scheduled conduct of the laparoscopic procedure.
She failed to consider the time
CONCEPCION ILAO-ORETA vs
SPOUSES EVA MARIE and BENEDICTO NOEL RONQUILLO,
CARPIO MORALES, J.:
Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel
Benedicto (Noel) Ronquillo (the Ronquillo spouses or the spouses), had not been
blessed with a child despite several years of marriage. They thus consulted
petitioner, Dr. Concepcion Ilao-Oreta (Dr. Ilao-Oreta), an obstetrician-gynecologist-
consultant at the St. Lukes MedicalCenter where she was, at the time material to
the case, the chief of the Reproductive Endocrinology and Infertility Section.
Upon Dr. Ilao-Oretas advice, Eva Marie agreed to undergo a laparoscopic
procedure whereby a laparascope would be inserted through the patients
abdominal wall to get a direct view of her internal reproductive organ in order to
determine the real cause of her infertility.
The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be
performed by Dr. Ilao-Oreta. At around 7:00 a.m. of said date, Eva Marie,
accompanied by her husband Noel, checked in at the St.
Lukes Medical Center and underwent pre-operative procedures including the
administration of intravenous fluid and enema.
Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure,
however, and no prior notice of its cancellation was received. It turned out that the
doctor was on a return flight from Hawaii to, and arrived at 10:00 p.m. of April 5,
1999 in, Manila.
On May 18, 1999, the Ronquillo spouses filed a complaint [1] against Dr.
Ilao-Oreta and the St. Lukes Medical Center for breach of professional and service
contract and for damages before the Regional Trial Court (RTC)
of Batangas City. They prayed for the award of actual damages including alleged
loss of income of Noel while accompanying his wife to the hospital, moral
damages, exemplary damages, the costs of litigation, attorneys fees, and other
available reliefs and remedies.[2]
In her Answer,[3] Dr. Ilao-Oreta gave her side of the case as follows: She
went on a honeymoon to Hawaii and was scheduled to leave Hawaii at 3:00
p.m. of April 4, 1999for Manila. Aware that her trip from Hawaii to Manila would
take about 12 hours, inclusive of a stop-over at the Narita Airport in Japan, she
estimated that she would arrive in Manila in the early morning of April 5, 1999. She
thus believed in utmost good faith that she would be back in Manila in time for the
difference between Hawaii and the Philippines, however.
In its Answer,[4] the St. Lukes Medical Center contended that the spouses
have no cause of action against it since it performed the pre-operative procedures
without delay, and any cause of action they have would be against Dr. Ilao-Oreta.
By Decision[5] of March 9, 2001, Branch 84 of the Batangas RTC, finding
that the failure of the doctor to arrive on time was not intentional, awarded Eva
Marie only actual damages in the total amount of P9,939 and costs of suit. It found
no adequate proof that Noel had been deprived of any job contract while attending
to his wife in the hospital.
On appeal by the spouses, the Court of Appeals, by Decision[6] of April
21, 2006, finding Dr. Ilao-Oreta grossly negligent,[7] modified the trial courts
decision as follows:
WHEREFORE, the trial Courts decision dated March 9,
2001 is affirmed, subject to the modification that the amount of
actual damages, for which both defendants-appellees are jointly
and severally liable to plaintiffs-appellants, is increased to
P16,069.40. Furthermore, defendant-appellee Dr. Ilao-Oreta is
also held liable to pay plaintiff-appellants the following:
(a) P50,000.00 as moral damages;
(b) P25,000.00 as exemplary damages; and
(c) P20,000.00 as attorneys fees.
SO ORDERED.[8] (Underscoring supplied)
Hence, the present Petition for Review[9] of Dr. Ilao-Oreta raising the
following arguments:
THE COURT A QUO ERRED IN FINDING
PETITIONER TO HAVE ACTED WITH GROSS NEGLIGENCE
AND AWARDING MORAL DAMAGES TO RESPONDENTS.[10]
THE COURT A QUO ERRED IN AWARDING
EXEMPLARY DAMAGES TO RESPONDENTS.[11]
1

THE COURT A QUO [ERRED] IN AWARDING
ATTORNEYS FEES TO RESPONDENTS.[12]
THE COURT A QUO ERRED IN INCREASING THE
AWARD OF ACTUAL DAMAGES IN FAVOR OF
RESPONDENTS.[13]
Gross negligence implies a want or absence of or failure to exercise slight
care or diligence, or the entire absence of care. It evinces a thoughtless disregard
of consequences without exerting any effort to avoid them.[14] It is characterized by
want of even slight care, acting or omitting to act in a situation where there is a
duty to act, not inadvertently but willfully and intentionally with a conscious
indifference to consequences in so far as other persons may be affected. [15]
The records show that before leaving for Hawaii, Dr. Ilao-Oreta left an
admitting order with her secretary for one of the spouses to pick up, apprised Eva
Marie of the necessary preparations for the procedure, and instructed the hospital
staff to perform pre-operative treatments.[16] These acts of the doctor reflect an
earnest intention to perform the procedure on the day and time scheduled.
The records also show that on realizing that she missed the scheduled
procedure, Dr. Ilao-Oreta, upon arrival in Manila, immediately sought to rectify the
same, thus:
[ATTY SINJAN] Q: So, can you tell us the reason why you
missed that operation?
[DR. ILAO-ORETA] A: When I scheduled her for the surgery, I
looked at my ticket and so I was to leave Hawaii on
April 4 at around 4:00 oclock in the afternoon, so I was
computing 12 hours of travel including stop-over, then
probably I would be in Manila early morning of April 5,
then I have so much time and I can easily do the case
at 2:00 oclock, you know it skipped my mind the change
in time.
Q: So when you arrived at 10:00 [PM] in Manila, what did you
do?
A: I called immediately the hospital and I talked with the nurses, I
asked about the patient, Mrs. Ronquillo, and they told
me that she has already left at around 7:00.
Q: And after calling the hospital, what happened?
A: I wanted to call the plaintiffs, but I didnt have their number at
that time, so in the morning I went to my office early
at 8:00 and looked for her chart, because her telephone
number was written in the chart. So, I called them right
away.
Q: Were you able to contact them?
A: I was able to reach Mr. Ronquillo.
Q: In the course of your conversation, what did you tell Mr.
Ronquillo?
A: I apologized to him, I said I was sorry about the time that I
missed the surgery, and I told him that I can do the
case right that same day without Mrs. Ronquillo having
to undergo another [b]arium enema.
Q: What else did you tell him, if any?
A: I asked him whether I can talk with Mrs. Ronquillo because I
wanted to apologize to her personally.
Q: And what did he say?
A: I could hear on the background that Mrs. Ronquillo was
shouting angrily that she didnt want to talk to me, and
that she didnt want re-scheduling of the surgery . . .
ATTY LONTOK: May we move, your Honor, for the striking out
of the answer, this is purely hearsay.
COURT: Remain on the record.
WITNESS [DR. ILAO-ORETA]: . . . and then Mr. Ronquillo told
me Im sorry, Dra., we cannot re-schedule the
surgery.[17] (Underscoring supplied)
2

