l\epublic of tbe JbiUppine~

i>upreme QCourt

;ffianila
THIRD DIVISION

NEMENCIO C. PULUMBARIT,
SR.,
Petitioner,

G.R. NOS. 153745-46

-versusTHE COURT OF APPEALS (17T 11

Division Composed of JUSTICE
BIENVENIDO
L.
REYES,
Ponente; JUSTICE ROBERTO A.
BARRIOS,
Chairman;
and
JUSTICE
EDGARDO
F.
SUNDIAM,
Acting
Third
Member),
LOURDES
S.
PASCUAL,
LEONILA
F.
ACASIO,
and
SAN
JUAN
MACIAS MEMORIAL PARK,
INC.,
Respondents.

x-----------------------------------------x

LOURDES
&
PASCUA~
LEONILA F. ACASIO and SAN
JUAN MACIAS MEMORIAL
PARK, INC.,
Petitioners,
-versusNEMENCIO C. PULUMBARIT,
SR.,
Respondent.

G.R. NO. 166573

Present:
PERALTA,* J., Acting Chairperson
VILLARAMA, JR.,
PEREZ**
'
MENDOZA,*** and
JARDELEZA, JJ.
Promulgated:
October 14, 2015

~,L~,,~
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --=--::_.
--~ ': --x
Associate Justice Presbitero J. Velasco, Jr. recused himself from these cases due to close relation
to a member of the law firm representing a party.

**

Designated as Additional Member per Ratlle dated September I, 20 I~:/

De<ignntod"' Add;1;onnl Memb0< P" RntTio dated Septomb 9,

2016

Decision

G.R. Nos. 153745-46

& 166573

DECISION
JARDELEZA, J.:

Before us are two consolidated petitions. G.R. Nos. 153745-46

involves a Petition for Review on Certiorari with Petition for Certiorari
filed by Nemencio C. Pulumbarit to annul and set aside the Resolution 1
dated May 30, 2002 issued by the Court of Appeals (CA) in the consolidated
cases CA-G.R. SP No. 61873 and CA-G.R. CV No. 69931. G.R. No.
166573, on the other hand, concerns a Petition for Review on Certiorari
filed by Lourdes S. Pascual, Leonila F. Acasio and San Juan Macias
Memorial Park, Inc. seeking the review of the Decision 2 dated September
28, 2004 rendered by the CA in CA-G.R. CV No. 69931 reversing the
Decision 3 of Branch XX of the Regional Trial Court in Malolos, Bulacan in
Civil Case No. 7250-M and ruling that the agreement entered into between
the parties was a sale.
The :Facts and Case Antecedents

Sometime in 1982, San Juan Macias Memorial Park, Inc. (SJMMPI),

through its President Lourdes S. Pascual, authorized Atty. Soledad de Jesus
to look for a buyer for the San Juan Memorial Park (Memorial Park) for
Pl,500,000.00. 4 Thereafter, Lourdes Pascual, Leonila F. Acasio, and the
other officers of SJMMPI (Pascual et al.) were introduced to Nemencio
Pulumbarit (Pulumbarit). The parties eventually came to an agreement, with
Pulumbarit issuing eighteen (18) checks in the name of SJMMPI SecretaryTreasurer Leonila Acasio. Pulumbarit and/or his lawyer took charge of
reducing the agreement into writing and securing the signatures of all
concerned parties. 5
On June 13, 1983, Pascual et al. sent a letter to Pulumbarit requesting
for a copy of their written agreement. In another letter of even date, they also
asked Pulumbarit to reissue new checks to replace the ones he previously
issued. 6 Failing to get a favorable response, Pascual et al. filed a Complaint
for Rescission of Contract, Damages and Accounting with Prayer for
Preliminary Injunction or Receivership against Pulumbarit. 7

Seventeenth Division through Justice Bienvenido L. Reyes, with Justices Roberto A. Barrios and
Edgardo F. Sundiam, concurring. Rollo, G.R. Nos. 153745-46, pp. 16-28.
Tenth Division through Justice Magdangal M. de Leon, with Justices Romeo A. Brawner and
Mariano C. del Castillo, concurring. Rollo, G.R. No. 166573, pp. 141-159.
Through Honorable Judge Oscar C. 1-lerrera, Jr. Id at 80-127.
Id. at 142.

RTC Records,\:'. I. I, p. 7.
Id.
Id. at 1-6.

Decision

G.R. Nos. 153745-46

& 166573

Proceedings before the Trial Court

In their Complaint, docketed as Civil Case No. 7250-M before Branch
XX of the Regional Trial Court in Malolos, Bulacan, Pascual et al. alleged
that they entered into a contract of management with option to buy the
Memorial Park with Pulumbarit, with the latter allegedly agreeing to pay
Pascual et al. a sum of P750,000.00 on staggered installments. 8 Under this
alleged agreement, Pulumbarit's failure to make good on these installments
would cause the cancellation of their contract, forfeiture of any payment
already made, and surrender by Pulumbarit of possession over the Memorial
9
Park.
Pascual et al. claimed that they requested new checks from
Pulumbarit to replace the previous ones he issued, the latter having been
made payable to SJMMPI 's Secretary-Treasurer Leonila Acasio, who has
since then resigned from the company. Due to his refusal to issue the
requested replacement checks, Pulumbarit was in breach of his obligations
under their contract.
Pascual et al. also asse1ied that Pulumbarit further violated their
management contract by ( 1) destroying the original fence surrounding the
Memorial Park, (2) annexing the adjacent lots and (3) operating these and
the Memorial Park under the name "Infinito Memorial Park" using the
permit issued to SJMMPI without its consent and the proper governmental
10
clearances. Thus, Pascual et al. prayed that the court declare, among
others, ( 1) the rescission of their agreement, (2) forfeiture of all sums paid
by Pulumbarit to SJMMPI, and (3) an obligation on Pulumbarit's part to
II
ren d er accountmg.
On February 3, 1984, Pulumbarit filed a Motion praying for the
dismissal of the Complaint for lack of cause of action, attaching a copy of
12
the Memorandum of Agreement (MOA). Pascual et al. amended their
Complaint on June 5, 1984. 13 Therein, they alleged that Pulumbarit falsified
their agreement, as the MOA provided did not reflect the terms and
conditions agreed upon by the parties. They disputed the statement in the
MOA that the agreement was a sale of all the paid-up stocks of SJMMPI and
not a management agreement with option to buy. Pascual et al. argued that
the falsified MOA was a nullity and therefore without force and effect.
In a motion filed on July 5, 1984, and pending resolution of
Pulumbarit's Motion to Dismiss, Pascual et al. sought to have Pulumbarit

')

iO
II

12

11

Id. at I.
Id. at 2.
Id. at 3-4.
Id. at S.
Id. at 19-23.
Id. at 54-60.

