G.R.
No. 153690 - DAVID LU v. PATERNO LU YM, SR. ET AL. ; G.R. No. 157381 -
PATERNO LU YM, SR., ET AL. v. DAVID LU; and G.R. No. 170889 – JOHN LU YM, ET
AL. v. THE HON. COURT OF APPEALS OF CEBU CITY, ET AL.
x---------------------------------------------------------------------------------------x
DISSENTING OPINION
CARPIO MORALES, J.:
I
respectfully take exception to the grant by the ponente of the Motion for Reconsideration of Paterno Lu Ym, Sr.’s
son, John Luym, and Ludo and Luym Development Corporation (LLDC) of the ponente’s Decision of
The
three consolidated cases stemmed from the complaint for “Declaration of Nullity
of Share Issue, Receivership and Dissolution” filed on August 14, 2000 by David
Lu, et al. (David, et al.) against Paterno Lu Ym, Sr. and sons (Lu
Ym father and sons) and LLDC.
By
Decision of March 1, 2004, the trial court ruled in favor of David, et al., by annulling the issuance of the
shares of stock subscribed and paid by Lu Ym father and sons at less than par
value, and ordering the dissolution and asset liquidation of LLDC. The appeal of said Decision is presently
pending with the appellate court in CA-G.R. CV No. 81163.
Meantime,
several incidents arising from the complaint reached the Court through these three
petitions, which the Court resolved in favor of David, et al. by
Decision of
WHEREFORE, premises considered,
the petitions in G.R. Nos. 153690 and 157381 are DENIED for being moot
and academic; while the petition in G.R. No. 170889 is DISMISSED for
lack of merit. Consequently, the Status Quo Order dated
The Court of Appeals is DIRECTED
to proceed with CA-G.R. CV No. 81163 and to resolve the same with dispatch.
SO ORDERED.[1]
(Emphasis and underscoring in the original)
In G.R. No. 153690 wherein David,
et al., assail the
appellate court’s resolutions dismissing their complaint for its incomplete
signatory in the certificate of non-forum shopping and consequently annulling
the placing of the subject corporation under receivership pendente lite,
the Court found the same to be moot by the admission by the trial court of David,
et al.’s Amended Complaint filed by them pursuant to the trial court’s
order to conform to the requirements of the Interim Rules of Procedure
Governing Intra-Corporate Controversies.
Since the amended pleading supersedes the pleading that it amends, the
original complaint was deemed withdrawn from the records. The Court noted that both parties admitted
the mootness of the issue and that the trial court already rendered a
decision on the merits in said case. It added
that the Amended Complaint stands since Lu Ym father and sons availed of
an improper mode (via an Urgent Motion filed with this Court) to assail the
admission of the Amended Complaint.
In G.R.
No. 157381 wherein Lu Ym father and sons challenge the appellate court’s
resolution restraining the trial court from proceeding with their motion to
lift the receivership order which was filed during the pendency of G.R. No.
153690, the Court resolved that the propriety of such injunction was mooted by
the amendment of the complaint and by the trial court’s decision on the merits. The motion having been filed ancillary to the
main action, which main action was already decided on the merits by the trial
court, there is thus nothing more to enjoin.
G.R. No. 170889 involves the
denial of Lu Ym father and sons’ application for a writ of preliminary injunction
by the appellate court that is handling CA-G.R. CV No. 81163. In dismissing the petition, the Court found
no merit on their claim of lack of jurisdiction for David, et al.’s
non-payment of the correct docket fees.
The Court utilized a three-tiered approach in slaying the argument of Lu
Ym father and sons:
In the instant case, however, we
cannot grant the dismissal prayed for because of the following
reasons: First, the case instituted before the RTC is one
incapable of pecuniary estimation. Hence, the correct docket fees were
paid. Second, John and LLDC are estopped from
questioning the jurisdiction of the trial court because of their active
participation in the proceedings below, and because the issue of payment of
insufficient docket fees had been belatedly raised before the Court of Appeals,
i.e., only in their motion for reconsideration. Lastly,
assuming that the docket fees paid were truly inadequate, the mistake was
committed by the Clerk of Court who assessed the same and not imputable to
David; and as to the deficiency, if any, the same may instead be
considered a lien on the judgment that may thereafter be rendered.[2]
(Italics in the original; emphasis and underscoring supplied)
In a turnaround, the present ponencia
reconsiders its position on the matter of docket fees, viz.,:
In summary, the trial court did not acquire jurisdiction over the case for failure of David, et.al. to pay the correct docket fees. Consequently, all interlocutory matters pending before this Court, specifically the incidents subject of these three consolidated petitions, must be denied for being moot and academic. With the dismissal of the main action, the ancillary motions have no more leg to stand on.
