Republic of the Philippines

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 176377 November 16, 2011FUNCTIONAL, INC.Petitioner,vs.SAMUEL C. GRANFIL,Respondent.

D E C I S I O N

PEREZ,J.:Assailed in this petition for review1filed under Rule 45 of the 1997 Rules of Civil Procedure is the Decision dated 22 November 2006 rendered by the then Tenth Division of the Court of Appeals (CA) in CA-G.R. SP No. 94851,2the dispositive portion of which states:

WHEREFORE, premises considered, the petition is GRANTED. The Resolution dated April 20, 2005 and the order dated January 26, 2006 of public respondent NLRC, First Division in NLRC NCR Case No. 09-07126-02 NLRC NCR CA No. 035887-03 sustaining the findings of the Labor Arbiter are hereby REVERSED and SET ASIDE. Private respondent Functional, Inc. is hereby ORDERED to reinstate petitioner Granfil without loss of seniority rights and other privileges, and to pay the latter his full backwages, inclusive of allowances and other benefits, from July 31, 2002 up to the time of his actual reinstatement.

SO ORDERED.3The Facts

Sometime in 1992, respondent Samuel C. Granfil was hired as key operator by petitioner Functional, Inc. (FI), a domestic corporation engaged in the business of sale and rental of various business equipments, including photocopying machines. As Key Operator, Granfil was tasked to operate the photocopying machine rented by the National Bookstore (NBS) at its SM Megamall Branch. There is no dispute regarding the fact that, in the evening of 30 July 2002, Granfil attended to a customer by the name of Cosme Cavaldeja (Cavaldeja) who, together with his wife, asked to have their flyers photocopied. It appears that Bonnel Dechavez, the security guard assigned at said establishment, saw Cavaldeja handing money to Granfil after the transaction was finished.4After investigating the matter, Dechavez submitted the following incident report to NBS Branch Manager Lucy Genegaban (Genegaban), to wit:

At around 1940 on July 30, 2002 at NBS SM Megamall Dona Julia Vargas Ave., Mandaluyong City, I checked one customer and asked if he already paid for his xerox[ed] items (sic) and he said "yes." Upon asking for a receipt, he pointed to Sammy the Xerox operator [to] whom he g[a]ve payment, instead of paying to the cashier. Sammy came and it was only then that he brought the customer to the counter 09 for payment [of] the amount of [the] xerox[ed] items (sic) isP250.5On 3 September 2002, Granfil filed a complaint against FI, its President, Romeo Bautista (Bautista), its Marketing Manager, Freddie Tenorio (Tenorio), its Office Supervisor, Julius Ballesteros (Ballesteros), and its Area Supervisor, Joel Dizon (Dizon), for illegal dismissal, unpaid 13th month pay, moral and exemplary damages and attorneys fees. In support of his complaint which was docketed as NLRC NCR Case No. 09-07126-2002 before the arbitral level of the National Labor Relations Commission (NLRC),6Granfil alleged, among other matters, that the money which Dechavez saw him receive from Cavaldeja was aP200 tip said customer gave him in appreciation of his assistance in xeroxing and organizing the batches of voluminous materials he asked to be photocopied; that payment for the materials was, however, already paid per batch by Cavaldejas wife who, by that time, had already left the premises; and, that rather than listening to his explanation and simply verifying the meter of the photocopy machine as well as the paper allotted to it, Dechavez submitted his incident report which, in turn, caused Tenorio to tell him, "Mr. Granfil, magpahinga ka muna. Mabuti pa, pumirma ka nalang ng resignation letter para may makuha ka pa."7Granfil further asseverated that, with said incident report having been telefaxed to FIs head office, he was asked to report thereat in the morning of 31 July 2002; that instead of allowing him to explain, however, Ballesteros peremptorily ordered his termination from employment; that wishing to explain his side, he sought out Dizon who merely ignored and tersely advised him, "Magpahinga ka na lang"; that refused entry when he tried to report for work on 1 August 2002, he subsequently sought out Cavaldeja whose corroboration of his version of the incident also fell on deaf ears; that having been terminated without just cause and observance of due process, he was constrained to file the 3 September 2002 complaint from which the instant suit originated; that aside from the reinstatement to which he is clearly entitled as an illegally dismissed employee, he should be paid full backwages and 13th month pay for the year 2002; and, that in view of the malice and bad faith which characterized his dismissal from employment, Bautista, Tenorio, Ballesteros and Dizon should be held jointly and severally liable with FI for the payment of said indemnities as well as his claims for moral and exemplary damages and attorneys fees.8In their position paper, FI and its corporate officers, in turn, averred that having been apprised of the incident, Genegaban requested for Granfils relief as Key Operator of the photocopying machine installed at the NBS SM Megamall Branch; that for the good of all concerned, FI informed Granfil that he was going to be transferred to a different assignment, without demotion in rank or diminution of his salaries, benefits and other privileges; that required to report to FIs main office to act as emergency reliever to other Key Operators while waiting for his new assignment, Granfil misconstrued his transfer as a punishment for his guilt and refused to heed said directive which was within the managements prerogative to issue; that an employees right to security of tenure does not give him such vested right to his position as would deprive his employer of its prerogative to change his assignment or transfer him where he will be most useful; and, that aside from being guilty of insubordination, Granfil clearly abandoned his employment rather than illegally dismissed therefrom.9On 29 April 2003, Labor Arbiter Eduardo Carpio rendered a decision discounting Granfils illegal dismissal from employment in view of his failure to prove with substantial evidence overt acts of termination on the part of FI and its officers. Simply awarded the sum ofP3,966.65 as proportionate 13th month pay for services rendered from January to July 2002,10Granfil perfected the appeal which was docketed before the First Division of the NLRC as NLRC NCR CA No. 035887-03. With the affirmance of the Labor Arbiters decision in the 20 April 2005 Resolution issued by the NLRC11and the subsequent denial of his motion seeking the reconsideration of said decision,12Granfil elevated the case through the Rule 65 petition for certiorari docketed before the CA as CA-G.R. SP No. 94851. On 22 November 2006, the CA rendered the herein assailed 22 November 2006 Decision, reversing the NLRCs 20 April 2005 Resolution on the ground that FI failed to satisfactorily prove Granfils supposed abandonment of his employment which, by itself, was negated by his filing of a case for illegal employment. Ordering FI to reinstate Granfil and to pay his full backwages, allowances and other benefits from 31 July 2002 until his actual reinstatement, the CA denied said employees claims for moral and exemplary damages as well as attorneys fees for lack of factual basis.13FIs motion for reconsideration of the CAs 22 November 2006 decision was denied for lack of merit in said courts 22 January 2007 resolution,14hence, this petition.

