A.M. No. RTJ-03-1759




SECOND DIVISION A.M. No. RTJ-03-1759 February 27, 2003 JIMMY T. GO and ATTY. GREGORIO D. CAÑEDA JR., complainants, vs. JUDGE ZEUS C. ABROGAR, Presiding Judge, RTC-Br. 150, Makati City, respondent. D E C I S I O N BELLOSILLO, J.: THIS ADMINISTRATIVE CASE for Gross Ignorance of the Law involves the execution of the 7 October 1999 Decision of respondent Judge Zeus C. Abrogar as Presiding Judge, RTC-Br. 150, Makati City, in "International Exchange Bank v. Alberto T. Looyuko, doing business under the name and style of Noah's Ark Sugar Refinery, Noah's Ark Sugar Holdings, Noah's Ark Merchandising, and Jimmy T. Go a.k.a. Jaime T. Gaisano," Civil Case No. 98-791, an action for a sum of money where complainant Jimmy T. Go was adjudged solidarily liable with Alberto T. Looyuko to pay plaintiff therein the amount of P96,000,000.00 representing their total unpaid principal obligation and interest, penalty of 12% per annum on the total principal obligation plus interest, and the cost of suit. Complainants Jimmy T. Go and Atty. Gregorio D. Cañeda Jr., his lawyer of record, question respondent judge's order dismissing their appeal from the Decision in the civil case. They allege that respondent Judge did not possess the authority to do so nor rule that the judgment was ripe for execution, the same being reserved in the Court of Appeals. Complainants also challenge the sale on execution of the shares of stock purportedly co-owned by complainant Go and defendant Alberto T. Looyuko. They assert that the judgment against Go was not yet final and executory in view of the filing of a petition for certiorari, mandamus and prohibition assailing the dismissal of their appeal. In support of their claim, they cite the principle of "judicial courtesy" as explained in Eternal Gardens Memorial Corp. v. Court of Appeals,1 and Joy Mart Consolidated Corp. v. Court of Appeals.2 Complainants further aver that respondent Judge was so incompetent a judge that he merely relied upon the "opinion" of Deputy Sheriff Renato Flora when the former gave the go-signal to proceed with the auction sale of Go's supposed properties, as they were in fact sold. Finally, they fault respondent Judge for not postponing the auction sale despite the pendency then of their motion to quash the writ of execution and their third-party adverse claim. The record shows that complainant Jimmy T. Go received copy of the Decision in Civil Case No. 98-791 on 20 October 1999, and on 5 November 1999 moved for its reconsideration and/or for new trial. Respondent Judge denied the motion in his Order of 17 December 1999 for lack of merit. On 3 January 2000, alleging that the fifteen (15) - day reglementary period to perfect appeal had already expired on 4 November 1999, or a day before the filing of the motion for reconsideration and/or new trial, International Exchange Bank as plaintiff in the civil case moved for the execution of the judgment against Go. On 5 January 2000 complainant Go filed his notice of appeal from the Decision, and at the same time opposed the motion for execution. In the meantime, Go's co-defendant Alberto T. Looyuko who appealed the Decision on 4 November 1999, withdrew his notice of appeal on 8 February 2000 prior to the transmittal of the original record of the civil case to the Court of Appeals and expressed conformity to the execution of the judgment against his properties. On 8 February 2000 respondent Judge dismissed the appeal taken by Jimmy T. Go for having been taken out of time. Respondent Judge found that copy of the Decision was served upon Go's counsel of record on 20 October 1999 and that the period to appeal expired on 4 November 1999 a working day. This fact rendered the motion for reconsideration and/or new trial filed on 5 November 1999 already a day late. On 14 February 2000 respondent Judge ordered the issuance of a writ of execution in favor of plaintiff bank to implement the Decision of 7 October 1999 against the "goods and chattels of the defendants" and in case of insufficiency thereof against "the real property of the said defendants and to sell the same or so much thereof in the manner provided for by law for the satisfaction of said judgment." As a result of the enforcement of the writ, 81,566 shares in China Banking Corporation registered in the name of Alberto T. Looyuko were levied upon. On 15 February 2000 Deputy Sheriff Renato Flora issued a notice of sale scheduling the public auction of the shares on 21 February 2000. On 18 February 2000 complainant Go moved to quash the writ of execution on the ground that the Decision was not final and executory as to him and that the writ of execution was issued without the benefit of any hearing. Curiously, for an allegedly urgent motion to quash a standing writ of execution and to stop the