADOR is found GUILTY beyond reasonable doubt
of the crime ofEstafa under Article 315, par. 2 (a) of the
Revised Penal Code and is hereby sentenced to suffer the
indeterminate sentence of four (4) years, two (2) months
and one (1) day of prisyon (sic) correctional (sic)maximum
as minimum to twenty (20) years of reclusion temporal
maximumas maximum and to indemnify the private
complainant in the amount of ONE HUNDRED THOUSAND
DOLLARS (US$100,000.00) or its equivalent in Philippine
currency. With respect to accused RAMON SALVADOR, he is
ACQUITTED for insufficiency of evidence. SO ORDERED.71
Respondent appealed his conviction to the CA. The parties
filed their respective pleadings, after which, the case was
submitted for decision.
On February 11, 2010, the CA rendered its Decision
reversing the decision of the RTC, the decretal portion of
which reads:
WHEREFORE, premises considered, the appealed decision of
Branch 202 of the RTC of Las Pias City, dated April 21,
2006, is hereby REVERSED AND SET ASIDE and accused
appellant PHILLIP R. SALVADOR is ACQUITTED of the crime of
Estafa.72
Petitioner files the instant petition onthe civil aspect of the
case alleging that:
THE TRIAL COURT WAS CORRECT IN CONVICTING THE
RESPONDENT SO THAT EVEN IF THE COURT OF APPEALS
DECIDED TO ACQUIT HIM IT SHOULD HAVE AT LEAST
RETAINED THE AWARD OF DAMAGES TO THE PETITIONER.73
We find no merit in the petition.

To begin with, in Manantan v. CA,74 we discussed the

consequences of an acquittal on the civil liability of the
accused as follows:
Our law recognizes two kinds of acquittal, with different
effects on the civil liability of the accused. First is an
acquittal on the ground that the accused is not the author of
the actor omission complained of. This instance closes the
door to civil liability, for a person who has been found to be
not the perpetrator of any act or omission cannot and can
never be held liable for such act oromission. There being no
delict, civil liability ex delictois out of the question, and the
civil action, if any, which may be instituted must be based
on grounds other than the delict complained of. This is the
situation contemplated in Rule III of the Rules of Court. The
second instance is an acquittal based on reasonable doubt
on the guilt of the accused. In this case, even if the guilt of
the accused has not been satisfactorily established, he is
not exempt from civil liability which may be proved by
preponderance of evidence only. This is the situation
contemplated in Article 29 of the Civil Code, where the civil
action for damages is "for the same act or omission." x x
x.75
A reading of the CA decision would show that respondent
was acquitted because the prosecution failed to prove his
guilt beyond reasonable doubt. Said the CA:
The evidence for the prosecution being insufficient to prove
beyond reasonable doubt that the crime as charged had
been committed by appellant, the general presumption,
"that a person is innocent of the crime or wrong, stands in
his favor. The prosecution failed to prove that all the
elements of estafa are present in this case as would
overcome the presumption of innocence in favor of
appellant. For in fact, the prosecution's primary witness
herself could not even establish clearly and precisely how
appellant committed the alleged fraud. She failed to
convince us that she was deceived through
misrepresentations and/or insidious actions, in venturing

into a remittance business. Quite the contrary, the obtaining

circumstance inthis case indicate the weakness of her
submissions.76
Thus, since the acquittal is based on reasonable doubt,
respondent is not exempt from civil liability which may be
proved by preponderance of evidence only. In Encinas v.
National Bookstore, Inc.,77 we explained the concept of
preponderance of evidence as follows:
x x x Preponderance of evidence is the weight, credit, and
value of the aggregate evidence on either side and is
usually considered to be synonymous with the term "greater
weight of the evidence" or "greater weight of the credible
evidence." Preponderance of evidence is a phrase which, in
the last analysis, means probability of the truth. It is
evidence which is more convincing to the court as worthy of
belief than that which is offered in opposition thereto.78
The issue of whether petitioner gave respondent the amount
of US$100,000.00 is factual. While we are not a trier of
facts, there are instances, however, when we are called
upon to re-examine the factual findings of the trial court and
the Court of Appeals and weigh, after considering the
records of the case, which of the conflicting findings is more
in accord with law and justice.79 Such is the case before us.
In discrediting petitioners allegation that she gave
respondent US$100,000.00 in May 2002, the CA found that:
(1) petitioner failed to show how she was able to raise the
money in such a short period of time and even gave
conflicting versions on the source of the same; (2) petitioner
failed to require respondent to sign a receipt so she could
have a record of the transaction and offered no plausible
reason why the money was allegedly hand-carried toHong
Kong; (3) petitioners claim of trust as reason for not
requiring respondent to sign a receipt was inconsistent with
the way she conducted her previous transactions with him;
and (4) petitioners behavior after the alleged fraud

perpetrated against her was inconsistent with the actuation

ofsomeone who had been swindled.
We find no reversible error committed by the CA in its
findings.
Petitioner failed to prove on how she raised the money
allegedly given to respondent. She testified that from
December 2001 to May 2002, she was raising the amount of
US$100,000.00 as the capital for the actual operation of the
Phillip Salvador Freight and Remittance International Limited
in Hong Kong,80 and that she was ableto raise the same in
May 2002.81 She did so by selling82 or pawning83 her
pieces of diamond jewelry. However, there was no
documentary evidence showing those transactions within
the period mentioned. Upon further questioning on crossexamination on where she got the money, she then said
that she had plenty of dollars as she is a frequent traveler to
Hong Kong and Bangkok to shop for her boutique in
Glorietta and Star Mall.84 Such testimony contradicts her
claim that she was still raising the money for 5 months and
that she was only able to formally raise the money in May
2002.
There was also no receipt that indeed US$100,000.00 was
given by petitioner to respondent.1wphi1 Petitioner in her
testimony, both in the direct and cross examinations, said
that the US$100,000.00 given to respondent was for the
actual expenses for setting up the office and the operation
of the business in Hong Kong.85 She claimed that she
treated the freight and remittance business like any of her
businesses;86 that she, respondent, and the latters brother
even agreed to divide whatever profits they would have
from the business;87 and that giving US$100,000.00 to
respondent was purely business to her.88 She also said that
she kept records of all her business, such that, if there are
no records, there are no funds entrusted89 . Since petitioner
admitted that giving the money to respondent was for
business, there must be some records ofsuch transaction as
what she did in her other businesses.

In fact, it was not unusual for petitioner to ask respondent

for some documents evidencing the latter's receipt of
money for the purpose of business as this was done in her
previous business dealings with respondent. She had asked
respondent to execute a real estate mortgage on his
condominium unit90 for the P5 million she loaned him in
August 2001. Also, when petitioner gave respondent an
additional loan of P10 million in December 2001, for the
latter to redeem the title to his condominium unit from the
bank, she had asked him to sign an acknowledgment receipt
for the total amount of P15 million he got from her.91 She
had done all these despite her testimony that she trusted
respondent from the day they met in December 2000 until
the day he ran away from her in August 2003.92
Petitioner insists that she did not ask for any
acknowledgment receipt from respondent, because the
latter told her not to have traces that she was giving money
to him as it might jeopardize her then ongoing annulment
proceedings. However, petitioner's testimony would belie
such claim of respondent being cautious of the annulment
proceedings. She declared that when she and her husband
separated, respondent stood as a father to her children.93
Respondent attended school programs of her children,94
and fetched them from school whenever the driver was not
around.95 In fact, at the time the annulment case was
already pending, petitioner registered the freight and
remittance business under respondents name and the local
branch office of the business would be in petitioner's
condominium unit in Makati.96 Also, when petitioner went
with her mother and Ramon to Hong Kong to register the
business, it was respondent who tookcare of her children.
She intimated that it was respondent who was insistent in
going to their house.
Worthy to mention is that petitioner deposited the amount
of P500,000.00 to respondent's account with United Coconut
Planters Bank (UCPB) in July 2003.97 Also, when respondent
was in New York in August 2003, petitioner sent him the

amount of US$2,000.00 by telegraphic transfer.98

Petitioner's act ofdepositing money to respondent's account
contradicted her claim that there should be no traces that
she was giving money to respondent during the pendency of
the annulment case.
Petitioner conceded that she could have either bought a
manager's check in US dollars from the bank orsend the
money by bank transfer, but she did not do so on the claim
that there might be traces of the transaction.99 However,
the alleged US$100,000.00was supposed to be given to
respondent because of the freight and remittance business;
thus, there is nothing wrong to have a record of the same,
specially since respondent had to account for the valid
expenseshe incurred with the money.100
The testimony of Enrico, petitioner's brother, declaring that
he was present when petitioner gave respondent the
US$100,000.00 did not help. Enrico testified that when
petitioner filed the instant case in September 2004, another
case was also filed by petitioner against respondent and his
brother Ramon in the same City Prosecutor's office in Las
Pias where Enrico had submitted his affidavit. Enrico did
not submit an affidavit in this case even when he allegedly
witnessed the giving of the money to respondent as
petitioner told him that he could just testify for the other
case. However, when the other case was dismissed, it was
then that petitioner told him to be a witness in this case.
Enrico should have been considered at the first opportunity
if he indeed had personal knowledge of the alleged giving of
money to respondent. Thus, presenting Enrico as a witness
only after the other case was dismissed would create doubt
as to the veracity of his testimony.
WHEREFORE, the petition for review is DENIED. The Decision
dated February 11, 2010, of the Court of Appeals in CA-G.R.
CR No. 30151, is hereby AFFIRMED.
SO ORDERED.

LIM V KOU CO PING: SUSPENSION OF CIVIL ACTION

Is it forum shopping for a private complainant to pursue a
civil complaint for specific performance and damages, while
appealing the judgment on the civil aspect of a criminal
case for estafa?

WHEREFORE, in view of the foregoing, the instant petition is

DENIED. This case is REMANDED to the court of origin for
further proceedings.

Before the Court are consolidated Petitions for Review

assailing the separate Decisions of the Second and
Seventeenth Divisions of the Court of Appeals (CA) on the
above issue.

Factual Antecedents

Lily Lims (Lim) Petition for Review1 assails the October 20,
2005 Resolution2 of the Second Division in CA-G.R. CV No.
85138, which ruled on the above issue in the affirmative:
Due to the filing of the said civil complaint (Civil Case No.
5112396), Charlie Co filed the instant motion to dismiss [Lily
Lims] appeal, alleging that in filing said civil case, Lily Lim
violated the rule against forum shopping as the elements of
litis pendentia are present.
This Court agrees.3
xxxx
IN VIEW OF THE FOREGOING, the appeal is DISMISSED.
SO ORDERED.4
On the other hand, Charlie Cos (Co) Petition for Review5
assails the April 10, 2007 Decision6 of the Seventeenth
Division in CA-G.R. SP No. 93395 for ruling on the same
issue in the negative:
We find no grave abuse of discretion committed by
respondent judge. The elements of litis pendentia and
forum-shopping were not met in this case.7
xxxx

