FIRST DIVISION[G.R. No. 166302. July 28, 2005]LOTTE PHIL. CO., INC.,petitioner, vs.ERLINDA DELA CRUZ, LEONOR MAMAUAG, LOURDES CAUBA, JOSEPHINE DOMANAIS, ARLENE CAGAYAT, AMELITA YAM, VIVIAN DOMARAIS, MARILYN ANTALAN, CHRISTOPHER RAMIREZ, ARNOLD SAN PEDRO, MARISSA SAN PEDRO, LORELI JIMENEZ, JEFFREY BUENO, CHRISTOPHER CAGAYAT, GERARD CABILES, JOAN ENRIQUEZ, JOSEPH DE LA CRUZ, NELLY CLERIGO, DULCE NAVARETTE, ROWENA BELLO, DANIEL RAMIREZ, AILEEN BAUTISTA and BALTAZAR FERRERA,respondents.D E C I S I O NYNARES-SANTIAGO,J.:This petition for review oncertiorari[1]assails the July 9, 2004 decision[2]of the Court of Appeals in CA-G.R. SP No. 72732 and its November 26, 2004 resolution[3]denying reconsideration thereof.The established facts of this case are as follows:Private respondent (petitioner herein) Lotte Phils., Inc. (Lotte) is a domestic corporation. Petitioners (respondents herein) are among those who were hired and assigned to the confectionery facility operated by private respondent.On December 14, 1995 and yearly thereafter until the year 2000 7J Maintenance and Janitorial Services (7J) entered into a contract with private respondent to provide manpower for needed maintenance, utility, janitorial and other services to the latter. In compliance with the terms and conditions of the service contract, and to accommodate the needs of private respondent for personnel/workers to do and perform piece works, petitioners, among others, were hired and assigned to private respondent as repackers or sealers.However, either in October, 1999 or on February 9, 2000, private respondent dispensed with their services allegedly due to the expiration/termination of the service contract by respondent with 7J. They were either told hwag muna kayong pumasok at tatawagan na lang kung may gawa; or were asked to wait pag magrereport sila sa trabaho. Unfortunately, petitioners were never called back to work again.Aggrieved, petitioners lodged a labor complaint against bothprivate respondent Lotte and 7J, for illegal dismissal, regularization, payment of corresponding backwages and related employment benefits, 13thmonth pay, service incentive leave, moral and exemplary damages and attorneys fees based on total judgment award.[4]On February 28, 2001, Labor Arbiter Cresencio G. Ramos, Jr., rendered judgment[5]declaring 7J as employer of respondents.[6]The arbiter also found 7J guilty of illegal dismissal[7]and ordered to reinstate respondents,[8]pay P2,374,710.00 as backwages, P713,648.00 as 13thmonth pay and P117,000.00 as service incentive leave pay.[9]Respondents appealed to the National Labor Relations Commission (NLRC) praying that Lotte be declared as their direct employer because 7J is merely a labor-only contractor. In its decision[10]dated April 24, 2002, the NLRC found no cogent reason to disturb the findings of the labor arbiter and affirmed its ruling that 7J is the employer of respondents and solely liable for their claims.Respondents motion for reconsideration was denied by the NLRC in a resolution dated June 18, 2002.Undaunted, they filed a petition forcertiorariin the Court of Appeals[11]against the NLRC and Lotte, insisting that their employer is Lotte and not 7J.Lotte, however, denied that respondents were its employees. It prayed that the petition be dismissed for failure to implead 7J who is a party interested in sustaining the proceedings in court, pursuant to Section 3, Rule 46 of the Revised Rules of Civil Procedure.On July 9, 2004, the Court of Appeals reversed and set aside the rulings of the Labor Arbiter and the NLRC. In its decision, the Court of Appeals declared Lotte as the real employer of respondents and that 7J who engaged in labor-only contracting was merely the agent of Lotte. Respondents who performed activities directly related to Lottes business were its regular employees under Art. 280 of the Labor Code. As such, they must be accorded security of tenure and their services terminated only on just and authorized causes.Lottes motion for reconsideration was denied, hence this petition, on the following issues:8. Whether or not petitioner herein had the burden of proof to establish before the proceedings in the Court of Appeals that 7J Maintenance and Janitorial Service was not a labor-only contractor.8.1. Whether or not the Petition in CA-G.R. SP No. 72732 is dismissible for failure to comply with Section 3, Rule 46 in relation to Section 5, Rule 65 of the 1997 Rules of Civil Procedure.[12]We first resolve the procedural issue raised by petitioner. Lotte asserts that 7J is an indispensable party and should have been impleaded in respondents petition in the Court of Appeals. It claims that the petition before the Court of Appeals was dismissible for failure to comply with Section 3,[13]Rule 46 in relation to Section 5[14]of Rule 65 of the Revised Rules of Civil Procedure.Petitioners contention is tenable.An indispensable party is a party in interest without whom no final determination can be had of an action,[15]and who shall be joined either as plaintiffs or defendants.[16]The joinder of indispensable parties is mandatory.[17]The presence of indispensable parties is necessary to vest the court with jurisdiction, which is the authority to hear and determine a cause, the right to act in a case.[18]Thus, without the presence of indispensable parties to a suit or proceeding, judgment of a court cannot attain real finality.[19]The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.[20]In the case at bar, 7J is an indispensable party. It is a party in interest because it will be affected by the outcome of the case. The Labor Arbiter and the NLRC found 7J to be solely liable as the employer of respondents. The Court of Appeals however rendered Lotte jointly and severally liable with 7J who was not impleaded by holding that the former is the real employer of respondents. Plainly, its decision directly affected 7J.InDomingo v. Scheer,[21]we held that the non-joinder of indispensable parties is not a ground for the dismissal of an action[22]and the remedy is to implead the non-party claimed to be indispensable.[23]Parties may be added by order of the court on motion of the party or on its own initiative at any stage of the action and/or such times as are just. If the petitioner refuses to implead an indispensable party despite the order of the court, the latter may dismiss the complaint/petition for the petitioner/plaintiffs failure to comply therefor.[24]Although 7J was a co-party in the case before the Labor Arbiter and the NLRC, respondents failed to include it in their petition forcertiorariin the Court of Appeals. Hence, the Court of Appeals did not acquire jurisdiction over 7J. No final ruling on this matter can be had without impleading 7J, whose inclusion is necessary for the effective and complete resolution of the case and in order to accord all parties with due process and fair play.In light of the foregoing, the Court sees no need to discuss the second issue raised by petitioner.WHEREFORE, the July 9, 2004 decision of the Court of Appeals in CA-G.R. SP No. 72732 and the November 26, 2004 resolution, are SET ASIDE. Let the case be REMANDEDto the Court of Appeals to include 7J Maintenance and Janitorial Services as an indispensable party to the case for further proceedings.SO ORDERED.[13]SEC. 3.Contents and filing of petition; effect of non-compliance with requirements. The petition shall contain the full names and actual addresses of all the petitioners and respondents, a concise statement of the matters involved, the factual background of the case, and the grounds relied upon for the relief prayed for. In actions filed under Rule 65, the petition shall further indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received. The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition.[14]SEC. 5.Respondents and costs in certain cases. When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings, and the costs awarded in such proceedings in favor of the petitioner shall be against the private respondents only, and not against the judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as public respondent or respondents.

THIRD DIVISIONLEONIS NAVIGATION CO., INC. and WORLD MARINEPANAMA,S.A.,Petitioners,- versus -CATALINO U. VILLAMATER and/or The Heirs of the Late Catalino U. Villamater, represented herein by Sonia Mayuyu Villamater; and NATIONAL LABOR RELATIONS COMMISSION,Respondents.G.R. No. 179169Present:CORONA,J.,Chairperson,VELASCO, JR.,NACHURA,PERALTA, andMENDOZA,JJ.Promulgated:March 3, 2010

x------------------------------------------------------------------------------------xDECISIONNACHURA,J.:This is a petition for review oncertiorari[1]under Rule 45 of the Rules of Court, seeking to annul and set aside the Decision[2]dated May 3, 2007 and the Resolution[3]dated July 23, 2007 of the Court of Appeals (CA) in CA-G.R. SP No. 85594, entitledLeonis Navigation Co., Inc., et al. v.CatalinoU.Villamater, et al.