auction of the properties he claimed to be his, complainant Go set the hearing thereof on 3 March 2000, a period of fourteen (14) days from the date of its filing. Not content with the motion to quash, complainants also filed a third-party adverse claim under Sec. 16, Rule 39, 1997 Rules of Civil Procedure3 over one-half (½) of the 81,566 shares of stock that had been calendared for public sale. On 21 February 1999 the sale on execution took place as scheduled with plaintiff bank buying the shares of stock for P64,000,000.00. Atty. Gregorio D. Cañeda Jr., as new counsel of record of complainant Go, did not attend the 3 March 2000 hearing of his client's motion to quash. In the interest of justice, respondent Judge reset the hearing to 8 March 2000, although this setting was again aborted by complainants on 7 March 2000 when they filed a Manifestation requesting the cancellation of the hearing. Complainants argued that their motion had become moot with the sale of the 81,566 shares of stock. Meanwhile, while their third-party adverse claim and motion to quash the writ of execution were pending, complainants filed a complaint for the annulment of the auction sale with damages and injunction with RTC-Br. 154, Pasig City, docketed as Civil Case No. 67806, entitled "Jimmy T. Go v. The Office of the Clerk of Court and Ex-Officio Sheriff of Makati, Sheriff IV Renato C. Flora and/or any of his representatives." This action was allegedly based on Sec. 16, Rule 39, 1997 Rules of Civil Procedure.4 On 4 March 2000 complainants also filed a Petition for Certiorari, Mandamus and Prohibition with the Court of Appeals, docketed as CA-G.R. SP No. 57572. As in their pending complaint for annulment, they assailed the writ of execution issued by respondent Judge in favor of plaintiff International Exchange Bank as well as the former's prior orders denying Go's motion for reconsideration and/or new trial; dismissing his notice of appeal; and authorizing the issuance of a writ of execution. On 19 April 2000 respondent Judge issued a second writ of execution directing Deputy Sheriff Renato Flora to levy on the properties of complainant Jimmy Go and to sell the properties to satisfy the Decision in Civil Case No. 98-791 in full. On 15 May 2000 the Court of Appeals promulgated its Decision in CA-G.R. SP No. 57572 denying Go's petition for lack of merit and affirming in toto the orders of respondent Judge, most notably the declaration of respondent's Decision in the civil case as final and executory, and the validity of the writ of execution.5 The motion for reconsideration of this Decision is said to be still pending in the appellate court. In his Comment on the instant complaint, Judge Zeus C. Abrogar asserts that the 14 February 2000 writ of execution in Civil Case No. 98-791 was directed only against defendant Alberto T. Looyuko who had withdrawn his notice of appeal and conveyed his acquiescence to the execution of the Decision against his properties. Judge Abrogar claims that the reference of the writ to "defendants" was a mere clerical mistake, as it should have read "defendant," that was not corrected when the writ was issued. Respondent Judge also alleges that, as he honestly intended it to be, the writ of execution was enforced to cover only the 81,566 shares registered in the name of Albèrto T. Looyuko, not upon any property of complainant Go. Finally, to absolve himself of the charge, Judge Abrogar refers to the Decision of the Court of Appeals in CA-G.R. SP No. 57572 which affirmed in toto the orders being assailed in the instant complaint. We are not impressed by complainants' allegations. Firstly, prior to the transmittal of the original record of Civil Case No. 98-791 to the appellate court, Judge Abrogar possessed the authority under Sec. 13, Rule 41, 1997 Rules of Civil Procedure to dismiss an appeal for having been taken out of time. In the instant case, there is no question that respondent Judge dismissed the appeal on 8 February 2000 within the period reserved to him by our rules of procedure. Secondly, as far as Judge Abrogar is concerned, the Decision in Civil Case No. 98-791 was already final and executory when he authorized the execution of the judgment and issued the writ of execution. To recall the case antecedents, the appeal of complainants was already dismissed on 8 February 2000 even before the issuance of the order and the writ of execution on 14 February 2000 and the conduct of the execution sale on 21 February 2000. It must also be stressed that the Court of Appeals in CA-G.R. SP No. 57572 affirmed the final and executory character of the judgment as well as the validity of the orders of respondent Judge now complained of. Thirdly, the principle of "judicial courtesy" could not have prevented respondent Judge from authorizing the