Noel admitted that indeed Dr. Ilao-Oreta called him up after she arrived
in Manila as related by her.[18]
The evidence then shows that Dr. Ilao-Oreta, who had traveled more than
twice to the United States where she obtained a fellowship in Reproductive
Endocrinology and Infertility was indeed negligent when she scheduled to perform
professional service at 2:00 p.m. on April 5, 1999 without considering the time
difference between the Philippinesand Hawaii.
The doctors act did not, however, reflect gross negligence as defined
above. Her argument that
Although petitioner failed to take into consideration the
time difference between the Philippines and Hawaii, the situation
then did not present any clear and apparent harm or injury that
even a careless person may perceive. Unlike in situations where
the Supreme Court had found gross negligence to exist,
petitioner could not have been conscious of any foreseeable
danger that may occur since she actually believed that she
would make it to the operation that was elective in nature, the
only purpose of which was to determine the real cause of
infertility and not to treat and cure a life threatening
disease. Thus, in merely fixing the date of her appointment with
respondent Eva Marie Ronquillo, petitioner was not in the pursuit
or performance of conduct which any ordinary person may deem
to probably and naturally result in injury, [19] (Underscoring in
original)
thus persuades.
It bears noting that when she was scheduling the date of her performance
of the procedure, Dr. Ilao-Oreta had just gotten married and was preparing for her
honeymoon,[20] and it is of common human knowledge that excitement attends its
preparations. Her negligence could then be partly attributed to human frailty which
rules out its characterization as gross.
The doctors negligence not being gross, the spouses are not entitled to
recover moral damages.
Neither are the spouses entitled to recover exemplary damages in the
absence of a showing that Dr. Ilao-Oreta acted in a wanton, fraudulent, reckless,
oppressive or malevolent manner,[21] nor to award of attorneys fees as, contrary to
the finding of the Court of Appeals that the spouses were compelled to litigate and
incur expenses to protect their interest, [22] the records show that they did not exert
enough efforts to settle the matter before going to court. Eva Marie herself testified:
ATTY. SINJIAN:
Q: Isnt it true that before instituting this present case, you did not
make any demand on Dr. Ilao-Oreta regarding the
claims which you have allegedly incurred, because of
the failed laparoscopic surgery operation?
A [EVA MARIE]: I will tell the truth. Dr. Augusto Reyes of St.
Lukes . . .
Q: But did you demand?
A: No, I did not demand because
ATTY. SINJIAN: That will be all, your Honor.
ATTY. LONTOK: The witness is still explaining.
WITNESS: Im explaining first. Dr. Augusto Reyes told me that he
will hold the meeting for me and Dr. Oreta to settle
things and reimburse all the money that I spent from the
hospital, and he even suggested Dr. Oreta to personally
talk to me.
ATTY. SINJIAN:
Q: So it was to Dr. Augusto Reyes that you talked?
A: Yes.
Q: But you did not demand anything or write to Dr. Oreta?
A: No.
Q: Before instituting this case?
A: No.[23] (Underscoring supplied)
Finally, Dr. Ilao-Oretas prayer for the reduction of actual damages is well-
taken. Article 2201 of the Civil Code provides:
3