WHEREFORE, in view of the
foregoing, the Motion for Reconsideration filed by John Lu Ym and Ludo &
Luym Development Corporation is GRANTED.
The Decision of this Court dated
All interlocutory orders challenged in these consolidated petitions are DENIED for being moot and academic.
SO
ORDERED.[3]
(Emphasis in the original)
I. The Value of
the Subject Matter Cannot be Estimated
On movants’ claim that the complaint
had for its objective the nullification of the issuance of 600,000 shares of
stock of LLDC, the real value of which based on underlying real estate values,
as alleged in the complaint, stands at P1,087,055,105, the ponencia
states:
Upon deeper reflection, we find that the movants’ claim has merit. The 600,000 shares of stock were, indeed, properties in litigation. They were the subject matter of the complaint, and the relief prayed for entailed the nullification of the transfer thereof and their return to LLDC. David, et al., are minority shareholders of the corporation who claim to have been prejudiced by the sale of the shares of stock to the Lu Ym father and sons. Thus, to the extent of the damage or injury they allegedly have suffered from this sale of the shares of stock, the action they filed can be characterized as one capable of pecuniary estimation. The shares of stock have a definite value, which was declared by plaintiffs themselves in their complaint. Accordingly, the docket fees should have been computed based on this amount. This is clear from x x x Rule 141, Section 7, which was in effect at the time the complaint was filed[.][4] (Underscoring supplied)
The ponencia states that the value
of the 600,000 shares of stock, which were the properties in litigation, should
be the basis for the computation of the filing fees. It must be noted, however, that David, et
al., are not claiming to own these shares.
They do not claim to be the owners thereof entitled to be the
transferees of the shares of stock. The
mention of the real value of the shares of stock, over which David, et
al. do not interpose a claim of right to recovery, is
merely narrative or descriptive in order to emphasize the inequitable price at
which the transfer was effected.
The ponencia also states that “to
the extent of the damage or injury they allegedly have suffered from this
sale,” the action “can be characterized as one capable of pecuniary estimation.” The ponente, however, does not explore
the value of the extent of the damage or injury. Could it be the pro rata decrease (e.g.,
from 20% to 15%) of the percentage shareholding of David, et al. in
relation to the whole?
Whatever property, real or personal,
that would be distributed to the stockholders would be a mere consequence of
the main action. In the end, in the
event LLDC is dissolved, David, et al. would not be getting the
value of the 600,000 shares, but only the value of their minority number of
shares, which were theirs to begin with.
The action instituted by David, et
al. was one for declaration of nullity of the issuance thereof. The main relief prayed for both in the
original complaint and the amended complaint is the same, that is, to declare
null and void the issuance of 600,000 unsubscribed and unissued shares to Lu Ym
father and sons, et al., for a price of 1/18 of their real value, for being
inequitable, having done in breach of director’s fiduciary’s duty to
stockholders, in violation of the minority stockholders’ rights, and with
unjust enrichment.
As judiciously discussed in the
Court’s August 26, 2008 Decision, the test in determining whether the subject
matter of an action is incapable of pecuniary estimation is by ascertaining the
nature of the principal action or remedy sought. It explained:
x x x To be sure, the annulment
of the shares, the dissolution of the corporation and the appointment of
receivers/management committee are actions which do not consist in the recovery
of a sum of money. If, in the end, a sum of money or real property
would be recovered, it would simply be the consequence of such principal action. Therefore, the case before the RTC was incapable
of pecuniary estimation.[5] (Italics
in the original, emphasis and underscoring supplied)
Among
the actions the Court has recognized as being incapable of pecuniary estimation
include legality of conveyances. In
a case involving an annulment of contract, the Court found it to be one which
cannot be estimated:
Petitioners argue that an action for annulment or rescission of a contract of sale of real property is a real action and, therefore, the amount of the docket fees to be paid by private respondent should be based either on the assessed value of the property, subject matter of the action, or its estimated value as alleged in the complaint, pursuant to the last paragraph of §7(b) of Rule 141, as amended by the Resolution of the Court dated September 12, 1990. Since private respondents alleged that the land, in which they claimed an interest as heirs, had been sold for P4,378,000.00 to petitioners, this amount should be considered the estimated value of the land for the purpose of determining the docket fees.