Decision

G.R. Nos. 153745-46

& 166573

declared in default. 14 The trial cou1i granted this motion and allowed Pascual
. evt'd ence ex parte. 15
et a l. to present their
On September 5, 1984, the trial court rendered a default judgment in
favor of Pascual et al. 16 This judgment of default was reversed by the CA on
January 15, 1989 and the case was remanded to the trial co mi for reception
of Pulumbarit's evidence. 17 Prior to the reversal of the trial court's default
judgment, however, Pascual et al. applied for the appointment of a receiver
to take possession of the Memorial Park and all its records and business
transactions during the pendency of the case. 18 This application was denied
19
by the trial court in an Order dated October 10, 1991.
..

..
With the reversal of the earlier judgment of default, the trial court
admitted Pulumbarit's Answer. 20 Therein, Pulumbarit denied ev"er having
offered to manage the Memorial Park for Pascual et al. Presentipg the signed
MOA as evidence, Pulumbarit countered that SJMMPI and its
officers/stockholders sold all of the subscribed capital stock of SJMMPI to
him for P750,000.00 payable in installments. 21 As sole owner, Pulumbarit
claimed he had no obligation to Pascual et al. to render accounting.
During the trial, Pascual et al. presented, among others, Eliodoro
Constantino, a Document Examiner from the National Bureau of
Investigation (NBI), to prove that Pulumbarit falsified the MOA, which
caused it to not reflect their true agreement. Constantino examined the
contested MOA and testified that the second page was typed from a
typewriter different from the one used in typing pages one, three and four. 22
On July 15, 2000, the trial court promulgated its questioned
Decision 23 in favor of Pascual et al. The dispositive portion reads:
WHEREFORE, premises considered, judgment is hereby
rendered as follows:
a)
Declaring null and void the Memorandum of
Agreement dated November 1982 between Lourdes S.
Pascual and Nemencio Pulumbarit, Sr. (marked exhibit "J"
for the plaintiffs and Exhibit "l" for the defendants);
b)
Rescinding the Management Contract
entered into by Nemencio C. Pulumbarit, Sr. with the
plaintiffs for the management of the San Juan Macias
14

RTC records, Vol. I, p. 73.

15

Id.
Id.
Id.
Id.

16

17
18

l'I
20
21

12
?'

-'

at
at
at
at

87-88.
143-150.
164-173.

199-201.
RTC records, Vol. II, pp. 390-396.
RTC records, Vol. I, p. 175.
Id. at 79.
RTC records, V / p . 833-83(1.
Id at 81 J-858.

Decision

G.R. Nos. 153745-46

& 166573

[Memorial] Park, Inc., and declaring the same to have no

force and effect;
c)
Directing Nemencio Pulumbarit, Sr. to
render an accounting of his operation of the San Juan
Macias Memorial Park, Inc. from the time he took over the
operation thereof in 1982 up to the date of this decision;
and
d)
Ordering Nemencio C. Pulumbarit, Sr. to
pay the San Juan Macias Memorial Park, Inc. the sums of
Pl00,000.00 as actual damages and Pl00,000.00 by way of
attorney's fees and expenses of litigation.
The Court also orders Nemencio Pulumbarit, Sr., as
well as any and all persons acting for and in his behalf, to
forthwith cease and desist from operating and engaging in
the business of the San Juan Macias Memorial Park, Inc.,
including that being operated under the name of Infinito
Memorial Park, and from engaging, in any manner
whatsoever, in acts of management, ownership and
administration of the aforesaid corporation. He is also
directed to immediately surrender to the plaintiffs all
documents, papers, deeds, accounts and sums of money
relating to or the business and operation of the corporation.
SO ORDERED. 24

Pulumbarit filed a Notice of Appeal dated August 19, 2000. 25 His

appeal was docketed as CA-G.R. CV No. 69931.
Meanwhile, and before the transmittal of the records of Civil Case No.
7250-M to the CA, Pascual et al. filed with the trial court motions praying
for (1) the issuance of a writ of injunction against Pulumbarit26 and (2) the
execution of the decision pending appeal. 27 The trial court granted these
motions on September 13, 2000 28 pursuant to Section 4, Rule 39 of the Rules
of Comi. 29 Pulumbarit's subsequent motion for reconsideration 30 of this
Order (directing discretionary execution) was denied on October 3, 2000. 31
Aggrieved, Pulumbarit filed a Petition for Certiorari with the CA to
nullify the writs of execution and injunction issued by the trial court, with
24

25

26
27
28

29

10
11

Id. at 857-858.
Id. at 860-861.
Id. at 867-868.
Id. at 876-880.
Id. at 883-884.
Section 4 . .Judgments not stayed hy appeal. - Judgments in actions for injunction, receivership,
accounting and support, and such other judgments as are now or may hereafter be declared to be
immediately executory, shall be enforceable aller their rendition and shall not be stayed by an appeal
taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in
its discretion may make an order suspending, modifying, restoring or granting the injunction,
receivership, accounting, or JWard of support. xxx
RTC records, Vol. IV/(>p. 897-910.
Id. at 919-922.

Decision

G.R. Nos. 153745-46

& 166573

prayer for the issuance of a temporary restraining order (TRO) and/or a writ
of preliminary injunction. 32 This case was docketed as CA-G.R. SP No.
61873.
Proceedings before the Court of Appeals

After the conduct of oral arguments, the CA in CA G.R. SP No.

