G.R. No.

170479 February 18, 2008

ANDRE T. ALMOCERA, petitioner,
vs.
JOHNN ONG, respondent.
D E C ! " ! O N
CH!CO#NA$AR!O, J.%
Before Us is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil
Procedure which seeks to set aside the ecision
1
of the Court of !ppeals dated 1" #ul$ %&&5 in
C!'(.R. C) *o. 75+1& affir,in- in toto the ecision
%
of Branch 11 of the Re-ional .rial Court
/R.C0 of Ce1u Cit$ in Civil Case *o. C2B'%3+"7 and its Resolution
3
dated 1+ *ove,1er %&&5
den$in- petitioner4s ,otion for reconsideration. .he R.C decision found petitioner !ndre ..
!l,ocera, Chair,an and Chief 25ecutive 6fficer of 7irst Builder 8ulti'Purpose Cooperative
/7B8C0, solidaril$ lia1le with 78BC for da,a-es.
9tripped of non'essentials, the respective versions of the parties have 1een su,,ari:ed 1$ the
Court of !ppeals as follows;
Plaintiff #ohnn$ 6n- tried to ac<uire fro, the defendants a =townho,e= descri1ed as
Unit *o. 4 of !triu, .ownho,es in Ce1u Cit$. !s reflected in a Contract to 9ell, the
sellin- price of the unit was P3,4&&,&&&.&& pesos, for a lot area of ei-ht$'ei-ht /""0
s<uare ,eters with a three'store$ 1uildin-. 6ut of the purchase price, plaintiff was a1le
to pa$ the a,ount of P1,&+&,&&&.&&. Prior to the full pa$,ent of this a,ount, plaintiff
clai,s that defendants !ndre !l,ocera and 7irst Builders fraudulentl$ concealed the
fact that 1efore and at the ti,e of the perfection of the aforesaid contract to sell, the
propert$ was alread$ ,ort-a-ed to and encu,1ered with the >and Bank of the
Philippines />BP0. ?n addition, the construction of the house has lon- 1een dela$ed and
re,ains unfinished. 6n 8arch 13, 1999, >ot 4'a covered 1$ .C. *o. 14""1", coverin-
the unit was advertised in a local ta1loid for pu1lic auction for foreclosure of ,ort-a-e. ?t
is the assertion of the plaintiff that had it not for the fraudulent conceal,ent of the
,ort-a-e and encu,1rance 1$ defendants, he would have not entered into the contract
to sell.
6n the other hand, defendants assert that on 8arch %&, 1995, 7irst Builders 8ulti'
purpose Coop. ?nc., 1orrowed ,one$ in the a,ount of P5&&,&&&.&& fro, .o,,$ 6n-,
plaintiff4s 1rother. .his a,ount was used to finance the docu,entation re<uire,ents of
the >BP for the fundin- of the !triu, .own @o,es. .his loan will 1e applied in pa$,ent
of one /10 town house unit which .o,,$ 6n- ,a$ eventuall$ purchase fro, the proAect.
Bhen the proAect was under wa$, .o,,$ 6n- wanted to 1u$ another townhouse for his
1rother, #ohnn$ 6n-, plaintiff herein, which then, the a,ount of P15&,&&&.&& was -iven
as additional partial pa$,ent. @owever, the particular unit was not $et identified. ?t was
onl$ on #anuar$ 1&, 1997 that .o,,$ 6n- identified Unit *o. 4 plaintiff4s chosen unit
and a-ain tendered P35&,&&&.&& as his third partial pa$,ent. Bhen the contract to sell
for Unit 4 was 1ein- drafted, .o,,$ 6n- re<uested that another contract to sell
coverin- Unit 5 1e ,ade so as to -ive #ohnn$ 6n- another option to choose whichever
unit he ,i-ht decide to have. Bhen the construction was alread$ in full 1last, defendants
were infor,ed 1$ .o,,$ 6n- that their final choice was Unit 5. ?t was onl$ upon
knowin- that the defendants will 1e sellin- Unit 4 to so,e other persons for P4,illion
that plaintiff chan-ed his choice fro, Unit 5 to Unit 4.
