REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF JUSTICE
MANILA
ERIC JEAN BADAN,
Petitioner,
C.A.G.R.No. ___________________
-versus-
DMCI PROJECT DEVELOPERS, INC.
(DMCI),
Respondent.
x----------------------------------------------x
PETITION FOR REVIEW
Petitioner, ERIC JEAN BADAN, by counsel, and unto this Honorable Court,
most respectfully submits the foregoing:
I
NATURE OF PETITION
1. This is a Petition for Review under Rule 42 of the 1997 Rules on Civil
procedure on the Order of the Regional Trial Court, Branch 132, Makati
City dated April 19, 2018 and Resolution of the Regional Trial Court,
Branch 132, Makati City dated October 22, 2018 ,resolving the Motion
for Reconsideration dated May 12, 2018, filed by herein petitioner.
II
THE PARTIES
2. Petitioner, ERIC JEAN BADAN, of legal age, Filipino citizen, and a
resident of Unit 119 Cello Bldg., Rhapsody Residence, East Service
Road, South Super Hiway, Brgy., Buli, Muntinlupa City and B21, L4,
Adelfa St., Dona Rosario, Bayview Subd., Sucat, Muntinlupa City where
he may be served with summons, notices, and other processes of this
Honorable Court or thru the undersigned counsel;
3. Respondent, DMCI PROJECT DEVELOPERS, INC. (DMCI), is a domestic
corporation with principal business address at 1321 Apolinario Street,
Barangay Bangkal, Makati City, where it may be served with summons,
notices, and other processes of this Honorable Court or thru its counsel
of record ;
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III.
TIMELINESS OF THE PETITION
AND STATEMENT OF MATERIAL DATES
4. Petitioner, on _______received the questioned Order promulgated by
the Regional Trial Court, Branch 132, Makati City on __________. And
within the period allowed by the Rules, or on ______________,
petitioner filed a Motion for Reconsideration dated May 12, 2018. This
was denied by the Regional Trial Court, Branch 132, Makati City thru its
Resolution promulgated on October 22, 2018, which the petitioner
received on October 26, 2018.
5. That on this day, or on due time and within the period allowed by the
Rules to file a Petition for Review under Rule 42 of the 1997 Rules of
Civil Procedure, petitioner filed this instant Petition for Review and
corresponding (a) Court’s Docket, legal and research fees, and the
necessary (b) Deposit for costs has been paid by the petitioner.
Copy of the Official Receipt is hereto attached as Annex “G” and
made an integral part hereof.
IV.
BRIEF STATEMENT OF THE FACTS
AND OF THE CASE
6. On November 11, 2016, herein respondent filed a Complaint for
Unlawful Detainer against herein petitioner before the Metropolitan
Trial Court, City of Manila for Branch 61 City of Makati.
Certified True Copy of the Complaint is hereto attached as Annex “A”
and made an integral part hereof.
7. On _____________, herein petitioner filed his Answer dated
_________.
Certified True Copy of the Complaint is hereto attached as Annex “B”
and made an integral part hereof.
8. On November 20, 2017, the Metropolitan Trial Court, Branch 27 City of
Manila for Branch 61, City of Makati rendered a Decision dated
November 20, 2017 dismissing the case, the dispositive portion of
which reads:
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“WHEREFORE, premises considered, the instant complaint is
dismissed without prejudice on the ground of prematurity.
Without costs.
SO ORDERED.
Certified True copy of the Decision dated November 20, 2017
rendered by the MeTC, Branch 61, Makati City is hereto attached as
Annex “C” and made an integral part hereof.
9. On December 6, 2017, herein respondent filed a Notice of Appeal
before the Metropolitan Trial Court, Branch 61 City of Makati.
10. On March 8, 2018, herein respondent filed an Appeal Memorandum
dated March 22, 2018 before the Regional Trial Court, Branch 132 City
of Makati.
Certified True Copy of the Appeal Memorandum dated March 8, 2018 is
hereto attached as Annex “D” and made an integral part hereof.
11. On April 19, 2018, the Honorable Regional Trial Court, Branch 132 City
of Makati issued an Order dated April 19, 2018, which reversed the
Decision of the court a quo, the decretal portion of which reads:
“WHEREFORE, premises considered, the appeal is hereby
GRANTED the decision dated 20 November 2017 is hereby
REVESED and SET- ASIDE.