execution of the judgment and issuing the writ of execution. Obviously, at the time these processes were made available, no petition was then pending in the Court of Appeals. The petition in the appellate court, docketed as CA-G.R. SP No. 57572 was filed only on 4 March 2000. Moreover, the precept of "judicial courtesy" should not be applied indiscriminately and haphazardly if we are to maintain the relevance of Sec. 7, Rule 65, 1997 Rules of Civil Procedure which states that "the petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case." So construed, in Eternal Gardens Memorial Corp. v. Court of Appeals,6 the rule of "judicial courtesy" would apply only if there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the lower court. Unfortunately for complainants, this circumstance is not present in the decision of respondent Judge to issue on 19 April 2000 a second writ of execution. Clearly, the ill-effects of this writ of execution, if any, would have been remedied by restitution or reparation under Sec. 5, Rule 39, 1997 Rules of Civil Procedure.7 Evidently, too, the proceedings in the Court of Appeals were not interrupted by respondent Judge's action as shown by the promulgation of its Decision on complainant Go's petition without any hint of interference from respondent Judge's exercise of discretion. If any party in this case has violated the rule of "judicial courtesy," it appears to be complainants. They were the ones who have apparently misapplied Sec. 16, Rule 39, 1997 Rules of Civil Procedure8 and violated the rules against forum shopping. This was so when they instituted a separate action for annulment of the auction sale with prayer for injunction before RTC-Br. 154, Pasig City, simultaneously with their third-party adverse claim and motion to quash the writ of execution, and their petition for certiorari, mandamus and prohibition with the Court of Appeals. All these cases and incidents sought substantially the same relief, i.e., to reverse and set aside the orders of respondent Judge regarding the execution of his Decision in Civil Case No. 98-791. Moreover, complainants could not have availed of the remedies under Sec. 16, Rule 39, specifically the filing of a "terceria" and an independent action to vindicate Go's claim of ownership. Certainly, they are not "strangers" or "third persons" as regards Civil Case No. 98-791 who would have been otherwise entitled to seek recourse under the rule. Fourthly, there is no substantial evidence to prove that respondent Judge was so incompetent as not to be acquainted with the rules on the execution of a final and executory judgment. It is not established that he had to ask for the advice or opinion of Deputy Sheriff Renato Flora when he decided to proceed with the auction sale of the 81,566 shares of stock in China Banking Corporation. Examined from every angle, no incriminating detail can be found from the only evidence bearing upon this allegation, i.e., the transcripts of stenographic notes of the testimony of Sheriff Flora taken during the trial of Civil Case No. 67806 before the RTC-Br. 154 of Pasig City. Indeed, nothing in these recorded testimonies evinces the ineptitude and lack of common sense attributed by complainants to respondent Judge. All that the transcripts reveal is that Sheriff Flora and respondent Judge talked about and discussed the execution sale, which is to be expected as part of their common duty to coordinate the discharge of each other's tasks. In any event, the effort of a judge to ask for an advice or opinion upon a non-confidential matter from his own staff is not a badge of judicial incompetence and infirmity. The information that could be offered, as the words "advice" and "opinion" connote, would only be recommendatory in nature while the final decision on the subject remains the prerogative of the judge himself. Lastly, under the facts of this case, the mere filing of a "terceria," or an affidavit stating complainant Go's alleged title, under Sec. 16, Rule 39, 1997 Rules of Civil Procedure,⁹ or a motion to quash the writ of execution does not stay the auction sale scheduled by the sheriff. For one, as stated above, complainants are not "strangers" or "third persons" with respect to Civil Case No. 98-791 within the meaning of Sec. 16, Rule 39. Hence, they have no requisite standing to file a "terceria," much less a separate complaint to annul the execution sale which they inopportunely instituted before the RTC of Pasig City. A "stranger" or "third person" is any person other than the judgment debtor or his agent,10 a class of parties that indubitably excludes complainant Go. In Tillson v. Court of Appeals11 we held that a party to the action has "no business filing a third-party claim over property involved in that action and which he himself claims to belong