4
?n tr$in- to recover the a,ount he paid as down pa$,ent for the townhouse unit, respondent
#ohnn$ 6n- filed a co,plaint for a,a-es 1efore the R.C of Ce1u Cit$, docketed as Civil Case
*o. C2B'%3+"7, a-ainst defendants !ndre .. !l,ocera and 7B8C alle-in- that defendants
were -uilt$ of fraudulent conceal,ent and 1reach of contract when the$ sold to hi, a
townhouse unit without divul-in- that the sa,e, at the ti,e of the perfection of their contract,
was alread$ ,ort-a-ed with the >and Bank of the Philippines />BP0, with the latter causin- the
foreclosure of the ,ort-a-e and the eventual sale of the townhouse unit to a third person.
?n their !nswer, defendants denied lia1ilit$ clai,in- that the foreclosure of the ,ort-a-e on the
townhouse unit was caused 1$ the failure of co,plainant #ohnn$ 6n- to pa$ the 1alance of the
price of said townhouse unit.
!fter the pre'trial conference was ter,inated, trial on the ,erits ensued. Respondent and his
1rother, .ho,as C. 6n-, took the witness stand. 7or defendants, petitioner testified.
?n a ecision dated %& 8a$ %&&%, the R.C disposed of the case in this ,anner;
B@2R276R2, in view of all the fore-oin- pre,ises, Aud-,ent is here1$ rendered in this
case in favor of the plaintiff and a-ainst the defendants;
/a0 6rderin- the defendants to solidaril$ pa$ to the plaintiff the su, of P1,&+&,&&&.&&,
to-ether with a le-al interest thereon at +D per annu, fro, !pril %1, 1999 until its full
pa$,ent 1efore finalit$ of the Aud-,ent. .hereafter, if the a,ount adAud-ed re,ains
unpaid, the interest rate shall 1e 1%D per annu, co,puted fro, the ti,e when the
Aud-,ent 1eco,es final and e5ecutor$ until full$ satisfiedE
/10 6rderin- the defendants to solidaril$ pa$ to the plaintiff the su, of P1&&,&&&.&& as
,oral da,a-es, the su, of P5&,&&&.&& as attorne$4s fee and the su, of P15,+19."& as
e5penses of liti-ationE and
/c0 6rderin- the defendants to pa$ the cost of this suit.
5
.he trial court ruled a-ainst defendants for not actin- in -ood faith and for not co,pl$in- with
their o1li-ations under their contract with respondent. ?n the Contract to 9ell
+
involvin- Unit 4 of
the !triu, .ownho,es, defendants a-reed to sell said townhouse to respondent
for P3,4&&,&&&.&&. .he down pa$,ent wasP1,&&&,&&&.&&, while the 1alance of P%,4&&,&&&.&&
was to 1e paid in full upon co,pletion, deliver$ and acceptance of the townhouse. Under the
contract which was si-ned on 1& #anuar$ 1997, defendants a-reed to co,plete and conve$ to
respondent the unit within si5 ,onths fro, the si-nin- thereof.
.he trial court found that respondent was a1le to ,ake a down pa$,ent or partial pa$,ent
of P1,&+&,&&&.&& and that the defendants failed to co,plete the construction of, as well as
deliver to respondent, the townhouse within si5 ,onths fro, the si-nin- of the contract.
8oreover, respondent was not infor,ed 1$ the defendants at the ti,e of the perfection of their
contract that the su1Aect townhouse was alread$ ,ort-a-ed to >BP. .he ,ort-a-e was
foreclosed 1$ the >BP and the townhouse was eventuall$ sold at pu1lic auction. ?t said that
defendants were -uilt$ of fraud in their dealin- with respondent 1ecause the ,ort-a-e was not
disclosed to respondent when the contract was perfected. .here was also non'co,pliance with
their o1li-ations under the contract when the$ failed to co,plete and deliver the townhouse unit
at the a-reed ti,e. 6n the part of respondent, the trial court declared he was Austified in
suspendin- further pa$,ents to the defendants and was entitled to the return of the down
pa$,ent.
!--rieved, defendants appealed the decision to the Court of !ppeals assi-nin- the followin- as
errors;
1. .@2 >6B2R C6UR. 2RR2 ?* @6>?*( .@!. P>!?*.?77 @!9 ! )!>? C!U92
67 !C.?6* 76R !8!(29 !(!?*9. 272*!*./90.