In contracts and quasi-contracts, the damages for
which the obligor who acted in good faith is liable shall be those
which are the natural and probable consequences of the breach
of the obligation, and which the parties have foreseen or could
have reasonably foreseen at the time the obligation was
constituted.
In fixing the amount of actual damages, the Court of Appeals and the trial court
included expenses which the spouses incurred prior to April 5, 1999 when the
breach of contract complained of occurred.[24] The Court of Appeals also included
the alleged P300 spent on fuel consumption from the spouses residence at San
Pascual, Batangas to the St. Lukes Medical Center in Quezon City and the
alleged P500 spent on food in the hospital canteen, both of which are
unsubstantiated by independent or competent proof.[25] The only piece of
documentary evidence supporting the food and fuel expenses is an unsigned
listing.[26] As the fuel and food expenses are not adequately substantiated, they
cannot be included in the computation of the amount of actual damages.
So Premiere Development Bank v. Court of Appeals[27] instructs:
In the instant case, the actual damages were proven
through the sole testimony of Themistocles Ruguero, the vice
president for administration of Panacor. In his testimony, the
witness affirmed that Panacor incurred losses, specifically, in
terms of training and seminars, leasehold acquisition,
procurement of vehicles and office equipment without, however,
adducing receipts to substantiate the same. The documentary
evidence marked as Exhibit W, which was an ordinary private
writing allegedly itemizing the capital expenditures and losses
from the failed operation of Panacor, was not testified to by any
witness to ascertain the veracity of its content. Although the
lower court fixed the sum of P4,520,000.00 as the total
expenditures incurred by Panacor, it failed to show how and in
what manner the same were substantiated by the claimant with
reasonable certainty. Hence, the claim for actual damages
should be received with extreme caution since it is only based on
bare assertion without support from independent
evidence. Premieres failure to prove actual expenditure
consequently conduces to a failure of its claim. In determining
actual damages, the court cannot rely on mere assertions,
speculations, conjectures or guesswork but must depend
on competent proof and on the best evidence obtainable
regarding the actual amount of loss.[28] (Underscoring supplied)
The list of expenses cannot replace receipts when they should have been issued as
a matter of course in business transactions [29] as in the case of purchase of
gasoline and of food.
The documented claim for hospital and medical expenses of the spouses
is detailed in the Statement of Account issued by the hospital, the pertinent entries
of which read:
xxxx
GROSS HOSPITAL CHARGES 2,416.50
4/5/1999 1699460 DEPOSITOFFICIAL
RECEIPT (5,000.00)
(5,000.00)
________
4/5/1999 SECOND 0284893 UNUSED MED 0439534 (65.55)
FLOOR HINOX 500 MG CAP
SECOND 0284894 UNUSED MED 0439893 (62.25)
FLOOR PHENERGAN 2 ML
50MG ______ (127.80)
BALANCE DUE (2,711.30)[30]
=======
As extrapolated from the above-quoted entries in the Statement of
Account, P2,288.70 (the gross hospital charges of P2,416.50 less the unused
medicine in the amount of P127.80) was debited from the P5,000 deposit[31] to thus
leave a balance of the deposit in the amount of P2,711.30, which the trial court
erroneously denominated as confinement fee. The remaining balance
of P2,711.30 was the amount refundable to the spouses.
Following Eastern Shipping Lines, Inc. v. Court of Appeals,[32] this Court
awards interest on the actual damages to be paid by Dr. Ilao-Oreta at the rate of
6% per annumfrom the time of the filing of the complaint on May 18, 1999, and at
12% per annum from the finality of this judgment until its satisfaction.
WHEREFORE, the petition is GRANTED. The decision appealed from
is MODIFIED in that
4
 1) the award to respondents-spouses Noel and Eva Marie Ronquillo of
actual damages is REDUCED to P2,288.70, to bear interest at a rate of 6% per
annum from the time of the filing of the complaint on May 18, 1999 and, upon
finality of this judgment, at the rate of 12% per annum until satisfaction; and

2. The award of moral and exemplary damages and attorneys

fees is DELETED.