The antecedents of this case are as follows:Private respondent Catalino U. Villamater (Villamater) was hired as Chief Engineer for the shipMV Nord Monaco, owned by petitioner World Marine Panama,S.A., through the services of petitioner Leonis Navigation Co., Inc. (Leonis), as the latters local manning agent.Consequent to this employment, Villamater, on June 4, 2002, executed an employment contract,[4]incorporating the Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels as prescribed by the Philippine Overseas Employment Administration (POEA).Prior to his deployment, Villamater underwent the required Pre-Employment Medical Examination (PEME).He passed the PEME and was declared Fit to Work.[5]Thereafter, Villamater was deployed on June 26, 2002.Sometime in October 2002, around four (4) months after his deployment, Villamater suffered intestinal bleeding and was given a blood transfusion.Thereafter, he again felt weak, lost considerable weight, and suffered intermittent intestinal pain.He consulted a physician inHamburg,Germany, who advised hospital confinement.Villamater was diagnosed with Obstructive Adenocarcinoma of the Sigmoid, with multiple liver metastases, possibly local peritoneal carcinosis and infiltration of the bladder, possibly lung metastasis, and anemia; Candida Esophagitis; and Chronic Gastritis.He was advised to undergo chemotherapy and continuous supportive treatment, such as pain-killers and blood transfusion.[6]Villamater was later repatriated, under medical escort, as soon as he was deemed fit to travel.As soon as he arrived in thePhilippines, Villamater was referred to company-designated physicians.The diagnosis and the recommended treatment abroad were confirmed.He was advised to undergo six (6) cycles of chemotherapy.However, Dr. Kelly Siy Salvador, one of the company-designated physicians, opined that Villamaters condition appears to be not work-related, but suggested a disability grading of 1.[7]In the course of his chemotherapy, when no noticeable improvement occurred, Villamater filed a complaint[8]before the Arbitration Branch of the National Labor Relations Commission (NLRC) for payment of permanent and total disability benefits in the amount of US$80,000.00, reimbursement of medical and hospitalization expenses in the amount ofP11,393.65, moral damages in the sum ofP1,000,000.00, exemplary damages in the amount ofP1,000,000.00, as well as attorneys fees.After the submission of the required position papers, the Labor Arbiter rendered a decision[9]dated July 28, 2003 in favor of Villamater, holding that his illness was compensable, but denying his claim for moral and exemplary damages.The Labor Arbiter disposed as followsWHEREFORE, foregoing premises considered, judgment is hereby rendered declaring complainants illness to be compensable and ordering respondents LEONIS NAVIGATION CO., INC. and WORLD MARINE PANAMA, S.A. liable to pay, jointly and severally, complainant CATALINO U. VILLAMATER, the amount of US$60,000.00 or its Philippine Peso equivalent at the time of actual payment, representing the latters permanent total disability benefits plus ten percent (10%) thereof as Attorneys Fees.All other claims are dismissed for lack of merit.SO ORDERED.[10]Petitioners appealed to the NLRC.Villamater also filed his own appeal, questioning the award of the Labor Arbiter and claiming that the 100% degree of disability should be compensated in the amount of US$80,000.00, pursuant to Section 2, Article XXI of the ITF-JSU/AMOSUP Collective Bargaining Agreement (CBA) between petitioners and Associated Marine Officers & Seamens Union of the Philippines, which covered the employment contract of Villamater.On February 4, 2004, the NLRC issued its resolution,[11]dismissing the respective appeals of both parties and affirmingin totothe decision of the Labor Arbiter.Petitioners filed their motion for reconsideration of the February 4, 2004 resolution, but the NLRC denied the same in its resolution dated June 15, 2004.Aggrieved, petitioners filed a petition forcertiorariunder Rule 65 of the Rules of Court before the CA.After the filing of the required memoranda, the CA rendered its assailed May 3, 2007 Decision, dismissing the petition.The appellate court, likewise, denied petitioners motion for reconsideration in its July 23, 2007 Resolution.Hence, this petition based on the following grounds, to wit:First, the Court of Appeals erroneously held that [the] Commissions Dismissal Decision does not constitute grave abuse of discretion amounting to lack or excess of jurisdiction but mere error of judgment, considering that the decision lacks evidentiary support and is contrary to both evidence on record and prevailing law and jurisprudence.Second, the Court of Appeals seriously erred in upholding the NLRCs decision to award Grade 1 Permanent and Total Disability Benefits in favor of seaman Villamater despite the lack of factual and legal basis to support such award, and more importantly, when it disregarded undisputed facts and substantial evidence presented by petitioners which show that seaman Villamaters illness was not work-related and hence, not compensable, as provided by the Standard Terms of the POEA Contract.Third, the Court of Appeals erred in holding that non-joinder of indispensable parties warrant the outright dismissal of the Petition for Review on Certiorari.Fourth, the Court of Appeals erroneously held that final and executory decisions or resolutions of the NLRC render appeals to superior courts moot and academic.Last, the Court of Appeals seriously erred in upholding the award of attorneys fees considering that the grant has neither factual nor legal basis.[12]Before delving into the merits of this petition, we deem it fit to discuss the procedural issues raised by petitioners.First.It is worthy to note that the CA dismissed the petition, considering that (1) the June 15, 2004 Resolution of the NLRC had already become final and executory on June 26, 2004, and the same was already recorded in the NLRC Book of Entries of Judgments; and that (2) the award of the Labor Arbiter was already executed, thus, the case was closed and terminated.According to Sections 14 and 15, Rule VII of the 2005 Revised Rules of Procedure of the NLRCSection 14.Finality of decision of the commission and entry of judgment. a) Finality of the Decisions, Resolutions or Orders of the Commission. Except as provided in Section 9 of Rule X, the decisions, resolutions or orders of the Commission shall become final and executory after ten (10) calendar days from receipt thereof by the parties.b) Entry of Judgment. Upon the expiration of the ten (10) calendar day period provided in paragraph (a) of this Section, the decision, resolution, or order shall be entered in a book of entries of judgment.The Executive Clerk or Deputy Executive Clerk shall consider the decision, resolution or order as final and executory after sixty (60) calendar days from date of mailing in the absence of return cards, certifications from the post office, or other proof of service to parties.Section 15.Motions for reconsideration. Motion for reconsideration of any decision, resolution or order of the Commission shall not be entertained except when based on palpable or patent errors; provided that the motion is under oath and filed within ten (10) calendar days from receipt of decision, resolution or order, with proof of service that a copy of the same has been furnished, within the reglementary period, the adverse party; and provided further, that only one such motion from the same party shall be entertained.Should a motion for reconsideration be entertained pursuant to this SECTION, the resolution shall be executory after ten (10) calendar days from receipt thereof.[13]Petitioners received the June 15, 2004 resolution of the NLRC, denying their motion for reconsideration, on June 16, 2004.They filed their petition forcertioraribefore the CA only on August 9, 2004,[14]or 54 calendar days from the date of notice of the June 15, 2004 resolution.Considering that the above-mentioned 10-day period had lapsed without petitioners filing the appropriate appeal, the NLRC issued an Entry of Judgment dated June 28, 2004.Moreover, by reason of the finality of the June 15, 2004 NLRC resolution, the Labor Arbiter issued on July 29, 2004 a Writ of Execution.