The Issues

FI prays for the reversal and setting aside of the assailed decision on the following grounds, to wit:

A.

The Honorable Court erred in holding that [Granfil] was illegally dismissed by FI.

B.

The Honorable Court erred in not giving credence to the factual findings of both the NLRC and Labor Arbiter before wh[om] the case was tried.15The Courts Ruling

We find the petition bereft of merit.

The rule is long and well settled that, in illegal dismissal cases like the one at bench, the burden of proof is upon the employer to show that the employees termination from service is for a just and valid cause.16The employers case succeeds or fails on the strength of its evidence and not the weakness of that adduced by the employee,17in keeping with the principle that the scales of justice should be tilted in favor of the latter in case of doubt in the evidence presented by them.18Often described as more than a mere scintilla,19the quantum of proof is substantial evidence which is understood as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might conceivably opine otherwise.20Failure of the employer to discharge the foregoing onus would mean that the dismissal is not justified and therefore illegal.21Denying the charge of illegal dismissal, FI insists that Granfil abandoned his employment after he was transferred from his assignment at the NBS Megamall Branch as a consequence of the latters request for his relief.22In the same manner that it cannot be said to have discharged the above-discussed burden by merely alleging that it did not dismiss the employee, it has been ruled that an employer cannot expediently escape liability for illegal dismissal by claiming that the former abandoned his work.23This applies to FI which adduced no evidence to prove Granfils supposed abandonment beyond submitting copies of NBS 31 July 2002 request for said employees transfer24and its 1 August 2002 written acquiescence thereto.25While these documents may have buttressed the claim that Granfil was indeed recalled from his assignment, however, we find that the CA correctly discounted their probative value insofar as FIs theory of abandonment is concerned.

Being a matter of intention, moreover, abandonment cannot be inferred or presumed from equivocal acts.26As a just and valid ground for dismissal, it requires the deliberate, unjustified refusal of the employee to resume his employment,27without any intention of returning.28Two elements must concur: (1) failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts.29The burden of proving abandonment is once again upon the employer30who, whether pleading the same as a ground for dismissing an employee or as a mere defense, additionally has the legal duty to observe due process.31Settled is the rule that mere absence or failure to report to work is not tantamount to abandonment of work.32Viewed in the light of the foregoing principles, we find that the CA correctly ruled out FIs position that Granfil had abandoned his employment. Aside from the fact that Bautista, Tenorio, Ballesteros and Dizon did not even execute sworn statements to refute the overt acts of dismissal imputed against them, the record is wholly bereft of any showing that FI required Granfil to report to its main office or, for that matter, to explain his supposed unauthorized absences. Absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore.33Even then, FIs theory of abandonment was likewise negated by Granfils filing the complaint for illegal dismissal34which evinced his desire to return to work. In vigorously pursuing his action against FI before the Labor Arbiter, the NLRC and the CA, Granfil clearly manifested that he has no intention of relinquishing his employment. In any case, the fact that Granfil prayed for his reinstatement speaks against any intent to sever the employer-employee relationship35with FI.

FI next faults the CA for not giving credence to the factual findings of Labor Arbiter Eduardo Carpio which was affirmed in the NLRCs 20 April 2005 resolution.36As may be gleaned from the above disquisition, however, both the Labor Arbiter and the NLRC clearly erred in directing the dismissal of the complaint by unduly shifting the burden of proving the illegality of his dismissal to Granfil. While administrative findings of fact are, concededly, accorded great respect, and even finality when supported by substantial evidence, nevertheless, when it can be shown that administrative bodies grossly misappreciated evidence of such nature as to compel a contrary conclusion, this court had not hesitated to reverse their factual findings.37Indeed, said rule does not apply when, as here, it is clear that a palpable mistake was committed by the quasi-judicial tribunal which needs rectification.381wphi1WHEREFORE, premises considered, the petition is DENIED for lack of merit and the assailed Decision dated 22 November 2006 is, accordingly, AFFIRMED in toto.

SO ORDERED.

JOSE PORTUGAL PEREZAssociate Justice

WE CONCUR:

ANTONIO T. CARPIOAssociate JusticeChairperson

ARTURO D. BRIONAssociate JusticeMARIA LOURDES P. A. SERENOAssociate Justice

BIENVENIDO L. REYESAssociate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIOAssociate JusticeChairperson, Second Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONAChief Justice

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 165487 July 13, 2011COUNTRY BANKERS INSURANCE CORPORATION,Petitioner,vs.ANTONIO LAGMAN,Respondent.

D E C I S I O N

PEREZ,J.:This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, assailing the Decision1and Resolution2of the Court of Appeals dated 21 June 2004 and 24 September 2004, respectively.

These are the undisputed facts.

