Common use of SPS Clause in Contracts

SPS. ▇▇▇▇▇▇, et al., 611 Phil. 194 (2009); ▇▇▇▇▇▇▇▇ Transport Inc., v. Lapanday Holdings Corp., 479 Phil. 768 (2004); Sps. Reterta v. Sps. Mores and ▇▇▇▇▇, 671 ▇▇▇▇. 346 (2011); Ongsitco v. Court of Appeals, 325 Phil. 1069 (1996); Espinoza v. Provincial Adjudicator, 545 Phil. 535 (2007). 17 479 Phil. 768, 782 (2004). 18 531 Phil. 620 (2006). 19 216 SCRA 107 (1992). We held that since the passengers suffered an injury for which compensation was due, the airline company could not be allowed to escape liability by arguing that the trial court’s orders had attained finality due to the passengers’ failure to move for reconsideration or to file a timely appeal.20 In ▇▇▇▇, we allowed the occasional departure from the general rule that the extraordinary writ of certiorari cannot substitute for a lost appeal only because the rigid application of the rule would have resulted in injustice to the passengers.21 We find no basis to relax the rules of procedure in the present case. While it is true that liberal application of the rules of procedure is allowed to avoid manifest failure or miscarriage of justice, it is equally true that a party invoking liberality must explain his failure to abide by the rules.22 To reiterate, ▇▇▇▇▇ failed to explain why he did not appeal the dismissal order while admitting that he could have done so. ▇▇▇▇▇▇, he clung to his argument that he had correctly filed a petition for certiorari because of the alleged grave abuse of discretion on the part of the RTC. ▇▇▇▇▇’s reasoning is faulty. We do not see why appeal could not have been speedy and adequate. As admitted by ▇▇▇▇▇ himself, he received the RTC’s final dismissal order on February 24, 2006,23 yet, he waited for two months before he took action by filing the petition for certiorari on April 20, 2006.24 Indeed, if speed had been ▇▇▇▇▇’s concern, he should have appealed within fifteen days from his receipt of the final order denying his motion for reconsideration, and not waited for two months before taking action.25 Moreover, an appeal would have adequately resolved his claim that the RTC erred in dismissing his complaint against ▇▇▇▇▇▇▇▇, an order granting a motion to dismiss being final and appealable. Further, we are not convinced that ▇▇▇▇▇ filed the petition for certiorari because the RTC allegedly gravely abused its discretion. The more tenable explanation for his wrong choice of remedy is that the period to appeal simply lapsed without an appeal having been filed. Having lost his right to appeal, ▇▇▇▇▇ instituted the only remedy that he thought was still available. This is contrary to the basic rule that the 20 Id. at 111. 21 Id. 22 538 Phil. 587 (2006). 23 ▇▇▇▇▇, p. 59. 24 Id. at 58. 25 See RULE 41, SECTION 3, RULES OF COURT. remedies of appeal and certiorari are mutually exclusive, not alternative or successive.26 Finally, unlike in ▇▇▇▇ where the airline’s liability was clearly shown, ▇▇▇▇▇▇▇▇’▇ liability arising from his purported fraudulent acts was not established at all. As will be further discussed, the allegations in the complaint failed to particularly state how ▇▇▇▇▇▇▇▇ committed fraud. For this reason, the RTC could not have resolved whether ▇▇▇▇▇▇▇▇ could be made personally accountable for Semicon’s liabilities. For all these reasons, we rule that ▇▇▇▇▇’s resort to the extraordinary writ of certiorari was improper. Even if we are to relax the rules of procedure and allow certiorari to substitute for the lost appeal, we still ▇▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ appeal and reverse the CA’s decision. To recall, ▇▇▇▇▇ claims that the RTC gravely abused its discretion when it dismissed the complaint against ▇▇▇▇▇▇▇▇ by “whimsically and arbitrarily ignoring the basic doctrines in piercing the veil of corporate fiction.” A review of the allegations of the complaint, however, would show that the RTC did not gravely abuse its discretion when it dismissed the complaint. Rule 8,27 Section 528 of the Rules of Court requires that in all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity, unlike in cases of malice, knowledge, or other conditions of the mind which may be averred generally. In ▇▇▇▇▇▇▇ v. Court of Appeals,29 we ruled that the following allegation fell short of the requirement that fraud must be stated with particularity. “That sometime in the year of 1997, the consolidator-facilitator of the Defendants FGPC and Balfour by means of fraud and machinations of words were able to convince the plaintiff to enter into `CONTRACT OF EASEMENT OF RIGHT OF WAY' wherein the latter granted in favor of the defendant FGPC the right to erect [its] Tower No. 98 on the land of the plaintiff situated at Barangay Maigsing ▇▇▇▇▇▇▇, Lemery 4209 Batangas including the right to Install Transmission Lines over a portion of the same property for a consideration therein stated, a xerox copy of said contract is hereto attached as ANNEXES "A" up to "A-4" of the complaint; That the said contract, (Annexes "A" up to "A-4") was entered into by the plaintiff under the "MISREPRESENTATION, PROMISES, FALSE AND 26 Supra note 17. 27 Manner of Making Allegations in the Pleading.