Defendnats-apellees Eric Jean Badan, and all persons claiming
rights under him are ordered to vacate the premises of
Condominium Unit 119 (00B-C-0119) and Service Area No.199
(00B-C-0119) both located at Cello Bldg., Rhapsody Residence,
East Service Road, South Super Hiway, Brgy., Buli, Muntinlupa
City, and to surrender possession thereof to the plaintiff-appellant
DMCI Project Developers, Inc.
Defendnats-apellees are likewise ordered to pay reasonable
rental of Php25,000.00 a month for the use of the property from
the date of last payment 11 September 2015 until the premises
are finally vacated and to pay the amount of Php80,000.00 by
way of attorney’s fees and litigation expenses.
SO ORDERED. “
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Certified Copy of the Order dated April 19, 2018, is hereto attached
as Annex “E” and made an integral part hereof.
12.On May 12, 2018, a Motion for Reconsideration dated May 12, 2018
was filed by herein petitioner on the aforecited Order dated October
22, 2018 issued by the Regional Trial Court, Branch 132, Makati City,
the Resolution of which was rendered on October 22, 2018, the
dispositive portion of which reads:
“WHEREFORE, premises considered, and finding no cogent
reason why this court should disturb its Decision dated 19
April 2018, the present Motion for Reconsideration is
hereby ordered DENIED for lack of merit.
SO ORDERED.”
Certified True Copy of the Resolution dated October 22, 2018 is
hereto attached as “Annex F” and made an integral pat hereof.
Hence, this Petition.
V.
ASSIGNMENT OF ERRORS
I. THE HONORABLE REGIONAL TRIAL COURT ERRED WHEN IT
VI.
DISCUSSION AND ARGUMENTS
(a) The plaintiff cannot change his theory for the first time on appeal.
(b) The issue of whether or not defendant-appelle is entitled to refund
according to the Maceda Law raised for first time on appeal and not
raised in proceedings in lower court is barred by estoppel.
13. Since the re-stated issues are intertwined, they will be discussed
jointly.
14. Verily, whether or not petitioner is entitled to refund of the cash
surrender value was never placed an issue by respondent in its
complaint and in any stage of the proceedings in the trial court.
15. In respondent’s complaint, it established his cause of action by alleging
that it sent a notarized Notice of Cancellation/Rescission to petitioner.
Respondent also alleged that it sent petitioner a Notice for Cash
Surrender Value of the said property.1
1
Paragraph 11 of the Complaint.
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16. It also further alleged that the said notice of cancellation/rescission
sent to petitioner prompted the latter to sign a notarized Undertaking
dated September 21, 2015 to exercise his right under Section 3(a) of RA
No. 6552 or otherwise known as Maceda Law (Number 10 of the said
Undertaking). The said Undertaking was even prepared by the
respondent itself and merely signed by petitioner.
17. In its Notice for Cash Surrender Value attached as Annex “J” in the
complaint, respondent likewise clearly stated therein the Total
Payments Made by petitioner, Total Deductions made by respondent
for the penalty, marketing and admin cost, and the Total Available
Refund in the amount of P808, 029. 82. All these allegations in the
complaint together with the documents submitted by respondent as
evidences only prove that indeed petitioner is entitled to refund of the
cash surrender value according to the Maceda Law.
18. In its Appeal Memorandum, however, plaintiff changed its theory. This
time, it argued that herein petitioner is not entitled to refund.
19. Then, in its Decision dated 19 April 2018, this Honorable Court
reversed and set aside the Decision dated 20 December 2017 issued by
the court a quo and held that petitioner is not entitled to refund and
ordered him to vacate the subject premises and to pay reasonable
rentals, attorney’s fees and litigation expenses.
20. Clearly, the change of theory raised for the first time on appeal by
respondent was a mere afterthought because of the decision by the
court a quo dismissing the instant complaint on the ground of
prematurity. It attempted to justify its contention that the ruling of the
MeTC was not correct. A perusal of the complaint in the present case
would show that there is, indeed, no allegation that defendant is not
entitled to refund; that whether or not the defendant is entitled to
refund was never placed an issue in the complaint or in any stage of
the proceedings in the Honorable MeTC by respondent.
21. Verily, petitioner is entitled to refund. As a matter of fact, respondent
established its cause of action by alleging in the complaint that it sent
petitioner a notice of cancellation/rescission of contract and notice for
cash surrender value before it filed the instant complaint. Thus, the
change of theory of plaintiff on Appeal that petitioner is not entitled to
refund is barred by estoppel or by its own admission.
