Spouses Ong v. Gan

FIRST DIVISION

[G.R. No. 222363. October 13, 2021.]

SPOUSES JIMMY S. ONG AND EVELYN DEBBIE S. ONG, petitioners, vs.JONATHAN GAN, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedOctober 13, 2021which reads as follows: HTcADC

"G.R. No. 222363 (Spouses Jimmy S. Ong and Evelyn Debbie S. Ong v. Jonathan Gan). — This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Decision 1 dated July 10, 2015 and Resolution 2 dated January 14, 2016 of the Court of Appeals (CA) in CA G.R. CV No. 103331. The CA Decision and Resolution granted the appeal 3 filed by Jonathan Gan (respondent) and reversed the Decision 4 dated July 30, 2014 rendered by the Regional Trial Court of Quezon City (RTC), Branch 219, which found him liable to pay Spouses Jimmy (Jimmy) and Evelyn Ong (petitioners) the amount of P1,102,035.00 plus legal interest of 6% per annum from August 9, 2006, and costs of suit.

Before this Court, petitioners argue that the CA committed the following errors in rendering its decision and resolution:

(l) for not dismissing the appeal filed by the respondent based on non-compliance with Section 13, Rule 44 of the Rules of Court; 5

(2) for taking into consideration the Invitation to Bidders and Instruction to Bidders which were neither identified, nor marked during pre-trial; 6 and

(3) for dismissing the complaint against respondent despite overwhelming evidence to the contrary which establishes his liability on account of his negligence and incompetence in failing to comply with the applicable height restrictions on the subject property. 7

This Court shall now address each of these assigned errors.

Dismissal under Section 1,

At the outset, petitioners assail the CA decision for not dismissing outright the appeal filed by respondent. 8 According to them, the Brief of respondent filed from the CA suffers from the following formal defects: (1) there is no subject index; (2) the statement of the case did not contain a summary of the proceedings, the appealed rulings, and the orders of the court; (3) the statement of facts does not contain the substance of the proof relating thereto in sufficient detail to make it clearly intelligible; and (4) it does not include the required page references to the record in each statement under the statement of the case and facts. Petitioners posit that the absence of the foregoing runs counter to the mandatory requirements found under Section 13, Rule 44 of the 1997 Revised Rules of Civil Procedure, which should have dismissed respondent's appeal before the CA. 9

This Court resolves to uphold the CA's discretion in deciding the instant case based on the merits, rather than dismissing the same on mere technicalities. Contrary to the petitioners' postulates, Section 1, Rule 50 of the Rules of Court uses the word "may" which signifies the permissive rather than the mandatory dismissal of an appeal on the ground of non-compliance with Section 13, Rule 44, viz.:

Section 1. Grounds for dismissal of appeal. — An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds:

xxx xxx xxx

(f) Absence of specific assignment of errors in the appellant's brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44; x x x (Emphasis and underscoring supplied)

Following the Court's earlier pronouncement in Dr. Rich v. Paloma, 10 the CA is not obliged by Section 1, Rule 50 to dismiss an appeal due to the absence of a subject index with page references and compliant statement of facts in the Appellant's Brief. Likewise, it is not incumbent upon this Court to interfere with the CA's exercise of discretion in deciding the instant case based on its merits, absent any grave abuse of discretion:

Contrary to this argument, however, the Court, in De Leon vs. Court of Appeals, has already ruled that the grounds for dismissal of an appeal under Section 1 of Rule 50 of the Rules of Court are discretionary upon the CA. It said that:

x x x Rule 50, Section 1 which provides specific grounds for dismissal of appeal manifestly "confers a power and does not impose a duty." "What is more, it is directory, not mandatory." With the exception of Sec. 1(b), the grounds for the dismissal of an appeal are directory and not mandatory, and it is not the ministerial duty of the court to dismiss the appeal. The discretion, however, must be a sound one to be exercised in accordance with the tenets of justice and fair play having in mind the circumstances obtaining in each case. x x x

Indeed, consistent with the ruling in De Leon, the guiding principle in the resolution of the foregoing issues is that if the citations found in the appellant's brief could sufficiently enable the CA to locate expeditiously the portions of the records referred to, then there is substantial compliance with the requirements of Section 13, Rule 44 of the Rules of Court.