SO ORDERED.8

In February 1999, FR Cement Corporation (FRCC),

owner/operator of a cement manufacturing plant, issued
several withdrawal authorities9 for the account of cement
dealers and traders, Fil-Cement Center and Tigerbilt. These
withdrawal authorities state the number of bags that the
dealer/trader paid for and can withdraw from the plant. Each
withdrawal authority contained a provision that it is valid for
six months from its date of issuance, unless revoked by
FRCC Marketing Department.
Fil-Cement Center and Tigerbilt, through their administrative
manager, Gail Borja (Borja), sold the withdrawal authorities
covering 50,000 bags of cement to Co for the amount of P
3.15 million or P 63.00 per bag.10 On February 15, 1999, Co
sold these withdrawal authorities to Lim allegedly at the
price of P 64.00 per bag or a total of P 3.2 million.11
Using the withdrawal authorities, Lim withdrew the cement
bags from FRCC on a staggered basis. She successfully
withdrew 2,800 bags of cement, and sold back some of the
withdrawal authorities, covering 10,000 bags, to Co.
Sometime in April 1999, FRCC did not allow Lim to withdraw
the remaining 37,200 bags covered by the withdrawal
authorities. Lim clarified the matter with Co and Borja, who
explained that the plant implemented a price increase and
would only release the goods once Lim pays for the price
difference or agrees to receive a lesser quantity of cement.
Lim objected and maintained that the withdrawal authorities
she bought were not subject to price fluctuations. Lim
sought legal recourse after her demands for Co to resolve

the problem with the plant or for the return of her money
had failed.
The criminal case
An Information for Estafa through Misappropriation or
Conversion was filed against Co before Branch 154 of the
Regional Trial Court (RTC) of Pasig City. The accusatory
portion thereof reads:
On or about between the months of February and April
1999, in San Juan, Metro Manila and within the jurisdiction of
this Honorable Court, the accused, with intent to defraud
Lily Lim, with grave abuse of confidence, with
unfaithfulness, received in trust from Lily Lim cash money in
the amount of P 2,380,800.00 as payment for the 37,200
bags of cement, under obligation to deliver the 37,200 bags
of cement to said Lily Lim, but far from complying with his
obligation, misappropriated, misapplied and converted to his
own personal use and benefit the said amount of P
2,300,800.00 [sic] and despite demands, the accused failed
and refused to return said amount, to the damage and
prejudice of Lily Lim in the amount of P 2,380,800.00.
Contrary to Law.12

xxxx
In view of the absence of the essential requisites of the
crime of estafa for which the accused is being charged and
prosecuted, as above discussed, the Court has no
alternative but to dismiss the case against the accused for
insufficiency of evidence.15
WHEREFORE, in view of the foregoing, the Demurrer to
Evidence is GRANTED, and the accused is hereby
ACQUITTED of the crime of estafa charged against him
under the present information for insufficiency of evidence.
Insofar as the civil liability of the accused is concerned,
however, set this case for the reception of his evidence on
the matter on December 11, 2003 at 8:30 oclock [sic] in the
morning.
SO ORDERED.16
After the trial on the civil aspect of the criminal case, the
Pasig City RTC also relieved Co of civil liability to Lim in its
December 1, 2004 Order.17 The dispositive portion of the
Order reads as follows:

The private complainant, Lily Lim, participated in the

criminal proceedings to prove her damages. She prayed for
Co to return her money amounting to P 2,380,800.00,
foregone profits, and legal interest, and for an award of
moral and exemplary damages, as well as attorneys fees.13

WHEREFORE, premises considered, judgment is hereby

rendered holding the accused CHARLIE CO not civilly liable
to the private complainant Lily Lim.

On November 19, 2003, the RTC of Pasig City, Branch 154,

rendered its Order14 acquitting Co of the estafa charge for
insufficiency of evidence. The criminal courts Order reads:

Lim sought a reconsideration of the above Order, arguing

that she has presented preponderant evidence that Co
committed estafa against her.19

The first and second elements of the crime of estafa [with

abuse of confidence under Article 315, paragraph 1(b)] for
which the accused is being charged and prosecuted were
not established by the prosecutions evidence.

The trial court denied the motion in its Order20 dated

February 21, 2005.

SO ORDERED.18

On March 14, 2005, Lim filed her notice of appeal21 on the

civil aspect of the criminal case. Her appeal was docketed as
CA-G.R. CV No. 85138 and raffled to the Second Division of
the CA.
The civil action for specific performance
On April 19, 2005, Lim filed a complaint for specific
performance and damages before Branch 21 of the RTC of
Manila. The defendants in the civil case were Co and all
other parties to the withdrawal authorities, Tigerbilt, FilCement Center, FRCC, Southeast Asia Cement, and La Farge
Corporation. The complaint, docketed as Civil Case No. 05112396, asserted two causes of action: breach of contract
and abuse of rights. Her allegations read:
ALLEGATIONS COMMON
TO ALL CAUSES OF ACTION

25. That these Withdrawal Authorities are valid is

established by the fact that FR Cement earlier allowed Lily
Lim to withdraw 2,800 bags of cement on the basis thereof.
26. However, sometime 19 April 1999 (within the three (3)month period agreed upon by Charlie Co and Lily Lim and
certainly within the six (6)-month period indicated in the
Withdrawal Authorities issued by FR Cement Corp.), Lily Lim
attempted but failed to withdraw the remaining bags of
cement on account of FR Cements unjustified refusal to
honor the Withdrawal Authorities. x x x
xxxx
FIRST CAUSE OF ACTION:
BREACH OF CONTRACT

xxxx

30. Charlie Co committed and is therefore liable to deliver to

Lily Lim 37,200 bags of cement. If he cannot, then he must
pay her the current fair market value thereof.

23. Charlie Co obligated himself to deliver to Lily Lim 50,000

bags of cement of P 64.00 per bag on an x-plant basis within
3 months from the date of their transaction, i.e. February
15, 1999. Pursuant to said agreement, Lily Lim paid Charlie
Co P 3.2 Million while Charlie Co delivered to Lily Lim FR
Cement Withdrawal Authorities representing 50,000 bags of
cement.

31. FR Cement Corporation is also liable to deliver to Lily

Lim the amount of cement as indicated in the Withdrawal
Authorities it issued. xxx FR Cement Corporation has no
right to impose price adjustments as a qualification for
honoring the Withdrawal Authorities.

24. The withdrawal authorities issued by FR Cement Corp.

allowed the assignee or holder thereof to withdraw within a
six-month period from date a certain amount of cement
indicated therein. The Withdrawal Authorities given to Lily
Lim were dated either 3 February 1999 or 23 February 1999.
The Withdrawal Authorities were first issued to Tigerbilt and
Fil-Cement Center which in turn assigned them to Charlie
Co. Charlie Co then assigned the Withdrawal Authorities to
Lily Lim on February 15, 1999. Through these series of
assignments, Lily Lim acquired all the rights (rights to
withdraw cement) granted in said Withdrawal Authorities.

32. Fil-Cement Center, Tigerbilt and Gail Borja as the original

holders/ assignees of the Withdrawal Authorities repeatedly
assured Lily Lim that the same were valid and would be
honored. They are liable to make good on their assurances.
SECOND CAUSE OF ACTION:
ABUSE OF RIGHTS AND UNJUST ENRICHMENT
33. Charlie Cos acts of falsely representing to Lily Lim that
she may be able to withdraw the cement from FR Cement
Corp. caused Lily Lim to incur expenses and losses. Such act
was made without justice, without giving Lily Lim what is

due her and without observing honesty and good faith, all
violative of the law, more specifically Articles 19 and 20 of
the Civil Code. Such willful act was also made by Charlie Co
in a manner contrary to morals, good customs or public
policy, in violation of Article 21 of the Civil Code.
34. FR Cement Corporations unjust refusal to honor the
Withdrawal Authorities they issued also caused damage to
Lily Lim. Further, FR Cement Corporations act of withholding
the 37,200 bags of cement despite earning income therefor
constitutes as an unjust enrichment because FR Cement
Corporation acquired income through an act or performance
by another or any other means at the expense of another
without just or legal ground in violation of Article 22 of the
Civil Code.
35. Fil-Cement Center, Tigerbilt and Gail Borjas false
assurances that Lily Lim would be able to withdraw the
remaining 37,200 bags of cement caused Lily Lim to incur
expenses and losses. x x x Moreover, Fil-Cement Center
admitted receiving payment for said amount of cement,
thus they are deemed to have come into possession of
money at the expense of Lily Lim without just or legal
ground, in violation of Article 22 of the Civil Code.

In reaction to the filing of the civil complaint for specific

performance and damages, Co filed motions to dismiss the
said civil case24 and Lims appeal in the civil aspect of the
estafa case or CA-G.R. CV No. 85138.25 He maintained that
the two actions raise the same issue, which is Cos liability
to Lim for her inability to withdraw the bags of cement,26
and should be dismissed on the ground of lis pendens and
forum shopping.
Ruling of the Court of Appeals Second Division in CA-G.R CV
No. 85138
The appellate court (Second Division) favorably resolved
Cos motion and dismissed Lims appeal from the civil
aspect of the estafa case. In its Resolution dated October
20, 2005, the CA Second Division held that the parties,
causes of action, and reliefs prayed for in Lims appeal and
in her civil complaint are identical. Both actions seek the
same relief, which is the payment of the value of the 37,200
bags of cement.27 Thus, the CA Second Division dismissed
Lims appeal for forum shopping.28 The CA denied29 Lims
motion for reconsideration.30
Lim filed the instant petition for review, which was docketed
as G.R. No. 175256.

THIRD CAUSE OF ACTION:

MORAL AND EXEMPLARY DAMAGES and
ATTORNEYS FEES AND COSTS OF SUIT22

Ruling of the Manila Regional Trial Court in Civil Case No. 05112396

Lim prayed for Co to honor his contractual commitments

either by delivering the 37,200 bags of cement, making
arrangements with FRCC to allow Lim to withdraw the
cement, or to pay for their value. She likewise asked that
the defendants be held solidarily liable to her for the
damages she incurred in her failed attempts to withdraw the
cement and for the damages they inflicted on her as a result
of their abuse of their rights.23

Meanwhile, the Manila RTC denied Cos Motion to Dismiss in

an Order31 dated December 6, 2005. The Manila RTC held
that there was no forum shopping because the causes of
action invoked in the two cases are different. It observed
that the civil complaint before it is based on an obligation
arising from contract and quasi-delict, whereas the civil
liability involved in the appeal of the criminal case arose
from a felony.

Motions to dismiss both actions

Co filed a petition for certiorari,32 docketed as CA-G.R. SP

No. 93395, before the appellate court. He prayed for the

nullification of the Manila RTCs Order in Civil Case No. 05112396 for having been issued with grave abuse of
discretion.33
Ruling of the Court of Appeals Seventeenth Division in CAG.R. SP No. 93395
The CA Seventeenth Division denied Cos petition and
remanded the civil complaint to the trial court for further
proceedings. The CA Seventeenth Division agreed with the
Manila RTC that the elements of litis pendentia and forum
shopping are not met in the two proceedings because they
do not share the same cause of action.34
The CA denied35 Cos motion for reconsideration.36
Co filed the instant Petition for Review, which was docketed
as G.R. No. 179160.
Upon Cos motion,37 the Court resolved to consolidate the
two petitions.38
Kou Co Pings arguments
Co maintains that Lim is guilty of forum shopping because
she is asserting only one cause of action in CA-G.R. CV No.
85138 (the appeal from the civil aspect of Criminal Case No.
116377) and in Civil Case No. 05-112396, which is for Cos
violation of her right to receive 37,200 bags of cement.
Likewise, the reliefs sought in both cases are the same, that
is, for Co to deliver the 37,200 bags of cement or its value to
Lim. That Lim utilized different methods of presenting her
case a criminal action for estafa and a civil complaint for
specific performance and damages should not detract from
the fact that she is attempting to litigate the same cause of
action twice.39
Co makes light of the distinction between civil liability ex
contractu and ex delicto. According to him, granting that the
two civil liabilities are independent of each other,

nevertheless, the two cases arising from them would have

to be decided using the same evidence and going over the
same set of facts. Thus, any judgment rendered in one of
these cases will constitute res judicata on the other.40
In G.R. No. 179160, Co prays for the annulment of the CA
Decision and Resolution in CA-G.R. SP No. 93395, for a
declaration that Lim is guilty of forum shopping, and for the
dismissal of Civil Case No. 05-112396.41
In G.R. No. 175256, Co prays for the affirmation of the CA
Decision in CA-G.R. CV No. 85138 (which dismissed Lims
appeal from the trial courts decision in Criminal Case No.
116377).42
Lily Lims arguments
Lim admits that the two proceedings involve substantially
the same set of facts because they arose from only one
transaction.43 She is quick to add, however, that a single
act or omission does not always make a single cause of
action.44 It can possibly give rise to two separate civil
liabilities on the part of the offender (1) ex delicto or civil
liability arising from crimes, and (2) independent civil
liabilities or those arising from contracts or intentional torts.
The only caveat provided in Article 2177 of the Civil Code is
that the offended party cannot recover damages twice for
the same act or omission.45 Because the law allows her two
independent causes of action, Lim contends that it is not
forum shopping to pursue them.46
She then explains the separate and distinct causes of action
involved in the two cases. Her cause of action in CA-G.R CV
No. 85138 is based on the crime of estafa. Co violated Lims
right to be protected against swindling. He represented to
Lim that she can withdraw 37,200 bags of cement using the
authorities she bought from him. This is a fraudulent
representation because Co knew, at the time that they
entered into the contract, that he could not deliver what he
promised.47 On the other hand, Lims cause of action in