%. .@2 >6B2R C6UR. 2RR2 ?* @6>?*( .@!. 272*!*. !*R2 ..
!>86C2R! ?9 96>?!R?>C >?!B>2 B?.@ .@2 C66P2R!.?)2 76R .@2 !8!(29
.6 .@2 P>!?*.?77.
7
.he Court of !ppeals ruled that the defendants incurred dela$ when the$ failed to deliver the
townhouse unit to the respondent within si5 ,onths fro, the si-nin- of the contract to sell. ?t
a-reed with the findin- of the trial court that the nonpa$,ent of the 1alance of P%.48 1$
respondent to defendants was proper in li-ht of such dela$ and the fact that the propert$ su1Aect
of the case was foreclosed and auctioned. ?t added that the trial court did not err in -ivin-
credence to respondent4s assertion that had he known 1eforehand that the unit was used as
collateral with the >BP, he would not have proceeded in 1u$in- the townhouse. >ike the trial
court, the Court of !ppeals -ave no wei-ht to defendants4 ar-u,ent that had respondent paid
the 1alance of the purchase price of the townhouse, the ,ort-a-e could have 1een released. ?t
e5plained;
Be cannot find fault with the choice of plaintiff not to further dole out ,one$ for a
propert$ that in all events, would never 1e his. 8oreover, defendants could, if the$ were
reall$ desirous of satisf$in- their o1li-ation, de,anded that plaintiff pa$ the outstandin-
1alance 1ased on their contract. .his the$ had not done. Be can fairl$ sur,ise that
defendants could not co,pl$ with their o1li-ation the,selves, 1ecause as testified to 1$
8r. !l,ocera, the$ alread$ si-nified to >BP that the$ cannot pa$ their outstandin- loan
o1li-ations resultin- to the foreclosure of the townhouse.
"
8oreover, as to the issue of petitioner4s solidar$ lia1ilit$, it said that this issue was 1elatedl$
raised and cannot 1e treated for the first ti,e on appeal.
6n 1" #ul$ %&&5, the Court of !ppeals denied the appeal and affir,ed in toto the decision of the
trial court. .he dispositive portion of the decision reads;
!N L!GHT OF ALL THE FOREGO!NG, this appeal is DEN!ED. .he assailed decision of
the Re-ional .rial Court, Branch 11, Ce1u Cit$ in Civil Case *o. C2B'%3+"7
is AFF!RMED in toto.
9
?n a Resolution dated 1+ *ove,1er %&&5, the Court of !ppeals denied defendants4 ,otion for
reconsideration.
Petitioner is now 1efore us pleadin- his case via a Petition for Review on Certiorari under Rule
45 of the 1997 Rules of Civil Procedure. .he petition raises the followin- issues;
?. .@2 @6*6R!B>2 C6UR. 67 !PP2!>9 (R!)2>C 2RR2 ?* @6>?*( .@!.
272*!*. @!9 ?*CURR2 2>!C.
??. .@2 @6*6R!B>2 C6UR. 67 !PP2!>9 (R!)2>C 2RR2 ?* 9U9.!?*?*(
R29P6*2*.49 R27U9!> .6 P!C .@2 B!>!*C2 67 .@2 PURC@!92 PR?C2.
???. .@2 @6*6R!B>2 C6UR. 67 !PP2!>9 (R!)2>C 2RR2 ?* @6>?*( .@!.
272*!*. !*R2 .. !>86C2R! ?9 96>?!R?>C >?!B>2 B?.@ .@2
272*!*. C66P2R!.?)2 76R !8!(29 .6 P>!?*.?77.
1&
?t cannot 1e disputed that the contract entered into 1$ the parties was a contract to sell. .he
contract was deno,inated as such and it contained the provision that the unit shall 1e conve$ed
1$ wa$ of an !1solute eed of 9ale, to-ether with the attendant docu,ents of 6wnership F the
.ransfer Certificate of .itle and Certificate of 6ccupanc$ F and that the 1alance of the contract
price shall 1e paid upon the co,pletion and deliver$ of the unit, as well as the acceptance
thereof 1$ respondent. !ll these clearl$ indicate that ownership of the townhouse has not
passed to respondent.