[15]Consequently, Leonis voluntarily paid Villamaters widow, Sonia M. Villamater (Sonia), the amount ofP3,649,800.00, with Rizal Commercial and Banking Corporation (RCBC) Managers Check No. 0000008550[16]dated August 12, 2004, as evidenced by the Acknowledgment Receipt[17]dated August 13, 2004, and the Cheque Voucher[18]dated August 12, 2004.Following the complete satisfaction of the judgment award, the Labor Arbiter issued an Order[19]dated September 8, 2004 that readsThere being complete satisfaction of the judgment award as shown by the record upon receipt of the complainant of the amount ofP3,649,800.00, voluntarily paid by the respondent, as full and final satisfaction of the Writ of Execution dated July 29, 2004; and finding the same to be not contrary to law, morals, good custom, and public policy, and pursuant to Section 14, Rule VII of the Rules of Procedure of the National Labor Relations Commission (NLRC), this case is hereby orderedDISMISSEDwith prejudice, and consideredCLOSEDandTERMINATED.SO ORDERED.Petitioners never moved for a reconsideration of this Order regarding the voluntariness of their payment to Sonia, as well as the dismissal with prejudice and the concomitant termination of the case.However, petitioners argued that the finality of the case did not render the petition forcertioraribefore the CA moot and academic.On this point, we agree with petitioners.In the landmark case ofSt. Martin Funeral Home v. NLRC,[20]we ruled that judicial review of decisions of the NLRC is sought via a petition forcertiorariunder Rule 65 of the Rules of Court, and the petition should be filed before the CA, following the strict observance of the hierarchy of courts.Under Rule 65, Section 4,[21]petitioners are allowed sixty (60) days from notice of the assailed order or resolution within which to file the petition.Thus, although the petition was not filed within the 10-day period, petitioners reasonably filed their petition forcertioraribefore the CA within the 60-day reglementary period under Rule 65.Further, a petition forcertioraridoes not normally include an inquiry into the correctness of its evaluation of the evidence.Errors of judgment, as distinguished from errors of jurisdiction, are not within the province of a special civil action forcertiorari, which is merely confined to issues of jurisdiction or grave abuse of discretion.It is, thus, incumbent upon petitioners to satisfactorily establish that the NLRC acted capriciously and whimsically in order that the extraordinary writ ofcertiorariwill lie.By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, and it must be shown that the discretion was exercised arbitrarily or despotically.The CA, therefore, could grant the petition forcertiorariif it finds that the NLRC, in its assailed decision or resolution, committed grave abuse of discretion by capriciously, whimsically, or arbitrarily disregarding evidence that is material to or decisive of the controversy; and it cannot make this determination without looking into the evidence of the parties.Necessarily, the appellate court can only evaluate the materiality or significance of the evidence, which is alleged to have been capriciously, whimsically, or arbitrarily disregarded by the NLRC, in relation to all other evidence on record.[22]Notably, if the CA grants the petition and nullifies thedecision or resolution of the NLRC on the ground of grave abuse of discretion amounting to excess or lack of jurisdiction, the decision or resolution of the NLRC is, in contemplation of law, null and voidab initio; hence, the decision or resolution never became final and executory.[23]In the recent caseBago v. National Labor Relations Commission,[24]we had occasion to rule that although the CA may review the decisions or resolutions of the NLRC on jurisdictional and due process considerations, particularly when the decisions or resolutions have already been executed, this does not affect the statutory finality of the NLRC decisions or resolutions in view of Rule VIII, Section 6 of the 2002 New Rules of Procedure of the NLRC,viz.:RULE VIIIx x x xSECTION 6.EFFECT OF FILING OF PETITION FOR CERTIORARI ON EXECUTION. A petition for certiorari with the Court of Appeals or the Supreme Court shall not stay the execution of the assailed decision unless a temporary restraining order is issued by the Court of Appeals or the Supreme Court.[25]Simply put, the execution of the final and executory decision or resolution of the NLRC shall proceed despite the pendency of a petition forcertiorari, unless it is restrained by the proper court.In the present case, petitioners already paid Villamaters widow, Sonia, the amount ofP3,649,800.00, representing the total and permanent disability award plus attorneys fees, pursuant to the Writ of Execution issued by the Labor Arbiter.Thereafter, an Order was issued declaring the case as closed and terminated.However, although there was no motion for reconsideration of this last Order, Sonia was, nonetheless, estopped from claiming that the controversy had already reached its end with the issuance of the Order closing and terminating the case.This is because the Acknowledgment Receipt she signed when she received petitioners payment was without prejudice to the final outcome of the petition forcertioraripending before the CA.Second.We also agree with petitioners in their position that the CA erred in dismissing outright their petition forcertiorarion the ground of non-joinder of indispensable parties.It should be noted that petitioners impleaded only the then deceased Villamater[26]as respondent to the petition, excluding his heirs.Rule 3, Section 7 of the Rules of Court definesindispensable parties as those who areparties in interest without whom there can be no final determination of an action.[27]They are thoseparties who possess such an interest in the controversy that a final decree would necessarily affect their rights, so that the courts cannot proceed without their presence.[28]A party isindispensable if his interest in the subject matter of the suit and in the relief soughtisinextricablyintertwinedwiththeotherpartiesinterest.[29]Unquestionably, Villamaters widow stands as an indispensable party to this case.Under Rule 3, Section 11 of the Rules of Court, neither misjoinder nor non-joinder ofparties is a ground for thedismissal of an action, thus:Sec. 11.Misjoinder andnon-joinder of parties. Neither misjoinder nornon-joinder ofparties is ground fordismissal of an action.Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately.The proper remedy is to implead theindispensable party at any stage of the action.The court, eithermotu proprioor upon the motion of a party, may order the inclusion of theindispensable party or give the plaintiff an opportunity to amend his complaint in order to include indispensable parties.If the plaintiff ordered to include theindispensable party refuses to comply with the order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion. Only upon unjustified failure or refusal to obey the order to include or to amend is the action dismissed.[30]On the merits of this case, the questions to be answered are: (1) Is Villamater entitled to total and permanent disability benefits by reason of his colon cancer?(2) If yes, would he also be entitled to attorneys fees?As to Villamaters entitlement to total and permanent disability benefits, petitioners argue, in essence, that colon cancer is not among the occupational diseases listed under Section 32-A of the POEAStandard Terms and Conditions Governing the Employment of Filipino Seafarers On-Board Ocean Going Vessels (POEA Standard Contract), and that the risk of contracting the same was not increased by Villamaters working conditions during his deployment.Petitioners posit that Villamater had familial history of colon cancer; and that, although dietary considerations may be taken, his diet -- which might have been high in fat and low in fiber and could have thus increased his predisposition to develop colon cancer -- might only be attributed to him, because it was he who chose what he ate on board the vessels he was assigned to.Petitioners also cited the supposed declaration of their company-designated physicians who attended to Villamater that his disease was not work-related.We disagree.It is true that under Section 32-A of the POEA Standard Contract, only two types of cancers are listed as occupational diseases (1) Cancer of the epithelial lining of the bladder (papilloma of the bladder); and (2) cancer, epithellematous or ulceration of the skin or of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or paraffin, or compound products or residues of these substances.Section 20 of the same Contract also states that those illnesses not listed under Section 32 are disputably presumed as work-related.Section 20 should, however, be read together with Section 32-A on the conditions to be satisfied for an illness to be compensable,[31]to wit:For an occupational disease and the resulting disability or death to be compensable, all the following conditions must be established:1.The seafarers work must involve the risk described herein;2.The disease was contracted as a result of the seafarers exposure to the described risks;3.The disease was contracted within a period of exposure and under such other factors necessary to contract it;4.There was no notorious negligence on the part of the seafarer.Coloncancer, also known as colorectal cancer or large bowel cancer, includes cancerous growths in the colon, rectum and appendix. With 655,000 deaths worldwide per year, it is the fifth most common form of cancer in theUnited States of Americaand the third leading cause of cancer-related deaths in the Western World.Colorectal cancers arise from adenomatous polyps in the colon.These mushroom-shaped growths are usually benign, but some develop into cancer over time.Localized colon cancer is usually diagnosed through colonoscopy.