5
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank
Smith, jr., the sum of P31,000, as damages alleged to have been caused by an
automobile driven by the defendant. From a judgment of the Court of First Instance
of the Province of La Union absolving the defendant from liability the plaintiff has
appealed.
The occurrence which gave rise to the institution of this action took place on
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It
appears that upon the occasion in question the plaintiff was riding on his pony over
said bridge. Before he had gotten half way across, the defendant approached from
the opposite direction in an automobile, going at the rate of about ten or twelve
miles per hour. As the defendant neared the bridge he saw a horseman on it and
blew his horn to give warning of his approach. He continued his course and after
he had taken the bridge he gave two more successive blasts, as it appeared to him
that the man on horseback before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals.
However, being perturbed by the novelty of the apparition or the rapidity of the
approach, he pulled the pony closely up against the railing on the right side of the
bridge instead of going to the left. He says that the reason he did this was that he
thought he did not have sufficient time to get over to the other side. The bridge is
shown to have a length of about 75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it toward his left, that being the
proper side of the road for the machine. In so doing the defendant assumed that
the horseman would move to the other side. The pony had not as yet exhibited
fright, and the rider had made no sign for the automobile to stop. Seeing that the
pony was apparently quiet, the defendant, instead of veering to the right while yet
some distance away or slowing down, continued to approach directly toward the
horse without diminution of speed. When he had gotten quite near, there being
then no possibility of the horse getting across to the other side, the defendant
quickly turned his car sufficiently to the right to escape hitting the horse alongside
of the railing where it as then standing; but in so doing the automobile passed in
such close proximity to the animal that it became frightened and turned its body
across the bridge with its head toward the railing. In so doing, it as struck on the
hock of the left hind leg by the flange of the car and the limb was broken. The
horse fell and its rider was thrown off with some violence. From the evidence
adduced in the case we believe that when the accident occurred the free space
where the pony stood between the automobile and the railing of the bridge was
probably less than one and one half meters. As a result of its injuries the horse
died. The plaintiff received contusions which caused temporary unconsciousness
and required medical attention for several days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of negligence such
as gives rise to a civil obligation to repair the damage done; and we are of the
opinion that he is so liable. As the defendant started across the bridge, he had the
right to assume that the horse and the rider would pass over to the proper side; but
as he moved toward the center of the bridge it was demonstrated to his eyes that
this would not be done; and he must in a moment have perceived that it was too
late for the horse to cross with safety in front of the moving vehicle. In the nature of
things this change of situation occurred while the automobile was yet some
distance away; and from this moment it was not longer within the power of the
plaintiff to escape being run down by going to a place of greater safety. The control
of the situation had then passed entirely to the defendant; and it was his duty either
to bring his car to an immediate stop or, seeing that there were no other persons
on the bridge, to take the other side and pass sufficiently far away from the horse
to avoid the danger of collision. Instead of doing this, the defendant ran straight on
until he was almost upon the horse. He was, we think, deceived into doing this by
the fact that the horse had not yet exhibited fright. But in view of the known nature
of horses, there was an appreciable risk that, if the animal in question was
unacquainted with automobiles, he might get exited and jump under the conditions
which here confronted him. When the defendant exposed the horse and rider to
this danger he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case
may be stated as follows: Did the defendant in doing the alleged negligent act use
that person would have used in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by
the imaginary conduct of the discreet paterfamilias of the Roman law. The
existence of negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation before him. The law considers what
would be reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that.
6
The question as to what would constitute the conduct of a prudent man in a given
situation must of course be always determined in the light of human experience
and in view of the facts involved in the particular case. Abstract speculations
cannot here be of much value but this much can be profitably said: Reasonable
men govern their conduct by the circumstances which are before them or known to
them. They are not, and are not supposed to be, omniscient of the future. Hence
they can be expected to take care only when there is something before them to
suggest or warn of danger. Could a prudent man, in the case under consideration,
foresee harm as a result of the course actually pursued? If so, it was the duty of
the actor to take precautions to guard against that harm. Reasonable foresight of
harm, followed by ignoring of the suggestion born of this prevision, is always
necessary before negligence can be held to exist. Stated in these terms, the
proper criterion for determining the existence of negligence in a given case is this:
Conduct is said to be negligent when a prudent man in the position of the
tortfeasor would have foreseen that an effect harmful to another was sufficiently
probable to warrant his foregoing conduct or guarding against its consequences.
Applying this test to the conduct of the defendant in the present case we think that
negligence is clearly established. A prudent man, placed in the position of the
defendant, would in our opinion, have recognized that the course which he was
pursuing was fraught with risk, and would therefore have foreseen harm to the
horse and the rider as reasonable consequence of that course. Under these
circumstances the law imposed on the defendant the duty to guard against the
threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was
guilty of antecedent negligence in planting himself on the wrong side of the road.
But as we have already stated, the defendant was also negligent; and in such case
the problem always is to discover which agent is immediately and directly
responsible. It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under these circumstances
the law is that the person who has the last fair chance to avoid the impending harm
and fails to do so is chargeable with the consequences, without reference to the
prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep.,
359) should perhaps be mentioned in this connection. This Court there held that
while contributory negligence on the part of the person injured did not constitute a
bar to recovery, it could be received in evidence to reduce the damages which
would otherwise have been assessed wholly against the other party. The
defendant company had there employed the plaintiff, as a laborer, to assist in
transporting iron rails from a barge in Manila harbor to the company's yards located
not far away. The rails were conveyed upon cars which were hauled along a
narrow track. At certain spot near the water's edge the track gave way by reason of
the combined effect of the weight of the car and the insecurity of the road bed. The
car was in consequence upset; the rails slid off; and the plaintiff's leg was caught
and broken. It appeared in evidence that the accident was due to the effects of the
typhoon which had dislodged one of the supports of the track. The court found that
the defendant company was negligent in having failed to repair the bed of the track
and also that the plaintiff was, at the moment of the accident, guilty of contributory
negligence in walking at the side of the car instead of being in front or behind. It
was held that while the defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper repair nevertheless the
amount of the damages should be reduced on account of the contributory
negligence in the plaintiff. As will be seen the defendant's negligence in that case
consisted in an omission only. The liability of the company arose from its
responsibility for the dangerous condition of its track. In a case like the one now
before us, where the defendant was actually present and operating the automobile
which caused the damage, we do not feel constrained to attempt to weigh the
negligence of the respective parties in order to apportion the damage according to
the degree of their relative fault. It is enough to say that the negligence of the
defendant was in this case the immediate and determining cause of the accident
and that the antecedent negligence of the plaintiff was a more remote factor in the
case.
A point of minor importance in the case is indicated in the special defense pleaded
in the defendant's answer, to the effect that the subject matter of the action had
been previously adjudicated in the court of a justice of the peace. In this
connection it appears that soon after the accident in question occurred, the plaintiff
caused criminal proceedings to be instituted before a justice of the peace charging
the defendant with the infliction of serious injuries (lesiones graves). At the
preliminary investigation the defendant was discharged by the magistrate and the
proceedings were dismissed. Conceding that the acquittal of the defendant at the
trial upon the merits in a criminal prosecution for the offense mentioned would be
res adjudicata upon the question of his civil liability arising from negligence -- a
point upon which it is unnecessary to express an opinion -- the action of the justice
of the peace in dismissing the criminal proceeding upon the preliminary hearing
can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be
reversed, and judgment is her rendered that the plaintiff recover of the defendant
the sum of two hundred pesos (P200), with costs of other instances. The sum here
awarded is estimated to include the value of the horse, medical expenses of the
7
plaintiff, the loss or damage occasioned to articles of his apparel, and lawful
interest on the whole to the date of this recovery. The other damages claimed by
the plaintiff are remote or otherwise of such character as not to be recoverable. So
ordered.

Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.
Johnson, J., reserves his vote.

Separate Opinions

MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the judgment in this
case. I do so because of my understanding of the "last clear chance" rule of the
law of negligence as particularly applied to automobile accidents. This rule cannot
be invoked where the negligence of the plaintiff is concurrent with that of the
defendant. Again, if a traveler when he reaches the point of collision is in a
situation to extricate himself and avoid injury, his negligence at that point will
prevent a recovery. But Justice Street finds as a fact that the negligent act of the
interval of time, and that at the moment the plaintiff had no opportunity to avoid the
accident. Consequently, the "last clear chance" rule is applicable. In other words,
when a traveler has reached a point where he cannot extricate himself and
vigilance on his part will not avert the injury, his negligence in reaching that
position becomes the condition and not the proximate cause of the injury and will
not preclude a recovery.

