J.A.B. Bulao & Associates

CASE 2016-0069: SERGIO R. OSMENA Ill  VS  POWER SECTOR ASSETS AND LIABILITIES MANAGEMENT CORPORATION, EMMANUEL R. LEDESMA, JR., SPC POWER CORPORATION, and THERMA POWER VISAYAS, INC. (G.R. No. 212686, 05 OCT 2016,  VELASCO JR., J.) (SUBJECT/S: SC MODIFIES FINAL JUDGMENT;EFFECT OF  SEVERABILITY CLAUSE IN BIDDING GUIDELINES) (BRIEF TITLE: OSMENA VS. PSALM ET AL.)

DISPOSITIVE:

“WHEREFQRE, premises considered, the Manifestation/Motion dated March 16, 2016 of respondent TPVI is hereby GRANTED. The Entry of Judgment is LIFTED. The fa/lo of the September 28, 2015 Decision is hereby amended to include a directive that the April 30, 2014 Notice of Award in favor of said respondent be REINSTATED, excluding the portion therein granting to SPC the Right to Top. Respondent PSALM is further directed to execute the NPPC-APA and NPPC-LLA in favor of respondent TPVI with dispatch. As amended, the fa/lo of said Decision shall read:

WHEREFORE, the petition is hereby GIVEN DUE COURSE and the writ prayed for accordingly GRANTED. The right of first refusal (right to top) granted to Sakon Power Corporation (now SPC Power Corporation) under the 2009 Naga LBGT-LLA is hereby declared NULL and VOID. Consequently, the Asset Purchase Agreement (NPPC-APA) and Land Lease Agreement (NPPC-LLA) executed by the Power Sector Assets and · Liabilities Management Corporation and SPC are ANNULLED and SET ASIDE. The Notice of Award dated April 30, 2014 in favor of Therma Power Visayas, Inc. is hereby REINSTATED, excluding the portion therein granting to SPC the Right to Top. Respondent PSALM is directed to execute the NPPC-AP A and NPPCLLA in favor of TPVI with dispatch.

No costs.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

WHAT HAPPENED IN THIS CASE?

THE POWER SECTOR ASSETS AND LIABILITIES MANAGEMENT CORP (PSALM) CONDUCTED BIDDING FOR THE SALE OF NPPC POWER PLANT. BIDDERS WERE THERMA POWER VISAYAS INC AND SPC POWER CORP. THERMA POWER WON. PSALM ISSUED NOTICE OF AWARD TO THERMA POWER BUT SUBJECT TO THE CONDITION THAT SPC WILL NOT EXERCISE ITS RIGHT OF FIRST REFUSAL. THEN SPC EXERCISED ITS RIGHT OF FIRST REFUSAL BY PROPOSING TO PSALM THAT IT WILL EXECUTE LEASE AGREEMENT AND PURCHASE AGREEMENT OVER THE NPCC POWER PLANT. PSALM AND SPC EXECUTED SAID AGREEMENTS AND PSALM  CANCELLED THE  NOTICE OF AWARD. IN ITS PREVIOUS DECISION SC RULED THAT THE PROVISION IN THE BIDDING GUIDELINES RE RIGHT OF FIRST REFUSAL OF SPC WAS ILLEGAL AND THE LEASE AND PURCHASE AGREEMENTS WERE ALSO ILLEGAL. BUT IT WAS SILENT ON THE EFFECT OF THE DECISION ON THE NOTICE OF AWARD. THERMA POWER THEN ASKED FOR CLARIFICATION WITH PRAYER TO REINSTATE THE NOTICE OF AWARD. SC IN THIS RESOLUTION REINSTATED THE NOTICE OF AWARD.

WHAT WAS THE BASIS FOR THE REINSTATEMENT OF THE NOTICE OF AWARD?