[32]Tumors of the colon and rectum are growths arising from the inner wall of the large intestine.Benign tumors of the large intestine are called polyps.Malignant tumors of the large intestine are called cancers.Benign polyps can be easily removed during colonoscopy and are not life-threatening.If benign polyps are not removed from the large intestine, they can become malignant (cancerous) over time.Most of the cancers of the large intestine are believed to have developed as polyps.Colorectal cancer can invade and damage adjacent tissues and organs.Cancer cells can also break away and spread to other parts of the body (such as liver and lung) where new tumors form.The spread of colon cancer to distant organs is called metastasis of the colon cancer.Once metastasis has occurred in colorectal cancer, a complete cure of the cancer is unlikely.[33]Globally, colorectal cancer is the third leading cause of cancer in males and the fourth leading cause of cancer in females.The frequency of colorectal cancer varies around the world.It is common in the Western world and is rare in Asia and inAfrica.In countries where the people have adopted western diets, the incidence of colorectal cancer is increasing.[34]Factors that increase a persons risk of colorectal cancer include high fat intake, a family history of colorectal cancer and polyps, the presence of polyps in the large intestine, and chronic ulcerative colitis.[35]Diets high in fat are believed to predispose humans to colorectal cancer.In countries with high colorectal cancer rates, the fat intake by the population is much higher than in countries with low cancer rates.It is believed that the breakdown products of fat metabolism lead to the formation of cancer-causing chemicals (carcinogens).Diets high in vegetables and high-fiber foods may rid the bowel of these carcinogens and help reduce the risk of cancer.[36]A persons genetic background is an important factor in colon cancer risk.Among first-degree relatives of colon-cancer patients, the lifetime risk of developing colon cancer is 18%.Even though family history of colon cancer is an important risk factor, majority (80%) of colon cancers occur sporadically in patients with no family history of it.Approximately 20% of cancers are associated with a family history of colon cancer.And 5% of colon cancers are due to hereditary colon cancer syndromes.Hereditary colon cancer syndromes are disorders where affected family members have inherited cancer-causing genetic defects from one or both of the parents.[37]In the case of Villamater, it is manifest that the interplay of age, hereditary, and dietary factors contributed to the development of colon cancer.By the time he signed his employment contract on June 4, 2002, he was already 58 years old, having been born on October 5, 1943,[38]an age at which the incidence of colon cancer is more likely.[39]He had a familial history of colon cancer, with a brother who succumbed to death and an uncle who underwent surgery for the same illness.[40]Both the Labor Arbiter and the NLRC found his illness to be compensable for permanent and total disability, because they found that his dietary provisions while at sea increased his risk of contracting colon cancer because he had no choice of what to eat on board except those provided on the vessels and these consisted mainly of high-fat, high-cholesterol, and low-fiber foods.While findings of the Labor Arbiter, which were affirmed by the NLRC, are entitled to great weight and are binding upon the courts, nonetheless, we find it also worthy to note that even during the proceedings before the Labor Arbiter, Villamater cited that the foods provided on board the vessels were mostly meat, high in fat and high in cholesterol.On this matter, noticeably, petitioners were silent when they argued that Villamaters affliction was brought about by diet and genetics.It was only after the Labor Arbiter issued his Decision, finding colon cancer to be compensable because the risk was increased by the victuals provided on board, that petitioners started claiming that the foods available on the vessels also consisted of fresh fruits and vegetables, not to mention fish and poultry.It is also worth mentioning that while Dr. Salvador declared that Villamaters cancer appears to be not work-related, she nevertheless suggested to petitioners Disability Grade 1, which, under the POEA Standard Contract, shall be considered or shall constitute total and permanent disability.[41]During his confinement inHamburg,Germany, Villamater was diagnosed to have colon cancer and was advised to undergo chemotherapy and medical treatment, including blood transfusions.These findings were, in fact, confirmed by the findings of the company-designated physicians.The statement of Dr. Salvador that Villamaters colon cancer appears to be not work-related remained at that, without any medical explanation to support the same.However, this statement, not definitive as it is, was negated by the same doctors suggestion of Disability Grade 1.Under Section 20-B of the Philippine Overseas Employment Administration-Standard Employment Contract (POEA-SEC), it is the company-designated physician who must certify that the seafarer has suffered a permanent disability, whether total or partial, due to either injury or illness, during the term of his employment.[42]On these points, we sustain the Labor Arbiter and the NLRC in granting total and permanent disability benefits in favor of Villamater, as it was sufficiently shown that his having contracted colon cancer was, at the very least, aggravated by his working conditions,[43]taking into consideration his dietary provisions on board, his age, and his job as Chief Engineer, who was primarily in charge of the technical and mechanical operations of the vessels to ensure voyage safety.Jurisprudence provides that to establish compensability of a non-occupational disease, reasonable proof of work-connection and not direct causal relation is required.Probability, not the ultimate degree of certainty, is the test of proof in compensation proceedings.[44]The Labor Arbiter correctly awarded Villamater total and permanent disability benefits, computed on the basis of the schedule provided under the POEA Standard Contract, considering that the schedule of payment of benefits under the ITF-JSU/AMOSUP CBA refers only to permanent disability as a result of an accident or injury.[45]By reason of Villamaters entitlement to total and permanent disability benefits, he (or in this case his widow Sonia) is also entitled to the award of attorneys fees, not under Article 2208(2) of the Civil Code, [w]hen the defendants act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest, but under Article 2208(8) of the same Code, involving actions for indemnity under workmens compensation and employers liability laws.WHEREFORE,the petition isDENIEDand the assailed May 3, 2007 Decision and the July 23, 2007 Resolution of the Court of Appeals areAFFIRMED.Costs against petitioners.SO ORDERED.

[21]SEC. 4.When and where position filed. The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution.In case a motion for reconsideration or new trial is timely filed, whether such motionis required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.[24]G.R. No. 170001, April 4, 2007, 520 SCRA 644.[25]This rule has been substantially incorporated in the NLRC 2005 Revised Rules of Procedure, which became effective on January 6, 2006, thus:RULE XIx x x xSection 10.Effect of Petition for Certiorari on Execution.A petition for certiorari with the Court of Appeals or the Supreme Court shall not stay the execution of the assailed decision unless a restraining order is issued by said courts.[26]He died on January 4, 2004.

