Generoso A Jauban and Francis Zosa
vs. Rene Espina and Cebu Discovery Bay Properties Inc.
March 14,2008
CASE No. 1: Bancale v. Paras, CC No. 2309-L, Lapu-Lapu City
RTC, Branch 27
The Heirs of Conrado Bancale filed a case for the
recovery of the properties subject of the present Petition
against a certain Eva Paras and other persons. On 22
January 1996, Juaban and Zosa entered their appearance as
counsels for the Heirs of Bancale.
The Heirs of Bancale later entered into a 31
January 1997 Agreement to Sell and to Buy with respondent
Rene Espina (Espina). Espina then paid the Bancales 2M as
advance for the purchase price.
on 1 September 1997, Espina et al learned that
counsels Juaban and Zosa, had filed on 26 August 1997, at
around 1:10 p.m., a Motion to fix their attorneys fees. RTC
granted it at 9M.
The Heirs of Bancale filed a MR, denied on 22
September 1997. They received a copy of the Order denying
their MR on 9 October 1997, after which they filed a Notice
of Appeal dated 15 October 1997. However, without
waiting for the expiration of the period to appeal of the
Heirs of Bancale, RTC issued on 10 October 1997 an Order,
which states that the order of the court which fixes the
attys fees of Jauban and Zosa has already become final and
executory, not having been appealed, the motion for
execution is hereby GRANTED.
The Heirs of Bancale filed another MR, this time,
of the 10 October 1997 Order.
Without directly ruling on this Motion, the RTC
issued on 14 October 1997 a Writ of Execution was issued
directing Sheriff Gato to satisfy the judgment for attorneys
fees in the amount of P9,000,000.00 in favor of petitioners.
On 23 October 1997, Sheriff Gato served notice
that the rights, shares, interests and participation of the
Heirs of Bancale in the subject properties were being levied
on execution to satisfy the Writ of Execution dated 14
October 1997. This was done despite the fact that the Writ
of Execution issued by the trial court specifically directed
that the attorneys fees were "to be taken from the money
due from the buyer to the sellers under the agreement to
buy and sell."
On 28 November 1997, the subject properties
were sold at public auction to Jauban and Zosa for
P9,000,000.00. The sale was registered on 3 December
1997.
On 1 December 1998, the RTC, under a new
presiding judge, issued an Order resolving the Motions of
the Heirs of Bancale seeking reconsideration of the previous
Orders of the same court dated 22 September 1997 and 10
October 1997, and ruled that it set aside the order issued
on Oct 10 which considered as final and executory the
amount of Attys fees. It hereby gives due course to the
appeal filed by the [Heirs of Bancale] from the order issued
in this case on September 22, 1997, which in effect is an
appeal from the said August 26, 1997 order.
This 1 December 1998 Order is currently on
appeal with the CA. The Court of Appeals Resolutions
granting due course to said appeal were elevated via a
Petition for Certiorari, docketed as G.R. No. 156011, still
pending before this Court.
On 27 January 1999, petitioners wrote a letter to Sheriff
Gato requesting him to execute a final deed of sale in their
favor since no redemption of the subject properties was
made. Sheriff Gato, in a letter dated 4 February 1999,
answered that he no longer had any authority to issue the
final deed of sale but still he transmitted the final DOS to
Jauban and Zosa.
CASE No. 2: Espina v. Gato, A.M. No. P-02-1580, Supreme
Court
The second case is an administrative complaint
filed against Sheriff Gato by Espina, for allegedly acting with
manifest bias and partiality in Civil Case No. 2309-L while it
was still pending with the RTC, Branch 27. On 9 April 2003,
this Court, held Sheriff Gato guilty of grave abuse of official
functions and manifest partiality. Suspended for 3 months
without pay.
CASE No. 3: Espina v. Gato, Civil Case No. 4871-L, Lapu-
Lapu City RTC, Branch 54
On 28 November 1997, Espina et al filed a
complaint for injunction and damages with an application
for the issuance of a TRO to enjoin, at whatever stage, the
sale in a public auction of the subject properties by Sheriff
Gato. They claim that they were, as of the institution of said
case, unaware that the subject properties had already been
sold at a public auction.