In this case, the CA did not exercise the discretion to dismiss the appeal based on the absence of "a subject index with page of reference and compliant statement of facts" in the appellant's brief. Clearly, the CA did not find that the tenets of justice and fair play were disregarded by this omission. Rather, the CA chose to decide the case on the merits, which impliedly found the appellant's brief to be substantially sufficient insofar as the guiding principle mentioned above is concerned.

More, it is proper to emphasize that this discretion is particularlyvested unto the CA and not unto this Court. Thus, absent any grave abuse of discretion in the application of the rules, the Court could not, and would not, interfere with the CA findings. Considering too that the petitioner merely (1) quoted the provisions of the rules that the appellant's brief "violated" and (2) showed the insufficiencies in the appellant's brief, but did not present any proof of any grave abuse of discretion on the part of the CA, the Court would not now dismantle a ruling that was reached based on a discretion which was not improperly exercised. 11 (Citation omitted and emphasis supplied)

This Court thus finds that the CA did not commit a grave and reversible error when it ruled based on the merits of the instant case. The CA exercised its discretion when it decided that the interest of justice would be better served by overlooking the technical defects in the Appellant's Brief's. Time and again, this Court has declared that dismissal on purely technical grounds is frowned upon. It is a judicial policy to determine a case based on the merits so that the parties will have full opportunity to ventilate their cause and defenses. 12

Evidence only introduced during trial

Additionally, petitioners fault the CA for considering the Invitation to Bidders and Instruction to Bidders, or documents that were neither mentioned in the respondent's Answer and Pre-Trial Brief, nor identified and pre-marked during pre-trial. Thus, the findings of the CA based on these documents should be reversed for being in gross violation of A.M. No. 03-1-09-SC. 13

We disagree. A judicious review of the records reveals that respondent was not remiss in informing the RTC of his intention to present additional evidence during trial. In his Pre-Trial Brief 14 dated July 4, 2008, respondent informed the court that he "reserves the right to present and/or adopt other documentary exhibits during the course of the trial as the need arises and as may be necessary." 15 During the hearing conducted by the RTC on November 27, 2013, respondent's counsel, Atty. Alindato, again asserted that the respondent made reservations during pre-trial and was allowed to present other documents. 16

In response to such reservation, the RTC, exercising its discretion, allowed respondent to present additional evidence during the course of trial. In fact, the RTC ruled for the admission of the Exhibit "5" — Invitation to Bidders and Exhibit "6" — Instruction to Bidders as respondent's evidence in its Resolution 17 dated March 7, 2014, after considering the Comment/Objections [To defendant's Formal Offer of Exhibits dated 09 December 2013] 18 dated December 12, 2013 filed by petitioners. Unfortunately, petitioners did not file any motion for reconsideration to the foregoing RTC resolution to question the admission of such evidence.

While this Court does not belittle rules of procedure, it is guided by its recent ruling in Heirs of Lagon v. Ultramax Healthcare Supplies, Inc., 19 where it was explained that the non-admission of evidence not pre-marked during pre-trial under A.M. No. 03-1-09-SC admits of exception — when allowed by the court for good cause shown, thus:

Petitioners rely on technicalities, but these rules are not so rigid as to frustrate the full adjudication of cases. Procedural rules are designed to aid the courts in resolving cases. They neither create nor take away vested rights, but merely facilitate the trial court's reception and evaluation of all evidence given the facts and circumstances presented by the parties. They give litigants the opportunity to establish the merits of their complaint or defense rather than lose life, liberty, or property on mere technicalities. This Court should not demand a strict application of these rules when such would exacerbate the situation rather than promote substantial justice.

Section 2 of the Judicial Affidavit Rule mandates parties to submit their witnesses' judicial affidavits, together with the documentary and object evidence, before the pre-trial or preliminary conference. Nevertheless, the same provision allows for an exception. The trial court may, during trial, allow the introduction of additional evidence despite it not being previously marked or identified during pre-trial if good cause is shown.