SECOND DIVISIONG.R. No. L-72714 June 29, 1989MELECIO V. EMATA,petitioner,vs.HON. INTERMEDIATE APPELLATE COURT, HON. DANIEL C. MACARAEG in his capacity as Presiding Judge of Branch LV, Regional Trial Court of Manila and SERVICEWIDE SPECIALISTS. INC.,respondents.Melecio Virgilio Emata Law Office for petitioner.Nelson A Loyola for private respondent.REGALAD0,J.:On July 18, 1985 the then Intermediate Appellate Court promulgated a decision in AC-G.R. CV No. 02939-R1affirmingin totothe decision of the Regional Trial Court of Manila, Branch LV, in Civil Case No. 1419772an action for replevin and damages.The factual antecedents culminating in and constituting the bases of both decisions had their inchoation in petitioner's purchase of a car on installment from Violago Motor Sales Corporation (Violago, for brevity) with a down payment of P 14,982.00. Petitioner likewise executed in favor of the seller a promissory note and a chattel mortgage over the car as security for the payment of the note. Said promissory note provides:For value received, I/We, jointly and severally promise to pay VIOLAGO MOTOR SALES CORPORATION or order, at its office in the (sic) San Fernando, Pampanga the principal sum of fifty seven thousand two hundred four pesos only (P 57,204.00) Philippine currency, which amount includes interest at 12% per annum based on the diminishing balance, the said principal sum, to be payable, without need of notice or demand, in installments of the amounts following and at the dates hereinafter set forth, to wit: P 1,589.00 monthly for 36 months due and payable on the 25th day of each month starting SEPTEMBER 25, 1978 thru and inclusive of AUGUST 25, 1981 ..., provided that interest at 14% per annum shall be added on each unpaid installment from maturity hereof until fully paid.3Thus, the total amount that the petitioner was supposed to pay was P 72,186.00, with P 57,204.00 as the balance after deducting the down payment. The total amount payable was P 22,246.00 more than the "list cash price" of P 49,940.00 for said vehicle.After the execution of said documents, Violago endorsed the promissory note and assigned the chattel mortgage to Filinvest Credit Corporation (hereafter, Filinvest for short) upon payment by the latter of P 34,958.00, the unpaid balance of the list cash price of the car. Three years later, Filinvest assigned to private respondent Servicewide Specialists, Inc. the remaining installment balance due on and corresponding to the period from February 25, 1981 to August 25, 1981.Alleging non-payment of five (5) consecutive installments from February 25 to June 25, 1981, private respondent initiated the case in the trial court for a writ of replevin to effect the seizure of the car or, alternatively, for the payment by petitioner of the sum of P 1,332.40, with interest thereon of fourteen percent (14%) per annum from July 10, 1981 until fully paid and, additionally, for attorney's fees and costs of suit.Herein petitioner, in answer thereto and as summarized by the courta quo, alleged that "the promissory note does not express the true intent and agreement of the parties, the same having been procured through fraud, deceit, trickery and misrepresentation, that the chattel mortgage was intended to secure the payment of P 34,958.00 which was the unpaid balance of the purchase price of the Toyota car; that he was made to sign the note and the mortgage in blank; that he has paid, and even overpaid, Filinvest by P 9,388.22; that the promissory note by inflating its value and charging more than the prescribed rates in violation of the Financing Company Act (Republic Act No. 5980) violates the Usury Law; that the note and the mortgage are null and void; and that the demand set forth in the complaint has long been extinguished."4Furthermore, petitioner claimed that Filinvest, aside from charging usurious interest as earlier stated, violated the provisions of the Truth in Lending Act (Republic Act No. 3765) for failure to provide him a copy of the disclosure statement containing entries required by said law. He consequently set up a counterclaim against Filinvest for various items of damages and attorney's fees all amounting to more than P 1,100,000.00.5On November 5, 1981, petitioner filed a "Motion to Implead Filinvest Credit Corporation" on the theory that "for all legal purposes the corporation sought to be impleaded is the real party in interest" because it retained interest over the balance of the petitioner's account in spite of its assignment to private respondent.6An opposition thereto was filed by private respondent corporation on January 18, 1982.7Subsequently, in its order of April 26, 1982, the court below held in abeyance the pre-trial hearing of the case since, "(u)pon motion of Atty. Melecio Virgilio Emata," said petitioner was given a "Period of fifteen (15) days to file the third-party complaint against the third party defendant (Filinvest)."8Petitioner , however, did not file any third-party complaint, hence the trial court set the case for pre-trial on May 3, 1983, it being understood that petitioner was no longer interested in impleading the herein private respondent as a third-party defendant therein.On May 2, 1983, petitioner filed an urgent motion to cancel the scheduled pre-trial and the trial court reset the same to June 9, 1983. Another motion for postponement of the scheduled pre-trial filed by petitioner on June 8, 1983 was denied by the lower court, which consequently issued an order declaring petitioner as in default for failure to appear at the pre-trial of June 9, 1983. Respondent corporation was then allowed to present evidenceex partedespite an opposition of petitioner.However, upon a subsequent motion of petitioner, in its order of August 17, 1983 the trial court not only lifted the default order but also allowed him to cross-examine private respondent's sole witness "as a last opportunity to adduce evidence in support of the material allegations of his answer." The same order declared that the order of April 26, 1982, hereinbefore stated, must be maintained since petitioner had opted not to comply therewith, hence his motion to implead Filinvest was in effect already resolved in said order of April 26, 1982.9At the continuation of the trial on September 1, 1983, the courta quo, in order to 587654321 simplify the proceedings, allowed both parties to submit their respective lists of payments made by petitioner to respondent corporation, with the court determining the proper application of each payment. The parties then filed their respective memoranda and submitted the case for decision.On March 6, 1984, judgment was rendered by the trial court as follows:WHEREFORE, premises considered, judgment is hereby rendered against the defendant and in favor of the plaintiff, ordering the former to deliver to the latter the Toyota Car hereinabove described, or to pay the latter the sum of P 11,332.40, plus interest thereon at the rate of 14% per annum.In either case, the defendant is also ordered to pay the plaintiff the following sums: P 2,800.00 as attorney's fees and P 424.50 as bonding fees.Should the defendant fail to satisfy, or comply with the foregoing, his bondsman or surety, Sanpiro Insurance Corporation, shall be hable therefor in accordance with the counter-bond.With costs against the defendant.10Petitioner takes exception to respondent court's affirmance of said decision, hence this petition. Petitioner raises both procedural and substantive issues. Initially, he complains that the trial court erred in requiring him to file a third- party complaint against Filinvest, instead of impleading the latter either as party plaintiff or defendant.11He insists that Filinvest is the real party in interest in the present case and it should be impleaded under Rule 3 of the Rules of Court which provides:Sec. 10.Unwilling co-plaintiff. -If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.Sec. 11. Misjoinder and non-joinder of parties. -Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.which he complements with a provision in Rule 6, to wit:Sec. 14. Bringing new parties. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants if jurisdiction over them can be obtained.Concededly, additional parties may be brought in under the above-quoted provisions of the Rules. A third-party complaint, however, is not to be eschewed or disregarded in the procedural scheme since it may, in fact, be the very vehicle for impleading a third person as a party to the case. Thus, for purposes of Section 14 of Rule 6, above quoted, the court may authorize the filing of the proper third-party complaint to implead the other parties not included in the original complaint, in keeping with the injunction that "all pleadings shall be liberally construed so as to do substantial justice."12We reject petitioner's complaint that the order of the court a quo requiring the filing of a third-party complaint is improper. A third- party complaint is "a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third- party defendant, for contribution, indemnity, subrogation or any other relief in respect of his opponent's claim."13Obviously, a third-party complaint against Filinvest, had petitioner filed the same, would be a claimin respectof the plaintiffs claim since the former arises from the same transaction on which the plaintiffs claim is based, that is, the promissory note which was eventually assigned to private respondent.14Although the petitioner did not admit in his answer that any amount is due from the corporation sought to be impleaded, that is not indicative of nor does it support his thesis of the alleged impropriety of a third-party complaint. Apparently, petitioner failed to take into consideration that the remedy is also applicable where the defendant seeks "any other relief in respect of his opponent's claim," a remedial grant of power broad enough to include the relief he seeks in the case at bar.Petitioner cannot rely on the provisions of Section 10, Rule 3 which envisages a party who should be joined as a plaintiff but who does not assent to such joinder. Obviously and necessarily, such unwilling party must be a real party in interest. In the case at bar, Filinvest's position and the evidence thereon was that it was not a real party in interest, as it was no