On the other hand, private respondents counter that an action for annulment or rescission of a contract of sale of real property is incapable of pecuniary estimation and, so, the docket fees should be the fixed amount of P400.00 in Rule 141, §7(b)(1). In support of their argument, they cite the cases of Lapitan v. Scandia, Inc. and Bautista v. Lim. In Lapitan this Court, in an opinion by Justice J.B.L. Reyes, held:
A review of the jurisprudence of this Court indicates that in determining whether an action is one the subject matter of which is not capable of pecuniary estimation, this Court has adopted the criterion of first ascertaining the nature of the principal action or remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the courts of first instance would depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money, or where the money claim is purely incidental to, or a consequence of, the principal relief sought, like in suits to have the defendant perform his part of the contract (specific performance) and in actions for support, or for annulment of a judgment or to foreclose a mortgage, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts of first instance. The rationale of the rule is plainly that the second class cases, besides the determination of damages, demand an inquiry into other factors which the law has deemed to be more within the competence of courts of first instance, which were the lowest courts of record at the time that the first organic laws of the Judiciary were enacted allocating jurisdiction (Act 136 of the Philippine Commission of June 11, 1901).
Actions for specific performance of contracts have been
expressly pronounced to be exclusively cognizable by courts of first instance: De
Jesus vs. Judge Garcia, L-26816,
It is thus respectfully maintained
that the correct docket fees were paid.
II. Estoppel Has
Set In
As to the issue of estoppel, the
present ponencia cites Vargas v. Caminas[7]
on the non-applicability of the Tijam doctrine where the issue of
jurisdiction was, in fact, raised before the trial court rendered its decision. The ponencia continues:
Next, the Lu Ym father and sons filed a motion for the lifting of the receivership order, which the trial court had issued in the interim. David, et al., brought the matter up to the CA even before the trial court could resolve the motion. Thereafter, David, at al., filed their Motion to Admit Complaint to Conform to the Interim Rules Governing Intra-Corporate Controversies. It was at this point that the Lu Ym father and sons raised the question of the amount of filing fees paid. They also raised this point again in the CA when they appealed the trial court’s decision in the case below.
We find that, in the circumstances,
the Lu Ym father and sons are not estopped from challenging the jurisdiction of
the trial court. They raised the
insufficiency of the docket fees before the trial court rendered judgment and
continuously maintained their position even on appeal to the CA. Although the manner of challenge was erroneous
– they should have addressed this issue directly to the trial court instead of
the OCA – they should not be deemed to have waived their right to assail the
jurisdiction of the trial court.[8] (Underscoring supplied)
Lu Ym father and sons did not
raise the issue before the trial court. The
narration of facts shows that they inquired from the Clerk of Court on the
amount of paid docket fees on
Meanwhile, they attempted to verify
the matter of docket fees from the Office of the Court Administrator (OCA). In their Application for the issuance a writ
of preliminary injunction filed with the Court of Appeals, they still failed to
mention it. Finally, it was only in
their Motion for Reconsideration of the denial of their application for injunctive
writ that they raised such issue before the appellate court.[10]
Their further inquiry from the OCA cannot
redeem them. A mere inquiry from an improper office
at that, could not, by any stretch, be considered as their act of having raised
the jurisdictional question prior to the rendition of the trial court’s
decision.
Here it is beyond dispute that respondents paid the full amount of docket fees as assessed by the Clerk of Court of the Regional Trial Court of Malolos, Bulacan, Branch 17, where they filed the complaint. If petitioners believed that the assessment was incorrect, they should have questioned it before the trial court. Instead, petitioners belatedly question the alleged underpayment of docket fees through this petition, attempting to support their position with the opinion and certification of the Clerk of Court of another judicial region. Needless to state, such certification has no bearing on the instant case.[11] (Italics in the original; emphasis and underscoring in the original)
It is thus respectfully maintained that assuming arguendo that the docket fees were insufficiently paid, the doctrine of estoppel already applies. The inequity resulting from the abrogation of the whole proceedings at this late stage when the decision subsequently rendered was adverse to them is precisely the evil being avoided by the equitable principle of estoppel.