In Cruz v. People, petitioner Anthony Cruz (Cruz) was found guilty of violating Section 9 (a) and (e) of Republic Act No. 8484 for using a counterfeit access device to purchase a pair of designer shoes. Aggrieved, Cruz went before this Court, asserting that the prosecution was not able to prove his guilt since the counterfeit credit card he allegedly used was still admitted on trial despite not being presented and marked during pre-trial. In affirming the finding of guilt, this Court held that under A.M. No. 03-1-09-SC, the admission of evidence not pre-marked during pre-trial is not absolutely prohibited. It discussed:

A.M. No. 03-1-09-SC, sec. I(A)(2) provides that:

2. The parties shall submit, at least three (3) days before the pre-trial, pre-trial briefs containing the following:

xxx xxx xxx

d. The documents or exhibits to be presented, stating the purpose thereof. (No evidence shall be allowed to be presented and offered during the trial in support of a party's evidence-in-chief other than those that had been earlier identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown)[.]

The rule is that no evidence shall be allowed during trial if it was not identified and pre-marked during trial. This provision, however, allows foran exception: when allowed by the court for good cause shown. There is no hard and fast rule to determine what may constitute "good cause," though this Court has previously defined it as any substantial reason "that affords a legal excuse."

The trial court retains its discretion to allow any evidence to be presented at trial even if not previously marked during pre-trial. Here, the trial court allowed the presentation of the counterfeit credit card at trial due to the prosecution's explanation that during pre-trial, the counterfeit credit card was still in the Criminal Investigation and Detective Group's custody. (Citations omitted; emphasis and underscoring supplied)

The good cause for allowing the introduction of Exhibit "5" — Invitation to Bidders and Exhibit "6" — Instruction to Bidders, has been explained by then Acting Presiding Judge Maria Filomena D. Singh of the RTC, during the hearing on September 4, 2013. The pertinent portion of the Transcript of Stenographic Notes reads as follows:

Atty Ong:

In addition, You Honor, we would also register our objection to the presentation of documents which were never presented during pre-trial and these documents are sought to be presented under questions nos. 36 and 37, Your Honor.

Court:

Alright, as to that I see in my record certain markings done during the preliminary conference held before I took over the Court[. In] as much as it's not me whoconducted the pre-trial, I could not really answer for the non[-]inclusion and failure to mark evidence during pre-trial proper so in the interest of allowing the court to see everything so our decision will be duly informed[,] I will allow the markings of these documents subject to other objections when they are formally offered. Okay . . . No other objection?

Atty. Ong:

No more, Your Honor. 20 (Emphasis supplied)

Based on the foregoing transcript, the RTC exercised its sound discretion in allowing the introduction of the Invitation to Bidders and Instruction to Bidders despite not being marked during pre-trial, in the interest of fair play. Since the Presiding Judge was not privy to the reasons for the non-inclusion of such evidence during pre-trial, the RTC found it more prudent and consistent with justice to permit the respondent to present his additional evidence, subject to petitioners' cross-examination during trial and objections upon formal offer. Therefore, no error can be ascribed in the CA's consideration of the Invitation to Bidders and Instruction to Bidders in its ruling, given that the same were admitted into evidence by the RTC, pursuant to its Resolution 21 dated March 7, 2014.

It is the complainants' burden to prove

Finally, petitioners question the following factual findings of the CA:

(1) respondent designed the house precisely according to petitioners' specifications and was not remiss in his duty to observe due diligence as his design was revised numerous times according to the spouses' wishes; 22

(2) Ayala Land, Inc.'s ("Ayala") approval is enough proof that the elevation and height requirement indicated in the plans were within the limits set forth under the Deed of Restrictions and of the terrain; 23

(3) petitioners' act of not following through with respondent's contract proposal led to his design being at odds with the attributes of the property; 24

(4) petitioners agreeing to engage the services of respondent to monitor the project would have easily allowed respondent to make on-site adjustments with little or no damage to the overall integrity of the design; 25

(5) it is erroneous or misguided to lay blame on respondent for the failure of the project manager to spot the complications early on in the construction; 26