longer entitled to the avails of the suit by reason of the anterior assignment it made in favor of private respondent. Hence, at the very least, its capacity was in issue and it would be a case of proceduralpetitio principiifor the trial court to have categorized it as an unwilling co-plaintiff, with the procedural consequences thereof, although such operative issue was still unresolved. Furthermore, the option lies with the plaintiff on whether or not to join an additional party in his complaint. The original plaintiff cannot be compelled, on the mere representations of the defendant, to implead anyone, especially if it does not appear that such joinder is proper or is necessary for the complete and expeditious adjudication of the case.Nor can the general rule in Section 11, Rule 3, on the power to order the addition or dropping of a party at any stage of action, be of solace to the petitioner. This is a power addressed to the sound discretion of the court to be exercised on such terms as are just, and by this is meant that it must be just to all the other parties.15Obviously, given the facts of this case, the trial court wisely exercised its discretion in refusing to give in to the unjustified importunings of petitioner.Petitioner should be reminded that the courts, as the arbiters of the rights of the parties, stand in a better position and are clothed with ample authority to rule on the procedural measures that are proper in cases before them. If a party believes that the order of the court is not in accordance with law, he is not without other alternative remedial avenues. If, on the other hand, the order does not suffer from any legal infirmities, the same is binding on the parties and to this they must submit with grace. We cannot but be displeased with petitioner's unseemly motivation and stance when he "adopted an attitude of inaction and completely ignored" the order of the trial court requiring the filing of a third-party complaint, especially in view of the factual finding that it was he who manifested on April 26, 1982 that he would file said third party complaint .16Apart from all these considerations, the inclusion of Filinvest would at any rate have been a useless recourse in the light of the fact that the arguments on which this petition is moored are bereft of merit .On the issue of usury, the present rule that usury at present is legally non-existent17would not apply to the instant case. The present controversy arose before the adoption on December 3, 1982 of Resolution No. 224 by the Central Bank Monetary Board on which the existing rule is based.Nevertheless, the records of this case reveal that the Usury Law, Act No. 2655, is not applicable thereto. The amount added to the cash price of the car is what is commonly known as the "time price differential" and not interest within the meaning of the Usury Law. The law is applicable only in case of a loan or forbearance of money, goods or credit which is not the case here. The transaction involved here being admittedly a conditional sale based on an installment plan and not a loan, it has been held that the alleged increase in the price of the article sold cannot be considered a mere pretext to cover a usurious loan. "The increase in price, when the sale is on credit serves not only to cover the expenses generally entailed by such transactions on credit, but also to encourage cash sales, so useful to commerce. It is up to the purchaser to decide which price he prefers in making the purchase. ... if on the contrary, he prefers to buy on credit, he cannot complain of the increase of the price demanded by the vendor. "18Neither is the Usury Law applicable to the assignment of indebtedness to Filinvest and to private respondent. The Financing Company Act provides for the rate of the purchase discount that may be availed of by a financing company. The purchase discount is defined as the "difference between the value of the receivable purchased or credit assigned, and the net amount paid by the finance company for such purchase or assignment, exclusive of fees, service charges, interest and other charges incident to the extension of the credit."19Under Section 5 of the same Act, it is provided that:In case of assignment of credit or the buying of installment papers, accounts receivable and the evidences of indebtedness by financing companies, the purchase discount, exclusive of interest and other charges, shall be limited to fourteen per cent (14%), or such percentage as may be prescribed by the Monetary Board of the value of the credit assigned or the value of the installment papers, accounts .receivable and other evidences of indebtedness purchased baged on a period of twelve months or less, and to one and one-sixth per cent (I -1/ 6%), or such percentage as may be prescribed by the Monetary Board, for each additional month or fraction thereof in excess of twelve months, regardless of the terms and conditions of the assignment or purchase.The petitioner avers that the amount of P 22,246.00, or forty-four and five-hundredths percent (44.05%), added to the list cash price is way above the purchase discount prescribed by Republic Act No. 5980, as well as Central Bank Circular No. 586 providing for nineteen percent (19%) per annum as the effective rate of yield from purchase of receivables.20We do not have to unnecessarily clutter this decision with unduly involved or extensively complex computations to demonstrate the incorrectness of petitioner's position. The finding of the trial court, that the stipulated interest in the promissory note is well within the allowable rate, is adequately supported by the evidence of record. Although, forty-four and five- hundredths percent (44.05%) was added to the list cash price of the car, the same was actually spread over a three-year period of amortization. Thus, whether it be fourteen percent (14%) plus one and one-sixth percent (1-1/6%) under Republic Act No. 5980 or nineteen percent (19%) under Circular No. 586, it is clear that the yield or purchase discount, as the case may be, is within the limits prescribed by law.No violation of the Truth in Lending Act, Republic Act No. 3765, was established either. The disclosure statement furnished to petitioner shows on its face that it contains all the data required by law and that it was signed by the seller on July 31, 1978 before the assignment of the indebtedness to private respondent. We agree with private respondent that the petitioner, a practicing lawyer for more than twenty years, would not be so gullible or negligent as to sign documents in blank knowing fully well the legal implications and consequences of such action .21Of course, petitioner does not deny that Filinvest had nothing to do with the disclosure statement since it is the private respondent which is obligated to furnish, as in fact it did furnish, petitioner a copy of said statement .22Regarding the computations of the petitioner based on the formula provided by Circular No. 158 of the Central Bank implementing the Truth in Lending Act,23petitioner should not confuse "time price differential" with the "simple annual rate" determined by the formula. "Simple annual rate" is the uniform percentage which represents the ratio, on an annual basis, between the finance charges and the amount to be financed. It is not the measure of the total amount that is allowed to be added to the cash price.IN VIEW OF THE FOREGOING, no reversible error having been committed by respondent court, its assailed decision is hereby AFFIRMEDSO ORDERED.Melencio-Herrera (Chairperson), Paras and Sarmiento, JJ., concur.Padilla, J., took no part.FIRST DIVISION[G.R. No. 142924.December 5, 2001]TEODORO B. VESAGAS, and WILFRED D. ASIS,petitioners,vs. The Honorable COURT OF APPEALS and DELFINO RANIEL and HELENDA RANIEL,respondents.D E C I S I O NPUNO,J.:Before us is the instant Petition for Review onCertiorariassailing the Decision, dated July 30, 1999, of the Court of Appeals in CA-G.R. SP No. 51189, as well as its Resolution, dated March 16, 2000, which denied petitioners Motion for Reconsideration.The respondent spouses Delfino and Helenda Raniel are members in good standing of the Luz Village Tennis Club, Inc. (club).They alleged that petitioner Teodoro B. Vesagas, who claims to be the clubs duly elected president, in conspiracy with petitioner Wilfred D. Asis, who, in turn, claims to be its duly elected vice-president and legal counsel, summarily stripped them of their lawful membership, without due process of law.Thereafter, respondent spouses filed a Complaint with the Securities and Exchange Commission (SEC) on March 26, 1997 against the petitioners.It was docketed as SEC Case No. 03-97-5598.[1]In this case, respondents asked the Commission to declare as illegal their expulsion from the club as it was allegedly done in utter disregard of the provisions of its by-laws as well as the requirements of due process.They likewise sought the annulment of the amendments to the by-laws made on December 8, 1996, changing the annual meeting of the club from the last Sunday of January to November and increasing the number of trustees from nine to fifteen.Finally, they prayed for the issuance of a Temporary Restraining Order and Writ of Preliminary Injunction.The application for TRO was denied by SEC Hearing Officer Soller in an Order dated April 29, 1997.Before the hearing officer could start proceeding with the case, however, petitioners filed a motion to dismiss on the ground that the SEC lacks jurisdiction over the subject matter of the case.The motion was denied on August 5, 1997. Their subsequent move to have the ruling reconsidered was likewise denied.Unperturbed, they filed a petition for certiorari with the SEC En Banc seeking a review of the hearing officers orders.The petition was again denied for lack of merit, and so was the motion for its reconsideration in separate orders, dated July 14, 1998 and November 17, 1998, respectively.Dissatisfied with the verdict, petitioners promptly sought relief with the Court of Appeals contesting the ruling of the Commissionen banc.The appellate court, however, dismissed the petition for lack of merit in a Decision promulgated on July 30, 1999.Then, in a resolution rendered on March 16, 2000, it similarly denied their motion for reconsideration.Hence, the present course of action where the petitioners raise the following grounds:C.1. The respondent Court of Appeals committed a reversible error when it determined that the SEC has jurisdiction in 03-97-5598.