III. No Intent
to Defraud the Government
x x x In Sun Insurance Office, Ltd., (SIOL) v. Asuncion, this Court ruled that the filing of the complaint or appropriate initiatory pleading and the payment of the prescribed docket fee vest a trial court with jurisdiction over the subject matter or nature of the action. If the amount of docket fees paid is insufficient considering the amount of the claim, the clerk of court of the lower court involved or his duly authorized deputy has the responsibility of making a deficiency assessment. The party filing the case will be required to pay the deficiency, but jurisdiction is not automatically lost.[12]
The ponencia finds that the
doctrine does not apply since there was intent to defraud the government,
citing one attendant circumstance– the annotation of notices of lis pendens
on real properties owned by LLDC. It deduces:
From the foregoing, it is clear that a notice of lis pendens is availed of mainly in real actions. Hence, when David, et al. sought the annotation of notices of lis pendens on the titles of LLDC, they acknowledged that the complaint they had filed affected a title to or a right to possession of real properties. At the very least, they must have been fully aware that the docket fees would be based on the value of the realties involved. Their silence and inaction to point this out to the Clerk of Court who computed their docket fees, therefore, becomes highly suspect, and thus, sufficient for this Court to conclude that they have crossed beyond the threshold of good faith and into the area of fraud. Clearly, there was an effort to defraud the government in avoiding to pay the correct docket fees. Consequently, the trial court did not acquire jurisdiction over the case.[13]
All findings of fraud should begin the
exposition with the presumption of good faith.
The question is not whether there was good faith on the part of David, et
al., but whether there was bad faith on his part.
In the present case, the erroneous
annotation of a notice of lis pendens does not negate good faith. The overzealousness of a party in protecting pendente
lite his perceived interest, inchoate or otherwise, in the corporation’s properties
from depletion or dissipation, should not be lightly equated to bad faith.
That notices of lis pendens
were erroneously annotated on the titles does not have the effect of changing
the nature of the action. The aggrieved
party is not left without a remedy, for they can move to cancel the annotations. The ponencia, however, deemed such act
as an acknowledgement that the case they filed was a real action, concerning as
it indirectly does the corporate realties, the titles of which were allegedly annotated. This conclusion does not help much in
ascertaining the filing fees because the value of these real properties and the
value of the 600,000 shares of stock are different.
Further, good faith can be
gleaned from the series of amendments on the provisions on filing fees, that even
prompted this Court to make a clarification.
When the present Complaint was filed
on
SEC. 7. Clerks of Regional Trial Courts. –
(a) For filing an action or a permissive counterclaim or money claim against an estate not based on judgment, or for filing with leave of court a third-party, fourth-party, etc. complaint, or a complaint in intervention, and for all clerical services in the same, if the total sum claimed, exclusive of interest, or the stated value of the property in litigation, is:
x x x x
(b) For filing:
|
1. Actions where the value of the subject matter cannot be estimated |
……….….. x x x |
|
2. Special civil actions except judicial foreclosure of mortgage which shall be governed by paragraph (a) above |
…...….……. x x x |
|
3. All other actions not involving property |
……….…… x x x |
In a real action, the assessed value of the property, or if there is none, the estimated value thereof shall be alleged by the claimant and shall be the basis in computing the fees.
x x x x[15]
(Emphasis supplied)
Subsequently, the Court, by Resolution
of
Clarification has been sought on the legal fees to be collected and the period of appeal applicable in cases formerly cognizable by the Securities and Exchange Commission. It appears that the Interim Rules of Procedure on Corporate Rehabilitation and the Interim Rules of Procedure for Intra-Corporate Controversies do not provide the basis for the assessment of filing fees and the period of appeal in cases transferred from the Securities and Exchange Commission to particular Regional Trial Courts.