Civil Case No. 05-112396 is based on contract. Co violated

Lims rights as a buyer in a contract of sale. Co received
payment for the 37,200 bags of cement but did not deliver
the goods that were the subject of the sale.48
In G.R. No. 179160, Lim prays for the denial of Cos
petition.49 In G.R. No. 175256, she prays for the reversal of
the CA Decision in CA-G.R. CV No. 85138, for a declaration
that she is not guilty of forum shopping, and for the
reinstatement of her appeal in Criminal Case No. 116377 to
the CA.50
Issue
Did Lim commit forum shopping in filing the civil case for
specific performance and damages during the pendency of
her appeal on the civil aspect of the criminal case for
estafa?
Our Ruling
A single act or omission that causes damage to an offended
party may give rise to two separate civil liabilities on the
part of the offender51 - (1) civil liability ex delicto, that is,
civil liability arising from the criminal offense under Article
100 of the Revised Penal Code,52 and (2) independent civil
liability, that is, civil liability that may be pursued
independently of the criminal proceedings. The independent
civil liability may be based on "an obligation not arising from
the act or omission complained of as a felony," as provided
in Article 31 of the Civil Code (such as for breach of contract
or for tort53). It may also be based on an act or omission
that may constitute felony but, nevertheless, treated
independently from the criminal action by specific provision
of Article 33 of the Civil Code ("in cases of defamation, fraud
and physical injuries").
The civil liability arising from the offense or ex delicto is
based on the acts or omissions that constitute the criminal
offense; hence, its trial is inherently intertwined with the

criminal action. For this reason, the civil liability ex delicto is

impliedly instituted with the criminal offense.54 If the action
for the civil liability ex delicto is instituted prior to or
subsequent to the filing of the criminal action, its
proceedings are suspended until the final outcome of the
criminal action.55 The civil liability based on delict is
extinguished when the court hearing the criminal action
declares that "the act or omission from which the civil
liability may arise did not exist."56
On the other hand, the independent civil liabilities are
separate from the criminal action and may be pursued
independently, as provided in Articles 31 and 33 of the Civil
Code, which state that:
ART. 31. When the civil action is based on an obligation not
arising from the act or omission complained of as a felony,
such civil action may proceed independently of the criminal
proceedings and regardless of the result of the latter.
(Emphasis supplied.)
ART. 33. In cases of defamation, fraud, and physical injuries
a civil action for damages, entirely separate and distinct
from the criminal action, may be brought by the injured
party. Such civil action shall proceed independently of the
criminal prosecution, and shall require only a preponderance
of evidence. (Emphasis supplied.)
Because of the distinct and independent nature of the two
kinds of civil liabilities, jurisprudence holds that the offended
party may pursue the two types of civil liabilities
simultaneously or cumulatively, without offending the rules
on forum shopping, litis pendentia, or res judicata.57 As
explained in Cancio, Jr. v. Isip:58
One of the elements of res judicata is identity of causes of
action. In the instant case, it must be stressed that the
action filed by petitioner is an independent civil action,
which remains separate and distinct from any criminal
prosecution based on the same act. Not being deemed

instituted in the criminal action based on culpa criminal, a

ruling on the culpability of the offender will have no bearing
on said independent civil action based on an entirely
different cause of action, i.e., culpa contractual.
In the same vein, the filing of the collection case after the
dismissal of the estafa cases against the offender did not
amount to forum-shopping. The essence of forum shopping
is the filing of multiple suits involving the same parties for
the same cause of action, either simultaneously or
successively, to secure a favorable judgment. Although the
cases filed by [the offended party] arose from the same act
or omission of [the offender], they are, however, based on
different causes of action. The criminal cases for estafa are
based on culpa criminal while the civil action for collection is
anchored on culpa contractual. Moreover, there can be no
forum-shopping in the instant case because the law
expressly allows the filing of a separate civil action which
can proceed independently of the criminal action.59
Since civil liabilities arising from felonies and those arising
from other sources of obligations are authorized by law to
proceed independently of each other, the resolution of the
present issue hinges on whether the two cases herein
involve different kinds of civil obligations such that they can
proceed independently of each other. The answer is in the
affirmative.
The first action is clearly a civil action ex delicto, it having
been instituted together with the criminal action.60
On the other hand, the second action, judging by the
allegations contained in the complaint,61 is a civil action
arising from a contractual obligation and for tortious
conduct (abuse of rights). In her civil complaint, Lim
basically alleges that she entered into a sale contract with
Co under the following terms: that she bought 37,200 bags
of cement at the rate of P 64.00 per bag from Co; that, after
full payment, Co delivered to her the withdrawal authorities
issued by FRCC corresponding to these bags of cement; that

these withdrawal authorities will be honored by FRCC for six

months from the dates written thereon. Lim then maintains
that the defendants breached their contractual obligations
to her under the sale contract and under the withdrawal
authorities; that Co and his co-defendants wanted her to
pay more for each bag of cement, contrary to their
agreement to fix the price at P 64.00 per bag and to the
wording of the withdrawal authorities; that FRCC did not
honor the terms of the withdrawal authorities it issued; and
that Co did not comply with his obligation under the sale
contract to deliver the 37,200 bags of cement to Lim. From
the foregoing allegations, it is evident that Lim seeks to
enforce the defendants contractual obligations, given that
she has already performed her obligations. She prays that
the defendants either honor their part of the contract or pay
for the damages that their breach has caused her.
Lim also includes allegations that the actions of the
defendants were committed in such manner as to cause
damage to Lim without regard for morals, good customs and
public policy. These allegations, if proven, would constitute
tortious conduct (abuse of rights under the Human Relations
provisions of the Civil Code).
Thus, Civil Case No. 05-112396 involves only the obligations
arising from contract and from tort, whereas the appeal in
the estafa case involves only the civil obligations of Co
arising from the offense charged. They present different
causes of action, which under the law, are considered
"separate, distinct, and independent"62 from each other.
Both cases can proceed to their final adjudication, subject to
the prohibition on double recovery under Article 2177 of the
Civil Code.63
WHEREFORE, premises considered, Lily Lims Petition in G.R.
No. 175256 is GRANTED. The assailed October 20, 2005
Resolution of the Second Division of the Court of Appeals in
CA-G.R. CV No. 85138 is REVERSED and SET ASIDE. Lily
Lims appeal in CA-G.R. CV No. 85138 is ordered

REINSTATED and the Court of Appeals is DIRECTED to

RESOLVE the same with DELIBERATE DISPATCH.
Charlie Cos Petition G.R. No. 179160 is DENIED. The
assailed April 10, 2007 Decision of the Seventeenth Division
of the Court of Appeals in CA-G.R. SP No. 93395 is AFFIRMED
in toto.

CASUPANAN V LAROYA
Two vehicles, one driven by respondent Mario Llavore Laroya
(Laroya for brevity) and the other owned by petitioner
Roberto Capitulo (Capitulo for brevity) and driven by
petitioner Avelino Casupanan (Casupanan for brevity),
figured in an accident. As a result, two cases were filed with
the Municipal Circuit Trial Court (MCTC for brevity) of Capas,
Tarlac. Laroya filed a criminal case against Casupanan for
reckless imprudence resulting in damage to property,
docketed as Criminal Case No. 002-99. On the other hand,
Casupanan and Capitulo filed a civil case against Laroya for
quasi-delict, docketed as Civil Case No. 2089.

erred in dismissing the civil case, such error is a pure error

of judgment and not an abuse of discretion.

When the civil case was filed, the criminal case was then at
its preliminary investigation stage. Laroya, defendant in the
civil case, filed a motion to dismiss the civil case on the
ground of forum-shopping considering the pendency of the
criminal case. The MCTC granted the motion in the Order of
March 26, 1999 and dismissed the civil case.

In a certain vehicular accident involving two parties, each

one of them may think and believe that the accident was
caused by the fault of the other. x x x [T]he first party,
believing himself to be the aggrieved party, opted to file a
criminal case for reckless imprudence against the second
party. On the other hand, the second party, together with his
operator, believing themselves to be the real aggrieved
parties, opted in turn to file a civil case for quasi-delict
against the first party who is the very private complainant in
the criminal case.[4]

On Motion for Reconsideration, Casupanan and Capitulo

insisted that the civil case is a separate civil action which
can proceed independently of the criminal case. The MCTC
denied the motion for reconsideration in the Order of May 7,
1999. Casupanan and Capitulo filed a petition for certiorari
under Rule 65 before the Regional Trial Court (Capas RTC for
brevity) of Capas, Tarlac, Branch 66,[3] assailing the MCTCs
Order of dismissal.
The Trial Courts Ruling
The Capas RTC rendered judgment on December 28, 1999
dismissing the petition for certiorari for lack of merit. The
Capas RTC ruled that the order of dismissal issued by the
MCTC is a final order which disposes of the case and
therefore the proper remedy should have been an appeal.
The Capas RTC further held that a special civil action for
certiorari is not a substitute for a lost appeal. Finally, the
Capas RTC declared that even on the premise that the MCTC

Casupanan and Capitulo filed a Motion for Reconsideration

but the Capas RTC denied the same in the Resolution of
August 24, 2000.
Hence, this petition.
The Issue
The petition premises the legal issue in this wise:

Thus, the issue raised is whether an accused in a pending

criminal case for reckless imprudence can validly file,
simultaneously and independently, a separate civil action
for quasi-delict against the private complainant in the
criminal case.
The Courts Ruling
Casupanan and Capitulo assert that Civil Case No. 2089,
which the MCTC dismissed on the ground of forum-shopping,
constitutes a counterclaim in the criminal case. Casupanan
and Capitulo argue that if the accused in a criminal case has
a counterclaim against the private complainant, he may file
the counterclaim in a separate civil action at the proper
time. They contend that an action on quasi-delict is different
from an action resulting from the crime of reckless

imprudence, and an accused in a criminal case can be an

aggrieved party in a civil case arising from the same
incident. They maintain that under Articles 31 and 2176 of
the Civil Code, the civil case can proceed independently of
the criminal action. Finally, they point out that Casupanan
was not the only one who filed the independent civil action
based on quasi-delict but also Capitulo, the owner-operator
of the vehicle, who was not a party in the criminal case.

65. Section 1 of Rule 41 expressly states that where the

judgment or final order is not appealable, the aggrieved
party may file an appropriate special civil action under Rule
65. Clearly, the Capas RTCs order dismissing the petition for
certiorari, on the ground that the proper remedy is an
ordinary appeal, is erroneous.

In his Comment, Laroya claims that the petition is fatally

defective as it does not state the real antecedents. Laroya
further alleges that Casupanan and Capitulo forfeited their
right to question the order of dismissal when they failed to
avail of the proper remedy of appeal. Laroya argues that
there is no question of law to be resolved as the order of
dismissal is already final and a petition for certiorari is not a
substitute for a lapsed appeal.

The essence of forum-shopping is the filing of multiple suits

involving the same parties for the same cause of action,
either simultaneously or successively, to secure a favorable
judgment.[8] Forum-shopping is present when in the two or
more cases pending, there is identity of parties, rights of
action and reliefs sought.[9] However, there is no forumshopping in the instant case because the law and the rules
expressly allow the filing of a separate civil action which can
proceed independently of the criminal action.

In their Reply, Casupanan and Capitulo contend that the

petition raises the legal question of whether there is forumshopping since they filed only one action - the independent
civil action for quasi-delict against Laroya.
Nature of the Order of Dismissal
The MCTC dismissed the civil action for quasi-delict on the
ground of forum-shopping under Supreme Court
Administrative Circular No. 04-94. The MCTC did not state in
its order of dismissal[5] that the dismissal was with
prejudice. Under the Administrative Circular, the order of
dismissal is without prejudice to refiling the complaint,
unless the order of dismissal expressly states it is with
prejudice.[6] Absent a declaration that the dismissal is with
prejudice, the same is deemed without prejudice. Thus, the
MCTCs dismissal, being silent on the matter, is a dismissal
without prejudice.
Section 1 of Rule 41[7] provides that an order dismissing an
action without prejudice is not appealable. The remedy of
the aggrieved party is to file a special civil action under Rule

Forum-Shopping

Laroya filed the criminal case for reckless imprudence

resulting in damage to property based on the Revised Penal
Code while Casupanan and Capitulo filed the civil action for
damages based on Article 2176 of the Civil Code. Although
these two actions arose from the same act or omission, they
have different causes of action. The criminal case is based
on culpa criminal punishable under the Revised Penal Code
while the civil case is based on culpa aquiliana actionable
under Articles 2176 and 2177 of the Civil Code. These
articles on culpa aquiliana read:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of
this Chapter.
Art. 2177. Responsibility for fault or negligence under the
preceding article is entirely separate and distinct from the
civil liability arising from negligence under the Penal Code.

But the plaintiff cannot recover damages twice for the same
act or omission of the defendant.

and the recovery of damages for violation of Articles 32, 33

and 34 of the Civil Code on Human Relations.