THE BASIS IS THE SEVERABILITY CLAUSE IN THE BIDDING GUIDELINES WHICH STATES: IF ANY ONE OR MORE OF THE PROVISIONS OF THE BIDDING PROCEDURES OR ANY PART OF THE BIDDING PACKAGE IS HELD TO BE INVALID, ILLEGAL OR UNENFORCEABLE, THE VALIDITY, LEGALITY, OR ENFORCEABILITY OF THE REMAINING PROVISIONS WILL NOT BE AFFECTED THEREBY AND SHALL REMAIN IN FULL FORCE AND EFFECT.

BUT WAS IT PROPER FOR SC TO AMEND A FINAL JUDGMENT?

YES.

THE COURT IS NOT PRECLUDED FROM RENDERING A NUNC PRO TUNC JUDGMENT TO AMEND THE DISPOSITIVE PORTION OF THE SEPTEMBER 28, 2015 DECISION IN ORDER TO TRULY REFLECT THE ACTION OF THE COURT.

THE LACK OF DIRECTIVE IN THE DECISION  ON HOW TO PROCEED FROM THE NULLIFICATION OF SPC’S RIGHT TO TOP AND ITS NPPC-APA AND NPPC-LLA CONTRACTS, NOTHING MORE, LEFT THE PARTIES AT A QUANDARY, PROMPTING THEM TO SEEK JUDICIAL INTERVENTION ANEW.

THE COURT MUST, THEREFORE, SUPPLY HEREIN WHAT WAS INADVERTENTLY OMITTED IN THE DECISION. OTHERWISE, A REJECTION OF THE PLEA OF THERMA POWER WILL RESULT TO  MULTIPLICITY OF SUITS AND CLOGGING OF THE COURT DOCKET. THIS CONSEQUENCE IS AGAINST THE ESTABLISHED POLICY OF THE COURT TO PROVIDE IN ITS RULES OF PROCEDURE A JUST, SPEEDY, AND INEXPENSIVE DISPOSITION OF EVERY ACTION AND PROCEEDING.

TO READ THE DECISION, JUST CLICK/DOWNLOAD THE FILE BELOW.

scd-2016-0069-therma-power-visayas-inc

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CASE 2016-0067: MARCELINO T. TAMIN VS. MAGSAYSAY MARITIME CORPORATION AND/OR MASTERBULK PTE. LTD. (G.R. 220608, 31 AUGUST 2016, VELASCO, JR., J.) (SUBJECT/S: CLAIMS FOR DISABILITY BENEFITS; THE 120/240 RULE; WHAT IS  PERMANENT DISABILITY; WHAT IS TOTAL DISABILITY) (BRIEF TITLE: TAMIN VS MAGSAYSAY MARITIME ET AL).

 
DISPOSITIVE:

“WHEREFORE, in view of the foregoing, the petition is hereby GRANTED. The June 25, 2015 Decision and September 18, 2015 Resolution of the Court of Appeals in CA-G.R. SP No. 137055 are hereby REVERSED and SET ASIDE. Accordingly, the Decision of the Panel of . Voluntary Arbitrators in AC-305-NCMB-NCR-001-01-01-2014 is hereby REINSTATED.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

THERE IS A RULE THAT IN CASE OF CLAIM FOR DISABILITY BENEFITS THE COMPANY PHYSICIAN MUST ISSUE A REPORT WITHIN 120 DAYS EXTENDIBLE TO 240 DAYS. IN THIS CASE THIS RULE WAS NOT FOLLOWED. RESPONDENTS ARGUE THAT THIS RULE DOES NOT APPLY ANYMORE BECAUSE THE PROVISIONS OF THE NEW POEA-SEC PROVIDES THAT DISABILITY IS NOT DETERMINED ON THE BASIS OF DURATION OF INABILITY TO WORK BUT ON DISABILITY GRADINGS ALONE. IS THIS ARGUMENT CORRECT?