[2]C.2. The respondent Court of Appeals committed a reversible error when it merely upheld the theoretical power of the SEC Hearing Officer to issue a subpoena and to cite a person in contempt (actually a non-issue of the petition) while it shunted away the issue of whether that hearing officer may hold a person in contempt for not obeying a subpoena where his residence is beyond fifty (50) kilometers from the place of hearing and no transportation expense was tendered to him.[3]In support of their first assignment of error, petitioners contend that since its inception in the 1970s, the club in practice has not been a corporation.They add that it was only the respondent spouses, motivated by their own personal agenda to make money from the club, who surreptitiously caused its registration with the SEC.They then assert that, at any rate, the club has already ceased to be a corporate body.Therefore, no intra-corporate relations can arise as between the respondent spouses and the club or any of its members.Stretching their argument further, petitioners insist that since the club, by their reckoning is not a corporation, the SEC does not have the power or authority to inquire into the validity of the expulsion of the respondent spouses.Consequently, it is not the correct forum to review the challenged act. In conclusion, petitioners put respondent spouses to task for their failure to implead the club as a necessary or indispensable party to the case.These arguments cannot pass judicial muster.Petitioners attempt to impress upon this court that the club has never been a corporation is devoid of merit.It must fail in the face of the Commissions explicit finding that the club was duly registered and a certificate of incorporation was issued in its favor, thus:We agree with the hearing officer that the grounds raised by petitioner in their motion to dismiss are factual issues, the veracity of which can only be ascertained in a full blown hearing.Records show that the association is duly registered with the association and a certificate of incorporation was issued.Clearly, the Commission has jurisdiction over the said association.As to petitioners allegation that the registration of the club was done without the knowledge of the members, this is a circumstance which was not duly proven by the petitioner (sic) in his (sic) motion to dismiss.[4]It ought to be remembered that the question of whether the club was indeed registered and issued a certification or not is one which necessitates a factual inquiry.On this score, the finding of the Commission, as the administrative agency tasked with among others the function of registering and administering corporations, is given great weight and accorded high respect.We therefore have no reason to disturb this factual finding relating to the clubs registration and incorporation.Moreover, by their own admission contained in the various pleadings which they have filed in the different stages of this case, petitioners themselves have considered the club as a corporation.This admission, under the rules of evidence, binds them and may be taken or used against them.[5]Since the admission was made in the course of the proceedings in the same case, it does not require proof, and actually may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.[6]Noteworthy is the Minute of the First Board Meeting[7]held on January 5, 1997, which contained the following pertinent portions:11.Unanimously approved by the Board a Resolution to Dissolve the corporate structure of LVTC which is filed with the SEC.Such resolution will be formulated by Atty. Fred Asis to be ready on or before the third week of January 1997.Meanwhile, the operational structure of the LVTC will henceforth be reverted to its former status as an ordinary club/Association.[8]Similarly, petitioners Motion to Dismiss[9]alleged:1. This Commission has no jurisdiction over the Luz Village Tennis Club not only because it was not impleaded butbecause since 5 January 1997, it had already rid itself, as it had to in order to maintain respect and decency among its members, of the unfortunate experience of being a corporate body.Thus at the time of the filing of the complaint, the club had already dissolved its corporate existenceand has functioned as a mere association of respectable and respecting individual members who have associated themselves since the 1970s x x x[10]The necessary implication of all these is that petitioners recognized and acknowledged the corporate personality of the club.Otherwise, there is no cogency in spearheading the move for its dissolution.Petitioners were therefore well aware of the incorporation of the club and even agreed to get elected and serve as its responsible officers before they reconsidered dissolving its corporate form.This brings us to petitioners next point. They claim ingratia argumentithat while the club may have been considered a corporation during a brief spell, still, at the time of the institution of this case with the SEC, the club was already dissolved by virtue of a Board resolution.Again, the argument will not carry the day for the petitioner.The Corporation Code establishes the procedure and other formal requirements a corporation needs to follow in case it elects to dissolve and terminate its structure voluntarily and where no rights of creditors may possibly be prejudiced, thus:Sec. 118.Voluntary dissolution where no creditors are affected.-If dissolution of a corporation does not prejudice the rights of any creditor having a claim against it, the dissolution may be effected by majority vote of the board of directors or trustees and by a resolution duly adopted by the affirmative vote of the stockholders owning at least two-thirds (2/3) of the outstanding capital stock or at least two-thirds (2/3) of the members at a meeting to be held upon call of the directors or trustees after publication of the notice of time, place and object of the meeting for three (3) consecutive weeks in a newspaper published in the place where the principal office of said corporation is located; and if no newspaper is published in such place, then in a newspaper of general circulation in the Philippines, after sending such notice to each stockholder or member either by registered mail or by personal delivery at least 30 days prior to said meeting.A copy of the resolution authorizing the dissolution shall be certified by a majority of the board of directors or trustees and countersigned by the secretary of the corporation.The Securities and Exchange Commission shall thereupon issue the certificate of dissolution.[11]We note that to substantiate their claim of dissolution, petitioners submitted only two relevant documents:the Minutes of the First Board Meeting held on January 5, 1997, and the board resolution issued on April 14, 1997 which declared to continue to consider the club as a non-registered or a non-corporate entity and just a social association of respectable and respecting individual members who have associated themselves, since the 1970s, for the purpose of playing the sports of tennis x x x.[12]Obviously, these two documents will not suffice.The requirements mandated by the Corporation Code should have been strictly complied with by the members of the club.The records reveal that no proof was offered by the petitioners with regard to the notice and publication requirements.Similarly wanting is the proof of the board members certification.Lastly, and most important of all, the SEC Order of Dissolution was never submitted as evidence.We now resolve whether the dispute between the respondents and petitioners is a corporate matter within the exclusive competence of the SEC to decide. In order that the commission can take cognizance of a case, the controversy must pertain to any of the following relationships: a) between the corporation, partnership or association and the public; b) between the corporation, partnership or association and its stockholders, partners, members, or officers; c) between the corporation, partnership, or association and the state as far as its franchise, permit or license to operate is concerned; and d) among the stockholders, partners or associates themselves.[13]The fact that the parties involved in the controversy are all stockholders or that the parties involved are the stockholders and the corporation, does not necessarily place the dispute within the loop of jurisdiction of the SEC.[14]Jurisdiction should be determined by considering not only the status or relationship of the parties but also the nature of the question that is the subject of their controversy.[15]We rule that the present dispute is intra-corporate in character.In the first place, the parties here involved are officers and members of the club. Respondents claim to be members of good standing of the club until they were purportedly stripped of their membership in illegal fashion. Petitioners, on the other hand, are its President and Vice-President, respectively. More significantly, the present conflict relates to, and in fact arose from, this relation between the parties. The subject of the complaint, namely, the legality of the expulsion from membership of the respondents and the validity of the amendments in the clubs by-laws are, furthermore, within the Commissions jurisdiction.Well to underscore is the date when the original complaint was filed at the SEC, which was March 26, 1997.On that date, the SEC still exercised quasi-judicial functions over this type of suits.It is axiomatic that jurisdiction is conferred by the Constitution and by the laws in force at the time of the commencement of the action.[16]In particular, the Commission was thereupon empowered, under Sec. 5 of P.D. 902-A, to hear and decide cases involving intra-corporate disputes, thus:SEC. 5. In addition to the regulatory and adjudicative functions of the Securities and Exchange Commission over corporations, partnerships and other forms of association registered with it as expressly granted under existing laws and decrees,it shall have original and exclusive jurisdiction to hear and decide cases involving:x x xb) Controversies arising out of intra-corporate or partnership relations, between and among stockholders, members or associates; between any or all of them and the corporation, partnership or association of which they are the stockholders, members or associates, respectively; and between such corporation, partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity;x x x.