Any aggrieved person can invoke these articles provided he

proves, by preponderance of evidence, that he has suffered
damage because of the fault or negligence of another. Either
the private complainant or the accused can file a separate
civil action under these articles. There is nothing in the law
or rules that state only the private complainant in a criminal
case may invoke these articles.

Thus, to file a separate and independent civil action for

quasi-delict under the 1985 Rules, the offended party had to
reserve in the criminal action the right to bring such action.
Otherwise, such civil action was deemed impliedly instituted
in the criminal action. Section 1, Rule 111 of the 1985 Rules
provided as follows:

Moreover, paragraph 6, Section 1, Rule 111 of the 2000

Rules on Criminal Procedure (2000 Rules for brevity)
expressly requires the accused to litigate his counterclaim in
a separate civil action, to wit:
SECTION 1. Institution of criminal and civil actions. (a) x x x.
No counterclaim, cross-claim or third-party complaint may
be filed by the accused in the criminal case, but any cause
of action which could have been the subject thereof may be
litigated in a separate civil action. (Emphasis supplied)
Since the present Rules require the accused in a criminal
action to file his counterclaim in a separate civil action,
there can be no forum-shopping if the accused files such
separate civil action.
Filing of a separate civil action
Section 1, Rule 111 of the 1985 Rules on Criminal Procedure
(1985 Rules for brevity), as amended in 1988, allowed the
filing of a separate civil action independently of the criminal
action provided the offended party reserved the right to file
such civil action. Unless the offended party reserved the civil
action before the presentation of the evidence for the
prosecution, all civil actions arising from the same act or
omission were deemed impliedly instituted in the criminal
case. These civil actions referred to the recovery of civil
liability ex-delicto, the recovery of damages for quasi-delict,

Section 1. Institution of criminal and civil actions. When a

criminal action is instituted, the civil action for the recovery
of civil liability is impliedly instituted with the criminal
action, unless the offended party waives the action,
reserves his right to institute it separately, or institutes the
civil action prior to the criminal action.
Such civil action includes recovery of indemnity under the
Revised Penal Code, and damages under Articles 32, 33, 34
and 2176 of the Civil Code of the Philippines arising from the
same act or omission of the accused.
A waiver of any of the civil actions extinguishes the others.
The institution of, or the reservation of the right to file, any
of said civil actions separately waives the others.
The reservation of the right to institute the separate civil
actions shall be made before the prosecution starts to
present its evidence and under circumstances affording the
offended party a reasonable opportunity to make such
reservation.
In no case may the offended party recover damages twice
for the same act or omission of the accused.
x x x. (Emphasis supplied)
Section 1, Rule 111 of the 1985 Rules was amended on
December 1, 2000 and now provides as follows:

SECTION 1. Institution of criminal and civil actions. (a) When

a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense charged
shall be deemed instituted with the criminal action unless
the offended party waives the civil action, reserves the right
to institute it separately or institutes the civil action prior to
the criminal action.

Code are separate, distinct and independent of the civil

action deemed instituted in the criminal action.[10]

xxx

Under the present Rule 111, the offended party is still given
the option to file a separate civil action to recover civil
liability ex-delicto by reserving such right in the criminal
action before the prosecution presents its evidence. Also,
the offended party is deemed to make such reservation if he
files a separate civil action before filing the criminal action.
If the civil action to recover civil liability ex-delicto is filed
separately but its trial has not yet commenced, the civil
action may be consolidated with the criminal action. The
consolidation under this Rule does not apply to separate civil
actions arising from the same act or omission filed under
Articles 32, 33, 34 and 2176 of the Civil Code.[11]

(b) x x x

Suspension of the Separate Civil Action

Where the civil action has been filed separately and trial
thereof has not yet commenced, it may be consolidated with
the criminal action upon application with the court trying the
latter case. If the application is granted, the trial of both
actions shall proceed in accordance with section 2 of this
rule governing consolidation of the civil and criminal actions.
(Emphasis supplied)

Under Section 2, Rule 111 of the amended 1985 Rules, a

separate civil action, if reserved in the criminal action, could
not be filed until after final judgment was rendered in the
criminal action. If the separate civil action was filed before
the commencement of the criminal action, the civil action, if
still pending, was suspended upon the filing of the criminal
action until final judgment was rendered in the criminal
action. This rule applied only to the separate civil action
filed to recover liability ex-delicto. The rule did not apply to
independent civil actions based on Articles 32, 33, 34 and
2176 of the Civil Code, which could proceed independently
regardless of the filing of the criminal action.

The reservation of the right to institute separately the civil

action shall be made before the prosecution starts
presenting its evidence and under circumstances affording
the offended party a reasonable opportunity to make such
reservation.

Under Section 1 of the present Rule 111, what is deemed

instituted with the criminal action is only the action to
recover civil liability arising from the crime or ex-delicto. All
the other civil actions under Articles 32, 33, 34 and 2176 of
the Civil Code are no longer deemed instituted, and may be
filed separately and prosecuted independently even without
any reservation in the criminal action. The failure to make a
reservation in the criminal action is not a waiver of the right
to file a separate and independent civil action based on
these articles of the Civil Code. The prescriptive period on
the civil actions based on these articles of the Civil Code
continues to run even with the filing of the criminal action.
Verily, the civil actions based on these articles of the Civil

The amended provision of Section 2, Rule 111 of the 2000

Rules continues this procedure, to wit:
SEC. 2. When separate civil action is suspended. After the
criminal action has been commenced, the separate civil
action arising therefrom cannot be instituted until final
judgment has been entered in the criminal action.

If the criminal action is filed after the said civil action has
already been instituted, the latter shall be suspended in
whatever stage it may be found before judgment on the
merits. The suspension shall last until final judgment is
rendered in the criminal action. Nevertheless, before
judgment on the merits is rendered in the civil action, the
same may, upon motion of the offended party, be
consolidated with the criminal action in the court trying the
criminal action. In case of consolidation, the evidence
already adduced in the civil action shall be deemed
automatically reproduced in the criminal action without
prejudice to the right of the prosecution to cross-examine
the witnesses presented by the offended party in the
criminal case and of the parties to present additional
evidence. The consolidated criminal and civil actions shall
be tried and decided jointly.
During the pendency of the criminal action, the running of
the period of prescription of the civil action which cannot be
instituted separately or whose proceeding has been
suspended shall be tolled.
x x x. (Emphasis supplied)
Thus, Section 2, Rule 111 of the present Rules did not
change the rule that the separate civil action, filed to
recover damages ex-delicto, is suspended upon the filing of
the criminal action. Section 2 of the present Rule 111 also
prohibits the filing, after commencement of the criminal
action, of a separate civil action to recover damages exdelicto.
When civil action may proceed independently
The crucial question now is whether Casupanan and
Capitulo, who are not the offended parties in the criminal
case, can file a separate civil action against the offended
party in the criminal case. Section 3, Rule 111 of the 2000
Rules provides as follows:

SEC 3. When civil action may proceed independently. - In the

cases provided in Articles 32, 33, 34 and 2176 of the Civil
Code of the Philippines, the independent civil action may be
brought by the offended party. It shall proceed
independently of the criminal action and shall require only a
preponderance of evidence. In no case, however, may the
offended party recover damages twice for the same act or
omission charged in the criminal action. (Emphasis supplied)
Section 3 of the present Rule 111, like its counterpart in the
amended 1985 Rules, expressly allows the offended party to
bring an independent civil action under Articles 32, 33, 34
and 2176 of the Civil Code. As stated in Section 3 of the
present Rule 111, this civil action shall proceed
independently of the criminal action and shall require only a
preponderance of evidence. In no case, however, may the
offended party recover damages twice for the same act or
omission charged in the criminal action.
There is no question that the offended party in the criminal
action can file an independent civil action for quasi-delict
against the accused. Section 3 of the present Rule 111
expressly states that the offended party may bring such an
action but the offended party may not recover damages
twice for the same act or omission charged in the criminal
action. Clearly, Section 3 of Rule 111 refers to the offended
party in the criminal action, not to the accused.
Casupanan and Capitulo, however, invoke the ruling in
Cabaero vs. Cantos[12] where the Court held that the
accused therein could validly institute a separate civil action
for quasi-delict against the private complainant in the
criminal case. In Cabaero, the accused in the criminal case
filed his Answer with Counterclaim for malicious prosecution.
At that time the Court noted the absence of clear-cut rules
governing the prosecution on impliedly instituted civil
actions and the necessary consequences and implications
thereof. Thus, the Court ruled that the trial court should
confine itself to the criminal aspect of the case and

disregard any counterclaim for civil liability. The Court

further ruled that the accused may file a separate civil case
against the offended party after the criminal case is
terminated and/or in accordance with the new Rules which
may be promulgated. The Court explained that a crossclaim, counterclaim or third-party complaint on the civil
aspect will only unnecessarily complicate the proceedings
and delay the resolution of the criminal case.
Paragraph 6, Section 1 of the present Rule 111 was
incorporated in the 2000 Rules precisely to address the
lacuna mentioned in Cabaero. Under this provision, the
accused is barred from filing a counterclaim, cross-claim or
third-party complaint in the criminal case. However, the
same provision states that any cause of action which could
have been the subject (of the counterclaim, cross-claim or
third-party complaint) may be litigated in a separate civil
action. The present Rule 111 mandates the accused to file
his counterclaim in a separate civil action which shall
proceed independently of the criminal action, even as the
civil action of the offended party is litigated in the criminal
action.
Conclusion
Under Section 1 of the present Rule 111, the independent
civil action in Articles 32, 33, 34 and 2176 of the Civil Code
is not deemed instituted with the criminal action but may be
filed separately by the offended party even without
reservation. The commencement of the criminal action does
not suspend the prosecution of the independent civil action
under these articles of the Civil Code. The suspension in
Section 2 of the present Rule 111 refers only to the civil
action arising from the crime, if such civil action is reserved
or filed before the commencement of the criminal action.
Thus, the offended party can file two separate suits for the
same act or omission. The first a criminal case where the
civil action to recover civil liability ex-delicto is deemed
instituted, and the other a civil case for quasi-delict -

without violating the rule on non-forum shopping. The two

cases can proceed simultaneously and independently of
each other. The commencement or prosecution of the
criminal action will not suspend the civil action for quasidelict. The only limitation is that the offended party cannot
recover damages twice for the same act or omission of the
defendant. In most cases, the offended party will have no
reason to file a second civil action since he cannot recover
damages twice for the same act or omission of the accused.
In some instances, the accused may be insolvent,
necessitating the filing of another case against his employer
or guardians.
Similarly, the accused can file a civil action for quasi-delict
for the same act or omission he is accused of in the criminal
case. This is expressly allowed in paragraph 6, Section 1 of
the present Rule 111 which states that the counterclaim of
the accused may be litigated in a separate civil action. This
is only fair for two reasons. First, the accused is prohibited
from setting up any counterclaim in the civil aspect that is
deemed instituted in the criminal case. The accused is
therefore forced to litigate separately his counterclaim
against the offended party. If the accused does not file a
separate civil action for quasi-delict, the prescriptive period
may set in since the period continues to run until the civil
action for quasi-delict is filed.
Second, the accused, who is presumed innocent, has a right
to invoke Article 2177 of the Civil Code, in the same way
that the offended party can avail of this remedy which is
independent of the criminal action. To disallow the accused
from filing a separate civil action for quasi-delict, while
refusing to recognize his counterclaim in the criminal case,
is to deny him due process of law, access to the courts, and
equal protection of the law.
Thus, the civil action based on quasi-delict filed separately
by Casupanan and Capitulo is proper. The order of dismissal
by the MCTC of Civil Case No. 2089 on the ground of forumshopping is erroneous.

