FIRST DIVISION
[G.R. No. 227208. September 14, 2021.]
ROSALINA R. LLAVE, petitioner, vs.RAMON F. LLAVE AND JULIET TASI, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated September 14, 2021which reads as follows:
"G.R. No. 227208(Rosalina R. Llave v. Ramon F. Llave andJuliet Tasi)
The petition must fail. HTcADC
During the entire proceedings before the trial court and the Court of Appeals, petitioner has consistently characterized the agreement in question as a contract of sale, albeit she invariably asserted it was void.
But for the first time here and now, petitioner pleads an entirely different theory — that the parties truly intended a contract to sell not a contract of sale.
On this score, suffice it to state that an issue not raised before the trial court, and even on appeal before the Court of Appeals cannot be raised for the first time before the Court. Being utterly offensive to the basic rules of fair play, justice and due process, petitioner's sudden change of theory, issue, and arguments, must perforce, compel the outright dismissal of her petition. 1
Maxicare PCIB Cigna Healthcare (now Maxicare Healthcare Corporation) v. Contreras2 is apropos:
As a rule, a party who deliberately adopts a certain theory upon which the case is tried and decided by the lower court will not be permitted to change theory on appeal. Points of law, theories, issues and arguments not brought to the attention of the lower court need not be, and ordinarily will not be, considered by a reviewing court, as these cannot be raised for the first time at such late stage. Basic considerations of due process underlie this rule. It would be unfair to the adverse party who would have no opportunity to present further evidence material to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court. To permit Maxicare in this case to change its theory on appeal would thus be unfair to Dr. Contreras, and offend the basic rules of fair play, justice and due process.
xxx xxx xxx
It is a fundamental rule of procedure that higher courts are precluded from entertaining matters neither alleged in the pleadings nor raised during the proceedings below, but ventilated for the first time only in a motion for reconsideration or on appeal. Petitioner is bound by its submissions that respondent is its employee and it should not be permitted to change its theory. Such change of theory cannot be tolerated on appeal, not due to the strict application of procedural rules, but as a matter of fairness. (Emphasis supplied)
In any event, we sustain the finding of the Court of Appeals that the transaction here is a contract of sale. Under Article 1318 of the New Civil Code, the essential requisites of a contract are: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) cause of the obligation which is established.
First, there is a mutual agreement between Spouses Rosalina and Ramon Llave, on one hand, and Juliet, on the other, to enter into a contract of sale, not a contract to sell. The deed of sale speaks for itself. There is no mention therein that Spouses Llave as vendor were reserving ownership of the property until the purchase price was fully paid. Too, the subject matter of the sale is determinate — the 137 sq.m. parcel of land described in the deed of sale. Last, the consideration is certain: P3,000,000.00 per agreement of the parties, albeit the deed of sale bore the reduced amount of P1,500,000.00 which, by the parties' own admission, was only for purposes of reducing their tax liability. 3
Petitioner herself cogently negates the story that she orally cancelled or withdrew from the transaction before her husband Ramon could even sign the deed of sale, thus:
xxx xxx xxx
Q: After the incident at the bank, was there an occasion wherein you communicated again to Mrs. Tasi informing that the deal is on?
A: No, we are talking about what will happen now because we have already down payment. I said, just wait for further notice.
Q: You never informed that you are actually canceling permanently the sale of the property?
A: I said they have to wait. They have to wait, I have to talk to my husband and settle everything and at the time I have visitors, I have my sister and her husband. (Emphasis supplied)
Indeed, there is no cancellation or withdrawal to speak of here. The same goes with petitioner's story on her supposed Affidavit of Adverse Claim as it is not found in the records of the Registry of Deeds.
As for the Statute of Frauds, surely, the written contract of sale here, by its nature, is beyond its operation. The Statute of Frauds governs oral agreements only.
To be sure, that petitioner herself may not have personally appeared before the notary public who notarized the deed of sale should not and does not cause its nullification. Diampoc v.Buenaventura4 ordained:
Article 1358 of the Civil Code requires that the form of a contract that transmits or extinguishes real rights over immovable property should be in a public document, yet the failure to observe the proper form does not render the transaction invalid. The necessity of a public document for said contracts is only for convenience; it is not essential for validity or enforceability. Even a sale of real property, though not contained in a public instrument or formal writing, is nevertheless valid and binding, for even a verbal contract of sale or real estate produces legal effects between the parties. Consequently, when there is a defect in the notarization of a document, the clear and convincing evidentiary standard originally attached to a duly-notarized document is dispensed with, and the measure to test the validity of such document is preponderance of evidence.
So must it be.
Finally, in view of the parties' admission that the amount of consideration reflected in the deed of absolute sale was undervalued by half for tax purposes, they are directed to cause the reformation 5 of the deed to reflect the true consideration of P3,000,000.00. This will enable the proper party to pay the correct amount of taxes due on the sale transaction.
WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated March 31, 2016 and Resolution dated September 19, 2016 in CA-G.R. CV No. 99033 are AFFIRMEDWITH MODIFICATION, viz.:
(i) Spouses Ramon Llave and Rosalina del Rosario-Llave are DIRECTED to cause the REFORMATION of the deed of sale to reflect the true consideration of P3,000,000.00; aScITE
(ii) Juliet S. Tasi is ORDERED to PAY the balance of this amount, if any; and
(iii) Juliet S. Tasi is DIRECTED to PAY legal interest on the balance, if any, at:
a. Twelve percent (12%) per annum from February 24, 2006, until June 30, 2013;
b. Six percent (6%) per annum from July 1, 2013, until full payment.
The Resolution dated February 24, 2020 requiring Atty. Alan P. Cabaero, counsel for respondent Juliet Tasi, to pay the increased fine of P5,000.00 within ten (10) days from notice is REITERATED and the filing of comment on the petition for review on certiorari as required in the Resolution dated October 16, 2019 is DISPENSEDWITH.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Chua v. Court of Appeals, 449 Phil. 25, 41 (2003).
2.Maxicare PCIB Cigna Healthcare v. Contreras, 702 Phil. 688, 696 (2013).
3.Rollo, p. 34.
4.Diampoc v. Buenaventura, 828 Phil. 688, 696 (2013).
5.Banico v. Stager, G.R. No. 232825, September 16, 2020.