61873 issued a TRO on January 26, 2001 33 and thereafter a writ of
34
preliminary injunction on March 28, 2001. Despite this, however, Pascual
et al., on May 11, 2001, filed a motion in CA-G.R. CV No. 69931 seeking
execution of the trial court's Decision pending Pulumbarit's appeal. 35
Meanwhile, CA-G.R. SP No. 61873 and CA-G.R. CV No. 69931 were
ordered consolidated on November 5, 2001. 36
Thereafter, the CA, in its questioned Resolution dated May 30, 2002,
granted Pascual et al.' s motion for execution pending appeal and, as a
consequence, dismissed CA-G .R. SP No. 61873 for being moot and
academic. 37 On July 12, 2002, Pulumbarit filed a Petition for Review on
Certiorari under Rule 45 (with Petition for Certiorari under Rule 65)
seeking a review of the May 30, 2002 Resolution. 38 This is presently
docketed as G.R. Nos. 153745-46.
As a result of the filing of G.R. Nos. 153745-46 with this Court, the
CA, on September 11, 2002, resolved to suspend its May 30, 2002
Resolution granting Pascual's motion for execution pending appeal. 39 CAG.R. CV No. 69931 was neve1iheless declared submitted for decision on
Novem ber 25, 2002. 40
On September 28, 2004, the CA issued its Decision reversing the trial
court's ruling in Civil Case No. 7250-M. Pascual et al. 's motion for
reconsideration 41 dated October 19, 2004 was denied by the CA in its
Resolution 42 dated January 12, 2005. Aggrieved, Pascual et al. filed a
petition 43 seeking the review of this Decision, hence, G.R. No. 166573.
G.R Nos. 153745-46 were consolidated with G.R. No. 166573 by
44
virtue of this Court's Resolution dated February 7, 2007.
12

11

14
35
16

17
18

J<)
40
.11

42

,n
44

And alternative prayer to be allowed to file a counter-bond to lift the writ of execution pending
appeal issued by the trial court in accordance with Section 3, Rule 39 of the Rules of Court. CA rollo,
CA-G.R. SP No. 61873, pp. 2-25.
CA rollo, CA-G.R. SP No. 61873, pp. 93-94.
Id. at 3 16-3 l 7.
CA rollo, CA-G.R. CV No. 69931, pp. 19-40.
Id. at 278.
/d.at301-313.
Rollo, G.R. Nos. 153745-46, pp. 35-123.
CA rollo, CA-G.R. CV No. 69931, pp. 449-452.
Id. at 494 .
Id. at 579-612.
Id. at 663-664.
Rollo, ~.R. No. 166~73, pp. 9-46. /
Rollo, G.R. No,. 15,745-46, p. 675

Decision

G.R. Nos. 153745-46

& 166573

Issues

We find the issues, as raised in the consolidated petitions, to be as

follows:
( 1) Whether Pascual et al.' s filing of an Urgent Motion for
Execution Pending Appeal in CA-G.R. CV No. 69931,
despite knowledge of the pendency of CA-G.R. SP No.
61873, constituted forum shopping;
(2) Whether the consolidation of CA-G.R. CV No. 69931 with
CA-G.R. SP No. 61873 violated the internal rules of the
CA, resulting to an infringement of Pulumbarit's right to
due process;
(3) Whether the filing of the motion for execution pending
appeal in CA-G.R. CV No. 69931 rendered CA-G.R. SP
No. 61873 moot and academic;
.
(4) Whether the grant of the motion for execution pending
appeal by the CA was proper;
(5) Whether the finding of fact in the application for
receivership constituted res judicata as to the issue of the
true agreement between the parties; and
(6) Whether the agreement between the parties was one for
sale or management of the memorial park.
We rule on the issues.
Ruling of the Court

Pascual et al. committed abuse of

court processes.
The trial court, upon Pascual et al. 's motion, allowed the execution of
its Decision pending Pulumbarit's appeal of the same with the CA. 45 When
the CA (in CA-G.R. SP No. 61873) issued writs against said discretionary
execution, Pascual et al. filed a motion seeking to do exactly that what the
court has already enjoined, albeit this time before the CA in CA-G.R. CV
No. 69931. This act, according to Pulumbarit, constitutes "a specie (sic) of
deliberate and willful forum-shopping" 46 which should not be countenanced
by this Court.
Strictly speaking, Pascual et al. did not commit forum shopping.
Forum shopping exists when the elements of litis pendentia are present, or
when a final judgment in one case will amount to res judicata in another. 47
Here, any action by the CA on Pascual et al. 's motion in CA-G.R. CV No.
45
46

47

RTC records, Vol. IV, pp. 883-884.

Petition. rol/o, G.R. Nos. 153745-46, pp. 90-94.
Young v. Keng Seng, G.R. No. 143464, March 5, 2003, 398 SCRA 629, 63f

Decision

G.R. Nos. 153745-46

& 166573

6993 1 is provisional in nature, such that it can in no way constitute as res

judicata in CA-G.R. SP No. 61873. Moreover, forum shopping requires the
identity of parties, rights or causes of action, and reliefs sought in two or
more pending cases. 48 Here, there is no identity of relief and/or cause of
action. CA-G.R. SP No. 61873 is limited to a determination of whether
grave abuse of discretion was committed by the trial court in granting
execution pending appeal while Pascual et al.'s motion in CA-G.R. CV No.
69931 involves a determination by the CA whether there are "good reasons"
wmTanting the grant of discretionary execution.
We, however, note with disapproval the circumstances surrounding
Pascual et al. 's filing of said motion.
In In the Matter ~f Contempt Proceedings Against Ventura 0. Ducat
and Teng Mariano and Cruz Law Offices, 49 we resolved to grant a petition to
cite respondents Ducat et al. in contempt for delaying the satisfaction of a
final judgment against them "by re-filing motions and attempting to re-open
finally settled issues through the expediency of hiring a new counsel." We
ruled:
We grant the motion of petitioner as we find respondent
Ventura 0. Ducat and his counsel Atty. Elgar Cruz guilty
of indirect contempt of court pursuant to Sec. 3, Rule 71, of
the Rules of Court.

xxx
A comparison of the Urgent Omnibus Motion filed on 14
September 1993 with the urgent motion to declare failure
of auction sale of the Wack Wack properly filed on 18
August 1994 discloses that the latter motion merely echoed
the allegations found in the former motion. Furthermore,
both motions prayed for the same relict: namely, the
annulment of the auction sale conducted on 7 September
1992. In effect, respondents asked the trial court in the 18
August 1994 motion to resolve an issue which has been
settled by the same court as early as 3 November 1993,
affirmed by the Court of Appeals on 31 January 1994,
and by this Court on 11 .July 1994. Equally disdainful is
the fact that the motion for reconsideration of the 1 l July
1994 ruling was still pending before this Court when
respondents filed the 18 August 1994 motion. The
foregoing actuation demonstrates defiance of the
authority and dignity of this Court and disrespect of the
. 50
. .
.
a d m1mstratwn
o f.1ust1cc.
(Emphasis and underscoring supplied.)

