524 Phil. 462
CALLEJO, SR., J.:
x x x [That a] writ of preliminary mandatory injunction be issued ordering defendant corporation, its President Daniel Wistehuff III and its former President Daniel Wistehuff, Sr. to: a) produce all financial documents of the corporation from 1996 up to the present and deposit the same with the Court; b) faithfully comply with the terms of the Retainership Contract to pay his retainer fee of P35,000.00 per month and the extra legal services rendered; a Management Committee of a Receiver be constituted; ordering defendants to make full accounting; ordering the declaration of stock and cash dividends; ordering the individual defendants to whom legal services were rendered to pay attorney's fees of not less than P200,000.00; ordering defendants Daniel Wistehuff III and Daniel Wistehuff, Sr., jointly and severally, to pay plaintiff not less than P500,000.00 in moral damages and not less than P250,000.00 in exemplary damages, attorney's fees of not less than P100,000.00 and litigation expenses of not less than P10,000.00, plus appearance fees amounting to P2,000.00 per hour. x x x[5]Petitioner thereafter amended his complaint, alleging therein that it had been filed by way of a derivative suit against the defendants. He prayed for an accounting of income and expenses of the IMPI, declaration of dividends, enforcement of his right to financial statements, attorney's fees, and damages.[6] In the course of the proceedings, the RTC issued an Order on October 10, 2001 denying his plea for the appointment of a receiver or management committee pendente lite.[7]
WHEREFORE, in view of all the foregoing considerations, judgment is hereby rendered in favor of the plaintiff and against the defendants ordering the latter as follows:Petitioner moved for the execution of the decision pending appeal. On August 14, 2003, the RTC issued an Omnibus Order,[9] partially granting the motion. The dispositive portion of the Order reads:SO ORDERED.[8]
- to make a true and correct accounting of the earnings of the corporation which will be the basis of the declaration of dividends;
- to enjoin defendant Inmark Marketing Philippines, Inc. and the individual defendants to comply with the terms and conditions of plaintiff Ceniza's Retainer Contract;
- to order the individual defendants to whom services were rendered to pay attorney's fees of P200,000.00;
- to order defendants Daniel Wistehuff III and Daniel Wistehuff, Sr., jointly and severally, to pay plaintiff the sum of P500,000.00 in moral damages and P25,000.00 in exemplary damages;
- to order defendants Daniel Wistehuff III and Daniel Wistehuff, Sr. to pay, jointly and severally, attorney's fees of P100,000.00 and litigation expenses of P10,000.00.
WHEREFORE, in view of [the] foregoing premises, the Court hereby does the following:Consequently, a Writ of Execution[11] was issued by the court on September 11, 2003, a copy of which was served on the defendants on the same day. On September 15, 2003, the IMPI, through Atty. Francis M. Zosa of the law firm of Zosa and Quijano, submitted the following documents to the sheriff in compliance with the writ issued by the court: (a) Report of Sta. Ana Rivera & Co.; (b) Balance Sheet; (3) Statements of Operation; (4) Statements of Changes in Equity; (5) Statements of Cash Flows; and (6) Notes to Financial Statements pertaining to the corporation.[12]
(a) Orders the issuance of a writ of execution to enforce the portion of the judgment rendered in this case on March 27, 2003 ordering the defendants to make a true and correct accounting of the earnings of Inmark Marketing Philippines, Inc. which will be the basis of declaration of dividends;
(b) Denies the plaintiff's motion for immediate execution of the portions of the judgment relating to awards for damages, attorney's fees, and expenses of litigation; and
(c) Orders the release to Judge Jose P. Burgos of the receiver's cash bond in the sum of P25,000.00.
SO ORDERED.[10]
Petitioner prayed that judgment be rendered against respondents, as follows:
- Following the willful, deliberate and contumacious refusal of respondents, this time with the participation of, and in collusion with, respondent Atty. Francis M. Zosa, their counsel in the intracorporate case before Branch 23, when said counsel acting for and in behalf of respondents willfully, deliberately, insultingly and contumaciously submitted the 2002 Financial Statement of Inmark (Annexes "E", "F", and "F-1" hereto attached) which he very well knew fraudulently and incorrectly reported a loss and, having been marked and presented by him in evidence, is not, and cannot possibly be, in compliance with the Writ of Execution served upon him and his client, which directed "the defendants to make a true and correct accounting of the earnings of Inmark Marketing Philippines, Inc. which shall be the basis of declaration of dividends."
Plaintiff (now petitioner) then moved the Court for a show cause order against the same respondents herein but the Honorable Court, thru Judge Generosa A. Labra, in its Order dated 10 December 2003 ruled that indirect contempt must be initiated by a verified petition with supporting particulars and certified true copies of documents or papers involved in accordance with the provisions of Sec. 4, Rule 71 of the 1997 Rules, hence, the instant petition;- Pursuant to the above-cited Sec. 4 of Rule 71, it is within the discretion of the Honorable Presiding Judge of Branch 23 to order the consolidation of the present petition which is a Special Civil Action and Civil Case No. CEB-26274-SRC which is the principal action pending before Branch 23 for joint hearing and resolution/decision.
