368 Phil. 791
GONZAGA-REYES, J.:
"WHEREFORE, Judgment is hereby rendered finding defendant International School (Manila), Inc. liable to pay plaintiffs, the following:ISM appealed to the Court of Appeals. During the pendency thereof, the spouses Torralba filed a motion for execution pending appeal before the lower court on the grounds that the appeal is merely dilatory and that the filing of a bond is another good reason for the execution of a judgment pending appeal.[4] Said motion was opposed by ISM.The complaint against the individual defendants is DISMISSED for insufficiency of evidence. Likewise, the Counterclaim is DISMISSED for lack of merit.
- The sum of P4,000,000.00 as and for Moral damages;
- The amount of P1,000,000.00 by way of Exemplary damages;
- The amount of P2,000,000.00 as Actual damages;
- The sum of P300,000.00 as and for Attorney's fees; and
- To pay the costs.
SO ORDERED."[3]
"xxx, we have ruled in Jaca, et al. vs. Davao Lumber Company, et al. that:Verily, a petition for certiorari lies against an order granting execution pending appeal where the same is not founded upon good reasons.
"xxx Although Section 1, Rule 65 of the Rules of Court provides that the special civil action for certiorari may only be invoked when `there is no appeal, nor any plain, speedy and adequate remedy in the (ordinary) course of law,' this rule is not without exception. The availability of the ordinary course of appeal does not constitute sufficient ground to prevent a party from making use of the extraordinary remedy of certiorari where appeal is not an adequate remedy or equally beneficial, speedy and sufficient. It is the inadequacy-not the mere absence of all other legal remedies and the danger of failure of justice without the writ that usually determines the propriety of certiorari."
Thus, we held therein, and we so reiterate for purposes of the case at bar, that certiorari lies against an order granting execution pending appeal where the same is not founded upon good reasons. Also, the fact that the losing party had appealed from the judgment does not bar the certiorari action filed in respondent court as the appeal could not be an adequate remedy from such premature execution.
That petitioner could have resorted to a supersedeas bond to prevent execution pending appeal, as suggested by the two lower courts, is not to be held against him. The filing of such bond does not entitle him to the suspension of execution as a matter of right. It cannot, therefore, be categorically considered as a plain, speedy and adequate remedy. Hence, no rule requires a losing party so circumstanced to adopt such remedy in lieu or before availment of other remedial options at hand.
Furthermore, a rational interpretation of Section 3, Rule 39 should be that the requirement for a supersedeas bond presupposes that the case presents a presumptively valid occasion for discretionary execution. Otherwise, even if no good reason exists to warrant advance execution, the prevailing party could unjustly compel the losing party to post a supersedeas bond through the simple expedient of filing a motion for, and the trial court improvidently granting, a writ of execution pending appeal although the situation is violative of Section 2, Rule 39. This could not have been the intendment of the rule, hence we give our imprimatur to the propriety of petitioner's action for certiorari in respondent court."[20]
(a) There must be a motion by the prevailing party with notice to the adverse party;Likewise, the Court of Appeals accepted as `good reasons' that ISM's appeal appears to be dilatory in view of its virtual admission of fault when it adopted the project "Code Red" only after the death of plaintiffs-spouses Torralba's son, and the delay of the case which already affected plaintiffs spouses Torralbas financially.