?n Serrano v. Caguiat,
11
we e5plained;
! contract to sell is akin to a conditional sale where the efficac$ or o1li-ator$ force of the
vendor4s o1li-ation to transfer title is su1ordinated to the happenin- of a future and
uncertain event, so that if the suspensive condition does not take place, the parties
would stand as if the conditional o1li-ation had never e5isted. .he suspensive condition
is co,,onl$ full pa$,ent of the purchase price.
.he differences 1etween a contract to sell and a contract of sale are well'settled in
Aurisprudence. !s earl$ as 1951, in Sing Yee v. Santos G47 6.(. +37% /19510H, we held
that;
=5 5 5 GaH distinction ,ust 1e ,ade 1etween a contract of sale in which title
passes to the 1u$er upon deliver$ of the thin- sold and a contract to sell 5 5 5
where 1$ a-ree,ent the ownership is reserved in the seller and is not to pass
until the full pa$,ent of the purchase price is ,ade. ?n the first case, non'
pa$,ent of the price is a ne-ative resolutor$ conditionE in the second case, full
pa$,ent is a positive suspensive condition. Bein- contraries, their effect in law
cannot 1e identical. ?n the first case, the vendor has lost and cannot recover the
ownership of the land sold until and unless the contract of sale is itself resolved
and set aside. ?n the second case, however, the title re,ains in the vendor if the
vendee does not co,pl$ with the condition precedent of ,akin- pa$,ent at the
ti,e specified in the contract.=
?n other words, in a contract to sell, ownership is retained 1$ the seller and is not
to pass to the 1u$er until full pa$,ent of the price.
.he Contract to 9ell entered into 1$ the parties contains the followin- pertinent provisions;
4. .2R89 67 P!C82*.;
4a. 6*2 8?>>?6* P2969 /P1,&&&,&&&.&&0 is here1$ acknowled-ed as ownpa$,ent
for the a1ove',entioned Contract Price.
41. .he Balance, in the a,ount of .B6 8?>>?6* 76UR @U*R2 P2969
/P%,4&&,&&&.&&0 shall 1e paid thru financin- ?nstitution facilitated 1$ the 92>>2R,
prefera1l$ >and1ank of the Philippines />BP0.
Upon co,pletion, deliver$ and acceptance of the BUC2R of the .ownhouse Unit, the
BUC2R shall have paid the Contract Price in full to the 92>>2R.
5 5 5 5
+. C68P>2.?6* !.29 67 .@2 .6B*@6U92 U*?.;
.he unit shall 1e co,pleted and conve$ed 1$ wa$ of an !1solute eed of 9ale to-ether
with the attendant docu,ents of 6wnership in the na,e of the BUC2R F the .ransfer
Certificate of .itle and Certificate of 6ccupanc$ within a period of si5 /+0 ,onths fro, the
si-nin- of Contract to 9ell.
1%
7ro, the fore-oin- provisions, it is clear that petitioner and 7B8C had the o1li-ation to
co,plete the townhouse unit within si5 ,onths fro, the si-nin- of the contract. Upon
co,pliance therewith, the o1li-ation of respondent to pa$ the 1alance of P%,4&&,&&&.&& arises.
Upon pa$,ent thereof, the townhouse shall 1e delivered and conve$ed to respondent upon the
e5ecution of the !1solute eed of 9ale and other relevant docu,ents.
.he evidence adduced shows that petitioner and 7B8C failed to fulfill their o1li-ation '' to
co,plete and deliver the townhouse within the si5',onth period. Bith petitioner and 7B8C4s
non'fulfill,ent of their o1li-ation, respondent refused to pa$ the 1alance of the contract price.
Respondent does not ask that ownership of the townhouse 1e transferred to hi,, 1ut ,erel$
asks that the a,ount or down pa$,ent he had ,ade 1e returned to hi,.
!rticle 11+9 of the Civil Code reads;
!rt. 11+9. .hose o1li-ed to deliver or to do so,ethin- incur in dela$ fro, the ti,e the
o1li-ee Audiciall$ or e5traAudiciall$ de,ands fro, the, the fulfill,ent of their o1li-ation.