,18
49
5n

G.R.No.117266,March
Id.
(
Id. at 621-622.

.1997,269SCRA615.

Decision

G.R. Nos. 153745-46

& 166573

Here, the CA in CA-G.R. SP No. 61873 issued the TRO and the writ
of preliminary injunction against the discretionary execution on January 26,
2001 and March 28, 2001, respectively. 51 On April 16, 2001, Pulumbarit
posted the required bond amounting to PS00,000.00. 52 Pascual et al., on the
other hand, filed their motion for execution pending appeal in CA-G.R. CV
No. 69931 on May 11, 2001, nearly four months after the issuance of the
TRO, two months after the writ of injunction and almost a month from
Pulumbarit's posting of the bond.
Said motion is clearly an attempt on Pascual et al. 's part to undermine
the TRO and writ of preliminary injunction earlier issued in CA-G.R. SP No.
61873 in Pulumbarit's favor. (Notably, Pascual et al. do not appear to have
sought the reconsideration of the issuance of said injunctive orders.) Not
unlike Ducat, therefore, Pascual's filing of the motion in CA-G.R. CV No.
69931 demonstrates defiance of~ if not lack of due respect for, the authority
of the CA which earlier issued injunctive writs against the execution by the
trial court of the appealed Decision.
The consolidation of CA-G.R. CV No.
69931 with CA-G.R. SP No. 61873
was proper;
no
violation
of
Pulumbarit 's right to due process.
Pulumbarit asserts that the consolidation of CA-G.R. CV No. 69931
with CA-G.R. SP No. 61873 is void ab initio for violating the Revised
Internal Rules of the Court of Appeals (RIRCA):
... we respectfully submit that the consolidation is void ab
initio for flagrant violation of RIRCA on (aa) Raffle of
Cases, (bb) the Procedural Jurisdiction of the Justice to
whom the Appeal Case is Raffled; (cc) Consolidation of
Cases, and what cases can be consolidated, (dd) The Justice
who can consider and act in specific incidents; and (ee)
Processing of Special Civil Actions and Procedural
Jurisdiction of the Justice to whom a Special Civil Action is
raffled ... 53

The consolidation being void ab initio, Pulumbarit argues that the

May 30, 2002 Resolution subsequently issued is also null and void for being
violative of his "right to procedure (sic) due process." 54
Pulumbarit errs.

51

52
5J

54

CA rollo, CA-G.R. SP No. 61873, pp. 93-94; 419-420.

Id. at 381-383.
Petition, ro~. Nos. 153745-46, p. 86.
Id. at 90.

Ja

Decision

10

G.R. Nos. 153745-46

& 166573

In Spouses Fortaleza v. Spouses Lapitan, we reiterated the established

55
doctrine that there are no vested rights to rules of procedure. Spouses
Fortaleza involved a case wherein the Justice assigned to complete the
records also decided the case on the merits, in alleged violation of the Comi
of Appeals' internal two-raffle system. This procedural sh01icut, according
to Spouses Fortaleza, evinced the appellate court's bias and prejudgment in
favor of Spouses Lapitan. We rejected their argument and ruled thus:
xxx [T]he two-raffle system is already abandoned under the
2009 IRCA. As the rule now stands, the Justice to whom a
case is raffled shall act on it both at the completion stage
and for the decision on the merits xxx
Corollarily, the alleged defect in the processing of this case
before the CA has been effectively cured. We stress that
rules of procedure may be modified at any time and
become effective at once, so long as the change does not
affect vested rights. Moreover, it is equally axiomatic
that there arc no vested rights to rules of procedure.
Thus, unless spouses Fortaleza can establish a right by
virtue of some statute or law, the alleged violation is not
an actionable wrong. At any rate, the 2002 IRCA docs
not provide for the effect of non-compliance with the
two-raffle system on the validity of the decision. Notably
too, it docs not prohibit the assignment by raffle of a
case for study and report to a .Justice who handled the
. .
.
same d urmg
its comp I chon
stage:~<i
(Emphasis and underscoring supplied.)

The RI RCA are rules which govern the internal operations of the CA.
It is not intended to implicate substantial rights. The rules governing case
assignments, for example, do not give rise to a right on the part of a litigant
to have his case heard by any particular division of the court or the Decision
penned by a particular Justice. 57 Barring exceptional circumstances, parties
55
5()

57

G.R. No. 178288, August 15, 2012, 678 SCRA 469, 480.
Id. at 479-480.
Sections 6 and 7, Rule 3, 1999 Internal Rules of the Court of Appeals, do not provide for a right of
the parties to have their case be heard by a particular division or be decided by a particular Justice.
They also do not provide for a right of the parties lo be heard on the matter of case assignment and
ralTie. Sections 6 and 7 provide:
Section 6. Raffle of Cases. - Assignment of cases to a particular Justice shall be
done strictly by ratlle, whether it be the first raffle for completion of records or
the second raffle for study and repoti, subject to the following rules:
(a) All appealed cases for completion shall be raffled to individual Justices;
(b) All appealed cases. the records of which have been completed, shall be reraffled for assignment to a Justice for study and report;
(c) Special cases or petitions, including petitions for review under Rules 42 and
43 of the Rules of Court, annulment of judgments under Rule 47, special civil
actions under Rules 65 and 6, special proceedings under Rules 71 and 102 of
said Rules, and all other
itions, shall be ratfled to a Justice for completions,
study and report; and

11

Decision

G.R. Nos. 153745-46

& 166573

are not heard on case raffling and similar matters, 58 as in fact internal rules
can generally be modified at any time with the changes becoming
immediately effective.
Granting, for the sake of argument, that there was some oversight in
relation to the observance of the RIRCA procedure, Pulumbarit nevertheless
failed to establish an actionable wrong separate from the alleged breach of
the said internal rules. Contrary to what he would have this Court believe,
we are convinced that there was no denial of Pulumbarit's right to due
process. The record clearly shows that Pulumbarit was given (and, in fact,
availed of) every opportunity to present his case, by way of both pleadings
and oral arguments, and pursue the appropriate reliefs before the CA. As in
fact, the CA issued, in his favor, a TRO on January 26, 2001 59 and a writ of
preliminary injunction on March 28, 2001. 60