 NO. IT MUST BE DETERMINED WHETHER THE THE MEDICAL ASSESSMENT OR REPORT OF THE COMPANY-DESIGNATED PHYSICIAN WAS COMPLETE, VALID  AND ISSUED ON TIME WHICH IS WITHIN 120 DAYS EXTENDIBLE TO 240 DAYS. IN THIS CASE THE REPORT OF THE COMPANY PHYSICIAN WAS NOT ISSUED WITHIN THE LIMIT OF 240 DAYS.

JURISPRUDENCE IS REPLETE WITH CASES WHERE THE COURT  STRUCK DOWN A COMPANY-DESIGNATED PHYSICIAN’S DISABILITY ASSESSMENT FOR BEING BELATEDLY ISSUED, INSUFFICIENT, OR DUE TO LACK OF FINALITY.

BUT THIS IS CONTRARY TO THE POEA-SEC PROVISIONS?

THE POEA-SEC PROVISIONS MUST BE READ IN CONJUNCTION WITH THE THE RELEVANT PROVISIONS ON DISABILITY OF THE LABOR CODE, AND THE AMENDED RULES ON EMPLOYEES’ COMPENSATION (AREC) IMPLEMENTING TITLE II, BOOK IV OF THE LABOR CODE.

WHAT IS PERMANENT DISABILITY?

PERMANENT DISABILITY IS THE INABILITY OF A WORKER TO PERFORM HIS OR HER JOB FOR MORE THAN 120 DAYS, REGARDLESS OF WHETHER OR NOT A WORKER LOSES THE USE OF ANY PART OF HIS OR HER BODY.

WHAT IS TOTAL DISABILITY?

TOTAL DISABILITY, ON THE OTHER HAND, MEANS THE DISABLEMENT OF AN EMPLOYEE TO EARN WAGES IN THE SAME KIND OF WORK OR WORK OF SIMILAR NATURE THAT HE OR SHE WAS TRAINED FOR, OR ACCUSTOMED TO PERFORM, OR ANY KIND OF WORK WHICH A PERSON OF HIS OR HER MENTALITY AND ATTAINMENTS COULD DO.29

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scd-2016-0067-marcelino-t-tamin

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CASE 2016-0066: TEODORO B. CRUZ, JR., COMPLAINANT -VERSUS – ATTYS. JOHN G. REYES, ROQUE BELLO AND CARMENCITA A. ROUS-GONZAGA, RESPONDENTS. (A.C. NO. 9090, 31 AUG 2016, PEREZ, J.) (BRIEF TITLE: CRUZ VS. ATTY. REYES ET AL)

DISPOSITIVE:

“IN VIEW OF THE FOREGOING, respondent’s Motion for Reconsideration is PARTIALLY GRANTED. The Resolution of the Court dated 22 August 2012 is hereby modified in that respondent Atty. John G. Reyes is REPRIMANDED for his failure to exercise the necessary prudence required in the practice of the legal profession. He is further WARNED that a repetition of the same or similar acts shall be dealt with more severely.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

The foregoing notwithstanding, it cannot be said that respondent has no liability at all under the circumstances. His folly, though, consists in his negligence in accepting the subject cases without first being fully apprised of and evaluating the circumstances surrounding them. We, nevertheless, agree with respondent that such negligence is not of contumacious proportions as to warrant the imposition of the penalty of suspension. This Court finds the penalty of suspension for one ( 1) year earlier imposed on respondent too harsh and not proportionate to the offense committed. “The power to disbar or suspend must be exercised with great caution. Only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and member of the bar will disbarment or suspension be imposed as a penalty.”42 The penalty to be meted out on an errant lawyer depends on the exercise of sound judicial discretion taking into consideration the facts surrounding each case.43

In this connection, the following circumstances should be taken into consideration in order to mitigate respondent’s responsibility: first respondent exhibited enough candor to admit that he was negligent and remiss in his duties as a lawyer when he accommodated the request of another lawyer to handle a case without being first apprised of the details and acquainted with the circumstances relative thereto; and second, since this is his first offense, respondent “is entitled to some measure of forbearance. “44

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scd-2016-0066-atty-john-g-reyes

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