8

CORINTHIAN GARDENS
ASSOCIATION, INC.,
Vs.
SPOUSES REYNALDO and
MARIA LUISA TANJANGCO, and SPOUSES FRANK and
TERESITA CUASO,
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the Rules
of Civil Procedure seeking the reversal of the Court of Appeals (CA)
Decision[2] dated January 31, 2003 in CA-G.R. CV No. 43217, which reversed and
set aside the Decision[3] of the Regional Trial Court (RTC) of Quezon City,
dated March 30, 1993.
The Antecedents:
Respondents-spouses Reynaldo and Maria Luisa Tanjangco (the Tanjangcos) own
Lots 68 and 69 covered by Transfer Certificates of Title (TCT) No. 242245 [4] and
282961[5]respectively, located at Corinthian Gardens Subdivision, Quezon City,
which is managed by petitioner Corinthian Gardens Association, Inc.
(Corinthian). On the other hand, respondents-spouses Frank and Teresita Cuaso
(the Cuasos) own Lot 65 which is adjacent to the Tanjangcos lots.
Before the Cuasos constructed their house on Lot 65, a relocation survey was
necessary. As Geodetic Engineer Democrito De Dios (Engr. De Dios), operating
under the business name D.M. De Dios Realty and Surveying, conducted all the
previous surveys for the subdivision's developer, Corinthian referred Engr. De Dios
to the Cuasos. Before, during and after the construction of the said house,
Corinthian conducted periodic ocular inspections in order to determine compliance
with the approved plans pursuant to the Manual of Rules and Regulations of
Corinthian.[6] Unfortunately, after the Cuasos constructed their house employing
the services of C.B. Paraz & Construction Co., Inc. (C.B. Paraz) as builder, their
perimeter fence encroached on the Tanjangcos Lot 69 by 87 square meters.
No amicable settlement was reached between the parties. Thus, the Tanjangcos
demanded that the Cuasos demolish the perimeter fence but the latter failed and
refused, prompting the Tanjangcos to file with the RTC a suit against the Cuasos
for Recovery of Possession with Damages.[7]
Eventually, the Cuasos filed a Third-Party Complaint[8] against Corinthian, C.B.
Paraz and Engr. De Dios. The Cuasos ascribed negligence to C.B. Paraz for its
failure to ascertain the proper specifications of their house, and to Engr. De Dios
for his failure to undertake an accurate relocation survey, thereby, exposing them
to litigation. The Cuasos also faulted Corinthian for approving their relocation
survey and building plans without verifying their accuracy and in making
representations as to Engr. De Dios' integrity and competence. The Cuasos
alleged that had Corinthian exercised diligence in performing its duty, they would
not have been involved in a boundary dispute with the Tanjangcos. Thus, the
Cuasos opined that Corinthian should also be held answerable for any damages
that they might incur as a result of such construction.
On March 30, 1993, the RTC rendered a Decision in favor of the Tanjangcos. It
ruled that the Cuasos perimeter wall encroached on the land of the Tanjangos by
87 square meters.It, however, ruled that the Cuasos were builders in good faith,
and gave the Tanjangcos the option to sell and the Cuasos the option to buy the
encroaching portion of the land, at a price to be agreed upon by the parties within
sixty (60) days from receipt of the said Decision. In the event that the Cuasos were
unable and unwilling to purchase the said portion, the perimeter wall should be
demolished at the latters expense. The RTC also ordered the Cuasos to pay
monthly rentals of P2,000.00 commencing from the time of the filing of the
complaint. The RTC likewise held that C.B. Paraz was grossly negligent in not
taking into account the correct boundaries of Cuasos lot when it constructed the
house. It, thus, ordered C.B. Paraz to pay moral and exemplary damages as well
as attorneys fees to the Tanjangcos and the Cuasos. The third-party complaint
against Corinthian and Engr. De Dios, on the other hand, was dismissed for lack of
cause of action.
The Tanjangcos filed a Motion for Reconsideration [9] of the said RTC Decision
which the RTC, however, denied in its Order[10] dated June 28, 1993.
Dissatisfied with the RTC ruling, the Tanjangcos, the Cuasos, and C.B. Paraz all
appealed to the CA.
On appeal, the CA reversed and set aside the RTC Decision. It held that the
Cuasos acted in bad faith in land-grabbing the 87 square meter-portion of Lot 69
as of April 5, 1989. Correlatively, the CA allowed the Tanjangcos to exercise the
rights granted under Articles 449, 450, 451 and 549 of the New Civil Code, which
9
include the right to demand the demolition of the offending perimeter wall after
reimbursing the Cuasos the necessary expenses for the preservation of the
encroached area. The Cuasos were ordered to pay monthly rentals of P10,000.00
for the use, enjoyment and occupancy of the lot from 1989 up to the time they
vacate the property considering the location and category of the same. They were,
likewise, ordered to pay the Tanjangcos P100,000.00, as moral
damages, P50,000.00 as exemplary damages, and P150,000.00 as attorneys
fees. The CA also imposed six percent (6%) interest per annum on all the
awards. The Cuasos appeal against the Tanjangcos, on the other hand, was
dismissed for lack of merit. On the third-party complaints, Corinthian, C.B. Paraz
and Engr. De Dios were all found negligent in performing their respective duties
and so they were ordered to contribute five percent (5%) each, or a total of fifteen
percent (15%) to all judgment sums and amounts that the Cuasos shall eventually
pay under the decision, also with interest of six percent (6%) per annum.
Only Corinthian filed a Motion for Reconsideration [11] of the CA Decision within the
15-day reglementary period. No motion for reconsideration was filed by the
Cuasos, C.B. Paraz and/or Engr. De Dios.
About six (6) months later, or on August 12, 2003, the Cuasos filed a
Comment/Manifestation[12] praying that they be allowed to adopt Corinthians
Motion for Reconsideration.
In its Resolution[13] dated November 14, 2003, the CA denied Corinthians Motion
for Reconsideration.
Hence, Corinthian filed the instant Petition for Review on Certiorari assailing the
CA Decision and Resolution, and impleading the Cuasos as one of the
respondents being the third-party plaintiffs in the RTC.
This Court gave due course to Corinthians petition and required the parties to
submit their respective memorandum.[14] In compliance, the Cuasos submitted their
Memorandum[15] and Supplement to Memorandum,[16] which were both noted by