(d) When a Justice to whom a case is raffled cannot, for any cause or reason, act
thereon, the case shall be re-rafned. (Sec. 5, Rule 3, RIRCA)
Section 7. Raffle Procedure. --a. The raffle of cases shall be open to the public and conducted daily at I 0:30
a.m., except in special raffle.
b. The raffle of cases shall be conducted by the Raffle Committee composed of
the Justices of a Division chosen for the day which shall choose by Raffle the
Raffle Committee for the following day. The staff of the committee shall be
designated by the Presiding Justice for one year, unless sooner changed.
c. To assure equality in the number and nature of cases assigned to each Justice,
separate listings shall be made of cases falling under the following categories:
(I) appealed civil cases; (2) appealed criminal cases; (3) appealed criminal cases
with detention prisoners; (4) habeas corpus cases; (5) labor cases; (6) agrarian
cases; (7) Civil Service Commission and Ombudsman cases; (8) other petitions;
and (9) cases involving substitution of a ponente, or requiring the temporary
designation of a Justice or Justices to fill a temporary vacancy, or calling for the
creation of a Division of five.
d. All requests for substitution and notices of inhibition shall be attached to
the rollo.
e. No special raffle shall be conducted except on grounds of urgent necessity and
only when authorized in writing by the Presiding Justice or in his absence or
unavailability, by the most senior Justice present. The special raffle shall be
conducted by the Raffle Committee for the day or by any of its members
present; otherwise, the Presiding Justice himself shall conduct the raffle or may
assign another Justice to do so. No special raffle shall be conducted after office
hours.

f The Ratne Staff shall furnish the Justices with the results of the raffle not later
than the following working day.
g. Upon retirement or cessation from office of a Justice, his pending cases shall
be re-raffled within three (3) months, unless otherwise directed by the Presiding
Justice, to the other Justices, except in those cases contemplated in Section 3 (e),
Rule 12 hereof~ which shall be re-raffled between the remaining Justices of the
Division who participated therein.
h. Whenever a Justice goes on leave, or three (3) months before he retires, he
shall be exempt from the raffle of cases. (Sec. 6, Rule 3, RIRCA)
58
59
60

Id
CA rollo, CA- .R. SP No. 61873, pp. 93-94.
Id. at 316.

12

Decision

G.R. Nos. 153745-46

& 166573

Aside from being heard in oral argument, Pulumbarit also filed with
the CA several other pleadings, including (a) a Respectful Reiteration of the
Application for a TRO and or Writ of Preliminary Injunction dated January
15, 2001 ;61 (b) Petitioner's Memorandum in Summation of the Points raised
in the Oral Arguments of February 27, 2001 and in Refutation of the
Arguments of Private Respondents dated March 5, 2001 as his Memorandum
of Authorities. 62 Clearly, there was no denial of his right to due process.
CA-G.R. SP No. 61873 not rendered
moot and academic by the filing of the
motion for execution pending appeal
in CA-G.R. CV No. 69931.
In its questioned Resolution dated May 30, 2002, the CA ruled that,
even assuming the trial court erred in allowing execution pending appeal,
Pascual et al. still had the right to apply for a similar writ before the
appellate court. It was in this sense that the CA ruled that the central issues
raised in CA-G.R. SP No. 61873 have been rendered moot and academic by
the filing of the motion. 63
We disagree.
To reiterate, Pascual et al. 's motion in CA-G.R. CV No. 69931 seeks
the CA's approval to execute the trial court's Decision pending final
disposition of Pulumbarit's appeal. CA-G.R. SP No. 61873, on the other
hand, is an action to determine whether grave abuse of discretion was
committed by the trial court when it allowed execution pending appeal. The
subjects of Pascual et al. 's motion in CA-G.R. CV No. 69931 and
Pulumbarit's petition in CA-G.R. SP No. 61873 concern two different, albeit
closely related, issues. Furthermore, any action on a motion for execution
pending appeal is only provisional in nature. The grant or denial (as the case
may be) of such a motion is always without prejudice to the court's final
disposition of the case and the issues raised therein. In fact, Section 3, Rule
39 of the Rules of Court allows the party against whom the execution of a
decision pending appeal is directed to stay the execution by posting a
supersedeas bond. 64 Section 5 of the same rule also provides that 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
.
65
circumstances.
(,\
(1;:!

61
64

65

CA rollo, CA-G.R. SP No. 61873, pp. 85-91.

Id. at 180-206.
CA Resolution dated May 30, 2002, rollo, CA-G.R. CV No. 69931, p. 308.
Section 3. Stay of'discretionary execution. -- Discretionary execution issued under the preceding
section may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the
party against whom it is directed, conditioned upon the performance of the judgment or order allowed
to be executed in case it shall be finally sustained in whole or in part. The bond thus given may be
proceeded against on motion with notice to the surety.
Section 5. ~/feet
reversal
executed judgment. -- Where the executed judgment is:~~:.~~
to<ally o P"tially, m mmullod, o" appeal m othc.wi,e, tho tdol eoort moy, oo motioo,