@owever, the de,and 1$ the creditor shall not 1e necessar$ in order that dela$ ,a$
e5ist;
/10 Bhen the o1li-ation or the law e5pressl$ so declaresE or
/%0 Bhen fro, the nature and the circu,stances of the o1li-ation it appears that the
desi-nation of the ti,e when the thin- is to 1e delivered or the service is to 1e rendered
was a controllin- ,otive for the esta1lish,ent of the contractE or
/30 Bhen de,and would 1e useless, as when the o1li-or has rendered it 1e$ond his
power to perfor,.
?n reciprocal o1li-ations, neither part$ incurs in dela$ if the other does not co,pl$ or is
not read$ to co,pl$ in a proper ,anner with what is incu,1ent upon hi,. 7ro, the
,o,ent one of the parties fulfills his o1li-ation, dela$ 1$ the other 1e-ins.
.he contract su1Aect of this case contains reciprocal o1li-ations which were to 1e fulfilled 1$ the
parties, i.e., to co,plete and deliver the townhouse within si5 ,onths fro, the e5ecution of the
contract to sell on the part of petitioner and 7B8C, and to pa$ the 1alance of the contract price
upon co,pletion and deliver$ of the townhouse on the part of the respondent.
?n the case at 1ar, the o1li-ation of petitioner and 7B8C which is to co,plete and deliver the
townhouse unit within the prescri1ed period, is deter,inative of the respondent4s o1li-ation to
pa$ the 1alance of the contract price. Bith their failure to fulfill their o1li-ation as stipulated in
the contract, the$ incurred dela$ and are lia1le for da,a-es.
13
.he$ cannot insist that
respondent co,pl$ with his o1li-ation. Bhere one of the parties to a contract did not perfor,
the undertakin- to which he was 1ound 1$ the ter,s of the a-ree,ent to perfor,, he is not
entitled to insist upon the perfor,ance of the other part$.
14
6n the first assi-ned error, petitioner insists there was no dela$ when the townhouse unit was
not co,pleted within si5 ,onths fro, the si-nin- of the contract inas,uch as the ,ere lapse of
the stipulated si5 /+0 ,onth period is not 1$ itself enou-h to constitute dela$ on his part and that
of 7B8C, since the law re<uires that there ,ust either 1e Audicial or e5traAudicial de,and to
fulfill an o1li-ation so that the o1li-or ,a$ 1e declared in default. @e ar-ues there was no
evidence introduced showin- that a prior de,and was ,ade 1$ respondent 1efore the ori-inal
action was instituted in the trial court.
Be do not a-ree.
e,and is not necessar$ in the instant case. e,and 1$ the respondent would 1e useless
1ecause the i,possi1ilit$ of co,pl$in- with their /petitioner and 7B8C0 o1li-ation was due to
their fault. ?f onl$ the$ paid their loans with the >BP, the ,ort-a-e on the su1Aect townhouse
would not have 1een foreclosed and thereafter sold to a third person.
!nent the second assi-ned error, petitioner ar-ues that if there was an$ dela$, the sa,e was
incurred 1$ respondent 1ecause he refused to pa$ the 1alance of the contract price.
Be find his ar-u,ent specious.
!s a1ove'discussed, the o1li-ation of respondent to pa$ the 1alance of the contract price was
conditioned on petitioner and 7B8C4s perfor,ance of their o1li-ation. Considerin- that the latter
did not co,pl$ with their o1li-ation to co,plete and deliver the townhouse unit within the period
a-reed upon, respondent could not have incurred dela$. 7or failure of one part$ to assu,e and
perfor, the o1li-ation i,posed on hi,, the other part$ does not incur dela$.
15
Under the circu,stances o1tainin- in this case, we find that respondent is Austified in refusin- to
pa$ the 1alance of the contract price. @e was never in possession of the townhouse unit and he
can no lon-er 1e its owner since ownership thereof has 1een transferred to a third person who
was not a part$ to the proceedin-s 1elow. ?t would si,pl$ 1e the hei-ht of ine<uit$ if we are to
re<uire respondent to pa$ the 1alance of the contract price. .o allow this would result in the
unAust enrich,ent of petitioner and 7B8C. .he funda,ental doctrine of unAust enrich,ent is the
transfer of value without Aust cause or consideration. .he ele,ents of this doctrine which are
present in this case are; enrich,ent on the part of the defendantE i,poverish,ent on the part of
the plaintiffE and lack of cause. .he ,ain o1Aective is to prevent one to enrich hi,self at the
e5pense of another. ?t is co,,onl$ accepted that this doctrine si,pl$ ,eans a person shall not
1e allowed to profit or enrich hi,self ine<uita1l$ at anotherIs e5pense.