- The 2002 Financial Statement is incorrect and fraudulent based on the judgment of this Honorable Court in Civil Case No. CEB-26274-SRC which found that:
1) P28,000,000.00 was paid for the residential lot and building occupied by defendant Daniel Wistehuff, Sr. located at Northtown Homes (Decision, p. 6);2) P14,000,000.00 was paid for the residential lot and building occupied by defendant Daniel Wistehuff III located at Ma. Luisa Subdivision (Ibid);- Other hidden or misappropriated earnings of defendant corporation were:
1) Dollar deposits of Inmark's fund deposited with UCPB, Makati Branch, under Dollar Account No. 01-317-300307-0 from which are sourced funds transferred to 317-000429-1 UCPB, Banilad Branch, which is an Inmark account, per CPA Celso Inocente's report dated July 5, 2002 (Annex "E", etc. Urgent Omnibus Motion) who at one time was engaged as a member of the staff of the former Receiver;2) $75,000.00 deposited by defendant Daniel Wistehuff III with a bank designated by the Philippine Retirement Authority in support of his application for retiree's visa;3) The amounts used for the purchases of several cars/motor vehicles of the individual defendants with the collective value conservatively estimated at P3,000,000.00;4) Funds utilized for the purchase of furnitures and fixtures of the residences located at Northtown Homes and at the Ma. Luisa Subdivision;5) And other hidden earnings/funds which are yet to be discovered.
- The present contempt charges arose out of or are related to Civil Case No. CEB-26274-SRC before Branch 23 of this Honorable Court which rendered the judgment which[,] being in a nature of special judgment[,] may be enforced by contempt proceedings if the same should be disobeyed pursuant to Sec. 11, Rule 39 of the 1997 Rules.[13]
The case was docketed as CEB-29783 and raffled to Branch 23 of the RTC of Cebu. However, the case was re-raffled to Branch 16 of said court.Petitioner prays for such other reliefs and remedies just and equitable in the premises.[14]
- To require the respondents to comment on the petition within such period as may be fixed by the Court (Sec. 3, Rule 71) and thereafter to set the date for hearing on the contempt charge requiring all respondents to appear in person at such hearing. (But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings.) [Sec. 3];
- If the hearing is not ordered to be had forthwith, to allow the release of the respondents from custody upon filing bonds in amounts fixed by the Court for their appearance at the next hearing of the charge (Sec. 6);
- When respondents, released on bail, fail to appear on the date set under item 2 of the reliefs herein prayed, for this Honorable Court to issue another order of arrest as well as to declare the bonds of respondents to be forfeited and confiscated, or both, such bonds being understood to answer for the measure of damages to the extent of the loss or injury sustained by petitioner by reason of misconduct for which the contempt charge was prosecuted, with costs of the proceedings and that such recovery shall be ordered by the Court for the benefit of the petitioner (Sec. 9);
- After hearing, to SENTENCE to the maximum, in view of aggravating circumstances attendant to the commission of the offenses, the respondents guilty of indirect contempt according to the penalties prescribed in Sec. 7, Rule 71 which consists of a fine not exceeding P30,000.00 or imprisonment not exceeding 6 months or both, without prejudice to the provisions of Sec. 8 which calls for an indefinite imprisonment should respondents refuse or omit to do an act which are yet in their power to perform.
WHEREFORE, premises considered, it is respectfully prayed of this Honorable Court (preferably through another Presiding Judge in view of the requested voluntary inhibition of Hon. Agapito L. Hontanosas, Jr.), to RECONSIDER and SET ASIDE the order of this Honorable Court thru Judge Hontanosas dated 15 April 2004 and for this Honorable Court (preferably through another Presiding Judge) to ACT on petitioner's OMNIBUS MOTION (dated 15 January 2004):On May 19, 2004, petitioner also filed a Motion for the appointment of a commissioner.1) TO SET CONTEMPT CHARGE FOR HEARING AND TO REQUIRE RESPONDENTS TO APPEAR IN PERSON;2) FOR THE ISSUANCE OF A HOLD DEPARTURE ORDER;3) TO EXPUNGE COUNTERCLAIM.[19]
Petitioner avers that contempt proceedings may actually be either civil or criminal: it is criminal when the purpose is to vindicate the authority of the court and protect its outraged dignity; it is civil when there is failure to do something ordered by a court to be done for the benefit of a party. He asserts that his petition for indirect contempt below is civil in nature for the reason that the accounting ordered by the trial court was for the benefit of one party and the purpose of the contempt proceeding below was not to vindicate the authority of the court and to protect its outraged dignity. He maintains that while criminal contempt proceedings should be conducted according to the principles and rules applicable to criminal cases, this is not so in civil contempt proceedings. Accordingly, an appeal from the decision dismissing the same is not barred by double jeopardy.[30]
- The Court a quo seriously erred in not holding that Civil Case No. CEB-29783 for Indirect Contempt being civil in nature, a Motion for Reconsideration and an appeal from a judgment exonerating the respondents is not barred by double jeopardy.