ol

ol

' T"cl

Decision

13

G.R. Nos. 153745-46

& 166573

For these reasons, the grant by the CA of a motion for execution

pending appeal, being provisional in nature, could therefore not have
rendered CA-G.R. SP No. 61873 moot and academic. In the same way, if
not arguably more so, much less can the mere filing of such a motion
warrant the dismissal of CA-G.R. SP No. 61873 on the ground of mootness.
Thus, the CA committed a reversible error when it dismissed CA-G.R. SP
No. 61873.
Reasons cited are insufficient to just{fy
grant of execution pending appeal.
Section 2, Rule 30 of the Rules of Court provides, in part, that
discretionary execution (or execution pending appeal) may only issue "upon
good reasons to be stated in a special order after due hearing."
Good reason must consist of superior or exceptional circumstances of
such urgency as to outweigh the injury or damage that the losing party may
suffer, should the appealed judgment be reversed later. 66
Our ruling in Diesel Construction Company, Inc. (DCCI) v. Jollibee
7
Foods Corporation (JFC/ is particularly instructive. Citing possible
financial distress to be caused by a "protracted delay in the reimbursement"
of the costs prayed for, DCCI moved for the discretionary execution of the
trial court's decision awarding escalated construction costs in its favor. 68 The
CA, however, allowed a stay of execution upon the JFC's posting of a
supersedeas bond. 69 When the matter was brought before this Court for
resolution, we ruled against said discretionary execution, thus:
The financial distress of a juridical entity is not comparable
to a case involving a natural person - such as a very old and
sickly one without any means of livelihood, an heir seeking
an order for support and monthly allowance for
subsistence, or one who dies.
Indeed, the alleged financial distress of a corporation
does not outweigh the long standing general policy of
enforcing only final and executory judgments. Certainly,
a juridical entity like petitioner corporation, has other than
extraordinary execution, alternative remedies like loans,
advances, internal cash generation and the like to address
its precarious financial condition. 70

66

67
68
(>9

70

orders of restitution or reparation of damages as equity and justice may warrant under the
circumstances.
Diesel Construction Company, Inc. v. .Jo!libee Foods Corporation, G.R. No. 136805, January 28,
2000, 323 SCRA 844.
Id.
Id. at 849-8(50.
Id. at 851.
Id. at 860.

Decision

14

G.R. Nos. 153745-46

& 166573

(Emphasis and underscoring supplied.)

In this case, the grant by the CA of Pascual et al. 's motion for
discretionary/extraordinary execution was founded on the following reasons:
(I) to stop Pulumbarit from continuing to receive money from the sale of the
lots and (2) to save the property from distraint and public auction. 71 We find
the foregoing reasons insufficient to justify the execution of the trial court's
Decision pending final resolution of Pulumbarit's appeal.
For one, there is no urgent and pressing need for the immediate
execution of the Decision considering that, as noted by the CA itself,
Pulumbarit had been in possession of the subject Memorial Park for the past
twenty years. 72 Assuming the affirmance of the trial court's Decision in
Pascual et al. 's favor, Pulumbarit would still have to surrender possession of
the Park and account for all of its finances. 73
Secondly, and as in the case of DCCI v. JFC, there are alternative
remedies (i.e. re-application for receivership, loans and redemption, among
others) available to Pascual et al. that may more appropriately address their
concerns arising from the possible distraint and auction of the Memorial
Park. The existence of these remedies, in our view, negates the claim of
urgency necessary to justify execution of the trial court's Decision pending
final resolution of Pulumbarit's appeal.
The finding of fact in the application
for receivership did not constitute res
judicata as to the issue of the true
agreement between Pulumbarit and
Pascual et al.

In its questioned Decision, the CA found that Pascual et al. was bound
by the finding made by the trial court (in relation to their application for
receivership) that the agreement between the parties was one for sale and not
management. Thus:

71

72

?:.

CA Resolution dated May 30, 2002, CA rollo, CA-G. R. CV No. 69931. pp. 3 11-312.
Meanwhile, it appears from the records that the writs of execution and injunction issued by the
trial couti were partially executed. According to the Sheriffs Reports dated September 25, 2000 and
September 28, 2000, the writs were served on Mr. Mariano Pulumbarit, the person in-charge or the
business or the Memorial Park, at the premises of the memorial park. It also appears that Mr. Mariano
Pulumbarit consequently provided the cash vouchers, daily cash position report, interment order,
collection notice. contract date, price list, green copy of provisional receipt, deed of sale, certificate of
perpetual care, and cash receivables but failed to turn-over all the documents pertaining to the
Memorial Park. Thereafter, the premises were locked and copies of the writs of execution and
injunction were served on Mr. Nemencio Pulumbarit, Sr. at his office. The latter, however, refused to
give the remaining documents.
Pascual el al. admitted in their Private Respondent's Memorandum dated August I0, 200 I that
they already have administration and control of the memorial park. However, we resolve the issue of
whether execution pending appeal of the trial court's decisiot~roper on the basis of the reasons
c;tcd by the Cowt of Appeals ;n ;,, Moy 30, 2002 Rosolut;on.

Decision

G.R. Nos. 153745-46

& 166573

15

This Court is convinced that the trial court was bound by

said findings of fact, especially considering that it was the
same court (through then Presiding Judge Amante M.
Laforteza) which made said findings. Material facts or
questions which were in issue in a former action and were
there admitted or judicially determined are conclusively
settled by a judgment rendered therein and that such facts
or questions become res judicata and may not again be
litigated in a subsequent action between the same parties or
their privies, regardless of the form the issue may take in
the subsequent action, whether the subsequent action
involves the same or a different form or proceeding, or
whether the second action is upon the same or a different
cause of action, subject matter, claim or demand, as the
earlier action. In such cases, it is also immaterial that the
two actions are based on di fforent grounds, or tried on
different theories, or instituted for different purposes, and
seek different reliefs. 74

We reverse the ruling of the CA on this matter. Res judicata by

conclusiveness of judgment does not apply in this case.
In Social Security Commission v. Rizal Poultry and Livestock
Association, 75 we laid down the requirements of res judicata in the concept
of "conclusiveness ofjudgment," to wit:
There is "bar by prior judgment" when, as between
the first case where the judgment was rendered and the
second case that is sought to be barred, there is identity of
parties, subject matter, and causes of action. In this
instance, the judgment in the first case constitutes an
absolute bar to the second action.

But where there is identity of parties in the first

and second ~' but no identity of causes of action, the
first judgment is conclusive only as to those matters
actually and directly controverted and determined and
not as to matters merely involved therein. This is the
concept of res judicata known as "conclusiveness of
judgment." Stated differently, any right, fact, or matter in
issue directly adjudicated or necessarily involved in the
determination of an action before a competent court in
which judgment is rendered on the merits is
conclusively settled by the judgment therein and cannot
again be litigated between the parties and their privies,
whether or not the claim, demand, purpose, or subject
matter of the two actions is the same. 76

xxx
(Emphasis and underscoring supplied.)
74

75
76

Rollo, G.R. No. 166573, p. 157.

~
G.R. No. 167050, June I, 2011, 650 SCRA 50.
Id. at 56-57.