Nelson Santos (Santos) applied for a license with the National Food Authority (NFA) to engage in the business of storing not more than 30,000 sacks of palay valued atP5,250,000.00 in his warehouse at Barangay Malacampa, Camiling, Tarlac. Under Act No. 3893 or the General Bonded Warehouse Act, as amended,3the approval for said license was conditioned upon posting of a cash bond, a bond secured by real estate, or a bond signed by a duly authorized bonding company, the amount of which shall be fixed by the NFA Administrator at not less than thirty-three and one third percent (33 1/3%) of the market value of the maximum quantity of rice to be received.

Accordingly, Country Bankers Insurance Corporation (Country Bankers) issued Warehouse Bond No. 033044forP1,749,825.00 on 5 November 1989 and Warehouse Bond No. 023555forP749,925.00 on 13 December 1989 (1989 Bonds) through its agent, Antonio Lagman (Lagman). Santos was the bond principal, Lagman was the surety and the Republic of the Philippines, through the NFA was the obligee. In consideration of these issuances, corresponding Indemnity Agreements6were executed by Santos, as bond principal, together with Ban Lee Lim Santos (Ban Lee Lim), Rhosemelita Reguine (Reguine) and Lagman, as co-signors. The latter bound themselves jointly and severally liable to Country Bankers for any damages, prejudice, losses, costs, payments, advances and expenses of whatever kind and nature, including attorneys fees and legal costs, which it may sustain as a consequence of the said bond; to reimburse Country Bankers of whatever amount it may pay or cause to be paid or become liable to pay thereunder; and to pay interest at the rate of 12% per annum computed and compounded monthly, as well as to pay attorneys fees of 20% of the amount due it.7Santos then secured a loan using his warehouse receipts as collateral.8When the loan matured, Santos defaulted in his payment. The sacks of palay covered by the warehouse receipts were no longer found in the bonded warehouse.9By virtue of the surety bonds, Country Bankers was compelled to payP1,166,750.37.10Consequently, Country Bankers filed a complaint for a sum of money docketed as Civil Case No. 95-73048 before the Regional Trial Court (RTC) of Manila. In his Answer, Lagman alleged that the 1989 Bonds were valid only for 1 year from the date of their issuance, as evidenced by receipts; that the bonds were never renewed and revived by payment of premiums; that on 5 November 1990, Country Bankers issued Warehouse Bond No. 03515 (1990 Bond) which was also valid for one year and that no Indemnity Agreement was executed for the purpose; and that the 1990 Bond supersedes, cancels, and renders no force and effect the 1989 Bonds.11The bond principals, Santos and Ban Lee Lim, were not served with summons because they could no longer be found.12The case was eventually dismissed against them without prejudice.13The other co-signor, Reguine, was declared in default for failure to file her answer.14On 21 September 1998, the trial court rendered judgment declaring Reguine and Lagman jointly and severally liable to pay Country Bankers the amount ofP2,400,499.87.15The dispositive portion of the RTC Decision16reads:

WHEREFORE, premises considered, judgment is hereby rendered, ordering defendants Rhomesita [sic] Reguine and Antonio Lagman, jointly and severally liable to pay plaintiff, Country Bankers Assurance Corporation, the amount ofP2,400,499.87, with 12% interest from the date the complaint was filed until fully satisfied plus 20% of the amount due plaintiff as and for attorneys fees and to pay the costs.

As the Court did not acquire jurisdiction over the persons of defendants Nelson Santos and Ban Lee Lim Santos, let the case against them be DISMISSED. Defendant Antonio Lagmans counterclaim is likewise DISMISSED, for lack of merit.17In holding Lagman and Reguine solidarily liable to Country Bankers, the trial court relied on the express terms of the Indemnity Agreement that they jointly and severally bound themselves to indemnify and make good to Country Bankers any liability which the latter may incur on account of or arising from the execution of the bonds.18The trial court rationalized that the bonds remain in force unless cancelled by the Administrator of the NFA and cannot be unilaterally cancelled by Lagman. The trial court emphasized that for the failure of Lagman to comply with his obligation under the Indemnity Agreements, he is likewise liable for damages as a consequence of the breach.

Lagman filed an appeal to the Court of Appeals, docketed as CA G.R. CV No. 61797. He insisted that the lifetime of the 1989 Bonds, as well as the corresponding Indemnity Agreements was only 12 months. According to Lagman, the 1990 Bond was not pleaded in the complaint because it was not covered by an Indemnity Agreement and it superseded the two prior bonds.19On 21 June 2004, the Court of Appeals rendered the assailed Decision reversing and setting aside the Decision of the RTC and ordering the dismissal of the complaint filed against Lagman.20The appellate court held that the 1990 Bond superseded the 1989 Bonds. The appellate court observed that the 1990 Bond covers 33.3% of the market value of the palay, thereby manifesting the intention of the parties to make the latter bond more comprehensive. Lagman was also exonerated by the appellate court from liability because he was not a signatory to the alleged Indemnity Agreement of 5 November 1990 covering the 1990 Bond. The appellate court rejected the argument of Country Bankers that the 1989 bonds were continuing, finding, as reason therefor, that the receipts issued for the bonds indicate that they were effective for only one-year.

Country Bankers sought reconsideration which was denied in a Resolution dated 24 September 2004.21Expectedly, Country Bankers filed the instant petition attributing two (2) errors to the Court of Appeals, to wit:

A.

THE HONORABLE COURT OF APPEALS seriously erred in disregarding the express provisions of Section 177 of the insurance code when it held that the subject surety bonds were superseded by a subsequent bond notwithstanding the non-cancellation thereof by the bond obligee.

B.

The honorable court of appeals seriously erred in holding that receipts for the payment of premiums prevail over the express provision of the surety bond that fixes the term thereof.22Country Bankers maintains that by the express terms of the 1989 Bonds, they shall remain in full force until cancelled by the Administrator of the NFA. As continuing bonds, Country Bankers avers that Section 177 of the Insurance Code applies, in that the bond may only be cancelled by the obligee, by the Insurance Commissioner or by a competent court.