We make this ruling aware of the possibility that the

decision of the trial court in the criminal case may vary with
the decision of the trial court in the independent civil action.
This possibility has always been recognized ever since the
Civil Code introduced in 1950 the concept of an independent
civil action under Articles 32, 33, 34 and 2176 of the Code.
But the law itself, in Article 31 of the Code, expressly
provides that the independent civil action may proceed
independently of the criminal proceedings and regardless of
the result of the latter. In Azucena vs. Potenciano,[13] the
Court declared:
x x x. There can indeed be no other logical conclusion than
this, for to subordinate the civil action contemplated in the
said articles to the result of the criminal prosecution
whether it be conviction or acquittal would render
meaningless the independent character of the civil action
and the clear injunction in Article 31 that this action 'may
proceed independently of the criminal proceedings and
regardless of the result of the latter.
More than half a century has passed since the Civil Code
introduced the concept of a civil action separate and
independent from the criminal action although arising from
the same act or omission. The Court, however, has yet to
encounter a case of conflicting and irreconcilable decisions
of trial courts, one hearing the criminal case and the other
the civil action for quasi-delict. The fear of conflicting and
irreconcilable decisions may be more apparent than real. In
any event, there are sufficient remedies under the Rules of
Court to deal with such remote possibilities.
One final point. The Revised Rules on Criminal Procedure
took effect on December 1, 2000 while the MCTC issued the
order of dismissal on December 28, 1999 or before the
amendment of the rules. The Revised Rules on Criminal
Procedure must be given retroactive effect considering the
well-settled rule that -

x x x statutes regulating the procedure of the court will be

construed as applicable to actions pending and
undetermined at the time of their passage. Procedural laws
are retroactive in that sense and to that extent.[14]
WHEREFORE, the petition for review on certiorari is hereby
GRANTED. The Resolutions dated December 28, 1999 and
August 24, 2000 in Special Civil Action No. 17-C (99) are
ANNULLED and Civil Case No. 2089 is REINSTATED.

PEOPLE V ROMERO : CIVIL ACTION DEATH

PARDO, J.:
The case before the Court is an appeal of accused Martin L.
Romero and Ernesto C. Rodriguez from the Joint Judgment[1]
of the Regional Trial Court, Branch 2, Butuan City, convicting
each of them of estafa under Article 315, par. 2 (d) of the
Revised Penal Code, in relation to Presidential Decree No.
1689, for widescale swindling, and sentencing each of them
to suffer the penalty of life imprisonment and to jointly and
severally pay Ernesto A. Ruiz the amount of one hundred
fifty thousand pesos (P150,000.00), with interest at the rate
of twelve percent (12%) per annum, starting September 14,
1989, until fully paid, and to pay ten thousand pesos
(P10,000.00), as moral damages.
On October 25, 1989, Butuan City acting fiscal Ernesto M.
Brocoy filed with the Regional Trial Court, Butuan City, an
Information against the two (2) accused for estafa,[2] as
follows:
That on or about September 14, 1989, at Butuan City,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused being the General
Manager and Operation Manager which solicit funds from
the general public for investment, conspiring, confederating
together and mutually helping one another, by means of
deceit and false pretense, did then and there willfully,
unlawfully and feloniously deliberately defraud one Ernesto
A. Ruiz by convincing the latter to invest his money in the
amount of P150,000.00 with a promise return of 800% profit
within 21 days and in the process caused the issuance of
Butuan City Rural Rural [sic] Bank Check No. 158181
postdated to October 5, 1989 in the amount of One Million
Two Hundred Thousand Pesos (P1,200,000.00) Philippine
Currency, that upon presentation of said check to the
drawee bank for payment the same was dishonored and
that notwithstanding repeated demands made on said
accused to pay and/or change the check to cash, they
consistently failed and refused and still fail and refuse to

pay or redeem the check, to the damage and prejudice of

the complainant in the aforestated amount of
P1,200,000.00.[3]
On the same day, the city fiscal filed with the same court
another information against the two (2) accused for violation
of Batas Pambansa Bilang 22, arising from the issuance of
the same check.[4]
On January 11, 1990, both accused were arraigned before
the Regional Trial Court, Branch 5,[5] Butuan City, where
they pleaded not guilty to both informations.
The prosecution presented its evidence on January 10, 1991,
with complainant, Ernesto A. Ruiz, and Daphne Parrocho, the
usher/collector of the corporation being managed by
accused, testifying for the prosecution.
On August 12, 1991, the defense presented its only witness,
accused Martin L. Romero.
On November 13, 1992, the parties submitted a joint
stipulation of facts, signed only by their respective counsels.
Thereafter, the case was submitted for decision.
On March 30, 1993, the trial court promulgated a Joint
Judgment dated March 25, 1993. The trial court acquitted
the accused in Criminal Case No. 3806[6] based on
reasonable doubt, but convicted them in Criminal Case No.
3808[7] and accordingly sentenced each of them, as
follows:
IN VIEW OF THE FOREGOING, the Court hereby renders
judgment, finding or declaring (a) Accused Martin L. Romero and Ernesto C. Rodriguez
innocent on reasonable doubt in Criminal Case No. 3806, for
violation of Batas Pambansa Bilang 22;

(b) Accused Martin L. Romero and Ernesto C .Rodriguez

guilty beyond reasonable doubt in Criminal Case No. 3808
for estafa under P.D. 1689 for wide scale [sic] swindling and
accordingly sentences them to suffer life imprisonment
(Section 1 P.D. 1689) and ordered jointly and severally to
return to Ernesto A. Ruiz the amount of One Hundred Fifty
Thousand Pesos (P150,000.00) with interest thereon at the
rate of Twelve percent (12%) per annum starting from
September 14, 1989 until fully paid and to pay the amount
of Ten Thousand Pesos (P10,000.00) as moral damages.

manager of SAIDECOR, while Rodriguez was the operations

manager.

In the service of their sentence, the accused pursuant to

R.A. 6127, shall be credited for the preventive imprisonment
they have undergone (PP vs. Ortencio, 38 Phil 941; PP vs.
Gabriel, No. L-13756, October 30, 1959, cited in Gregorios
Fundamentals of Criminal Law Review, P. 178, Seventh
Edition, 1985).[8]

On September 14, 1989, complainant Ernesto A. Ruiz went

to SAIDECOR office in Butuan City to make an investment,
accompanied by his friend Jimmy Acebu, and SAIDECOR
collection agent Daphne Parrocho. After handing over the
amount of one hundred fifty thousand pesos (P150,000.00)
to Ernesto Rodriguez, complainant received a postdated
Butuan City Rural Bank check instead of the usual
redeemable coupon. The check indicated P1,000,200.00 as
the amount in words, but the amount in figures was for
P1,200,000.00, as the return on the investment.
Complainant did not notice the discrepancy.

On March 31, 1993, accused filed their notice of appeal,

which the trial court gave due course on April 5, 1993. On
March 16, 1994, this Court ordered the accused to file their
appellants brief.
Accused-appellants filed their brief on October 30, 1995,
while the Solicitor General filed the appellees brief on March
8, 1996.
During the pendency of the appeal, on November 12, 1997,
accused Ernesto Rodriguez died.[9] As a consequence of his
death before final judgment, his criminal and civil liability ex
delicto, were extinguished.[10]
Complainant Ernesto A. Ruiz was a radio commentator of
Radio DXRB, Butuan City. In August, 1989, he came to know
the business of Surigao San Andres Industrial Development
Corporation (SAIDECOR), when he interviewed accused
Martin Romero and Ernesto Rodriguez regarding the
corporations investment operations in Butuan City and
Agusan del Norte. Romero was the president and general

SAIDECOR started its operation on August 24, 1989 as a

marketing business. Later, it engaged in soliciting funds and
investments from the public. The corporation guaranteed an
800% return on investment within fifteen (15) or twenty one
(21) days. Investors were given coupons containing the
capital and the return on the capital collectible on the date
agreed upon. It stopped operations in September, 1989.

When the check was presented to the bank for payment on

October 5, 1989, it was dishonored for insufficiency of funds,
as evidenced by the check return slip issued by the bank.
[11] Both accused could not be located and demand for
payment was made only sometime in November 1989
during the preliminary investigation of this case. Accused
responded that they had no money.
Daphne Parrocho,[12] testified that on September 14, 1989,
complainant, with his friend Jimmy Acebu, approached her
to invest the amount of P150,000.00 at SAIDECOR. As she
has reached her quota, and therefore, no longer authorized
to receive the amount, she accompanied them to the office
of SAIDECOR at Ong Yiu District, Butuan City. Accused
Ernesto Rodriguez accepted the investment and issued the
check signed by him and Martin Romero.

For their defense, accused Martin Romero[13] testified that

on September 14, 1989, he issued a check in the amount of
P1,200,000.00 corresponding to the total of the P150,000.00
investment and the 800% return thereon. He claimed that
the corporation had a deposit of fourteen million pesos
(P14,000,000.00) at the time of the issuance of the check
and four million pesos (P4,000,000.00) at the time
SAIDECOR stopped operations. Romero knew these things
because he used to monitor the funds of the corporation
with the bank. He was not aware that the check he issued
was dishonored because he never had the occasion to meet
the complainant again after the September 14, 1989
transaction. He only came to know about this when the case
was already filed in court sometime in the second or third
week of January 1990.[14]

can device, and which are resorted to by one individual to

secure an advantage over another by false suggestions or
by suppression of truth and includes all surprise, trick,
cunning, dissembling and any unfair way by which another
is cheated.[19]

In this appeal, both accused did not deny that complainant

made an investment with SAIDECOR in the amount of
P150,000.00. However, they denied that deceit was
employed in the transaction. They assigned as errors: (1)
their conviction under P.D. 1689 due to the prosecutions
failure to establish their guilt beyond reasonable doubt; and
(2) the trial courts failure to consider the joint stipulation of
facts in their favor.[15] There is no merit in this appeal. We
sustain accused-appellants conviction.

Upon receipt of the money, accused-appellant Martin

Romero issued a postdated check. Although accusedappellant contends that sufficient funds were deposited in
the bank when the check was issued, he presented no
officer of the bank to substantiate the contention. The check
was dishonored when presented for payment, and the check
return slip submitted in evidence indicated that it was
dishonored due to insufficiency of funds.

Under paragraph 2 (d) of Article 315, as amended by R.A.

4885,[16] the elements of estafa are: (1) a check was
postdated or issued in payment of an obligation contracted
at the time it was issued; (2) lack or insufficiency of funds to
cover the check; (3) damage to the payee thereof.[17] The
prosecution has satisfactorily established all these elements.
Fraud, in its general sense, is deemed to comprise anything
calculated to deceive, including all acts, omissions, and
concealment involving a breach of legal or equitable duty,
trust, or confidences justly reposed, resulting in damage to
another, or by which an undue and unconscientious
advantage is taken of another.[18] It is a generic term
embracing all multifarious means which human ingenuity

Deceit is a specie of fraud. It is actual fraud, and consists in

any false representation or contrivance whereby one person
overreaches and misleads another, to his hurt. Deceit
excludes the idea of mistake.[20] There is deceit when one
is misled, either by guide or trickery or by other means, to
believe to be true what is really false.[21] In this case, there
was deception when accused fraudulently represented to
complainant that his investment with the corporation would
have an 800% return in 15 or 21 days.

Even assuming for the sake of argument that the check was
dishonored without any fraudulent pretense or fraudulent
act of the drawer, the latters failure to cover the amount
within three days after notice creates a rebuttable
presumption of fraud.[22]
Admittedly (1) the check was dishonored for insufficiency of
funds as evidenced by the check return slip; (2) complainant
notified accused of the dishonor; and (3) accused failed to
make good the check within three days. Presumption of
deceit remained since accused failed to prove otherwise.
Complainant sustained damage in the amount of
P150,000.00.