On 19 December 1997, Jauban and Zosa filed a
MD which was granted.
On 2 September 1998, Espina et al filed a Notice
of Appeal, which was given due course in an Order dated 7
September 1998.
Respondents appeal before the Court of Appeals
was docketed as CA-G.R. CV No. 60721. Respondents filed
therein an Urgent Motion for Issuance of a TRO and Writ of
Preliminary Injunction dated 19 October 1998. On 26
November 1998, CA granted.
On 1 December 1998, Espina et al filed an Urgent
Manifestation/motion wherein they tendered the amount
of P10,962,347.20 as payment for the redemption price of
the subject properties, on the condition that if the
application for preliminary injunction was denied or if the
case is finally resolved in favor of petitioners, the said
amount shall be considered as valid tender of the
redemption price of the subject properties retroacting to
the date of the filing of the Manifestation/Motion.
In a comment dated 17 December 1998,
Jauban/Zosa interposed no objection to the deposit of said
amount, but excepted to respondents claim that the
tender would stop the running of interest on the
redemption price.
 On 15 June 1999, the Court of Appeals issued a
Resolution stating that Espina et als application for a writ
of PI to enjoin Sheriff Gato from consolidatin ownership in
favor of Jauban and Zosa had been rendered moot in view
of the Dec 1, 98 decision of the RTC, setting aside thee order
dated October 10, 97 and giving due course to their appeal.
In the meantime, petitioners were able to acquire
the DOS of the subject properties from Sheriff Gato. Hence,
respondents filed a Motion for Clarification and/or
Reconsideration to Cite [Petitioners] in Contempt.
Petitioners, however, proceeded to register the Definite
Deed of Sale issued by Sheriff Gato with the Register of
Deeds in Lapu-Lapu City.
On 30 September 1999, CA granted respondents
application for a writ of preliminary injunction and enjoined
petitioners from exercising rights of ownership over the
subject properties, such as alienating or encumbering the
same.
On 31 January 2005, the Court of Appeals
rendered the assailed Decision which states that the order
of the court on July 30,1998, dismissing the complaint is
hereby reversed and set aside. The writ of PI issued is
hereby made permanent. The Regional Trial Court, Branch
54, Lapu-Lapu City is directed to undertake further
proceedings in Civil Case No. 4871-L sofar as the issue on
damages is concerned.
Jauban and Zosas MR was denied in a Resolution
dated 20 September 2005. Hence, the present recourse.
ISSUE:
Whether or not only questions of law were raised in
respondents appeal, which allegedly required the Court of
Appeals to dismiss said appeal;
We find no merit in the present Petition.
Propriety of the Mode of Appeal
Petitioners claim that since only questions of law were
raised in respondents appeal to the Court of Appeals, the
proper remedy should have been a Petition for Review filed
directly with this Court under Rule 45 of the Rules of Court.
Petitioners cite the Assignment of Errors raised by
respondents before the Court of Appeals in CA-G.R. CV No.
60721:
ASSIGNMENT OF ERRORS
I. The court a quo erred in dismissing the complaint on the
ground of litis pendentia.
II. The court a quo erred in dismissing the complaint on the
ground that the appellant Rene Espina has no legal capacity
to sue.
III. The court a quo should have issued a temporary
restraining order, and after due hearing should have issued
an injunction to enjoin appellee Sheriff Gato from
erroneously levying on and selling at public auction the
Subject Property to satisfy the Writ of Execution dated 14
October 1997 issued by the Trial Court in Civil Case No.
2309-L.