this Court in its Resolutions dated January 10, 2005 [17] and February 2,
2005, [18]respectively.
In the meantime, the Tanjangcos moved for partial entry of judgment of the CA
Decision which was granted by the CA in its Resolution [19] dated May 26, 2006,
directing the issuance of an Entry of Judgment and a Certification that its Decision
dated January 31 2003 has become final and executory with respect to the
Cuasos, C.B. Paraz and Engr. De Dios for their failure to file an appeal assailing
the said Decision before this Court.
The Tanjangcos then moved for the execution of the judgment against the Cuasos,
specifically the demolition of the perimeter fence, [20] which was also granted by the
RTC in its Order[21] dated December 18, 2006.
Other than the filing of an Opposition[22] and a Motion for Reconsideration[23] before
the RTC, the Cuasos prayed for the issuance of a temporary restraining order
(TRO) and/or preliminary injunction before this Court to enjoin the demolition of the
perimeter fence. They averred that the premature demolition of the alleged
encroaching perimeter wall and other improvements will cause grave and
irreparable damage to them, because what is sought to be demolished is part of
their residence. They claimed that no amount of money will compensate for the
damage they stand to suffer should any demolition subsequently prove to be
wrongful. They argued that before any execution can be carried out, it is necessary
to first determine whether or not Corinthian was negligent in approving the building
plan and whether or not it acted in good faith in doing so. Such determination,
according to the Cuasos, will in turn determine whether or not they were in good
faith in constructing the house.[24]
The Tanjangcos opposed the Cuasos' application for TRO. They countered that
the only pending matter with this Court is the appeal by Corinthian; hence, the
implementation of the January 31, 2003 Decision of the CA against the Cuasos will
not preempt the outcome of the said pending incidents. Also, any action taken by
this Court on Corinthians petition would not benefit the Cuasos for they did not
appeal the adverse decision against them. Accordingly, they cannot obtain
affirmative relief from this Court by reason or on account of the appeal taken by
Corinthian. The appeal, they added, is personal to Corinthian. Finally, they argued
that the Cuasos are now estopped from questioning the enforcement of the CA
Decision since they issued a managers check to pay the money judgment. [25]
In this Court's Resolution dated July 18, 2007, we denied the Cuasos' application
for TRO and/or writ of preliminary injunction for lack of merit.
The denial was based on sound legal principles. It is axiomatic that to be entitled to
the injunctive writ, one must show that there exists a right to be protected which is
directly threatened by the act sought to be enjoined. Furthermore, there must be a
showing that the invasion of the right is material and substantial, that the right of
complainant is clear and unmistakable, and that there is an urgent and paramount
necessity for the writ to issue in order to prevent serious damage. [26]
In the Cuasos case, their right to injunctive relief had not been clearly and
unmistakably demonstrated. They failed to show proof that there is material and
substantial invasion of their right to warrant the issuance of an injunctive writ.
Indeed, the enforcement of the writ of execution, which would demolish the Cuasos
perimeter fence, is manifestly prejudicial to their interest. However, they possess
10
no clear and unmistakable legal right that merits protection through the writ of
preliminary injunction.[27] Their right to maintain the said fence had been declared
inferior to the Tanjangcos right to the demolition of the fence, after the CA
judgment had become final and executory as to the Cuasos.
It bears stressing that the Cuasos failed to appeal the ruling of the CA. This failure
to contest the CA decision before this Court was fatal to their cause. It had the
effect of an admission that they indeed acted in bad faith, as they accepted the CA
ruling. The decision of the CA, therefore, became binding and final as to
them.[28] As a matter of fact, the CA already issued a partial entry of judgment
against the Cuasos.
An injunction to stay a final and executory decision is unavailing except only after a
showing that facts and circumstances exist which would render execution unjust or
inequitable, or that a change in the situation of the parties occurred. Here, no such
exception exists as shown by the facts earlier narrated. [29]
While it is true that this Court noted the Memorandum and Supplemental
Memorandum filed by the Cuasos, such notation was made only insofar
as Corinthian made them respondents in this petition. This Court cannot grant to
the Cuasos any affirmative relief as they did not file a petition questioning the CA
ruling. Consequently, the Decision of the CA holding that the Cuasos acted in bad
faith and that the perimeter fence may now be demolished cannot be put in issue
by the Cuasos. It is a fundamental principle that a party who does not appeal, or
file a petition for certiorari, is not entitled to any affirmative relief.[30] An appellee
who is not an appellant may assign errors in his brief where his purpose is to
maintain the judgment, but he cannot seek modification or reversal of the judgment
or claim affirmative relief unless he has also appealed. [31] This applies to C.B.
Paraz and Engr. De Dios who likewise failed to assail the aforementioned CA
Decision.
With this matter put to rest, we now go to the main issues raised by Corinthian, the
sole petitioner in this case, to wit:
a) Whether or not there is legal basis for the Court of Appeals to
hold petitioner Corinthian Gardens Association, Inc. liable to pay
5% of the judgment money to Sps. Tanjangco on account of
the encroachment made by Sps. Cuaso[; and]
b) Whether or not the Court of Appeals has legal basis to
increase unilaterally and without proof the amount prayed
for in the Complaint, i.e., P2,000.00, as reasonable
compensation for the use and enjoyment of the portion of
the lot encroached upon, to P10,000.00.[32]
Corinthian claims that the approval of the building plan of the Cuasos was not
tainted with negligence as it did not approve the survey relocation plan but merely
the architectural, structural and sanitary plans for Cuasos' house; that the purpose
of the said approval is not to ensure that the house to be erected on a particular lot