1+
@ence, to allow
petitioner and 7B8C keep the down pa$,ent ,ade 1$ respondent a,ountin- to P1,&+&,&&&.&&
would result in their unAust enrich,ent at the e5pense of the respondent. .hus, said a,ount
should 1e returned.
Bhat is worse is the fact that petitioner and 7B8C intentionall$ failed to infor, respondent that
the su1Aect townhouse which he was -oin- to purchase was alread$ ,ort-a-ed to >BP at the
ti,e of the perfection of their contract. .his deli1erate withholdin- 1$ petitioner and 7B8C of the
,ort-a-e constitutes fraud and 1ad faith. .he trial court had this sa$;
?n the li-ht of the fore-oin- environ,ental circu,stances and ,ilieu, therefore, it
appears that the defendants are -uilt$ of fraud in dealin- with the plaintiff. .he$
perfor,ed voluntar$ and willful acts which prevent the nor,al reali:ation of the
prestation, knowin- the effects which naturall$ and necessaril$ arise fro, such acts.
.heir acts i,port a dishonest purpose or so,e ,oral o1li<uit$ and conscious doin- of a
wron-. .he said acts certainl$ -tive rise to lia1ilit$ for da,a-es /" 8anresa 7%E Borrell'
8acia %+'%7E 3 Ca,us 34E 64>ear$ v. 8acondra$ J Co,pan$, 454 Phil. "1%E @eredia v.
9alinas, 1& Phil. 1570. !rticle 117& of the *ew Civil Code of the Philippines provides
e5pressl$ that =those who in the perfor,ance of their o1li-ations are -uilt$ of fraud and
those who in an$ ,anner contravene the tenor thereof are lia1le for da,a-es.
17
6n the last assi-ned error, petitioner contends that he should not 1e held solidaril$ lia1le with
defendant 7B8C, 1ecause the latter is a separate and distinct entit$ which is the seller of the
su1Aect townhouse. @e clai,s that he, as Chair,an and Chief 25ecutive 6fficer of 7B8C,
cannot 1e held lia1le 1ecause his representin- 7B8C in its dealin-s is a corporate act for which
onl$ 7B8C should 1e held lia1le.
.his issue of piercin- the veil of corporate fiction was never raised 1efore the trial court. .he
sa,e was raised for the first ti,e 1efore the Court of !ppeals which ruled that it was too late in
the da$ to raise the sa,e. .he Court of !ppeals declared;
?n the case 1elow, the pleadin-s and the evidence of the defendants are one and the
sa,e and never had it ,ade to appear that !l,ocera is a person distinct and separate
fro, the other defendant. ?n fine, we cannot treat this error for the first ti,e on appeal.
Be cannot in -ood conscience, let the defendant !l,ocera raise the issue of piercin-
the veil of corporate fiction Aust 1ecause of the adverse decision a-ainst hi,. 5 5 5.
1"
.o allow petitioner to pursue such a defense would under,ine 1asic considerations of due
process. Points of law, theories, issues and ar-u,ents not 1rou-ht to the attention of the trial
court will not 1e and ou-ht not to 1e considered 1$ a reviewin- court, as these cannot 1e raised
for the first ti,e on appeal. ?t would 1e unfair to the adverse part$ who would have no
opportunit$ to present further evidence ,aterial to the new theor$ not ventilated 1efore the trial
court.
19
!s to the award of da,a-es -ranted 1$ the trial court, and affir,ed 1$ the Court of !ppeals, we
find the sa,e to 1e proper and reasona1le under the circu,stances.
&HEREFORE, the petition is DEN!ED. .he ecision of the Court of !ppeals dated 1" #ul$
%&&5 in C!'(.R. C) *o. 75+1& is AFF!RMED. Costs a-ainst the petitioner.
"O ORDERED.
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