The Court of Appeals addressed this issue, thus:
Appellees [Juaban and Espina] contend that since
the assignment of errors raises only questions of law, the
proper course of action is a Petition for Review direct to the
Supreme Court in accordance with Rule 45, Revised Rules of
Court. The appellees unduly limit themselves to the
assignment of errors in the appeal and close their eyes to
the glaring fact that, from the narration of facts above,
certain acts taken by RTC Br. 27 before then Presiding Judge
Risos, which are immoral, devious, and patently illegal, has
constrained the Court to take a second look at the
circumstances which gave rise to the instant appeal. As
succinctly observed by the Court in its Resolution on
appellants prayer for the issuance of a writ of preliminary
injunction,
However, inspite full knowledge that the appeal
has been given due course and that therefore there is no
more basis for further action on the execution sale,
appellees Zosa and Juaban caused the consolidation of
ownership and the issuance of new titles in their names.
Said appellees are even aware that the redemption money
for the properties in the sum of P10,962,347.20 has been
deposited with this Court by the appellants. In fact,
appellees when asked to comment on the deposit,
manifested that they have no objection to the deposit
although they disagreed that interest or the redemption
price would stop running.
"It is therefore without legal basis that
notwithstanding those circumstances, the appellees, upon
expiration of the temporary restraining order issued by this
Court, immediately asked for the execution of a deed of sale
in their favor since no redemption has been made and
managed to obtain titles in their names. Such consolidation
of ownership is patently erroneous as the decision granting
them attorneys fees is not yet final and executory and is in
fact the subject of appeal in this Court under CA-GR CV No.
61696."17
In the fairly recent case of First Bancorp Inc. v.
Court of Appeals,20 we discussed the implications of the
allegation by a party of the lack of jurisdiction of the Court
of Appeals based on the ground that the appeal was based
solely on questions of law:
If the aggrieved party appeals by writ of error under Rule 41
of the Rules of Court to the CA and it turns out, from the
brief of appellant, that only questions of law are raised, the
appeal shall be dismissed:
Sec. 2. Dismissal of improper appeal to the Court of
Appeals. An appeal under Rule 41 taken from the Regional
Trial Court to the Court of Appeals raising only questions of
law shall be dismissed, issues purely of law not being
reviewable by said court. Similarly, an appeal by notice of
appeal instead of by petition for review from the appellate
judgment of a Regional Trial Court shall be dismissed.
An appeal erroneously taken to the Court of Appeals shall
not be transferred to the appropriate court but shall be
dismissed outright.
The nature of the issues to be raised on appeal can be
gleaned from the appellants notice of appeal filed in the
trial court and in his or her brief as appellant in the
appellate court.
The provision relied upon by respondent, Section 15, Rule
44 of the Rules of Court, reads:
Sec. 15. Questions that may be raised on appeal.
Whether or not the appellant has filed a motion for new
trial in the court below, he may include in his assignment
of errors any question of law or fact that has been raised
in the court below and which is within the issues framed
by the parties.
This rule, however, does not relate to the nature of the
issues that may be raised on appeal by the aggrieved party,
whether issues of fact or issues of law, or the mode of
appeal of the aggrieved party from a final order or
resolution of the trial court in the exercise of its original
jurisdiction; it merely provides the nature of the issues
appellant may include in his assignment of error
incorporated in his Brief as appellant. It may happen that
the appellant may have raised in the trial court errors of fact
or law or both, and need not include all said issues in his
appeal in the appellate court. The appellant has the right to
choose which issues of law he or she may raise in the CA in
addition to factual issues already raised.
A question of fact exists when a doubt or difference arises
as to the truth or falsity of alleged facts. If the query
requires a reevaluation of the credibility of witnesses or the
existence or relevance of surrounding circumstances and
their relation to each other, the issue in that query is
factual. On the other hand, there is a question of law when
the doubt or difference arises as to what the law is on
certain state of facts and which does not call for an
existence of the probative value of the evidence presented
by the parties-litigants. In a case involving a question of law,
the resolution of the issue rests solely on what the law
provides on the given set of circumstances. Ordinarily, the
determination of whether an appeal involves only
questions of law or both questions of law and fact is best
left to the appellate court. All doubts as to the correctness
of the conclusions of the appellate court will be resolved in
favor of the CA unless it commits an error or commits a
grave abuse of discretion.