is constructed within its boundaries but only to ensure compliance with the Manual
of Rules and Regulations; that while Corinthian conducts actual site inspections,
the inspection and approval of the building plans are limited to table inspection
only; that the survey relocation plan was never submitted for Corinthian's approval;
that the acceptance of the builder's bond did not make Corinthian automatically
liable for the encroachment and for damages; and that Corinthian approved the
building plan with the good faith and due diligence required under the
circumstances. It, thus, concludes that it cannot be held liable to pay five
percent (5%) of the money judgment
to the Tanjangcos on account of the encroachment made by the Cuasos. Likewise,
it finds no legal basis for the CA to unilaterally increase the amount of the adjudged
rent from P2,000.00 to P10,000.00 which was not prayed for by the Tanjangcos in
their complaint and in the absence of evidence adduced by the parties.[33]
On the other hand, the Tanjangcos stand by the ruling of the CA and opine that
Corinthian was negligent in approving the building plan of the Cuasos. They submit
that Corinthian's claim that it merely conducts table inspections of buildings further
bolsters their argument that Corinthian was negligent in conveniently and
unilaterally restricting and limiting the coverage of its approval, contrary to its own
Manual of Rules and Regulations; that the acceptance of a builder's bond does not
automatically make Corinthian liable but the same affirms the fact that a
homeowner can hold it liable for the consequences of the approval of a building
plan; and that Corinthian, by regularly demanding and accepting membership
dues, must be wary of its responsibility to protect the rights and interests of its
members. Lastly, the Tanjangcos contend that a court can take judicial notice of
the general increase in the rentals of real estate, as in this case, where the CA
considered the value of their lot in the posh-and-swank Corinthian Gardens
Subdivision and the fact that they were deprived of it for almost two decades. The
Tanjangcos pray that this Court sustain the ruling of the CA.[34]
The instant case is obviously one for tort, as governed by Article 2176 of the Civil
Code, which provides:
ART. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
11
 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.
In every tort case filed under this provision, plaintiff has to prove by a
preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault
or negligence of the defendant or some other person for whose act he must
respond; and (3) the connection of cause and effect between the fault or
negligence and the damages incurred.[35]
Undeniably, the perimeter fence of the Cuasos encroached on Lot 69 owned by
the Tanjangcos by 87 square meters as duly found by both the RTC and the CA in
accordance with the evidence on record. As a result, the Tanjangcos suffered
damage in having been deprived of the use of that portion of their lot encroached
upon. Thus, the primordial issue to be resolved in this case is whether Corinthian
was negligent under the circumstances and, if so, whether such negligence
contributed to the injury suffered by the Tanjangcos.
A negligent act is an inadvertent act; it may be merely carelessly done from a lack
of ordinary prudence and may be one which creates a situation involving an
unreasonable risk to another because of the expectable action of the other, a third
person, an animal, or a force of nature. A negligent act is one from which an
ordinary prudent person in the actor's position, in the same or similar
circumstances, would foresee such an appreciable risk of harm to others as to
cause him not to do the act or to do it in a more careful manner.[36]
The test to determine the existence of negligence in a particular case may be
stated as follows: Did the defendant in committing the alleged negligent act use
that reasonable care and caution which an ordinary person would have used in the
same situation? If not, then he is guilty of negligence. The law, in effect, adopts the
standard supplied by the imaginary conduct of the discreet paterfamilias in Roman
law. The existence of negligence in a given case is not determined by reference to
the personal judgment of the actor in the situation before him. The law considers
what would be reckless, blameworthy, or negligent in a man of ordinary intelligence
and prudence, and determines liability according to that standard. [37]
By this test, we find Corinthian negligent.
While the issue of Corinthian's alleged negligence is factual in character,[38] a
review by this Court is proper because the CA's factual findings differ from those of
the RTC's.[39] Thus, after a meticulous review of the evidence on record, we hold
that the CA committed no reversible error when it deviated from the findings of fact
of the RTC. The CA's findings and conclusions are substantiated by the evidence
on record and are more in accord with law and reason. Indeed, it is clear that
Corinthian failed to exercise the requisite diligence in insuring that the Cuasos
abide by its Manual of Rules and Regulations, thereby resulting in the
encroachment on the Tanjangcos property.
We agree with the CA when it aptly held:
Corinthian cannot and should not be allowed to justify or excuse
its negligence by claiming that its approval of the Cuasos
building plans was only limited to a so-called table inspection;
and not actual site measurement. To accept some such
postulate is to put a premium on negligence. Corinthian was not
organized solely for the defendants Cuasos. It is also the
subdivision of the plaintiffs-spouses Tanjangcos - and of all
others who have their dwelling units or abodes
therein. Pertinently, its Manual of Rules and Regulations
stipulates in Section 3 thereof (under the heading Construction),
thus:
A. Rules and Regulations
No new construction can be started unless
the building plans are approved by the
Association and the appropriate Builders
cash bond and pre-construction fees are
paid. The Association will not allow the entry of
construction materials and process
identification cards for workers if the above
conditions are not complied with. Likewise, all
renovations, repairs, additions and
improvements to a finished house except
electrical wiring, will have to be approved by
the Association. Water service connection of a
homeowner who undertakes construction work
without prior approval of the Association will