16

Decision

G.R. Nos. 153745-46

& 166573

The application of the doctrine of res judicata either in the concept of

bar by prior judgment or conclusiveness of judgment requires or
presupposes the existence of two independent actions.
Since receivership may be resorted to either as a principal action or an
ancillary remedy, 77 it is imperative to first determine the nature of the
application for receivership in this case. If, for example, it is found that
Pascual et al. filed a separate action for receivership, the findings of fact
made by the court therein may be held to be conclusive as to the "true"
nature of the patties' agreement in the action for rescission of contract,
damages and accounting. If, on the other hand, the application was made
ancillary to the principal action f(Jr rescission, a finding made in the course
of the resolution of said application would not bar the same court, after an
exhaustive litigation of the main issues before it, from later on arriving at a
different finding of fact.
The records show that Pascual et al. 's "petition for receivership" was
filed with the same court and under Civil Case No. 7250-M, 78 specifically,
for the appointment of a receiver to preserve their rights over the Memorial
Park during the pendency of the suit with Pulumbarit. It is thus an
application for an ancillary remedy made during the course of the main
action for rescission. 79 Being a provisional remedy, the appointment of a
receiver would always be without prejudice to the final outcome of the main
case. A finding of fact made in the course of the resolution of said
application cannot therefore constitute resjudicata for purposes of the issues
implicated in the main case. As in fact, the trial court in this case, in the end,
found for Pascual et al. and ruled that the agreement between the parties was
not a sale, but a management contract.
Agreement between the parties was a
contract to sell the shares qf SJMMPJ
and not a contract of sale or a
management contract with option to
buy.

Pascual et al. do not dispute that they entered into an agreement with
Pulumbarit. What they take issue with are the terms and conditions in the
MOA which allegedly do not reflect the terms and conditions actually
agreed upon by the parties. 80 Hence, they prayed, among others, that the
MOA be declared null and void and/or rescinded and without force and
effect and that Pulumbarit be ordered to "render an accounting of his

77

78

79
80

FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM, (Vol. I, 7 111 Revised Ed. 1999),
p. 661.
RTC records, Vol. II, pp. 199-201.
Rl:LES OF COURT, Rule 5~ASY'
RIC cococds, VoL I, p. 56.f

Decision

G.R. Nos. 153745-46

& 166573

17

operation effective from the date of his takeover and to surrender all
documents, papers, deeds and sums of money in accordance therewith." 81
In ruling that the contract between the parties was a sale, the CA
reasoned thus:
As between the verbal agreement for the management
of the memorial park and the Memorandum <d. Agreement
evidencing the intention of the parties to sell the memorial
park, this Court is inclined to give more weight to the
written agreement of the parties which was duly signed
by the incorporators. Although Lourdes Sevilla Pascual,
one of the incorporators, did not sign said Memorandum <d.
Agreement, she freely executed another document to
signify the sale of her shares in the corporation.
The agreement or contract between the parties is the
formal expression of the parties' rights, duties and
obligations. It is the best evidence of the intention of the
parties. Thus, when the terms of an agreement have been
reduced into writing, it is considered as containing all the
terms agreed upon, and there can be, between the parties
and their successors-in-interest, no evidence of such terms
other than the contents of the written agreement. xxx
Although the investigation of the National Bureau of
Investigation (NBI) on the Memorandum of Agreement
yielded a finding that the second page differed in terms of
type size and type design from pages 1, 3 and 4, this does
not nullify the entire agreement, especially because page 3
thereof bore the signatures of the incorporators. The
signatures on page 3 are of utmost significance for it may
be safely concluded that pages 1 and 4 also bear the
approval of the signatories. Notably, page 1 of the
Memorandum of Agreement clearly shows the intention
of the parties to sell the memorial park ...
xxx
Assuming arguendo that no evidentiary weight could
be given to the Memorandum of Agreement, the evidence
on record would still show that appellee Dr. Pascual
really intended to sell the memorial park. This is shown
by the letter of authority given to Atty. Soledad Pascual
who was tasked to look for a buyer for the memorial
park.xxx
It is absurd to sustain the trial court's finding that the
agreement was for the management of the memorial park.
Notably, appellant already paid more than P400,000.00,
a substantial amount especially at the time of its
payment, the early 80s. If the agreement was really for
the management of the memorial park, it should have
81

Id al58.

?ff'

18

Decision

G.R. Nos. 153745-46

& 166573

been the corporation which should be paying appellant.

In fact, no evidence was presented by appellee Dr.
Pascual on the compensation of appellant for his
management of the memorial park.
xxx

82

(Emphasis supplied.)

We affirm the findings of the CA insofar as it ruled that the parties did
not contemplate a management contract with option to buy. We nevertheless
rule that the agreement entered into by the parties was not a contract of sale,
but rather, a contract to sell the shares of SJMMPI. 83
The text of the MOA between the parties shows that their agreement
was a contract to sell SJ MM Pl shares. The pe1iinent portion of page three of
the MOA reads:
xxx

4. The shares of stocks stated above and subject matter of

this Agreement will only be transferred in the name of the
PARTY OF THE SECOND PART, its heirs, successors
and assigns upon full payment and/or full satisfaction
84
thereon of the consideration of this agrecmcnt.

While Pascual et al. are technically correct in arguing that they did not
enter into a contract of sale with Pulumbarit, they cannot deny the existence
of the stipulation in page three of the MOA evidencing a contract to sell
and negating their claim of a management contract with option to buy.
Notably, page three bears the signatures of Pulumbarit, Pascual, and the
other SJMMPI stockholders. 85 We further note that Pascual did not dispute
the authenticity of her signature appearing on page three of the MOA.
Neither did she allege during the course of the proceedings that she signed
another document or entered into another written transaction with
Pulumbarit aside from the MOA.
Even though the NBI Questioned Document Report No. I 02-384 86
(Report) stated that page two of the document was typed from a typewriter
82

8.1

84
8<

86

Rollo, G.R. No. 166573, pp. 152-155.