In case of doubt, therefore, the determination of
the Court of Appeals of whether an appeal involves only
questions of law or both questions of law and fact shall be
affirmed. As explained by the Court of Appeals, it was only
after the appellate courts painstaking review of the facts
surrounding the dispute that the "immoral, devious and
patently illegal" acts which attended the transfer of the
subject properties to petitioners were brought to light. This
Court finds no error or grave abuse of discretion on the part
of the Court of Appeals in making the aforesaid finding. No
less than this Court, in the second case, A.M. No. P-02-1580,
found that Sheriff Gato "showed manifest partiality in favor
of Attys. Juaban and Zosa, giving them unwarranted
benefit, advantage and preference and that, with evident
bad faith, he caused undue injury to complainants [Espina
and CDPI]."Irrefragably, respondents appeal before the
Court of Appeals involved not only questions of law,
because for the determination thereof, the appellate court
was first called upon to make its own findings of facts which
were significant to its complete and judicious resolution of
the appeal.
As to the issue of taking Cognizance of Records in Another
Case
Jauban/Zosa claim that the Court of Appeals, in resolving
CA-G.R. CV No. 60721, the appeal of the dismissal of Civil
Case No. 4178-L by Lapu-Lapu City RTC, Branch 54, erred in
taking cognizance of the records in another case as basis for
its findings of facts. According to petitioners, the Court of
Appeals based its findings of facts on the records of the first
case, Civil Case No. 2309-L, pending before another Branch
(Branch 27) of the RTC of Lapu-Lapu City.
In Bongato v. Malvar,22 we held:
Second, as a general rule, courts do not take judicial notice
of the evidence presented in other proceedings, even if
these have been tried or are pending in the same court or
before the same judge. There are exceptions to this rule.
Ordinarily, an appellate court cannot refer to the record in
another case to ascertain a fact not shown in the record of
the case before it, yet, it has been held that it may consult
decisions in other proceedings, in order to look for the law
that is determinative of or applicable to the case under
review. In some instances, courts have also taken judicial
notice of proceedings in other cases that are closely
connected to the matter in controversy. These cases "may
be so closely interwoven, or so clearly interdependent, as
to invoke" a rule of judicial notice.
We find that the circumstances in Case No. 1 (Civil Case No.
2309-L) are too closely interwoven and so clearly
interdependent with those in Case No. 3 (Civil Case No.
4178-L). Petitioners and respondents are claiming the very
same subject properties. Case No. 3, the case at bar, calls
for a determination of who has the superior right to the
subject properties, petitioners or respondents. Petitioners
are the ones who actually rely on Case No. 1 because their
right to the subject properties is rooted in the proceedings
therein. It should be recalled that they served as the
counsels of the Heirs of Bacale in Case No. 1; they had the
subject properties sold at a public auction to satisfy the
award in their favor of attorneys fees; and they were the
successful bidders at the auction. Petitioners cannot insist
on their right to the subject properties, yet prevent the
Court of Appeals from looking into the basis or source of
said right, as well as the circumstances surrounding their
acquisition of the same. They cannot invoke orders, rulings
or findings of the trial court in Case No. 1 which are
supportive of their right to the subject properties but
suppress those which are damaging.

Even assuming for the sake of argument that the

proceedings in Case No. 1 cannot be stated in our narration
of facts on the ground that said proceedings have not yet
been terminated, there is certainly nothing that prevents us
from consulting Case No. 2 (A.M. No. P-02-1580) wherein
Sheriff Gato was suspended by this Court for acting with
"grave abuse of official functions and manifest partiality
amounting to grave misconduct and conduct prejudicial to
the administration of justice" in selling to petitioners the
subject properties at a public auction despite respondents
third-party claim. It bears to emphasize that Case No. 2 has
already been decided with finality by this Court.1avvphi1

which the plaintiff is entitled.27 If respondents

were seeking to enjoin the sale of the subject properties, in
effect, to prevent the transfer of ownership of the subject
properties to others, then such prayer must be deemed to
logically and reasonably include the prayer to enjoin others
from exercising rights of ownership over the subject
properties, for if the ownership of the subject properties
are not transferred to any one else, then no one else has
the right to exercise the rights appurtenant thereto.

Petition is DENIED.