Accused-appellant also contends that had the trial court

admitted the Admission and Stipulation of Facts of
November 9, 1992, it would prove that SAIDECOR had
sufficient funds in the bank.
Accused-appellant relies on the fact that there was a
discrepancy between the amount in words and the amount
in figures in the check that was dishonored. The amount in
words was P1,000,200.00, while the amount in figures was
P1,200,000.00. It is admitted that the corporation had in the
bank P1,144,760.00 on September 28,1989, and
P1,124,307.14 on April 2, 1990. The check was presented
for payment on October 5, 1989. The rule in the Negotiable
Instruments Law is that when there is ambiguity in the
amount in words and the amount in figures, it would be the
amount in words that would prevail.[23]
However, this rule of interpretation finds no application in
the case. The agreement was perfectly clear that at the end
of twenty one (21) days, the investment of P150,000.00
would become P1,200,000.00. Even if the trial court
admitted the stipulation of facts, it would not be favorable to
accused-appellant.
The factual narration in this case established a kind of Ponzi
scheme.[24] This is an investment swindle in which high
profits are promised from fictitious sources and early
investors are paid off with funds raised from later ones. It is
sometimes called a pyramid scheme because a broader
base of gullible investors must support the structure as time
passes.
In the recent case of People vs. Priscilla Balasa,[25] this
Court held that a transaction similar to the case at hand is
not an investment strategy but a gullibility scheme, which
works only as long as there is an ever increasing number of
new investors joining the scheme. It is difficult to sustain
over a long period of time because the operator needs an
ever larger pool of later investors to continue paying the
promised profits to early investors. The idea behind this type

of swindle is that the con-man collects his money from his

second or third round of investors and then absconds before
anyone else shows up to collect. Necessarily, these schemes
only last weeks, or months at most, just like what happened
in this case.
The Court notes that one of the accused-appellants, Ernesto
Rodriguez, died pending appeal. Pursuant to the doctrine
established in People vs. Bayotas,[26] the death of the
accused pending appeal of his conviction extinguishes his
criminal liability as well as the civil liability ex delicto. The
criminal action is extinguished inasmuch as there is no
longer a defendant to stand as the accused, the civil action
instituted therein for recovery of civil liability ex delicto is
ipso facto extinguished, grounded as it is on the criminal
case. Corollarily, the claim for civil liability survives
notwithstanding the death of the accused, if the same may
also be predicated on a source of obligation other than
delict.[27]
Thus, the outcome of this appeal pertains only to the
remaining accused-appellant, Martin L. Romero. The trial
court considered the swindling involved in this case as
having been committed by a syndicate[28] and sentenced
the accused to life imprisonment based on the provisions of
Presidential Decree 1689, which increased the penalty for
certain forms of swindling or estafa.[29] However, the
prosecution failed to clearly establish that the corporation
was a syndicate, as defined under the law. The penalty of
life imprisonment cannot be imposed. What would be
applicable in the present case is the second paragraph of
Presidential Decree No. 1689, Section 1, which provides
that:
When not committed by a syndicate as above defined, the
penalty imposable shall be reclusion temporal to reclusion
perpetua if the amount of the fraud exceeds 100,000 pesos.
Article 77 of the Revised Penal Code on complex penalties
provides that whenever the penalty prescribed does not

have one of the forms specially provided for in this Code,

the periods shall be distributed, applying by analogy the
prescribed rules, that is, those in Articles 61 and 76.[30]
Hence, where as in this case, the penalty provided by
Section 1 of Presidential Decree No. 1689 for estafa under
Articles 315 and 316 of the Code is reclusion temporal to
reclusion perpetua, the minimum period thereof is twelve
(12) years and one (1) day to sixteen (16) years of reclusion
temporal; the medium period is sixteen (16) years and one
(1) day to twenty (20) years of reclusion temporal; and the
maximum period is reclusion perpetua.
In the case at bar, no mitigating or aggravating
circumstance has been alleged or proved. Applying the rules
in the Revised Penal Code for graduating penalties by
degrees[31] to determine the proper period,[32] the penalty
for the offense of estafa under Article 315, 2(d) as amended
by P.D. 1689 involving the amount of P150,000.00 is the
medium of the period of the complex penalty in said Section
1, that is, sixteen (16) years and one (1) day to twenty (20)
years. This penalty, being that which is to be actually
imposed in accordance with the rules therefor and not
merely imposable as a general prescription under the law,
shall be the maximum range of the indeterminate sentence.
[33] The minimum thereof shall be taken, as aforesaid, from
any period of the penalty next lower in degree, which is,
prision mayor.
To enable the complainant to obtain means, diversion or
amusements that will serve to alleviate the moral sufferings
undergone by him, by reason of the failure of the accused to
return his money, moral damages are imposed against
accused-appellant Martin L. Romero in the amount of twenty
thousand pesos (P20,000.00).[34] To serve as an example
for the public good, exemplary damages are awarded
against him in the amount of fifteen thousand pesos
(P15,000.00).[35]
WHEREFORE, the Court hereby AFFIRMS WITH
MODIFICATION the appealed judgment. The Court hereby

sentences accused-appellant Martin Romero to suffer an

indeterminate penalty of ten (10) years and one (1) day of
prision mayor, as minimum, to sixteen (16) years and one
(1) day of reclusion temporal, as maximum, to indemnify
Ernesto A. Ruiz in the amount of one hundred fifty thousand
pesos (P150,000.00) with interest thereon at six (6%) per
centum per annum from September 14, 1989, until fully
paid, to pay twenty thousand pesos (P20,000.00) as moral
damages and fifteen thousand pesos (P15,000.00), as
exemplary damages, and the costs.

MAGISTRADO V PEOPLE PREJUDICIAL QUESTION

This Petition for Review on Certiorari seeks to reverse the (1)
Resolution[1] dated 5 March 2001 of the Court of Appeals in
CA-G.R. SP No. 63293 entitled, Francisco Magestrado v. Hon.
Estrella T. Estrada, in her capacity as the Presiding Judge of
Regional Trial Court, Branch 83 of Quezon City, People of the
Philippines and Elena M. Librojo, which dismissed petitioner
Francisco Magestrados Petition for Certiorari for being the
wrong remedy; and (2) Resolution[2] dated 3 May 2001 of
the same Court denying petitioners motion for
reconsideration.
Private respondent Elena M. Librojo filed a criminal
complaint[3] for perjury against petitioner with the Office of
the City Prosecutor of Quezon City, which was docketed as
I.S. No. 98-3900.
After the filing of petitioners counter-affidavit and the
appended pleadings, the Office of the City Prosecutor
recommended the filing of an information for perjury against
petitioner. Thus, Assistant City Prosecutor Josephine Z.
Fernandez filed an information for perjury against petitioner
with the Metropolitan Trial Court (MeTC) of Quezon City.
Pertinent portions of the information are hereby quoted as
follows:
That on or about the 27th day of December, 1997, in
Quezon City, Philippines, the said accused, did then and
there willfully, unlawfully and feloniously and knowingly
make an untruthful statement under oath upon a material
matter before a competent officer authorized to receive and
administer oath and which the law so require, to wit: the
said accused subscribe and swore to an Affidavit of Loss
before Notary Public Erlinda B. Espejo of Quezon City, per
Doc. No. 168, Page No. 35, Book No. CLXXIV of her notarial
registry, falsely alleging that he lost Owners Duplicate
Certificate of TCT No. N-173163, which document was used
in support of a Petition For Issuance of New Owners
Duplicate Copy of Certificate of Title and filed with the

Regional Trial Court of Quezon City, docketed as LRC# Q10052 (98) on January 28, 1998 and assigned to Branch 99
of the said court, to which said Francisco M. Mag[e]strado
signed and swore on its verification, per Doc. 413 Page 84
Book No. CLXXV Series of 1998 of Notary Public Erlinda B.
Espejo of Quezon City; the said accused knowing fully well
that the allegations in the said affidavit and petition are
false, the truth of the matter being that the property subject
of Transfer Certificate of Title No. N-173163 was mortgaged
to complainant Elena M. Librojo as collateral for a loan in the
amount of P 758,134.42 and as a consequence of which said
title to the property was surrendered by him to the said
complainant by virtue of said loan, thus, making untruthful
and deliberate assertions of falsehoods, to the damage and
prejudice of the said Elena M. Librojo.[4]
The case was raffled to the MeTC of Quezon City, Branch 43,
where it was docketed as Criminal Case No. 90721 entitled,
People of the Philippines v. Francisco Magestrado.
On 30 June 1999, petitioner filed a motion[5] for suspension
of proceedings based on a prejudicial question. Petitioner
alleged that Civil Case No. Q-98-34349, a case for recovery
of a sum of money pending before the Regional Trial Court
(RTC) of Quezon City, Branch 84, and Civil Case No. Q-9834308, a case for Cancellation of Mortgage, Delivery of Title
and Damages, pending before the RTC of Quezon City,
Branch 77, must be resolved first before Criminal Case No.
90721 may proceed since the issues in the said civil cases
are similar or intimately related to the issues raised in the
criminal action.
On 14 July 1999, MeTC-Branch 43 issued an Order[6]
denying petitioners motion for suspension of proceedings,
thus:
Acting on the Motion for Suspension of Proceedings filed by
the [herein petitioner Magestrado], thru counsel, and the
Comment and Opposition thereto, the Court after an
evaluation of the same, finds the aforesaid motion without
merit, hence, is hereby DENIED, it appearing that the

resolution of the issues raised in the civil actions is not

determinative of the guilt or innocence of the accused.
Hence, the trial of this case shall proceed as previously
scheduled on July 19 and August 2, 1993 at 8:30 in the
morning.

On 17 August 1999, a motion[7] for reconsideration was

filed by petitioner but was denied by the MeTC in an
Order[8] dated 19 October 1999.
Aggrieved, petitioner filed a Petition for Certiorari[9] under
Rule 65 of the Revised Rules of Court, with a prayer for
Issuance of a Writ of Preliminary Injunction before the RTC of
Quezon City, Branch 83, docketed as Civil Case No. Q-9939358, on the ground that MeTC Judge Billy J. Apalit
committed grave abuse of discretion amounting to lack or
excess of jurisdiction in denying his motion to suspend the
proceedings in Criminal Case No. 90721.
On 14 March 2000, RTC-Branch 83 dismissed the petition
and denied the prayer for the issuance of a writ of
preliminary injunction, reasoning thus:
Scrutinizing the complaints and answers in the civil cases
abovementioned, in relation to the criminal action for
PERJURY, this Court opines and so holds that there is no
prejudicial question involved as to warrant the suspension of
the criminal action to await the outcome of the civil cases.
The civil cases are principally for determination whether or
not a loan was obtained by petitioner and whether or not he
executed the deed of real estate mortgage involving the
property covered by TCT No. N-173163, whereas the
criminal case is for perjury which imputes upon petitioner
the wrongful execution of an affidavit of loss to support his
petition for issuance of a new owners duplicate copy of TCT
No. 173163. Whether or not he committed perjury is the
issue in the criminal case which may be resolved
independently of the civil cases. Note that the affidavit of

loss was executed in support of the petition for issuance of a

new owners duplicate copy of TCT No. N-173163 which
petition was raffled to Branch 99 of the RTC. x x x.[10]

Again, petitioner filed a motion for reconsideration[11] but

this was denied by RTC- Branch 83 in an Order[12] dated 21
December 2000.
Dissatisfied, petitioner filed with the Court of Appeals a
Petition for Certiorari[13] under Rule 65 of the Revised Rules
of Court, which was docketed as CA-G.R. SP No. 63293.
Petitioner alleged that RTC Judge Estrella T. Estrada
committed grave abuse of discretion amounting to lack or
excess of jurisdiction in denying the Petition for Certiorari in
Civil Case No. Q-99-39358, and in effect sustaining the
denial by MeTC-Branch 43 of petitioners motion to suspend
the proceedings in Criminal Case No. 90721, as well as his
subsequent motion for reconsideration thereof.
On 5 March 2001, the Court of Appeals dismissed[14] the
Petition in CA-G.R. SP No. 63293 on the ground that
petitioners remedy should have been an appeal from the
dismissal by RTC-Branch 83 of his Petition for Certiorari in Q99-39358. The Court of Appeals ruled that:
Is this instant Petition for Certiorari under Rule 65 the
correct and appropriate remedy?
We rule negatively.
The resolution or dismissal in special civil actions, as in the
instant petition, may be appealed x x x under Section 10,
Rule 44 of the 1997 Rules of Civil Procedure and not by
petition for certiorari under Rule 65 of the same rules. Thus,
the said rule provides:
Section 10. Time for filing memoranda on special cases. In
certiorari, prohibition, mandamus, quo warranto and habeas
corpus cases, the parties shall file in lieu of briefs, their

respective memoranda within a non-extendible period of

thirty (30) days from receipt of the notice issued by the clerk
that all the evidence, oral and documentary, is already
attached to the record x x x.
WHEREFORE, in consideration of the foregoing premises, the
instant Petition for Certiorari under Rule 65 of the 1997
Rules of Civil Procedure is hereby DISMISSED.[15]

The Court of Appeals denied petitioners Motion for

Reconsideration[16] in a Resolution[17] dated 3 May 2001.
Hence, petitioner comes before us via a Petition for Review
on Certiorari under Rule 45 of the Revised Rules of Court
raising the following issues:
1.
Whether or not the Orders of Judge Estrella T. Estrada
dated March 14, 2000 denying petitioners Petition for
Certiorari under Rule 65 of the Rules of Court, and her
subsequent Order dated December 21, 2000, denying the
Motion for Reconsideration thereafter filed can only be
reviewed by the Court of Appeals thru appeal under Section
10, Rule 44 of the 1997 Rules of Civil Procedure.
2.
Whether or not Judge Estrella T. Estrada of the
Regional Trial Court, Branch 83, Quezon City, had committed
grave abuse of discretion amounting to lack or in excess of
her jurisdiction in denying the Petition for Certiorari and
petitioners subsequent motion for reconsideration on the
ground of a prejudicial question pursuant to the Rules on
Criminal Procedure and the prevailing jurisprudence.