The nature of the above mentioned cases should first be ascertained. Section 3(a), Rule 1 of the 1997 Rules of Civil Procedure defines civil action as one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. It further states that a civil action may either be ordinary or special, both being governed by the rules for ordinary civil actions subject to the special rules prescribed for special civil actions. Section 3(c) of the same Rule, defines a special proceeding as a remedy by which a party seeks to establish a status, a right, or a particular fact.
Applying these definitions, the cases covered by the Interim Rules for Intra-Corporate Controversies should be considered as ordinary civil actions. These cases either seek the recovery of damages/property or specific performance of an act against a party for the violation or protection of a right. These cases are:
(1) Devices or schemes employed by, or any act of, the board of directors, business associates, officers or partners, amounting to fraud or misrepresentation which may be detrimental to the interest of the public and/or of the stockholders, partners, or members of any corporation, partnership, or association;
(2) Controversies arising out of intra-corporate, partnership, or association relations, between and among stockholders, members or associates; and between, any or all of them and the corporation, partnership, or association of which they are stockholders, members or associates, respectively;
(3) Controversies in the election or appointment of directors, trustees, officers, or managers of corporations, partnerships, or associations;
(4) Derivative suits; and
(5) Inspection of corporate books.
On the other hand, a petition for rehabilitation, the procedure for which is provided in the Interim Rules of Procedure on Corporate Recovery, should be considered as a special proceeding. It is one that seeks to establish the status of a party or a particular fact. As provided in section 1, Rule 4 of the Interim Rules on Corporate Recovery, the status or fact sought to be established is the inability of the corporate debtor to pay its debts when they fall due so that a rehabilitation plan, containing the formula for the successful recovery of the corporation, may be approved in the end. It does not seek a relief from an injury caused by another party.
Section 7 of Rule 141 (Legal Fees) of the Revised Rules of Court lays the amount of filing fees to be assessed for actions or proceedings filed with the Regional Trial Court. Section 7(a) and (b) apply to ordinary civil actions while 7(d) and (g) apply to special proceedings.
In fine, the basis for computing the filing fees in intra-corporate cases shall be section 7(a) and (b) l & 3 of Rule 141. For petitions for rehabilitation, section 7(d) shall be applied. (Emphasis and underscoring supplied)
The new Section
21(k) of Rule 141 of the Rules of Court, as amended by A.M. No. 04-2-04-SC[17] (
the reference. Said paragraph[18] refers
to docket fees for filing “[a]ctions where the value of the subject matter
cannot be estimated” and “all other actions not involving property.”
By referring the computation of such
docket fees to paragraph (a) only, it denotes that an intra-corporate
controversy always involves a property in litigation, the value of which is
always the basis for computing the applicable filing fees. The latest amendments seem to imply that
there can be no case of intra-corporate controversy where the value of the
subject matter cannot be estimated. Even
one for a mere inspection of corporate books.
If the complaint was filed today, one
could safely find refuge in the express
phraseology of Section 21 (k) of Rule 141 that paragraph (a) alone
applies.
In this case, however, the original Complaint
was filed on
The Court’s earlier position that
“assuming that the docket fees paid were truly inadequate, the mistake was
committed by the Clerk of Court who assessed the same and not imputable to
David; and as to the deficiency, if any, the same may instead be considered a
lien on the judgment that may thereafter be rendered” is respectfully submitted
to be maintained.
I, therefore, vote to DENY the Motion
for Reconsideration for lack of merit.
CONCHITA
CARPIO MORALES
Associate
Justice
[1] G.R. No. 153690,
[2]
[3] Ponencia, pp. 11-12.
[4] Ponencia, p. 6.
[5] Supra note 1 at 275-276.
[6] De Leon v.
CA, 350 Phil. 535, 540-542 (1998).
[7] G.R. Nos. 137869 & 137940,
[8] Ponencia, p. 11.
[9] Supra note 1 at 277.
[10] Supra
note 3. In the
[11] Rivera v. del Rosario, 464 Phil. 783, 797 (2004).
[12] Ibid.
[13] Ponencia, p. 9.
[14]
The statute was issued on
[15] Vide A.M. No. 00-2-01-SC (March 1. 2000).
[16]
Effective
[17] The
amendments took effect on
[18] Sub-paragraphs (1) and (3) remain unchanged except for the increase in the amounts of fees.