to him."12 The remedy of complainants is "to ask the court for relief against any alleged errors, excesses or irregularities of the sheriff x x x which the court itself could as easily and expeditiously grant."13 Furthermore, the grounds adduced by complainants to quash the writ of execution, i.e., that the Decision in Civil Case No. 98-791 has not yet attained finality; that there was no opportunity given to complainant Go to oppose the motion for execution; and that a new trial should be conducted to determine the true amount of complainant Go's liability, are matters that have already been resolved and found to be unmeritorious. They also involve allegations that are easily proved as unmistakably false by a straightforward examination of the record of the civil case, i.e., complainant Go was given several opportunities to contest the motion for execution against him. Plainly, complainant's arguments do not justify a deferment of the execution of the trial court's Decision.14 At any rate, if the motion to quash did not produce its desired effect of putting the execution of the judgment on hold, it was complainants' own doing. Irresponsibly, they set the hearing thereof a period of fourteen (14) days from the date of its filing, and thereafter postponed their own setting to a date seven (7) days later. Eventually, after their self-induced delay of twenty-one (21) days, complainants moved for the cancellation of the scheduled hearing upon a measly one (1) day's notice. For a supposedly pressing and imperative motion, the hearings set by complainants do not indicate a bona fide intention to correct an earnest injustice as the dates were calendared simply far apart until finally the hearing of their motion was called off unceremoniously. Obviously, on the basis of the foregoing case scrutiny, there is no basis to hold respondent Judge liable for "Gross Ignorance of the Law." The allegations of complainants and the proffered evidence thereof do not prove the elements of this administrative offense, i.e., that the subject order or actuation of the judge in the performance of his official duties must not only be contrary to existing law and jurisprudence but more importantly must be attended by bad faith, fraud, dishonesty or corruption.15 It may even be said confidently that respondent Judge did not deviate from established rules on the execution of judgments. We are aware of respondent's admission that he committed an error in good faith when he failed to correct the supposed clerical error in his 14 February 2000 writ of execution wherein the word "defendants" instead of "defendant" was entered despite his avowed intention to execute the Decision only against defendant Alberto T. Looyuko. Under the circumstances, however, this declaration does not matter. Considering the absence of errors in the actions of respondent Judge, more so the nonattendance of fraud or dishonesty in his assailed orders and processes, we are extending to him the benefit of the doubt that he was not negligent in the performance of his official duties to warrant the imposition of an administrative penalty. This case should of course remind respondent Judge to be at all times firm and adept in the discharge of his tasks as judge and supervisor of the execution of his decisions so that he is not easily swayed by complaints and arguments of disgruntled litigants which upon careful examination have no basis in fact and law. WHEREFORE, the instant complaint against JUDGE ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Court of Makati City, Branch 150, is DISMISSED for lack of merit. SO ORDERED. Mendoza, Quisumbing, Austria-Martinez and Callejo, Sr., JJ., concur. Footnotes 1 G.R. No. 50054, 17 August 1988, 164 SCRA 421. 2 G.R. No. 88705, 11 June 1992, 209 SCRA 738. 3 This section enumerates the remedies of a third person or a stranger, i.e., not a party to the case, claiming as his own a property levied upon for execution. 4 Ibid. 5 Decision penned by Associate Justice Ramon A. Barcelona and concurred in by Associate Justices Marina L. Buzon and Edgardo P. Cruz of the Tenth Division. 6 G.R. No. 50054, 17 August 1988, 164 SCRA 421. 7 This provision reads: "Effect of Reversal of Executed Judgment. - Where the executed judgment is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances." 8 Cite # 3 Footnote in full. 9 Ibid. 10 Philippine Bank of Communications v. Court of Appeals, G.R. No. 106858, 5 September 1997, 278 SCRA 552; Mariano v. Court of Appeals, G.R. No. 51283, 7 June 1989, 174 SCRA 145. 11 G.R. No. 89870, 28 May 1991, 197 SCRA 587, 605. 12 Id. at 605. 13 Ibid. 14 Valenzona v. Court of Appeals, G.R. No. 106895, 10 September 1993, 226 SCRA 306. 15 Yasin v. Felix, A.M. No. RTJ-94-1167, 4 December 1995, 250 SCRA 545. The Lawphil Project - Arellano Law Foundation