After consideration of the procedural and substantive issues

raised by petitioner, we find the instant petition to be
without merit.

The procedural issue herein basically hinges on the proper

remedy which petitioner should have availed himself of
before the Court of Appeals: an ordinary appeal or a petition
for certiorari. Petitioner claims that he correctly questioned
RTC-Branch 83s Order of dismissal of his Petition for
Certiorari in Civil Case No. Q-99-39358 through a Petition for
Certiorari before the Court of Appeals. Private respondent
and public respondent People of the Philippines insist that
an ordinary appeal was the proper remedy.
We agree with respondents. We hold that the appellate court
did not err in dismissing petitioners Petition for Certiorari,
pursuant to Rule 41, Section 2 of the Revised Rules of Court
(and not under Rule 44, Section 10, invoked by the Court of
Appeals in its Resolution dated 5 March 2001).
The correct procedural recourse for petitioner was appeal,
not only because RTC-Branch 83 did not commit any grave
abuse of discretion in dismissing petitioners Petition for
Certiorari in Civil Case No. Q-99-39358 but also because
RTC-Branch 83s Order of dismissal was a final order from
which petitioners should have appealed in accordance with
Section 2, Rule 41 of the Revised Rules of Court.
An order or a judgment is deemed final when it finally
disposes of a pending action, so that nothing more can be
done with it in the trial court. In other words, the order or
judgment ends the litigation in the lower court. Au
contraire, an interlocutory order does not dispose of the
case completely, but leaves something to be done as
regards the merits of the latter.[18] RTC-Branch 83s Order
dated 14 March 2001 dismissing petitioners Petition for
Certiorari in Civil Case No. Q-99-39358 finally disposes of
the said case and RTC-Branch 83 can do nothing more with
the case.
Under Rule 41 of the Rules of Court, an appeal may be taken
from a judgment or final order that completely disposes of
the case, or of a particular matter therein when declared by

the Revised Rules of Court to be appealable. The manner of

appealing an RTC judgment or final order is also provided in
Rule 41 as follows:
Section 2. Modes of appeal.
(a)
Ordinary appeal. The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of
its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon the
adverse party. No record on appeal shall be required except
in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require.
In such cases, the record on appeal shall be filed and served
in like manner.

Certiorari generally lies only when there is no appeal nor

any other plain, speedy or adequate remedy available to
petitioners. Here, appeal was available. It was adequate to
deal with any question whether of fact or of law, whether of
error of jurisdiction or grave abuse of discretion or error of
judgment which the trial court might have committed. But
petitioners instead filed a special civil action for certiorari.
We have time and again reminded members of the bench
and bar that a special civil action for certiorari under Rule 65
of the Revised Rules of Court lies only when there is no
appeal nor plain, speedy and adequate remedy in the
ordinary course of law.[19] Certiorari cannot be allowed
when a party to a case fails to appeal a judgment despite
the availability of that remedy,[20] certiorari not being a
substitute for lost appeal.[21]
As certiorari is not a substitute for lost appeal, we have
repeatedly emphasized that the perfection of appeals in the
manner and within the period permitted by law is not only
mandatory but jurisdictional, and that the failure to perfect
an appeal renders the decision of the trial court final and

executory. This rule is founded upon the principle that the

right to appeal is not part of due process of law but is a
mere statutory privilege to be exercised only in the manner
and in accordance with the provisions of the law. Neither can
petitioner invoke the doctrine that rules of technicality must
yield to the broader interest of substantial justice. While
every litigant must be given the amplest opportunity for the
proper and just determination of his cause, free from
constraints of technicalities, the failure to perfect an appeal
within the reglementary period is not a mere technicality. It
raises a jurisdictional problem as it deprives the appellate
court of jurisdiction over the appeal.[22]
The remedies of appeal and certiorari are mutually exclusive
and not alternative or successive.[23] A party cannot
substitute the special civil action of certiorari under Rule 65
of the Rules of Court for the remedy of appeal. The
existence and availability of the right of appeal are
antithetical to the availability of the special civil action for
certiorari.[24] As this Court held in Fajardo v. Bautista[25]:
Generally, an order of dismissal, whether right or wrong, is a
final order, and hence a proper subject of appeal, not
certiorari. The remedies of appeal and certiorari are
mutually exclusive and not alternative or successive.
Accordingly, although the special civil action of certiorari is
not proper when an ordinary appeal is available, it may be
granted where it is shown that the appeal would be
inadequate, slow, insufficient, and will not promptly relieve a
party from the injurious effects of the order complained of,
or where appeal is inadequate and ineffectual. Nevertheless,
certiorari cannot be a substitute for the lost or lapsed
remedy of appeal, where such loss is occasioned by the
petitioners own neglect or error in the choice of remedies.

On 21 December 2000, petitioner received a copy of the

Order of the RTC-Branch 83 denying his motion for
reconsideration of the dismissal of his Petition for Certiorari

in Civil Case No. Q-99-39358; hence, he had until 18 January

2001 within which to file an appeal with the Court of
Appeals. The Petition for Certiorari filed by petitioner on 19
February 2001 with the Court of Appeals cannot be a
substitute for the lost remedy of appeal. As petitioner failed
to file a timely appeal, RTC-Branch 83s dismissal of his
Petition for Certiorari had long become final and executory.
For this procedural lapse, the Court of Appeals correctly
denied outright the Petition for Certiorari filed by petitioner
before it.
Moreover, there are even more cogent reasons for denying
the instant Petition on the merits.
In the Petition at bar, petitioner raises several substantive
issues. Petitioner harps on the need for the suspension of
the proceedings in Criminal Case No. 90721 for perjury
pending before MeTC-Branch 43 based on a prejudicial
question still to be resolved in Civil Case No. Q-98-34308
(for cancellation of mortgage) and Civil Case No. Q-9834349 (for collection of a sum of money) which are pending
before other trial courts.
For clarity, we shall first discuss the allegations of petitioner
in his complaint in Civil Case No. Q-98-34308 (for
cancellation of mortgage) and that of private respondent in
her complaint in Civil Case No. Q-98-34349 (for collection of
a sum of money).
Civil Case No. Q-98-34308 is a complaint for Cancellation of
Mortgage, Delivery of Title and Damages filed on 8 May
1988 by petitioner against private respondent with RTCBranch 77. Petitioner alleges that he purchased a parcel of
land covered by Transfer Certificate of Title No. N-173163
thru private respondent, a real estate broker. In the process
of negotiation, petitioner was pressured to sign a Deed of
Sale prepared by private respondent. Upon signing the Deed

of Sale, he noticed that the Deed was already signed by a

certain Cristina Gonzales as attorney-in-fact of vendor
Spouses Guillermo and Amparo Galvez. Petitioner demanded
from private respondent a special power of attorney and
authority to sell, but the latter failed to present one.
Petitioner averred that private respondent refused to deliver
the certificate of title of the land despite execution and
signing of the Deed of Sale and payment of the
consideration. Petitioner was thus compelled to engage the
services of one Modesto Gazmin, Jr. who agreed, for
P100,000.00 to facilitate the filing of cases against private
respondent; to deliver to petitioner the certificate of title of
the land; and/or to cancel the certificate of title in
possession of private respondent. However, Mr. Gazmin, Jr.,
did nothing upon receipt of the amount of P100,000.00 from
petitioner. In fact, petitioner was even charged with perjury
before the Office of the City Prosecutor, all because of Mr.
Gazmin, Jr.s wrongdoing. Petitioner further alleged that he
discovered the existence of a spurious Real Estate Mortgage
which he allegedly signed in favor of private respondent.
Petitioner categorically denied signing the mortgage
document and it was private respondent who falsified the
same in order to justify her unlawful withholding of TCT No.
N-173163 from petitioner. Thus, petitioner prayed for:
1. The cancellation of Real Estate Mortgage dated August 2,
1997 as null and void;
2. As well as to order [herein private respondent] to DELIVER
the Owners Duplicate Copy of Transfer Certificate of Title No.
N-173163 to [herein petitioner];
3. Condemning [private respondent] to pay [petitioner] the
sums of
a) P100,000.00 as MORAL DAMAGES;
b) P50,000.00 as EXEMPLARY DAMAGES;

c) P50,000.00 as Attorneys fees and

d) Cost of suit.
4. A general relief is likewise prayed for (sic) just and
equitable under the premises.

Civil Case No. Q-98-34349,[26] on the other hand, is a

complaint for a sum of money with a motion for issuance of
a writ of attachment filed by private respondent against
petitioner on 14 May 1988 before RTC-Branch 84. Private
respondent alleges that petitioner obtained a loan from her
in the amount of P758,134.42 with a promise to pay on or
before 30 August 1997. As security for payment of the loan,
petitioner executed a Deed of Real Estate Mortgage
covering a parcel of land registered under TCT No. N173163. Petitioner pleaded for additional time to pay the
said obligation, to which respondent agreed. But private
respondent discovered sometime in February 1998 that
petitioner executed an affidavit of loss alleging that he lost
the owners duplicate copy of TCT No. N-173163, and
succeeded in annotating said affidavit on the original copy
of TCT No. N-173163 on file with the Registry of Deeds of
Quezon City. Private respondent further alleges that she also
discovered that petitioner filed a petition for issuance of a
new owners duplicate copy of TCT No. N-173163 with the
RTC of Quezon City, Branch 98, docketed as LRC Case No. Q10052. Private respondent demanded that petitioner pay his
obligation, but the latter refused to do so. Resultantly,
private respondent prayed for the following:
A.
That upon filing of this Complaint as well as the
Affidavit of attachment and a preliminary hearing thereon,
as well as bond filed, a writ of preliminary attachment is
(sic) by the Honorable Court ordering the Sheriff to levy
[herein petitioner] property sufficient to answer [herein
private respondents] claim in this action;

B.
That after due notice and hearing, judgment be
rendered in [private respondents] favor as against
[petitioner], ordering the latter to pay the former the sum of
P758,134.42 plus interest thereon at 5% per month from
September 1997 up to the date of actual payment; actual
damages in the sums of P70,000.00 each under paragraphs
11 and 12 of the complaint; P200,000.00 as moral damages;
P100,000.00 as exemplary damages; twenty (20%) of the
principal claim as attorneys fees plus P2,500.00 per
appearance honorarium; and P60,000.00 as litigation
expense before this Honorable Court.
[Petitioner] prays for such further relief in law, justice and
equity.

As to whether it is proper to suspend Criminal Case No.

90721 for perjury pending final outcome of Civil Case No. Q98-34349 and Civil Case No. Q-98-34308, we take into
consideration Sections 6 and 7, Rule 111 of the Revised
Rules of Court, which read:
Sec. 6. Suspension by reason of prejudicial question. A
petition for suspension of the criminal action based upon the
pendency of a prejudicial question in a civil action may be
filed in the office of the prosecutor or the court conducting
the preliminary investigation. When the criminal action has
been filed in court for trial, the petition to suspend shall be
filed in the same criminal action at any time before the
prosecution rests.
Sec. 7. Elements of prejudicial question. The elements of a
prejudicial question are: (a) the previously instituted civil
action involves an issue similar or intimately related to the
issue raised in the subsequent criminal action; and (b) the
resolution of such issue determines whether or not the
criminal action may proceed.