- The Court a quo seriously erred in not finding respondents-appellees guilty as a matter of law of Indirect Civil Contempt and sentencing them accordingly.[29]
For their part, respondents aver that the proper remedy of petitioner to question an order denying due course to a notice of appeal is a petition for certiorari under Rule 65 of the Rules of Court and not a petition for review under Rule 45. They assert that the RTC correctly denied the Notice of Appeal of petitioner since the Petition for Indirect Contempt filed by him below was criminal in nature; hence, the decision of the trial court dismissing the charge was not appealable. Moreover, the RTC correctly dismissed petitioner's contempt charge because they submitted the report of the independent auditor together with the other documents, which, according to them, serve as a true and correct accounting of the earnings of the corporation.[33]Petitioner prays for such other reliefs and remedies just and equitable in the premises.[32]
- The challenged order of the Court a quo dated 15 April 2004 issued by ex-judge Agapito Hontanosas, Jr. (formerly of Branch 16 of the Regional Trial Court of Cebu) dismissing on the merits the petition for contempt in Civil Case No. CEB-29783 and the other challenged order of the Court a quo issued by Judge Simeon P. Dumdum, Jr. of Branch 7 of the same Regional Trial Court of Cebu, denying petitioner's Motion for Reconsideration on grounds of double jeopardy, be REVERSED and SET ASIDE;
- Pending final outcome of this petition, and in view of the continued, deliberate, willful and intransigent refusal of respondents to render a true and correct, full and complete accounting of the earnings of the corporation for over 1 year and 6 months now since the judgment dated 27 March 2003 in Civil Case No. CEB-26274-SRC, to HOLD respondents in the CUSTODY of the Court (Sec. 6, Rule 71) to be released only upon their filing the commensurate bonds the amounts of which shall be fixed corresponding to the measure of damages which shall be to the extent of the loss or injury sustained, and [continues] to be sustained, by petitioner Ramon B. Ceniza (Sec. 9);
- To render a judgment FINDING respondents Daniel Wistehuff, Sr., Daniel Wistehuff, Jr., Bryan K. Wistehuff, Atty. Francis M. Zosa and Gemalyn Peteros (except respondent Marites Gonzales-Wistehuff) guilty of civil contempt in said case and SENTENCING them accordingly by ordering the continued detention of respondents (Sec. 8, Rule 71) until they shall have fully complied with the true and correct, full and complete accounting of the earnings of Inmark Marketing Phils., Inc. which shall be the basis of the declaration of dividends as decreed by the Court a quo in its judgment dated 27 March 2003 in Civil Case No. CEB-26274-SRC;
- In the interest of justice and equity, and on account of extreme urgency, pending final outcome of this petition, that the Special 18th Division of the Court of Appeals in CA-G.R. [SP] No. 85301, be TEMPORARILY RESTRAINED, and later PERMANENTLY RESTRAINED, from enforcing its October 14, 2004 Resolution and the writ of preliminary injunction issued pursuant thereto stopping the implementation of the July 15, 2004 Order of Judge Simeon P. Dumdum, Jr. in Civil Case No. CEB-26274-SRC appointing a commissioner tasked to conduct an accounting of the true and correct earnings of Inmark Marketing Phils., Inc. which shall be the basis for the declaration of dividends;
- Pending final action on this Petition, to further ISSUE a Hold-[D]eparture Order to the Commissioner of Immigration to prevent the respondents from avoiding the jurisdiction of this Honorable Court and thereby preserve its authority and dignity which should be respected even by foreigners, especially in the light of the fact that respondent Daniel Wistehuff, Sr. has already fled from the jurisdiction of Philippine Courts; and
- In regard to respondent Atty. Francis M. Zosa, to require him to EXPLAIN why he should not be disbarred.
SEC. 3. Indirect contempt to be punished after charge and hearing. - After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:Section 7 of the same Rule provides for the punishment of indirect contempt, thus:(a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings.
(b) Disobedience of, or resistance to, a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under Section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him.
SEC. 7. Punishment for indirect contempt.- If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand (P30,000) pesos or imprisonment not exceeding six (6) months, or both. If he is adjudged guilty of contempt committed against a lower court, he may be punished by a fine not exceeding five thousand (P5,000) pesos or imprisonment not exceeding one (1) month, or both. If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved.Section 8 of the same Rule further states:
The writ of execution as in ordinary civil action shall issue for the enforcement of a judgment imposing a fine, unless the court otherwise provides.
SEC. 8 Imprisonment until order obeyed.-When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it.In the recent case of Montenegro v. Montenegro,[34] the Court distinguished criminal contempt from civil contempt, as follows:
Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of the contemptuous act. Criminal contempt is "conduct directed against the authority and dignity of the court or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court to disrepute or disrespect." On the other hand, civil contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore, an offense against the party in whose behalf the violated order was made. If the purpose is to punish, then it is criminal in nature; but if to compensate, then it is civil.[35]Thus, contempt proceedings has a dual function: (1) vindication of public interest by punishment of contemptuous conduct; (2) coercion to compel the contemnor to do what the law requires him to uphold the power of the Court, and also to secure the rights of the parties to a suit awarded by the Court.[36]