Country Bankers questions the existence of a third bond, the 1990 Bond, which allegedly cancelled the 1989 Bonds on the following grounds: First, Lagman failed to produce the original of the 1990 Bond and no basis has been laid for the presentation of secondary evidence; Second, the issuance of the 1990 Bond was not approved and processed by Country Bankers; Third, the NFA as bond obligee was not in possession of the 1990 Bond. Country Bankers stresses that the cancellation of the 1989 Bonds requires the participation of the bond obligee. Ergo, the bonds remain subsisting until cancelled by the bond obligee. Country Bankers further assert that Lagman also failed to prove that the NFA accepted the 1990 Bond in replacement of the 1989 Bonds.

Country Bankers notes that the receipts issued for the 1989 Bonds are mere evidence of premium payments and should not be relied on to determine the period of effectivity of the bonds. Country Bankers explains that the receipts only represent the transactions between the bond principal and the surety, and does not involve the NFA as bond obligee.

Country Bankers calls this Courts attention to the incontestability clause contained in the Indemnity Agreements which prohibits Lagman from questioning his liability therein.

In his Comment, Lagman raises the issue of novation by asserting that the 1989 Bonds were superseded by the 1990 Bond, which did not include Lagman as party. Therefore, Lagman argues, Country Bankers has no cause of action against him. Lagman also reiterates that because of novation, the 1989 bonds are neither perpetual nor continuing.

Lagman anchors his defense on two (2) arguments: 1) the 1989 Bonds have expired and 2) the 1990 Bond novates the 1989 Bonds.

The Court of Appeals held that the 1989 bonds were effective only for one (1) year, as evidenced by the receipts on the payment of premiums.

We do not agree.

The official receipts in question serve as proof of payment of the premium for one year on each surety bond. It does not, however, automatically mean that the surety bond is effective for only one (1) year. In fact, the effectivity of the bond is not wholly dependent on the payment of premium. Section 177 of the Insurance Code expresses:

Sec. 177. The surety is entitled to payment of the premium as soon as the contract of suretyship or bond is perfected and delivered to the obligor. No contract of suretyship or bonding shall be valid and binding unless and until the premium therefor has been paid,except where the obligee has accepted the bond, in which case the bond becomes valid and enforceable irrespective of whether or not the premium has been paid by the obligor to the surety:Provided, That if the contract of suretyship or bond is not accepted by, or filed with the obligee, the surety shall collect only reasonable amount, not exceeding fifty per centum of the premium due thereon as service fee plus the cost of stamps or other taxes imposed for the issuance of the contract or bond:Provided, however,That if the non-acceptance of the bond be due to the fault or negligence of the surety, no such service fee, stamps or taxes shall be collected. (Emphasis supplied)

The 1989 Bonds have identical provisions and they state in very clear terms the effectivity of these bonds, viz:

NOW, THEREFORE, if the above-bounded Principal shall well and truly deliver to the depositors PALAY received by him for STORAGE at any time that demand therefore is made, or shall pay the market value therefore in case he is unable to return the same, then this obligation shall be null and void; otherwise it shall remain in full force and effect and may be enforced in the manner provided by said Act No. 3893 as amended by Republic Act No. 247 and P.D. No. 4. This bond shall remain in force until cancelled by the Administrator of National Food Authority.23This provision in the bonds is but in compliance with the second paragraph of Section 177 of the Insurance Code, which specifies that a continuing bond, as in this case where there is no fixed expiration date, may be cancelled only by the obligee, which is the NFA, by the Insurance Commissioner, and by the court. Thus:

In case of a continuing bond, the obligor shall pay the subsequent annual premium as it falls due until the contract of suretyship is cancelled by the obligee or by the Commissioner or by a court of competent jurisdiction, as the case may be.

By law and by the specific contract involved in this case, the effectivity of the bond required for the obtention of a license to engage in the business of receiving rice for storage is determined not alone by the payment of premiums but principally by the Administrator of the NFA. From beginning to end, the Administrators brief is the enabling or disabling document.

The clear import of these provisions is that the surety bonds in question cannot be unilaterally cancelled by Lagman. The same conclusion was reached by the trial court and we quote:

As there appears no record of cancellation of the Warehouse Bonds No. 03304 and No. 02355 either by the administrator of the NFA or by the Insurance Commissioner or by the Court, the Warehouse Bonds are valid and binding and cannot be unilaterally cancelled by defendant Lagman as general agent of the plaintiff.24While the trial court did not directly rule on the existence and validity of the 1990 Bond, it upheld the 1989 Bonds as valid and binding, which could not be unilaterally cancelled by Lagman. The Court of Appeals, on the other hand, acknowledged the 1990 Bond as having cancelled the two previous bonds by novation. Both courts however failed to discuss their basis for rejecting or admitting the 1990 Bond, which, as we indicated, is bone to pick in this case.

Lagmans insistence on novation depends on the validity, nay, existence of the allegedly novating 1990 Bond. Country Bankers understandably impugns both. We see the point. Lagman presented a mere photocopy of the 1990 Bond. We rule as inadmissible such copy.

Under the best evidence rule, the original document must be produced whenever its contents are the subject of inquiry.25The rule is encapsulated in Section 3, Rule 130 of the Rules of Court, as follow:

Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a documents, no evidence shall be admissible other than the original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.26A photocopy, being a mere secondary evidence, is not admissible unless it is shown that the original is unavailable.27Section 5, Rule 130 of the Rules of Court states:

SEC.5 When original document is unavailable. When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.

Before a party is allowed to adduce secondary evidence to prove the contents of the original, the offeror must prove the following: (1) the existence or due execution of the original; (2) the loss and destruction of the original or the reason for its non-production in court; and (3) on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. The correct order of proof is as follows: existence, execution, loss, and contents.28In the case at bar, Lagman mentioned during the direct examination that there are actually four (4) duplicate originals of the 1990 Bond: the first is kept by the NFA, the second is with the Loan Officer of the NFA in Tarlac, the third is with Country Bankers and the fourth was in his possession.29A party must first present to the court proof of loss or other satisfactory explanation for the non-production of the original instrument.30When more than one original copy exists, it must appear that all of them have been lost, destroyed, or cannot be produced in court before secondary evidence can be given of any one. A photocopy may not be used without accounting for the other originals.31Despite knowledge of the existence and whereabouts of these duplicate originals, Lagman merely presented a photocopy. He admitted that he kept a copy of the 1990 Bond but he could no longer produce it because he had already severed his ties with Country Bankers. However, he did not explain why severance of ties is by itself reason enough for the non-availability of his copy of the bond considering that, as it appears from the 1989 Bonds, Lagman himself is a bondsman. Neither did Lagman explain why he failed to secure the original from any of the three other custodians he mentioned in his testimony. While he apparently was able to find the original with the NFA Loan Officer, he was merely contented with producing its photocopy. Clearly, Lagman failed to exert diligent efforts to produce the original.

Fueling further suspicion regarding the existence of the 1990 Bond is the absence of an Indemnity Agreement. While Lagman argued that a 1990 Bond novates the 1989 Bonds, he raises the defense of "non-existence of an indemnity agreement" which would conveniently exempt him from liability. The trial court deemed this defense as indicia of bad faith, thus:

To the observation of the Court, defendant Lagman contended that being a general agent (which requires a much higher qualification than an ordinary agent), he is expected to have attended seminars and workshops on general insurance wherein he is supposed to have acquired sufficient knowledge of the general principles of insurance which he had fully practised or implemented from experience. It somehow appears to the Courts assessment of his reneging liability of the bonds in question, that he is still short of having really understood the principle of suretyship with reference to the transaction of indemnity in which he is a signatory. If, as he alleged, that he is well-versed in insurance, the Court finds no excuse for him to stand firm in denying his liability over the claim against the bonds with indemnity provision. If he insists in not recognizing that liability, the more that this Court is convinced that his knowledge that insurance operates under the principle of good faith is inadequate. He missed the exception provided by Section 177 of the Insurance Code, as amended, wherein non-payment of premium would not have the same essence in his mind that the agreements entered into would not have full force or effect. It could be glimpsed, therefore, that the mere fact of cancelling bonds with indemnity agreements and replacing them (absence of the same) to escape liability clearly manifests bad faith on his part.32(Emphasis supplied.)

Having discounted the existence and/or validity of the 1990 Bond, there can be no novation to speak of. Novation is the extinguishment of an obligation by the substitution or change of the obligation by a subsequent one which extinguishes or modifies the first, either by changing the object or principal conditions, or by substituting another in place of the debtor, or by subrogating a third person in the rights of the creditor. For novation to take place, the following requisites must concur: 1) There must be a previous valid obligation; 2) The parties concerned must agree to a new contract; 3) The old contract must be extinguished; and 4) There must be a valid new contract.33In this case, only the first element of novation exists. Indeed, there is a previous valid obligation, i.e., the 1989 Bonds. There is however neither a valid new contract nor a clear agreement between the parties to a new contract since the very existence of the 1990 Bond has been rendered dubious. Without the new contract, the old contract is not extinguished.

Implied novation necessitates a new obligation with which the old is in total incompatibility such that the old obligation is completely superseded by the new one.34Quite obviously, neither can there be implied novation. In this case, there is no new obligation.

The liability of Lagman is expressed in Indemnity Agreements executed in consideration of the 1989 Bonds which we have considered as continuing contracts. Under both Indemnity Agreements, Lagman, as co-signor, together with Santos, Ban Lee Lim and Reguine, bound themselves jointly and severally to Country Bankers to indemnify it for any damage or loss sustained on the account of the execution of the bond, among others. The pertinent identical stipulations of the Indemnity Agreements state:

INDEMNITY: To indemnify and make good to the COMPANY jointly and severally, any damages, prejudice, loss, costs, payments advances and expenses of whatever kind and nature, including attorneys fees and legal costs, which the COMPANY may, at any time, sustain or incur, as well as to reimburse to said COMPANY all sums and amounts of money which the COMPANY or its representatives shall or may pay or cause to be paid or become liable to pay, on account of or arising from the execution of the above-mentioned BOND or any extension, renewal, alteration or substitution thereof made at the instance of the undersigned or anyone of them.35Moreover, the Indemnity Agreements also contained identical Incontestability Clauses which provide:

INCONTESTABILITY OF PAYMENTS MADE BY THE COMPANY: Any payment or disbursement made by the COMPANY on account of the above-mentioned Bond, its renewals, extensions, alterations or substitutions either in the belief that the COMPANY was obligated to make such payment or in the belief that said payment was necessary or expedient in order to avoid greater losses or obligations for which the COMPANY might be liable by virtue of the terms of the above-mentioned Bond, its renewals, extensions, alterations, or substitutions, shall be final and shall not be disputed by the undersigned, who hereby jointly and severally bind themselves to indemnify [Country Bankers] of any and all such payments, as stated in the preceding clauses.

In case the COMPANY shall have paid[,] settled or compromised any liability, loss, costs, damages, attorneys fees, expenses, claims[,] demands, suits, or judgments as above-stated, arising out of or in connection with said bond, an itemized statement thereof, signed by an officer of the COMPANY and other evidence to show said payment, settlement or compromise, shall be prima facie evidence of said payment, settlement or compromise, as well as the liability of the undersigned in any and all suits and claims against the undersigned arising out of said bond or this bond application.361awphilLagman is bound by these Indemnity Agreements. Payments made by Country Bankers by virtue of the 1989 Bonds gave rise to Lagmans obligation to reimburse it under the Indemnity Agreements. Lagman, being a solidary debtor, is liable for the entire obligation.

WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 61797 are SET ASIDE and the Decision dated 21 September 1998 of the RTC is hereby REINSTATED.

SO ORDERED.

JOSE PORTUGAL PEREZAssociate Justice

WE CONCUR:

ANTONIO T. CARPIOAssociate JusticeChairperson

TERESITA J. LEONARDO DE CASTRO*Associate JusticeMARTIN S. VILLARAMA, JR.**Associate Justice

MARIA LOURDES P. A. SERENOAssociate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIOAssociate JusticeChairperson

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONAChief Justice

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 190521 January 12, 2011LETICIA TAN, MYRNA MEDINA, MARILOU SPOONER, ROSALINDA TAN, and MARY JANE TAN, MARY LYN TAN, CELEDONIO TAN, JR., MARY JOY TAN, and MARK ALLAN TAN, represented herein by their mother, LETICIA TAN,Petitioners,vs.OMC CARRIERS, INC. and BONIFACIO ARAMBALA,Respondents.

R E S O L U T I O N

BRION,J.:We resolve the motion for reconsideration1 filed by Leticia Tan, Myrna Medina, Marilou Spooner, Rosalinda Tan, Mary Jane Tan, Mary Lyn Tan, Celedonio Tan, Jr., Mary Joy Tan, and Mark Allan Tan (petitioners), all heirs of the late Celedonio Tan asking us to reverse and set aside our Resolution of February 17, 2010.2We denied in this Resolution their petition for review on certiorari for failing to show any reversible error in the assailed Court of Appeals (CA) decision of June 22, 20093sufficient to warrant the exercise of our discretionary appellate jurisdiction.

The CA decision, in turn, affirmed with modification the decision of the Regional Trial Court (RTC) of Muntinlupa City in Civil Case No. 96-186, finding the respondents OMC Carriers, Inc. (OMC) and Bonifacio Arambala guilty of gross negligence and awarding damages to the petitioners.

THE FACTSOn September 27, 1996, the petitioners filed a complaint for damages with the RTC against OMC and Bonifacio Arambala.4The complaint states that on November 24, 1995, at around 6:15 a.m., Arambala was driving a truck5with a trailer6owned by OMC, along Meralco Road, Sucat, Muntinlupa City. When Arambala noticed that the truck had suddenly lost its brakes, he told his companion to jump out. Soon thereafter, he also jumped out and abandoned the truck. Driverless, the truck rammed into the house and tailoring shop owned by petitioner Leticia Tan and her husband Celedonio Tan, instantly killing Celedonio who was standing at the doorway of the house at the time.7The petitioners alleged that the collision occurred due to OMCs gross negligence in not properly maintaining the truck, and to Arambalas recklessness when he abandoned the moving truck. Thus, they claimed that the respondents should be held jointly and severally liable for the actual damages that they suffered, which include the damage to their properties, the funeral expenses they incurred for Celedonio Tans burial, as well as the loss of his earning capacity. The petitioners also asked for moral and exemplary damages, and attorneys fees.8The respondents denied any liability for the collision, essentially claiming that the damage to the petitioners was caused by a fortuitous event, since the truck skidded due to the slippery condition of the road caused by spilled motor oil.9THE RTC DECISIONAfter trial, the RTC found OMC and Arambala jointly and severally liable to the petitioners for damages.10Relying on the doctrine of res ipsa loquitur, the RTC held that it was unusual for a truck to suddenly lose its brakes; the fact that the truck rammed into the petitioners house raised the presumption of negligence on the part of the respondents. These, the respondents failed to refute.11The RTC did not agree with the respondents claim of a fortuitous event, pointing out that even with oil on the road, Arambala did not slow down or take any precautionary measure to prevent the truck from skidding off the road. The alleged oil on the road did not also explain why the truck lost its brakes. Had OMC done a more rigid inspection of the truck before its use, the defective brake could have been discovered. The RTC, thus, held OMC jointly and severally liable with Arambala for the damage caused to the petitioners, based on the principle of vicarious liability embodied in Article 218012of the Civil Code.13The dispositive portion of the decision stated:

WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the plaintiffs and against the defendants ordering:

1. The defendants to pay the plaintiffs jointly and severally the amount ofP50,000.00 for the death of Celedonio Tan;

2. The defendants to pay the plaintiffs jointly and severally the amount ofP500,000.00 for the loss of earning capacity of Celedonio Tan, plus interest thereon from the date of death of Celedonio Tan;

3. The defendants to pay the plaintiff Leticia Tan jointly and severally the amount ofP355,895.00 as actual damages;

4. The defendants to pay the plaintiffs jointly and severally the amount ofP500,000.00 as moral damages;

5. The defendants to pay the plaintiffs jointly and severally the amount ofP500,000.00 as exemplary damages; and

6. The defendants to pay the plaintiffs jointly and solidarily the amount ofP500,000.00 as attorneys fees.

Costs against the defendants.

SO ORDERED.14THE COURT OF APPEALS DECISIONOn appeal, the CA affirmed the RTCs findings on the issues of the respondents negligence and liability for damages. However, the CA modified the damages awarded to the petitioners by reducing the actual damages award fromP355,895.00 toP72,295.00. The CA observed that only the latter amount was duly supported by official receipts.15The CA also deleted the RTCs award for loss of earning capacity. The CA explained that the petitioners failed to substantiate Celedonio Tans claimed earning capacity with reasonable certainty; no documentary evidence was ever presented on this point. Instead, the RTC merely relied on Leticia Tans testimony regarding Celedonio Tans income. The CA characterized this testimony as self-serving.16The CA further reduced the exemplary damages fromP500,000.00 toP200,000.00, and deleted the award of attorneys fees because the RTC merely included the award in the dispositive portion of the decision without discussing its legal basis.17THE PETITIONIn the petition for review on certiorari before us,18the petitioners assert that the CA erred when it modified the RTCs awarded damages. The petitioners submit the reasons outlined below.

First, the CA erred when it reduced the RTCs award of actual damages fromP355,895.00 toP72,295.00. The petitioners claim that they sought compensation for the damage done to petitioner Leticia Tans house, tailoring shop, sewing machines, as well as other household appliances. Since the damages primarily refer to the value of their destroyed property, and not the cost of repairing or replacing them, the value cannot be evidenced by receipts. Accordingly, the RTC correctly relied on petitioner Leticia Tans testimony and the documentary evidence presented, consisting of pictures of the damaged property, to prove their right to recover actual damages for the destroyed property.

Second, the petitioners are entitled to actual damages for the loss of Celedonio Tans earning capacity. While they admit that they did not submit any documentary evidence to substantiate this claim, the petitioners point out that Celedonio Tan was undisputably a self-employed tailor who owned a small tailor shop; in his line of work, no documentary evidence is available.

Third, the petitioners maintain that they are entitled to exemplary damages in the amount ofP500,000.00 because the RTC and the CA consistently found that the collision was caused by the respondents gross negligence. Moreover, the respondents acted with bad faith when they fabricated the "oil slick on the road" story to avoid paying damages to the petitioners. As observed by the CA, the Traffic Accident Investigation Report did not mention any motor oil on the road at the time of the accident. SPO4 Armando Alambro, the Investigation Officer, likewise testified that there was no oil on the road at the time of the accident. For the public good and to serve as an example, the respondents should be made to payP500,000.00 as exemplary damages.

Lastly, the petitioners are entitled to attorneys fees based on Article 2208 of the Civil Code which provides, among others, that attorneys fees can be recovered when exemplary damages are awarded, and when the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just and demandable claim.

We initially denied the petition in our Resolution of February 17, 2010, for the petitioners failure to show any reversible error in the CA decision sufficient to warrant the exercise of our discretionary appellate jurisdiction. In our Resolution of August 11, 2010, we reinstated the petition on the basis of the petitioners motion for reconsideration.

OUR RULINGFinding merit in the petitioners arguments, wepartly grantthe petition.

Procedural Issue

As both the RTC and the CA found that the respondents gross negligence led to the death of Celedonio Tan, as well as to the destruction of the petitioners home and tailoring shop, we see no reason to disturb this factual finding. We, thus, concentrate on the sole issue of what damages the petitioners are entitled to.

We are generally precluded from resolving a Rule 45 petition that solely raises the issue of damages, an essentially factual question, because Section 1, Rule 45 of the Rules of Court, expressly states that

Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.

In light, however of the RTCs and the CAs conflicting findings on the kind and amount of damages suffered which must be compensated, we are compelled to consider the case as one of the recognized exceptions.19We look into the parties presented evidence to resolve this appeal.

Temperate damages in lieu of actual damagesWe begin by discussing the petitioners claim for actual damages arising from the damage inflicted on petitioner Leticia Tans house and tailoring shop, taking into account the sewing machines and various household appliances affected. Our basic law tells us that to recover damages there must be pleading and proof of actual damages suffered.20As we explained in Viron Transportation Co., Inc. v. Delos Santos:21Actual damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty. Courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages. To justify an award of actual damages, there must be competent proof of the actual amount of loss, credence can be given only to claims which are duly supported by receipts.22The petitioners do not deny that they did not submit any receipt to support their claim for actual damages to prove the monetary value of the damage caused to the house and tailoring shop when the truck rammed into them. Thus, no actual damages for the destruction to petitioner Leticia Tans house and tailoring shop can be awarded.

Nonetheless, absent competent proof on the actual damages suffered, a party still has the option of claiming temperate damages, which may be allowed in cases where, from the nature of the case, definite proof of pecuniary loss cannot be adduced although the court is convinced that the aggrieved party suffered some pecuniary loss.23As defined in Article 2224 of the Civil Code:

Article 2224. Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be proved with certainty.

In Canada v. All Commodities Marketing Corporation,24we disallowed the award of actual damages arising from breach of contract, where the respondent merely alleged that it was entitled to actual damages and failed to adduce proof to support its plea. In its place, we awarded temperate damages, in recognition of the pecuniary loss suffered.

The photographs the petitioners presented as evidence show the extent of the damage done to the house, the tailoring shop and the petitioners appliances and equipment.25Irrefutably, this damage was directly attributable to Arambalas gross negligence in handling OMCs truck. Unfortunately, these photographs are not enough to establish the amount of the loss with certainty. From the attendant circumstances and given the property destroyed,26we find the amount ofP200,000.00 as a fair and sufficient award by way of temperate damages.

Temperate damages in lieu of loss of earning capacitySimilarly, the CA was correct in disallowing the award of actual damages for loss of earning capacity. Damages for loss of earning capacity are awarded pursuant to Article 2206 of the Civil Code, which states that:

Article 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death[.]

As a rule, documentary evidence should be presented to substantiate the claim for loss of earning capacity.27By way of exception, damages for loss of earning capacity may be awarded despite the absence of documentary evidence when: (1) the deceased is self-employed and earning less than the minimum wage under current labor laws, in which case, judicial notice may be taken of the fact that in the deceased's line of work, no documentary evidence is available; or (2) the deceased is employed as a daily wage worker earning less than the minimum wage under current labor laws.28According to the petitioners, prior to his death, Celedonio was a self-employed tailor who earned approximatelyP156,000.00 a year, orP13,000.00 a month. At the time of his death in 1995, the prevailing daily minimum wage wasP145.00,29orP3,770.00 per month, provided the wage earner had only one rest day per week. Even if we take judicial notice of the fact that a small tailoring shop normally does not issue receipts to its customers, and would probably not have any documentary evidence of the income it earns, Celedonios alleged monthly income ofP13,000.00 greatly exceeded the prevailing monthly minimum wage; thus, the exception set forth above does not apply.

In the past, we awarded temperate damages in lieu of actual damages for loss of earning capacity where earning capacity is plainly established but no evidence was presented to support the allegation of the injured partys actual income.

In Pleno v. Court of Appeals,30we sustained the award of temperate damages in the amount ofP200,000.00 instead of actual damages for loss of earning capacity because the plaintiffs income was not sufficiently proven.

We did the same in People v. Singh,31and People v. Almedilla,32granting temperate damages in place of actual damages for the failure of the prosecution to present sufficient evidence of the deceaseds income.

Similarly, in Victory Liner, Inc. v. Gammad,33we deleted the award of damages for loss of earning capacity for lack of evidentiary basis of the actual extent of the loss. Nevertheless, because the income-earning capacity lost was clearly established, we awarded the heirsP500,000.00 as temperate damages.

In the present case, the income-earning capacity of the deceased was never disputed. Petitioners Mary Jane Tan, Mary Lyn Tan, Celedonio Tan, Jr., Mary Joy Tan and Mark Allan Tan were all minors at the time the petition was filed on February 4, 2010,34and they all relied mainly on the income earned by their father from his tailoring activities for their sustenance and support. Under these facts and taking into account the unrebutted annual earnings of the deceased, we hold that the petitioners are entitled to temperate damages in the amount ofP300,000.00 [or roughly, the gross income for two (2) years] to compensate for damages for loss of the earning capacity of the deceased.

Reduction of exemplary damages properExemplary or corrective damages are imposed by way of example or correction for the public good, in addition to moral, temperate, liquidated or compensatory damages.35In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence.36Celedonio Tans death and the destruction of the petitioners home and tailoring shop were unquestionably caused by the respondents gross negligence. The law allows the grant of exemplary damages in cases such as this to serve as a warning to the pubic and as a deterrent against the repetition of this kind of deleterious actions.37The grant, however, should be tempered, as it is not intended to enrich one party or to impoverish another. From this perspective, we find the CAs reduction of the exemplary damages awarded to the petitioners fromP500,000.00 toP200,000.00 to be proper.

Attorneys fees in orderIn view of the award of exemplary damages, we find it also proper to award the petitioners attorney's fees, in consonance with Article 2208(1) of the Civil Code.38We find the award of attorneys fees, equivalent to 10% of the total amount adjudged the petitioners, to be just and reasonable under the circumstances.

Interests due

Finally, we impose legal interest on the amounts awarded, in keeping with our ruling in Eastern ShippingLines, Inc. v. Court of Appeals,39which held that:

I. When an obligation, regardless of its source,i.e., law, contracts, quasi-contracts, delicts or quasi-delictsis breached, the contravenor can be held liable for damages. The provisions under Title XVIII on "Damages" of the Civil Code govern in determining the measure of recoverable damages.lavvphilII. With regard particularly to an award of interest in the concept of actual and compensatory damages, the rate of interest, as well as the accrual thereof, is imposed, as follows:

1. When the obligation is breached, and it consists in the payment of a sum of money,i.e., a loan or forbearance of money, the interest due should be that which may have been stipulated in writing. Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In the absence of stipulation, the rate of interest shall be 12%per annumto be computed from default,i.e., from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil Code.

2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the amount of damages awarded may be imposed at thediscretion of the courtat the rate of 6%per annum.No interest, however, shall be adjudged on unliquidated claims or damages except when or until the demand can be established with reasonable certainty. Accordingly, where the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably established at the time the demand is made, the interest shall begin to run only from the date the judgment of the court is made (at which time the quantification of damages may be deemed to have been reasonably ascertained). The actual base for the computation of legal interest shall, in any case, be on the amount finally adjudged.

3. When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 12%per annumfrom such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit.

Accordingly, legal interest at the rate of 6% per annum on the amounts awarded starts to run from May 14, 2003, when the trial court rendered judgment. From the time this judgment becomes final and executory, the interest rate shall be 12% per annum on the judgment amount and the interest earned up to that date, until the judgment is wholly satisfied.

WHEREFORE, premises considered, we PARTIALLY GRANT the petition. The June 22, 2009 decision of the Court of Appeals in CA-G.R. CV. No. 84733, which modified the decision of the Regional Trial Court of Muntinlupa City, Branch 256, in Civil Case No. 96-186, is AFFIRMED with MODIFICATION. As modified, respondents OMC Carriers, Inc. and Bonifacio Arambala are ordered to jointly and severally pay the petitioners the following:

(1)P50,000.00 as indemnity for the death of Celedonio Tan;

(2)P72,295.00 as actual damages for funeral expenses;

(3)P200,000.00 as temperate damages for the damage done to petitioner Leticias house, tailoring shop, household appliances and shop equipment;

(4)P300,000.00 as damages for the loss of Celedonio Tans earning capacity;

(5)P500,000.00 as moral damages;

(6)P200,000.00 as exemplary damages; and

(7) 10% of the total amount as attorneys fees; and costs of suit.

In addition, the total amount adjudged shall earn interest at the rate of 6% per annum from May 14, 2003, and at the rate of 12% per annum, from the finality of this Resolution on the balance and interest due, until fully paid.

SO ORDERED.ARTURO D. BRIONAssociate Justice

WE CONCUR:

CONCHITA CARPIO MORALESAssociate Justice

LUCAS P. BERSAMINAssociate JusticeMARTIN S. VILLARAMA, JR.Associate Justice

MARIA LOURDES P.A. SERENOAssociate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

CONCHITA CARPIO MORALESAssociate JusticeChairperson

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONAChief Justice

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