be cut-off in addition to the sanctions
previously mentioned.
It goes without saying that this Manual of Rules and Regulations
applies to all - or it does not apply at all. To borrow a popular
expression, what is sauce for the gander is sauce for the goose -
or ought to be. To put it matter-of-factly and bluntly, thus, its so-
called table inspection approval of the Cuasos building plans is
no less of an approval, as approvals come and go. And since it
12
 is an approval tainted with negligence, the necessary and
inevitable consequences which law and justice attach to such
negligence must, as a matter of law and justice, also necessarily
attach to Corinthian.
And then again third party defendant-
appellee Corinthian Garden required the posting of a builders
cash bond (Exh. 5-Corinthian) from the defendants-appellants
Cuasos and the third-party defendant C.B. Paraz Construction to
secure the performance of their undertaking. Surely, Corinthian
does not imply that while it may take the benefits from the
Builders cash bond, it may, Pilate-like, wash its hands of any
responsibility or liability that would or might arise from the
construction or building of the structure for which the cash bond
was in the first place posted. That is not only unjust and immoral,
but downright unchristian and iniquitous.
Under the same parity of reasoning, the payment by the
appellants-Cuasos to the appellee Corinthian of pre-construction
and membership fees in the Association must necessarily entail
the creation of certain obligations on the part of Corinthian. For
duties and responsibilities always go hand in hand with rights
and privileges. That is the law of life - and that is the law of every
civilized society. It is an axiom of equity that he who receives the
benefits must share the burdens.[40]
By its Manual of Rules and Regulations, it is reasonable to assume that Corinthian,
through its representative, in the approval of building plans, and in the conduct of
periodic inspections of on-going construction projects within the subdivision, is
responsible in insuring compliance with the approved plans, inclusive of the
construction of perimeter walls, which in this case is the subject of dispute between
the Tanjangcos and the Cuasos.[41] It is not just or equitable to relieve Corinthian of
any liability when, by its very own rules, it imposes its authority over all its
members to the end that no new construction can be started unless the plans are
approved by the Association and the appropriate cash bond and pre-construction
fees are paid. Moreover, Corinthian can impose sanctions for violating these rules.
Thus, the proposition that the inspection is merely a table inspection and,
therefore, should exempt Corinthian from liability, is unacceptable. After all, if the
supposed inspection is merely a table inspection and the approval granted to every
member is a mere formality, then the purpose of the rules would be defeated.
Compliance therewith would not be mandatory, and sanctions imposed for
violations could be disregarded. Corinthian's imprimatur on the construction of the
Cuasos' perimeter wall over the property of the Tanjangcos assured the Cuasos
that everything was in order.
In sum, Corinthians failure to prevent the encroachment of the Cuasos perimeter
wall into Tanjangcos property despite the inspection conducted constitutes
negligence and, at the very least, contributed to the injury suffered by the
Tanjangcos.
On the second issue, our ruling in Spouses Badillo v. Tayag[42] is instructive:
Citing Sia v. Court of Appeals [272 SCRA 141, May 5, 1997],
petitioners argue that the MTC may take judicial notice of the
reasonable rental or the general price increase of land in order to
determine the amount of rent that may be awarded to them. In
that case, however, this Court relied on the CA's factual findings,
which were based on the evidence presented before the trial
court. In determining reasonable rent,
the RTC therein took account of the following factors: 1) the
realty assessment of the land, 2) the increase in realty taxes,
and 3) the prevailing rate of rentals in the vicinity. Clearly, the
trial court relied, not on mere judicial notice, but on the evidence
presented before it.
Indeed, courts may fix the reasonable amount of rent for the use
and occupation of a disputed property. However, petitioners
herein erred in assuming that courts, in determining the amount
of rent, could simply rely on their own appreciation of land values
without considering any evidence. As we have said earlier, a
court may fix the reasonable amount of rent, but it must still base
its action on the evidence adduced by the parties.
In Herrera v. Bollos [G.R. No. 138258, January 18, 2002], the
trial court awarded rent to the defendants in a forcible entry
case. Reversing the RTC, this Court declared that the
reasonable amount of rent could be determined not by mere
judicial notice, but by supporting evidence:
x x x A court cannot take judicial notice of a
factual matter in controversy. The court may
take judicial notice of matters of public
knowledge, or which are capable of
unquestionable demonstration, or ought to be
13
 known to judges because of their judicial
functions. Before taking such judicial notice,
the court must allow the parties to be heard
thereon. Hence, there can be no judicial notice
on the rental value of the premises in question
without supporting evidence.

Truly, mere judicial notice is inadequate, because evidence is required for a court
to determine the proper rental value. But contrary to Corinthian's arguments, both
the RTC and the CA found that indeed rent was due the Tanjangcos because they
were deprived of possession and use of their property. This uniform factual finding
of the RTC and the CA was based on the evidence presented below. Moreover,
in Spouses Catungal v. Hao,[43] we considered the increase in the award of rentals
as reasonable given the particular circumstances of each case. We noted therein
that the respondent denied the petitioners the benefits, including rightful
possession, of their property for almost a decade.

Similarly, in the instant case, the Tanjangcos were deprived of possession and use
of their property for more than two decades through no fault of their own. Thus, we
find no cogent reason to disturb the monthly rental fixed by the CA.

All told, the CA committed no reversible error.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals

is AFFIRMED. Costs against petitioner.

SO ORDERED.

14