(6) respondent never once reneged from his obligation as architect of the project and continuously prepped with petitioners when the design needed modifications, going as far as reminding the couple of the need for topographical survey of the lot to verify the actual elevations; 27 and

(7) respondent supposedly performed his obligations without negligence or delay or otherwise contravening the tenor of the agreement. 28

According to petitioners, there is overwhelming evidence which rebut the foregoing findings of the appellate court. This evidence supposedly established respondent's liability on the account of his negligence and incompetence in failing to comply with the applicable height restrictions on the subject property. 29

Notably, resolving the foregoing assignment of errors requires a re-evaluation of the evidence presented by the parties before the RTC. Thus, petitioners invoke the exceptions on review of factual findings under Rule 45 to call this Court to revisit the factual matters of the instant case. 30

Section 6, Rule 45 provides that a review of appeals filed before this Court is not a matter of right, but of sound judicial discretion, and will only be granted when there are special and important reasons therefor. On the other hand, Section 1, Rule 45 requires that only questions of law should be raised in the petition for review.

This Court is not a trier of facts. Although jurisprudence has provided several exceptions to these rules, exceptions must be alleged, substantiated, and proved by the parties so this Court may evaluate and review the facts of the case. Parties praying that this Court review the factual findings of the CA must demonstrate and prove that the case clearly falls under the exceptions to the rule. "They have the burden of proving to this court that a review of the factual findings is necessary. Mere assertion and claim that the case falls under the exceptions do not suffice." 31

Unfortunately, this Court finds that the instant petition failed to discharge the burden of establishing the necessity of reviewing the factual findings of the CA. The present petition fails to point to any specific evidence which contradicts the findings of the CA. While petitioners cite the testimony of its witnesses to argue against the factual findings of the CA and the position of respondent, it is settled that in civil cases, a party who alleges a fact has the burden of proving it. "He who alleges has the burden of proving his allegation by preponderance of evidence or greater weight of credible evidence. The reason for this rule is that bare allegations, unsubstantiated by evidence, are not equivalent to proof. In short, mere allegations are not evidence." 32

Nevertheless, upon a scrutiny of the records of the case, this Court is still not convinced that there was error in the factual findings of the CA, grave enough to overturn its rulings.

The instant petition assails the CA decision based on the contrary testimony of Jimmy before the RTC that respondent received the Deed of Restriction and the Lot Information Plan, both of which bear sufficient information as to the height restrictions of the property. However, the Court finds Jimmy's testimony not supported by documentary evidence.

The documents supposedly provided by Ayala to the petitioners, i.e., the Deed of Restriction and the Lot Information Plan, on their face, do not indicate receipt thereof by the respondent. Thus, the evidence submitted by petitioners did not establish the fact of knowledge of respondent of the height elevation limitations imposed by Ayala, or the 4.345-meter limitation based on the difference between the lowest and highest elevations of the property line. The approval of Ayala on respondent's initial designs further shows that respondent was not made aware of the foregoing height restrictions. 33 Simply put, respondent's fault and negligence in complying with the restrictions found in such documents have not been proven, as the records do not establish his receipt thereof in the first place, apart from Jimmy's bare allegations.

Much less did petitioners prove that respondent should be liable for the costs and consequences of the discrepancy in the height elevation of the design and the elevation actually permitted by the property line. None of the documents showed that respondent was likewise engaged to do on-site verification of the design. To recall, the Contract Proposal of respondent was admittedly never signed by petitioners, neither is there any showing that they assented to the terms and conditions therein. Thus, this Court finds respondent's version of the facts, or specifically, that he was engaged to do only the preliminary design of the project, more persuasive. Additionally, as petitioners chose not to be bound under such contract, neither can this Court now make respondent liable for his undertaking thereunder.

Instead, this Court agrees with the CA that respondent could not have made on-site adjustments with the engagement of another architect to supervise the project and Jethrock, the contractor, which, based on the Invitation to Bidders, should conduct the ocular inspection and inform respondent of the discrepancy in the design, thus: 34

As it turns out, the Spouses Ong had no plans of inviting him over to oversee the construction of the house as may be inferred from their employment of another architect, Bennett O. Dy, to supervise the construction. Had the couple engaged services of Gan to monitor the project as agreed, he would have easily made on-site adjustments with little or no damage to the over-all integrity of the design.