(b) There must be good reasons for issuing the execution; and
(c) The good reasons must be stated in a special order.[24]
"where the reason given is that an appeal is frivolous and dilatory, execution pending appeal cannot be justified. It is not proper for the trial court to find that an appeal is frivolous and consequently to disapprove it since the disallowance of an appeal by said court constitutes a deprivation of the right to appeal. The authority to disapprove an appeal rightfully pertains to the appellate court xxx."[26]The "admission of fault or negligence" adverted to in the lower court's order and subsequently adopted by the appellate court in its decision, was based on the following exchange between the private respondents-spouses' counsel and one of the defendants, ISM's swimming coach Noli Reloj, which transpired during the hearing of February 18, 1994:
"ATTY. GUERRERO: Issue of Vol. 48, No. 2 of October 1993.For purposes only of determining the correctness of the writ of execution pending appeal, we cannot see how the lower courts came upon the conclusion of virtual admission of fault or negligence by ISM based on the above-quoted exchange where ISM's swimming coach admitted that he read the school paper article introducing "Code Red". As correctly pointed out by ISM, the article was not an official statement of the school, but merely an opinion of its author. Moreover, we cannot see how the statement of Mr. Noli Reloj that he read the article on "Code Red" can be construed as an admission of liability by the school. Clearly then, the conclusion of the lower courts that the appeal is dilatory based solely on the foregoing exchange rests on shaky ground.
Mr. Reloj, you said that you have read this. There is here an article which says on the front page "Introducing Code Red." And in this article it says and I quote "It was introduced last year by the administration to prevent further incidents like the tragic death of Freshman Ericson Torralba in August 1991 who collapsed while taking the swimming competency test.
Due to school's lack of emergency procedures and equipments, valuable time was lost in coordinating medical efforts in bringing him to the Makati Medical Center.
WITNESS: Yes, I read that portion.
Q. That's all I want from you.
Now likewise Mr. Witness on page 8 or Exhibit AA, by the way your Honor, may I request the portion which I read be marked as AA-1. Likewise on page 8, there is again mentioned here I quote "ISM has also acquired new equipment to deal with emergencies such as oxygen tank, respirator, new buoyancy and life saving equipment to the pool and a licensed ambulance to transport the victim to the Makati Medical Center.
With the apparent success of Code Red, no one at ISM need worry any longer about life or death emergency. Did you read these portions?
WITNESS: I read those articles."[27]
"xxx to consider the mere posting of a bond a `good reason' would precisely make immediate execution of a judgment pending appeal routinary, the rule rather than the exception. Judgments would be executed immediately, as a matter of course, once rendered, if all that the prevailing party needed to do was to post a bond to answer for damages that might result therefrom. This is a situation, to repeat, neither contemplated nor intended by law."[29]In fine, the rule is now settled that the mere filing of a bond by the successful party is not a good reason for ordering execution pending appeal, as "a combination of circumstances is the dominant consideration which impels the grant of immediate execution, the requirement of a bond is imposed merely as an additional factor, no doubt for the protection of the defendant's creditor."[30] Since we have already ruled that the reason that an appeal is dilatory does not justify execution pending appeal, neither does the filing of a bond, without anything more, justify the same. Moreover, ISM could not be faulted for its withdrawal of its supersedeas bond inasmuch as the lower court granted the execution pending appeal and rejected its offer of supersedeas bond.
"xxx The execution of any award for moral and exemplary damages is dependent on the outcome of the main case. Unlike the actual damages for which the petitioners may clearly be held liable if they breach a specific contract and the amounts of which are fixed and certain, liabilities with respect to moral and exemplary damages as well as the exact amounts remain uncertain and indefinite pending resolution by the Intermediate Appellate Court and eventually the Supreme Court. The existence of the factual bases of these types of damages and their causal relation to the petitioners' act will have to be determined in the light of errors on appeal. It is possible that the petitioners, after all, while liable for actual damages may not be liable for moral and exemplary damages. Or as in some cases elevated to the Supreme Court, the awards may be reduced."Much as we appreciate the predicament of the bereaved parents, however, this Court is of the opinion that the general rule still finds application in the instant case. In other words, the respondent Court of Appeals committed reversible error in upholding the writ of execution pending appeal absent the `good reasons' required by law.
"Execution pending appeal. - On Motion of the prevailing party with notice to the adverse party the court may, in its discretion, order execution to issue even before the expiration of the time to appeal, upon good reasons to be stated in a special order. If a record on appeal is field thereafter, the motion and the special order shall be included thereon."[24] Provident International Resources Corporation vs. Court of Appeals, 259 SCRA 510.