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22.The Honorable Supreme Court has elucidated this matter in its long line
of cases. In the case of Sari Sari Group of Companies, Inc. v. Piglas
Kamao (Sari Sari Chapter), G.R. No. 164624, 11 August 2008, 561 SCRA
569, 589, the Supreme Court held that, “A party cannot change his
theory on appeal nor raise in the appellate court any question of law or
of fact that was not raised in the court below or which was not within
the issue raised by the parties in their pleadings.”2 Emphasis supplied.
23.The Supreme Court also said, “In a long line of cases, this Court held
that points of law, theories, issues and arguments not adequately
brought to the attention of the trial court ordinarily will not be
considered by a reviewing court as they cannot be raised for the first
time on appeal because this would be offensive to the basic rules of fair
play, justice and due process.”3 Emphasis supplied.
24.Moreover, in the case of Spouses Ernesto and Vicenta Topacio vs.
Banco Filipino Savings and Mortgage Bank, G.R. No. 157644, November
17, 2010, the Supreme Court held that, “The petitioners now claim that
the Motion for Reconsideration, filed by the respondent on May 18,
1993 from the September 18, 1992 Order of the RTC, was filed out of
time. The petitioners make this claim to justify their contention that
the subsequent rulings of the RTC, including the June 2, 1993 and
October 1, 1993 Orders, are barred by res judicata. We reject this
belated claim as the petitioners raised this only for the first time on
appeal, particularly, in their Memorandum. In fact, the petitioners
never raised this issue in the proceedings before the court a quo or in
the present petition for review. 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 the 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. 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. Thus, to permit the
petitioners in this case to change their theory on appeal would thus be
unfair to the respondent and offend the basic rules of fair play, justice
and due process.” Emphasis supplied.
2
Sari Sari Group of Companies, Inc. v. Piglas Kamao (Sari Sari Chapter), G.R. No. 164624, 11 August
2008, 561 SCRA 569, 589.
3
Philippine Commercial and International Bank v. Custodio, G.R. No. 173207, 14 February 2008, 545 SCRA 367,
380; Heirs of Cesar Marasigan v. Marasigan, G.R. No. 156078, 14 March 2008, 548 SCRA 409, 431-432; Eastern
Assurance and Surety Corporation v. Con-Field Construction and Development Corporation, G.R. No. 159731, 22
April 2008, 552 SCRA 271, 279-280.
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25.That issues raised for first time on appeal and not raised in proceedings
in lower court are barred by estoppel. As to the issue of whether or not
defendant-appelle is entitled to refund, there is no dispute that the said
issue was not raised by plaintiff-appellant before the court a quo MeTC.
It was only in its Appeal Memorandum that this matter was raised.
26.It is well established that issues raised for the first time on appeal and
not raised in the proceedings in the lower court are barred by estoppel.
Points of law, theories, issues and arguments not brought to the
attention of the trial court ought not to be considered by a reviewing
court, as these cannot be raised for the first time on appeal. Basic
considerations of due process impel the adoption of this rule. Padilla
Mercado, Zulueta Mercado, et al. v. Spouses Aguedo Espina and
Lourdes Espina; G.R. No. 173987. February 25, 2013
(c) The defendant-appelle is entitled to refund of the cash surrender value,
thus, the Honorable MeTC was correct when it dismissed the instant
complaint on the ground of prematurity.
27.The respondent in its complaint admitted that the petitioner is entitled
to refund of the cash surrender value in the total net refund amount of
Php 793, 029.82. To support the allegation and the total net refund
amount because respondent deducted the _________________from
the total gross refund amount, respondent submitted as evidence the
Notice for Cash Surrender Value marked as Annex “J” of the Complaint.
Indeed, respondent alleged, admitted and proved in its complaint that
herein petitioner is entitled to refund of the cash surrender value.
Respondent, however, failed to prove that it refunded the cash
surrender value to petitioner before the instant complaint was filed.
Thus, the court a quo was correct when it dismissed the instant
complaint on the ground of prematurity.
28.The Honorable Supreme Court has been consistent in ruling that a valid
and effective cancellation under R.A. 6552 must comply with the
mandatory twin requirements of a notarized notice of cancellation and
a refund of the cash surrender value.
29.In Olympia Housing, Inc. v. Panasiatic Travel Corp., 4 we ruled that the
notarial act of rescission must be accompanied by the refund of the
cash surrender value.
“x x x The actual cancellation of the contract can only be deemed to
take place upon the expiry of a 30-day period following the receipt by
4
443 Phil. 385, 398-399 (2003).
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the buyer of the notice of cancellation or demand for rescission by a
notarial act and the full payment of the cash surrender value.”