"In a contract of sale, the title to the property passes to the vendee upon the delivery of the thing
sold; in a contract to sell, ownership is, by agreement, reserved in the vendor and is not to pass to the
vendee until full payment of the purchase price. Otherwise stated, in a contract of sale, the vendor loses
ownership over the prope1iy and cannot recover it until and unless the contract is resolved or
rescinded; whereas, in a contract to sell, title is retained by the vendor until full payment of the price.
In the latter contract, payment of the price is a positive suspensive condition, failure of which is not a
breach but an event that prevents the obligation of the vendor to convey title from becoming effective."
Spouses Torrecampo v. Alindogan. Sr .. G.R. No. 156405, February 28. 2007, 517 SCRA 84, 88, citing
Salazar v. Court o/Appeals. G.R. No. 118203, July :'i. 1996. 258 SCRA 317. Underscoring supplied.
;;hibit "J," RTC records~:;/ p. 23.
Exhibit "K,'' id. at 43-44.,

Decision

19

G.R. Nos. 153745-46

& 166573

different from that used in typing pages one, three and four, the same report
was inconclusive as to the possibility of falsification. The Report does not
contain any categorical statement from the NBI Examiner that the pages
were substituted or that the MOA was spurious or falsified.
Even if we were to assume, for the sake of argument, that page two
was in fact substituted on the ground that its type size and design are
different from the type size and design used in the other three pages of the
MOA, then we can infer that the other three pages (one of which bore the
authenticating signatures of the party) were not substituted, all three having
exactly the same type size and design. We can also further deduce that the
provisions in these un-substituted pages reflect the "true" terms and
conditions agreed upon between the parties.
This is significant as page one, which we have now established to not
have been substituted, clearly sets forth, in the preambular clauses, the
parties' positive intent to enter into a contract to sell:
WHEREAS, THE PARTY OF THE FIRST PART have
offered to sell all their rights, interest and participations
with San Juan Macias Memorial Park, Inc., to the extent
indicated above to the PARTY OF THE SECOND PART
and the PARTY OF THE SECOND PART has accepted
the offer of the PARTY OF THE FIRST PART. 87
(Emphasis and underscoring supplied.)

That Pascual et al. really intended to sell SJMPPI is further shown by

the document earlier issued to Atty. De Jesus authorizing her to look for a
buyer for the Memorial Park and negotiate the sale of the corporation. 88 It is
immaterial that the authorization given to Atty. De Jesus had already expired
by the time the MOA between the parties was signed as this does not
diminish the intention of Pascual et al. to sell the Memorial Park at or about
the time they entered into the agreement with Pulumbarit. That there are as
yet no SJMMPI stock certificates in Pulumbarit's name and possession, does
not negate the character of the contract to sell between the parties.
Pascual et al. claim that Pulumbarit, in his reply to their letters of June
13, 1983,89 July 14, 1983 90 and August 18, 1983, 91 impliedly admitted that
the true agreement between the parties was for the management of the
memorial park. This is belied by the records. The letter reads:
Your letter dated 18 August 1983 on behalf of San
Juan Macias Memorial Park, Inc., to our client Nemencio

87
88
89
90

91

Exhibit "J," id. at 21.

RTC records, Vol. II, p. 368.
Exhibit "F," id. at 255; Exhibit "G," id. at 256.
Exhibit "H," id. at 257.~
fah;b;1 "[," ;J. at 258.

Decision

20

G.R. Nos. 153745-46

& 166573

Pulumbarit, Sr. has been referred to us for appropriate

reply.
In connection therewith, please be advised that our
client is ready and willing to comply with your request as
embodied in your letter. However, a ce1iain Ms. Lourdes S.
Pascual, a major stock holder (sic) of San Juan Macias
Memorial Park, Inc. had complained to us that she has not
as yet receive (sic) a single centavo as her share from this
transaction and threatened us that she will not sign the
memorandum of agreement executed by your client in
favor of our client, till she has been paid. In view of this
development, our client decided to suspend paying your
client until the claim or Ms. Pascual has been settled. We
wish to assure you that our client has the money to pay
your client anytime the claim of Ms. Pascual has been
settled. Wc suggest, therefore, that you urged (sic) your
client to thresh out this claim of Ms. Pascual as soon as
possible in order that we could immediately comply with
97
your request. (Emphasis supplied.)

Contrary to Pascual et al. 's claim, there is nothing in the letter to show
an admission, whether express or implied, on Pulumbarit's part that their
agreement was for management of SJMMPI.
Most telling of the real agreement between Pulumbarit and Pascual et
al. was the undisputed fact that the former made payments to the latter, and
not vice versa. As the CA correctly declared, it was indeed absurd for a
person rendering service to pay compensation to his employers. If Pascual et
al. 's version of the agreement is to be believed, they should have been the
ones paying Pulumbarit for managing the Memorial Park and not the other
way around.
During the trial, Acasio testified that as "compensation" for his
services, Pulumbarit (who had by then already paid between P500,000.00 to
P700,000.00 to manage a Park previously put up for sale for Pl,500,000.00)
will be paid for expenses incurred in the course of management and given an
option to buy the Park after two years. 93 These terms simply do not occur in
the ordinary course of business and we are hard-pressed to imagine a
reasonable person agreeing to such a business arrangement. The evidence on
record overwhelmingly shows that the contract between the parties was
indeed a contract to sell the shares of SJMMPI and the Memorial Park.
WHEREFORE, and in view of the foregoing, we resolve to:

92
q_;

y~hibit "~-1," R~'C rcco~~ I, p. 117.

rsN, Apnl 25, 1J95, p. 7( /

Decision

G.R. Nos. 153745-46

& 166573

21

(I) GRANT G.R. Nos. 153745-46. The Court of Appeals'

Resolution dated May 30, 2002 in CA-G.R. SP No. 61873 is hereby
ANNULLED and SET ASIDE; and
(2) DENY G.R. No. 166573 for lack of merit and AFFIRM the
Decision of the Court of Appeals in CA-G.R. CV No. 69931 with the
MODIFICATION that the agreement between herein parties is a
contract to sell (not a contract of sale of) SJMMPI shares.

SO ORDERED.

Associate Justice

WE CONCUR:

Associate \{ustice
Acting Chairperson

~~-~~~

Decision

22

G.R. Nos. 153745-46

& 166573

ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the cases were assigned to the writer of the opinion of
the Court's Division.

Associate ~ustice
Acting Chairperson, Third Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the
Division Acting Chairperson's attestation, it is hereby certified that the
conclusions in the above Decision had been reached in consultation before
the cases were assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice