TERESA AMONCIO, PLAINTIFF-APPELLEE, VS. MARILYN INOCANDO AND SHERIFF PAULO M. GATLABAYAN, DEFENDANTS-APPELLANTS.
REYES, JR., A. J.:
“WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendant. The refuted Real Estate Mortgage dated April 5, 1995 is hereby declared null and void.
Defendant Marilyn Inocando is further ordered to pay to the plaintiff amounts:
- P250,000.00 as moral damages;
- P200,000.00 as exemplary damages;
- P100,000.00 attorney’s fees plus P2,000.00 per court appearance and the
- Costs of suit.
SO ORDERED.” (Records, p. 233)
The case arose out of a Complaint (Records, pp. 1-7) filed by plaintiff-appellee Teresa Amoncio against defendant-appellant Marilyn Inocando and Sheriff Paulo M. Gatlabayan alleging that plaintiff-appellee is the owner of a registered parcel of land with improvements built thereon located at 415 Georgia Street, Vermont Park, Marcos Highway, Antipolo, Rizal (now city), on which she and her family resides. Said property is covered by Transfer Certificate of Title No. 114824 of the Registry of Deeds of Marikina City. She claimed that sometime in December 1996 she received a notice of sheriff’s sale informing her that the subject property had been mortgaged to defendant-appellant Marlene Inocando, that the property was to be sold in a public auction. She denied having executed any real estate mortgage over the said property and prayed for the cancellation and/or annulment of the said real estate mortgage.
In the Answer, (Records, pp. 40-61), defendant-appellant insisted that the deed of real estate mortgage was duly notarized, hence, enjoys the presumption of regularity.
Initially, the Court conducted a hearing regarding the application of the writ of injunction. In the Order dated 12 September 2000 (Records, pp. 189-192), the application for injunction was granted to be effective upon the posting of an injunctive bond amounting to P1 Million Pesos (Records, pp. 189-192). In the same Order the case was set for pre-trial on 12 October 2001.
Neither the counsel nor defendant-appellant appeared for pre-trial, hence, she was declared in default in the Order dated 15 April 2002 (Records, pp. 224). The relevant portion of the Order reads:
“Wherefore, as motion of counsel for plaintiff to declare the defendant as in default is hereby granted and the plaintiff is authorized to present its evidence ex-parte. Upon motion of counsel for plaintiff to have this case heard ex-parte before the Hearing Commissioner, the same is hereby granted. Atty. Gloria Marinduque is hereby designated as Hearing Commissioner to hear this case ex-parte with the instruction to submit a report to this Court within fifteen (15) days after termination of hearing.
SO ORDERED.” (Records, p. 224)
And on 18 July 2003, the above-mentioned Decision declaring the mortgaged null and void was rendered.
Defendant-appellant, through counsel, filed a notice of appeal dated 7 August 2003 which was received by the trial court on 15 August 2003 (See: Records, pp. 234-235).
On 18 August 2003, the notice of appeal was granted (Records, p. 239).
On 27 August 2003, the Regional Trial Court received an entry of appearance for defendant-appellant’s new counsel dated 19 August 2003 (Records, pp. 240-241). Attached to the entry of appearance, is a motion for reconsideration (Records, pp. 244-250).
In the Order dated 9 October 2003, defendant-appellant’s motion for reconsideration was simply noted considering that the notice of appearance had already been acted upon, thus:
“Considering that the notice of appeal filed by defendant Marilyn Inocando had already been acted upon by the court in the order of August 18, 2003, the said defendant’s motion for reconsideration filed on August 27, 2003 is simply noted to form part of the record of this case.
Wherefore, the order of August 18, 2003 is hereby reiterated.
SO ORDERED.” (Records, p. 266)
Defendant-appellant is now before this Court raising the following as errors:
“I. THE TRIAL COURT ERRED IN DECLARING DEFENDANT-APPELLANT AS IN DEFAULT DESPITE THE FACT THAT SHE WAS NOT INFORMED BY HER FORMER COUNSEL OF THE PRE-TRIAL CONFERENCE OF THE CASE A QUO.
II. THE TRIAL COURT ERRED IN DECLARING THE REAL ESTATE MORTGAGE DATED APRIL 5, 1995 AS NULL AND VOID DESPITE THE FACT THAT THE PRESUMPTION OF REGULARITY THEREOF WAS NOT OVERTURNED BY THE EVIDENCE FOR THE PLAINTIFF-APPELLEE.
III. THE TRIAL COURT ERRED IN LIBERALLY GRANTING DAMAGES TO THE PLAINTIFF-APPELLEE.” (Rollo, p. 21)
As to the first assignment of error, defendant-appellant claimed that she should not have been declared in default because her former counsel failed to inform her of the scheduled pre-trial conference.
The Court first notes that defendant-appellant relied on her bare assertion that she was not notified by her counsel. Second, a review of the records of the case would show that on 22 September 2002, the trial court issued an order resetting the case for pre-trial conference to 2 April 2002. On the dorsal side of the said order is attached a registry return card which indicates that defendant-appellant Marilyn Inocando received a copy of the said order on 13 March 2002. The Court, therefore, finds that even if defendant-appellant was not informed by her former counsel, she personally received a copy of the said order and prudence dictates that she should have consulted her counsel as to the import of the notice. She cannot now hide behind her assertion that she is unschooled in the intricacies of the law to justify her absence during the pre-trial.
As to the second assignment of error, defendant-appellant pointed out that the real estate mortgage was a notarized document and, thus, enjoys the presumption of regularity.
Again the Court cannot agree. The presumption of regularity had been overthrown when plaintiff-appellee, during the hearing of 31 January 1997, presented several evidence, which bears her own signature to prove that the real estate mortgage did not bear her signature. The witness testified, that:
“Q: Ms. Witness, you said that the signature over the printed name Teresa Amoncio is not your signature, what is your proof in saying that this is not your signature?
A: I have a specimen of my signature.
PLAINTIFF’S COUNSEL:
Witness presenting several signed credit cards for Robinson Department Store, a cash discount card dated June 1994; whose signature appears on that card?
A: My signature.
PLAINTIFF’S COUNSEL:
Another is a Bankard credit card no. 91310400862320 which expires December 1997, there is a signature on the dorsal portion of the credit card, whose signature is that?
A: My signature.
PLAINTIFF’S COUNSEL:
We request that this Bankard credit card be marked as Exhibit ‘D-1’.
COURT: Mark it.
(marking of exhibit)
PLAINTIFF’S COUNSEL:
Witness also presented a Citibank classic card no. 5423393580692009 valid from December 1995 to December 1996, there is a signature in this Citibank classic card, whose signature is that?
A: My signature.
Q: Your honor, incidentally, I would like to show counsel for comparison the signature appearing on the real estate mortgage marked as Exhibit ‘C’, may I just manifest that the two signatures are very different, very visible through the naked eye.
The real signature of Teresa Amoncio on the credit card is very distinct and different, very visible from the naked eye.
Ms. Witness, this Robinson Department Store credit card is dated June 1994, what is this date June 1994; when did you secure this credit card?
A: June 1994.
Q: When did you put your signature on this discount card?
A: June 1994.
Q: In this Citibank/Classic credit card and this Bankard credit card, when did you secure these credit cards?
A: 1993.
Q: When did you sign these credit cards?
A: 1993.
Q: May we make it of record that the real estate mortgage is dated April 1995.
Now Mrs. Witness, I am showing you a complaint which was filed . . . I withdraw that.
May we just manifest that we will have the credit cards Xeroxed later and have it marked by the representative of this Court.
Ms. Witness, this real estate mortgage marked as Exhibit ‘C’ was supposedly notarized before Notary Public Rodrigo Arandia and you personally presented him a copy of your community tax certificate.
A: I know nothing about that.
Q: Did you appear before a certain Rodrigo Arandia who notarized this document?
A: No sir.
Q: Going over this real estate mortgage, may I ask you, were you able to read this real estate mortgage?
A: Yes sir.
Q: What can you say, if any, regarding this real estate mortgage?” (TSN, 31 January 1997, pp. 10-14)
The Court notes that this testimony was not rebutted by the plaintiff-appellee’s counsel during the cross-examination.
The Court will now turn to the third assignment of error. It is well settled that in order for moral and exemplary damages as well as attorney’s fees to be awarded each award must be independently identified and justified in the decision (Herbosa, et al. v. Court of Appeals 374 SCRA 578 [2002]).
As to the award of moral damages, the Court finds that the same had not been proven. In the case of Lanzang v. Court of Appeals (326 SCRA 259 [2000]), it was provided that moral damages must be established and sufficiently proven.
After going through the testimony of the plaintiff-appellee, the Court finds no basis for the same, considering she merely testified that she suffered sleepless nights and grave anxiety because of defendant-appellant’s action. Her brief testimony on the matter reads:
“Q: After filing the said case, what did you feel about the entire incident?
A: I felt very bad and very depressed.
Q: What else if any?
A: I suffered sleepless nights, grave anxiety.” (TSN, 30 April 2002, p. 7)
The Court finds the foregoing testimony severely insufficient to justify the award of damages.
As to the award of exemplary damages, the Court likewise finds that the same must be deleted considering that said damage may be awarded only if the defendant-appellant acted in wanton, fraudulent, oppressive, malevolent manner (Xentrex Automotive, Inc., 291 SCRA 66 [1998]). In the present case, plaintiff-appellant failed to establish in her testimony the foregoing requirements.
The Court also finds that the attorney’s fees made should be deleted. In the case of Francel Realty Corp. v. Court of Appeals (252 SCRA 127 [1996]), it was specifically held that the award must be justified in the decision. A reading of the Regional Trial Court’s decision shows that it is completely silent in this regard.
WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Antipolo City, Branch 73, dated 18 July 2003 in Civil Case No. 97-4289 is hereby AFFIRMED with MODIFICATIONS that the award for moral and exemplary damages, and attorney’s fees is hereby deleted.
SO ORDERED.
Abdulwahid and Punzalan Castillo, JJ., concur.