The rationale behind the principle of suspending a criminal

case in view of a prejudicial question is to avoid two
conflicting decisions.[27]
A prejudial question is defined as that which arises in a case
the resolution of which is a logical antecedent of the issue
involved therein, and the cognizance of which pertains to
another tribunal. The prejudicial question must be
determinative of the case before the court but the
jurisdiction to try and resolve the question must be lodged
in another court or tribunal. It is a question based on a fact
distinct and separate from the crime but so intimately
connected with it that it determines the guilt or innocence of
the accused.[28]
For a prejudicial question in a civil case to suspend criminal
action, it must appear not only that said case involves facts
intimately related to those upon which the criminal
prosecution would be based but also that in the resolution of
the issue or issues raised in the civil case, the guilt or
innocence of the accused would necessarily be determined.
Thus, for a civil action to be considered prejudicial to a
criminal case as to cause the suspension of the criminal
proceedings until the final resolution of the civil case, the
following requisites must be present: (1) the civil case
involves facts intimately related to those upon which the
criminal prosecution would be based; (2) in the resolution of
the issue or issues raised in the civil action, the guilt or
innocence of the accused would necessarily be determined;
and (3) jurisdiction to try said question must be lodged in
another tribunal.[29]
If the resolution of the issue in the civil action will not
determine the criminal responsibility of the accused in the
criminal action based on the same facts, or there is no
necessity that the civil case be determined first before
taking up the criminal case, therefore, the civil case does
not involve a prejudicial question.[30] Neither is there a

prejudicial question if the civil and the criminal action can,

according to law, proceed independently of each other.[31]
However, the court in which an action is pending may, in the
exercise of sound discretion, and upon proper application for
a stay of that action, hold the action in abeyance to abide by
the outcome of another case pending in another court,
especially where the parties and the issues are the same,
for there is power inherent in every court to control the
disposition of cases on its dockets with economy of time and
effort for itself, for counsel, and for litigants. Where the
rights of parties to the second action cannot be properly
determined until the questions raised in the first action are
settled, the second action should be stayed.[32]
The power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the
cases on its dockets, considering its time and effort, those of
counsel and the litigants. But if proceedings must be
stayed, it must be done in order to avoid multiplicity of suits
and prevent vexatious litigations, conflicting judgments,
confusion between litigants and courts. It bears stressing
that whether or not the trial court would suspend the
proceedings in the criminal case before it is submitted to its
sound discretion.[33]
Indeed, a judicial order issued pursuant to the courts
discretionary authority is not subject to reversal on review
unless it constitutes an abuse of discretion. As the United
States Supreme Court aptly declared in Landis v. North
American Co., the burden of making out the justice and
wisdom from the departure from the beaten truck lay
heavily on the petitioner, less an unwilling litigant is
compelled to wait upon the outcome of a controversy to
which he is a stranger. It is, thus, stated that only in rare
circumstances will a litigant in one case is compelled to
stand aside, while a litigant in another, settling the rule of
law that will define the rights of both is, after all, the parties
before the court are entitled to a just, speedy and plain

determination of their case undetermined by the pendency

of the proceedings in another case. After all, procedure was
created not to hinder and delay but to facilitate and promote
the administration of justice.[34]
As stated, the determination of whether the proceedings
may be suspended on the basis of a prejudicial question
rests on whether the facts and issues raised in the pleadings
in the civil cases are so related with the issues raised in the
criminal case such that the resolution of the issues in the
civil cases would also determine the judgment in the
criminal case.
A perusal of the allegations in the complaints show that Civil
Case No. Q-98-34308 pending before RTC-Branch 77, and
Civil Case No. Q-98-34349, pending before RTC-Branch 84,
are principally for the determination of whether a loan was
obtained by petitioner from private respondent and whether
petitioner executed a real estate mortgage involving the
property covered by TCT No. N-173163. On the other hand,
Criminal Case No. 90721 before MeTC-Branch 43, involves
the determination of whether petitioner committed perjury
in executing an affidavit of loss to support his request for
issuance of a new owners duplicate copy of TCT No. N173163.
It is evident that the civil cases and the criminal case can
proceed independently of each other. Regardless of the
outcome of the two civil cases, it will not establish the
innocence or guilt of the petitioner in the criminal case for
perjury. The purchase by petitioner of the land or his
execution of a real estate mortgage will have no bearing
whatsoever on whether petitioner knowingly and
fraudulently executed a false affidavit of loss of TCT No. N173163.
MeTC-Branch 43, therefore, did not err in ruling that the
pendency of Civil Case No. Q-98-34308 for cancellation of
mortgage before the RTC-Branch 77; and Civil Case No. Q-

98-34349 for collection of a sum of money before RTCBranch 84, do not pose a prejudicial question in the
determination of whether petitioner is guilty of perjury in
Criminal Case No. 90721. RTC-Branch 83, likewise, did not
err in ruling that MeTC-Branch 43 did not commit grave
abuse of discretion in denying petitioners motion for
suspension of proceedings in Criminal Case No. 90721.
WHEREFORE, premises considered, the assailed Resolutions
dated 5 March 2001 and 3 May 2001of the Court of Appeals
in CA-G.R. SP No. 63293 are hereby AFFIRMED and the
instant petition is DISMISSED for lack of merit. Accordingly,
the Metropolitan Trial Court of Quezon City, Branch 43, is
hereby directed to proceed with the hearing and trial on the
merits of Criminal Case No. 90721, and to expedite
proceedings therein, without prejudice to the right of the
accused to due process. Costs against petitioner.

PIMENTEL V PIMENTEL
Before the Court is a petition for review[1] assailing the
Decision[2] of the Court of Appeals, promulgated on 20
March 2006, in CA-G.R. SP No. 91867.

case could be tried even if the validity of petitioners

marriage with respondent is in question. The RTC Quezon
City ruled:

The Antecedent Facts

WHEREFORE, on the basis of the foregoing, the Motion to

Suspend Proceedings On the [Ground] of the Existence of a
Prejudicial Question is, for lack of merit, DENIED.

The facts are stated in the Court of Appeals decision:

On 25 October 2004, Maria Chrysantine Pimentel y Lacap
(private respondent) filed an action for frustrated parricide
against Joselito R. Pimentel (petitioner), docketed as
Criminal Case No. Q-04-130415, before the Regional Trial
Court of Quezon City, which was raffled to Branch 223 (RTC
Quezon City).
On 7 February 2005, petitioner received summons to appear
before the Regional Trial Court of Antipolo City, Branch 72
(RTC Antipolo) for the pre-trial and trial of Civil Case No. 047392 (Maria Chrysantine Lorenza L. Pimentel v. Joselito
Pimentel) for Declaration of Nullity of Marriage under
Section 36 of the Family Code on the ground of
psychological incapacity.
On 11 February 2005, petitioner filed an urgent motion to
suspend the proceedings before the RTC Quezon City on the
ground of the existence of a prejudicial question. Petitioner
asserted that since the relationship between the offender
and the victim is a key element in parricide, the outcome of
Civil Case No. 04-7392 would have a bearing in the criminal
case filed against him before the RTC Quezon City.
The Decision of the Trial Court
The RTC Quezon City issued an Order dated 13 May 2005[3]
holding that the pendency of the case before the RTC
Antipolo is not a prejudicial question that warrants the
suspension of the criminal case before it. The RTC Quezon
City held that the issues in Criminal Case No. Q-04-130415
are the injuries sustained by respondent and whether the

SO ORDERED.[4]
Petitioner filed a motion for reconsideration. In its 22 August
2005 Order,[5] the RTC Quezon City denied the motion.
Petitioner filed a petition for certiorari with application for a
writ of preliminary injunction and/or temporary restraining
order before the Court of Appeals, assailing the 13 May 2005
and 22 August 2005 Orders of the RTC Quezon City.
The Decision of the Court of Appeals
In its 20 March 2006 Decision, the Court of Appeals
dismissed the petition. The Court of Appeals ruled that in
the criminal case for frustrated parricide, the issue is
whether the offender commenced the commission of the
crime of parricide directly by overt acts and did not perform
all the acts of execution by reason of some cause or
accident other than his own spontaneous desistance. On the
other hand, the issue in the civil action for annulment of
marriage is whether petitioner is psychologically
incapacitated to comply with the essential marital
obligations. The Court of Appeals ruled that even if the
marriage between petitioner and respondent would be
declared void, it would be immaterial to the criminal case
because prior to the declaration of nullity, the alleged acts
constituting the crime of frustrated parricide had already
been committed. The Court of Appeals ruled that all that is
required for the charge of frustrated parricide is that at the

time of the commission of the crime, the marriage is still

subsisting.
Petitioner filed a petition for review before this Court
assailing the Court of Appeals decision.
The Issue
The only issue in this case is whether the resolution of the
action for annulment of marriage is a prejudicial question
that warrants the suspension of the criminal case for
frustrated parricide against petitioner.
The Ruling of this Court
The petition has no merit.
Civil Case Must be Instituted
Before the Criminal Case
Section 7, Rule 111 of the 2000 Rules on Criminal
Procedure[6] provides:
Section 7. Elements of Prejudicial Question. - The elements
of a prejudicial question are: (a) the previously instituted
civil action involves an issue similar or intimately related to
the issue raised in the subsequent criminal action and (b)
the resolution of such issue determines whether or not the
criminal action may proceed.
The rule is clear that the civil action must be instituted first
before the filing of the criminal action. In this case, the
Information[7] for Frustrated Parricide was dated 30 August
2004. It was raffled to RTC Quezon City on 25 October 2004
as per the stamped date of receipt on the Information. The
RTC Quezon City set Criminal Case No. Q-04-130415 for pretrial and trial on 14 February 2005. Petitioner was served
summons in Civil Case No. 04-7392 on 7 February 2005.[8]
Respondents petition[9] in Civil Case No. 04-7392 was dated

4 November 2004 and was filed on 5 November 2004.

Clearly, the civil case for annulment was filed after the filing
of the criminal case for frustrated parricide. As such, the
requirement of Section 7, Rule 111 of the 2000 Rules on
Criminal Procedure was not met since the civil action was
filed subsequent to the filing of the criminal action.
Annulment of Marriage is not a Prejudicial Question
in Criminal Case for Parricide
Further, the resolution of the civil action is not a prejudicial
question that would warrant the suspension of the criminal
action.
There is a prejudicial question when a civil action and a
criminal action are both pending, and there exists in the civil
action an issue which must be preemptively resolved before
the criminal action may proceed because howsoever the
issue raised in the civil action is resolved would be
determinative of the guilt or innocence of the accused in the
criminal case.[10] A prejudicial question is defined as:
x x x one that arises in a case the resolution of which is a
logical antecedent of the issue involved therein, and the
cognizance of which pertains to another tribunal. It is a
question based on a fact distinct and separate from the
crime but so intimately connected with it that it determines
the guilt or innocence of the accused, and for it to suspend
the criminal action, it must appear not only that said case
involves facts intimately related to those upon which the
criminal prosecution would be based but also that in the
resolution of the issue or issues raised in the civil case, the
guilt or innocence of the accused would necessarily be
determined.[11]
The relationship between the offender and the victim is a
key element in the crime of parricide,[12] which punishes
any person who shall kill his father, mother, or child,
whether legitimate or illegitimate, or any of his ascendants

or descendants, or his spouse.[13] The relationship between

the offender and the victim distinguishes the crime of
parricide from murder[14] or homicide.[15] However, the
issue in the annulment of marriage is not similar or
intimately related to the issue in the criminal case for
parricide. Further, the relationship between the offender and
the victim is not determinative of the guilt or innocence of
the accused.
The issue in the civil case for annulment of marriage under
Article 36 of the Family Code is whether petitioner is
psychologically incapacitated to comply with the essential
marital obligations. The issue in parricide is whether the
accused killed the victim. In this case, since petitioner was
charged with frustrated parricide, the issue is whether he
performed all the acts of execution which would have killed
respondent as a consequence but which, nevertheless, did
not produce it by reason of causes independent of
petitioners will.[16] At the time of the commission of the
alleged crime, petitioner and respondent were married. The
subsequent dissolution of their marriage, in case the petition
in Civil Case No. 04-7392 is granted, will have no effect on
the alleged crime that was committed at the time of the
subsistence of the marriage. In short, even if the marriage
between petitioner and respondent is annulled, petitioner
could still be held criminally liable since at the time of the
commission of the alleged crime, he was still married to
respondent.

We cannot accept petitioners reliance on Tenebro v. Court of

Appeals[17] that the judicial declaration of the nullity of a
marriage on the ground of psychological incapacity retroacts
to the date of the celebration of the marriage insofar as the
vinculum between the spouses is concerned x x x. First, the
issue in Tenebro is the effect of the judicial declaration of
nullity of a second or subsequent marriage on the ground of
psychological incapacity on a criminal liability for bigamy.
There was no issue of prejudicial question in that case.
Second, the Court ruled in Tenebro that [t]here is x x x a
recognition written into the law itself that such a marriage,
although void ab initio, may still produce legal
consequences.[18] In fact, the Court declared in that case
that a declaration of the nullity of the second marriage on
the ground of psychological incapacity is of absolutely no
moment insofar as the States penal laws are concerned.[19]
In view of the foregoing, the Court upholds the decision of
the Court of Appeals. The trial in Criminal Case No. Q-04130415 may proceed as the resolution of the issue in Civil
Case No. 04-7392 is not determinative of the guilt or
innocence of petitioner in the criminal case.
WHEREFORE, we DENY the petition. We AFFIRM the 20
March 2006 Decision of the Court of Appeals in CA-G.R. SP
No. 91867.
SO ORDERED.