30.In Pagtalunan v. Dela Cruz Vda. De Manzano,5 it ruled that there is no
valid cancellation of the Contract to Sell in the absence of a refund of
the cash surrender value. It stated that:
“x x x Sec. 3 (b) of R.A. No. 6552 requires refund of the cash surrender
value of the payments on the property to the buyer before cancellation
of the contract. The provision does not provide a different requirement
for contracts to sell which allow possession of the property by the buyer
upon execution of the contract like the instant case xxx.”
31.Furthermore, this Honorable Court has no factual and legal basis to
declare that petitioner is not entitled to refund of the cash surrender
value when it was the respondent himself alleged and admitted based
on its own computation that petitioner is entitled to said refund.
32.It is to be emphasized that the documents like the statement of
accounts submitted by the respondent is not complete, thus, the
Honorable Court cannot correct the computation of respondent based
solely on the documents it submitted, much more, when it is contrary
to the admission of the respondent itself in its complaint and to the
computation it submitted before the Honorable Court (Annex “J”).
33.More importantly, the Honorable Metropolitan Trial Court is correct
when it states that, to quote:
“In the case at bar, records show that plaintiff just sent defendant a
Notice of Cash Surrender Value Computation. Other than said notice,
notice of cancellation/rescission, and other pertinent documents, there is
no proof showing that it fully refunded the defendant the cash surrender
value or even tendered the payment thereof before the instant
complaint was filed with this Court.
Applying the aforecited rulings of the Supreme Court in the instant
case, since plaintiff failed to refund the defendant of the cash surrender
value, their Contracts to Sell is still valid and subsisting. Consequently,
the defendant is still entitled to remain in the subject premises until the
plaintiff fully complies with the requirement being imposed by R.A. No.
6552, this Court believes the instant complaint have been prematurely
filed, for which reason, it has to be dismissed without prejudice. Xxx”. 6
Emphasis supplied.
5
559 Phil. 658, 669-670 (2007).
6
Page 6 and 7 of the Decision dated 20 November 2017.
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34.
VII.
PRAYER
WHEREFORE, premises considered, Petitioner respectfully prays to this
Honorable Court for annulling and setting aside of the Order dated April 18,2018,
of the Honorable Court Regional Trial Court Branch 132 and dismiss this instant
case in the interest of truth and justice.
Petitioner prays for such other reliefs and remedies as may be just and
equitable.
Las Piñas City for City of Manila, November 7, 2018
ATTY. MELANIE OBRIQUE-GUEVARRA
Counsel for the Petitioner
Unit C, Lot 10 Block 1, Manuela 4H
Pamplona 3, Las Pinas City
Mobile no. 0998-998-4009
IBP No. 032769;01-8-18;Pasig City
PTR NO. 1262166;01-16-18-Paranaque City
Roll No. 56511
MCLE Compliance No. VI-0014042
EXPLANATION
(Under Section II, Rule 13 of the
1997 Rules of Civil Procedures)
The foregoing Petition for Review was served upon the Respondent, MeTC,
Branch 61, Makati City and RTC, Branch 132, Makati City via registered mail owing
to the bulk of work and limited manpower of the undersigned making personal
service inconvenient and difficult.
ATTY. MELANIE OBRIQUE-GUEVARRA
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Copy furnished:
Metropolitan Trial Court
Branch 61, Makati City
14th Floor, Makati City Hall, Makati City
Regional Trial Court
Branch 132, Makati City
_____Makati City Hall, Makati City
MDPECSONLAW
Atty. Michael D. Pecson
Atty. George Ian Balubar
Counsel for the Respondent
Acacia Grove, Multinational Avenue cor
Judea Street Multinational Village, Parañaque City
VERIFICATION
I, ERIC JEAN BADAN, of legal age, Filipino citizen, and a resident of Unit 119
Cello Bldg., Rhapsody Residence, East Service Road, South Super Hiway, Brgy.,
Buli, Muntilupa City, after having been duly sworn in accordance with law do
hereby depose and state:
1. I, the Petitioner in the above-entitled case;
2. I have caused the preparation of the foregoing Petition and have read
the contents thereof, which are true correct based on our own personal
knowledge.
IN WITNESS WHEREOF, we have affixed our signatures this _______ day of
_____________ in ___________.
ERIC JEAN BADAN
SUBSCRIBED AND SWORN TO BEFORE ME this __________________ at
Parañaque City. Affiant personally appeared and exhibited to me his Valid
Identification No. _____________________.
Doc. No. _____;
Page No. _____;
Book No. _____;
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