It is, therefore, erroneous or misguided to lay blame on Gan for failure of the new architect to spot the complications early on in the construction (having no first-hand knowledge thereof to begin with), more so that they also failed to advise JCC to conduct ocular inspection as provided in the invitation to Bidders, in particular:

'4. Examination of Site

4.1. The contractor shall examine the site at his own expense and accept the condition as is. No adjustment on bid price will be entertained upon failure of the Contractor to examine the condition of the site.

4.2. The contractor shall also inquire the requirements, construction guidelines and restrictions of the Developer, Association and the Local Government agencies.

5. Discrepancies

5.1. Should any discrepancies and incoherence be found during the examination of contract drawings, specifications and related documents, the office of the architect should be notified immediately before the due date of the proposal. Addendum and other clarifying bulletins which will be issued to make clear all questions and correspondingly will become part of the contract documents.' (Emphasis supplied)

It is also noteworthy that respondent, in good faith, revised the plans to adjust the height elevation of the building and conform to the restrictions imposed by Ayala, 35 contrary to petitioners' averments that respondent's numerous revisions all relate to matters of Feng Shui or the aesthetics and design aspect of the house. 36 Further, petitioners' allegation that respondent refused to again revise the drawings and plans to convert the structure to a three-storey building is belied by the letter dated July 29, 2006, where respondent clarified that he did not receive any request to construct a three-storey house, but expressed his willingness to comply with such a request. 37 Therefore, respondent's liability on the ground of fault or negligence in performing his obligation is bereft of any basis.

Based on the foregoing, this Court finds the instant petition unmeritorious for failing to establish any error in the rulings of the CA.

WHEREFORE, the instant petition is DENIED. The Decision dated July 10, 2015 and the Resolution dated January 14, 2016 of the Court of Appeals in CA G.R. CV No. 103331 are AFFIRMED, finding respondent Jonathan Gan not liable to Spouses Jimmy S. Ong and Evelyn Debbie S. Ong for damages. aScITE

SO ORDERED." Lopez, M., J., on official leave.

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

by:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

 

Footnotes

1. Penned by Associate Justice Stephen C. Cruz, with Associate Justices Jose C. Reyes, Jr. (retired Member of this Court) and Ramon Paul L. Hernando (now a Member of this Court) concurring; rollo, Vol. 1, pp. 8-17.

2.Id. at 18-20.

3.Rollo, Vol. 2, pp. 703-704.

4. Rendered by Acting Presiding Judge Germano Francisco D. Legaspi; id. at 693-702.

5.Rollo, Vol. 1, pp. 50-54.

6.Id. at 57-62.

7.Id. at 54-57; 63-89.

8.Rollo, Vol. 2, pp. 716-729.

9.Rollo, Vol. 1, pp. 50-54.

10. 827 Phil. 398 (2018).

11.Id. at 405-406.

12.Pilipinas Shell Petroleum Corp. v. Royal Ferry Services, Inc., 805 Phil. 13, 29 (2017).

13.Rollo, Vol. 1, pp. 57-62.

14.Id. at 237-249.

15.Id. at 248.

16.Rollo, Vol. 2, p. 638.

17.Id. at 686-687.

18.Id. at 676-681.

19. G.R. No. 246989, December 7, 2020.

20.Rollo, Vol. 2, pp. 573-574.

21.Id. at 686-687.

22.Rollo, Vol. 1, pp. 65-70.

23.Id. at 70-72.

24.Id. at 72-77.

25.Id.

26.Id.

27.Id. at 77-80.

28.Id. at 80-86.

29.Id. at 54-57; 63-89.

30.Id. at 63-64.

31.Pascual v. Burgos, 776 Phil. 167, 184 (2016).

32.Dra. Dela Llana v. Biong, 722 Phil. 743, 757 (2013).

33.Rollo, Vol. 1, p. 33.

34.Id. at 14.

35.Id. at 168-169.

36.Id. at 66.

37.Id. at 178.