[17]The enactment of R.A. 8799, otherwise known as the Securities Regulation Code, however, transferred the jurisdiction to resolve intra-corporate controversies to courts of general jurisdiction or the appropriate Regional Trial Courts, thus:5.2.The Commissions jurisdiction over all cases enumerated under Section 5 of Presidential Decree No. 902-A is hereby transferred to the Courts of general jurisdiction or the appropriate Regional Trial Court:Provided,that the Supreme Court in the exercise of its authority may designate the Regional trial Court branches that shall exercise jurisdiction over these cases. The Commission shall retain jurisdiction over pending cases involving intra-corporate disputes submitted for final resolution which should be resolved within one (1) year from the enactment of this Code. The Commission shall retain jurisdiction over pending suspension of payments/rehabilitation cases filed as of 30 June 2000 until finally disposed.[18]On August 22, 2000, we issued a resolution, in A.M. No. 00-8-10-SC, wherein we DIRECT(ed) the Court Administrator and the Securities and Exchange Commission to cause the actual transfer of the records of such cases and all other SEC cases affected by R.A. No. 8799 to the appropriate Regional Trial Courts x x x.[19]We also issued another resolution designating certain branches of the Regional Trial Court to try and decide cases formerly cognizable by the SEC.[20]Consequently, the case at bar should now be referred to the appropriate Regional Trial Court.Before we finally writefinisto the instant petition, however, we will dispose of the two other issues raised by the petitioners.First is the alleged failure of the respondents to implead the club as a necessary or indispensable party.Petitioners contend that the original complaint should be dismissed for not including the club as one of the respondents therein. Dismissal is not the remedy for non-joinder of parties.Under the Rules, the remedy is to implead the non-party, claimed to be necessary or indispensable, in the action, thus:SEC. 11.Misjoinder and non-joinder of parties. Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action.Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just.Any claim against a misjoined party may be severed and proceeded with separately.[21]The other issue is with regard to the alleged oppressive subpoenas and orders issued by Hearing Officer Soller, purportedly without or in excess of authority.In light of PD 902-As repeal, the need to rule on the question of the extent of the contempt powers of an SEC hearing officer relative to his authority to issue subpoenas and orders to parties involved in intra-corporate cases, or potential witnesses therein has been rendered academic.The enactment of RA 8799 mooted this issue as SEC hearing officers, now bereft of any power to resolve disputes, are likewise stripped of their power to issue subpoenas and contempt orders incidental to the exercise of their quasi-judicial powers.At any rate, it taxes our credulity why the petitioners insist in raising this issue in the case at bar.The so-called oppressive subpoenas and orders were not directed to them.They were issued to the clubs secretary, Purita Escobar, directing her to appear before the Commission and bring certain documents of the club, that were supposedly under her possession or control. It is obvious that the petitioners are not the proper parties to assail the oppressiveness of the subpoenas or the orders, and impugn their validity.Elementary is the principle that only those who expect to be adversely affected by an order can complain against it. It is their addressee, Purita Escobar, who can assail their alleged oppressiveness.Petitioners protestation has therefore no legal leg to stand on.IN VIEW WHEREOF, finding no cogent reason to disturb the assailed Decision, the petition is DENIED.In conformity with R.A. 8799, SEC Case No. 03-97-5598, entitled Delfino Raniel and Helenda Raniel v. Teodoro B. Vesagas and Wilfred D. Asis is referred to the Regional Trial Court of the Ninth Judicial Region, Branch 33[22]located in Agusan del Norte (Butuan City), one of the designated special commercial courts pursuant to A.M. No. 00-11-03-SC.SO ORDERED.[5]SEC. 26.Admissions of a party. The act, declaration or omission of a party as to relevant fact may be given in evidence against him. (Section 26, Rule 130, Rules of Court.)[6]SEC. 4.Judicial admissions. An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof.The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (Section 4, Rule 129, Rules of Court.)

FIRST DIVISIONEPIFANIO SAN JUAN, JR.,G.R. No. 167321Petitioner,Present:-versus-PANGANIBAN,C.J.,Chairperson,YNARES-SANTIAGO,AUSTRIA-MARTINEZ,JUDGE RAMON A. CRUZ,CALLEJO, SR., andREGIONAL TRIALCHICO-NAZARIO,JJ.COURT, BRANCH 224,QUEZON CITYand ATTY.Promulgated:TEODORICO A. AQUINO,Respondents.July 31, 2006x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xD E C I S I O NCALLEJO, SR.,J.:Before the Court is a Petition for Review onCertiorariof the Resolution[1]of the Court of Appeals (CA) in CA-G.R. SP No. 87458 dismissing the Petition forCertiorariwith Prayer for Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction of petitioner Epifanio San Juan, Jr., as well as its Resolution[2]denying the motion for reconsideration thereof.The AntecedentsLoreto Samia San Juan executed a Last Will and Testament naming Oscar Casa as one of the devisees therein.Upon Loretos death onOctober 25, 1988, Atty. Teodorico A. Aquino filed a petition for the probate of the will in the Regional Trial Court (RTC) ofQuezon City.The case was raffled to Branch 224 of the court and was docketed as Special Proceedings No. 98-36118.While the petition was pending, Oscar Casa died intestate onMay 24, 1999.The firm of Aquino, Galang, Lucas, Espinoza, Miranda & Associates entered their appearance as counsel of Federico Casa, Jr., who claimed to be one of the heirs of Oscar Casa and their representative.On August 14, 2002, the probate court issued an Order denying the entry of appearance of said law firm, considering that Federico Casa, Jr. was not the executor or administrator of the estate of the devisee, hence, cannot be substituted for the deceased as his representative as required by Section 16, Rule 3 of the Rules of Court.OnNovember 22, 2002, the court issued an order directing Aquino to secure the appointment of an administrator or executor of the estate of Oscar Casa in order that the appointee be substituted in lieu of the said deceased.OnFebruary 26, 2003, Aquino filed a pleading entitled Appointment of Administrator signed by Candelaria, Jesus, Arlyn, Nestor, Edna, Benhur, Federico, Rafael and Ma.Eden, all surnamed Casa, onFebruary 24, 2003, praying that one of them, Federico Casa, Jr., be designated as administrator of the estate of the deceased and that he be substituted for the deceased.NOW THEREFORE, in compliance with the ORDER of the Probate Court, cited above, we, the legal heirs of the deceased OSCAR CASA, unanimously designate and appoint FEDERICO CASA, JR., as the ADMINISTRATOR of the property to be inherited by the deceased OSCAR CASA, in the WILL of the late LORETO SAMIA SAN JUAN,considering that FEDERICO CASA, JR., is the nearest accessible heir to attend the hearing of the probate of the will and is most competent to assume the responsibilities and the duties of the ADMINISTRATOR.We authorize him to represent us the heirs of the deceased OSCAR CASA, on the hearing of the probate of the will of the testatrix and to perform such duties as might be required by the Probate Court; to take possession of the properties designated in the WILL upon distribution by the appointed ADMINISTRATOR of the Estate of LORETO SAMIA SAN JUAN. (emphasis supplied)[3]In compliance with the order of the court, Epifanio San Juan filed a Motion to Declare Appointment of Administrator As Inadequate or Insufficient.[4]He maintained that the heirs should present an administrator of the estate of Oscar Casa as the representative of the estate in the case.In his reply, Aquino stated that, under Section 16, Rule 3 of the Rules of Court, the heirs of Oscar Casa may be substituted for the deceased without need for appointment of an administrator or executor of the estate.He also claimed that the court is enjoined to require the representative to appear before the court and be substituted within the prescribed period.OnDecember 2, 2003, the RTC issued an Order denying the motion ofSan Juan.Contrary to its Order datedNovember 22, 2002, the court held that there was, after all, no need for the appointment of an administrator or executor as substitute for the deceased devisee.It is enough, the court declared, that a representative be appointed as provided in Section 16, Rule 3 of the Rules of Court.[5]San Juanreceived a copy of the December 2, 2003 Order onDecember 15, 2003and filed, onDecember 30, 2003, a motion for reconsideration thereof.Citing the ruling of this Court inLawas v. Court of Appeals,[6]he averred that, under Section 16, Rule 3 of the Rules of Court, while the court may allow the heirs of the deceased to be substituted in cases of unreasonable delay in the appointment of an executor or administrator, or where the heirs resort to an extrajudicial settlement of the estate, priority is still given to the legal representative of the deceased, that is, the executor or administrator of the estate.Moreover, in case the heirs of the deceased will be substituted, there must be a prior determination by the probate court of who the rightful heirs are.He opined that this doctrine is in line with Article 1058 of the New Civil Code, and the provisions of Section 6, Rule 78 and Section 2, Rule 79 of the Rules of Court.In this case, however, the alleged heirs of Oscar Casa did not file any petition for the appointment of an administrator of his estate; hence, Federico Casa, Jr. is not qualified to be appointed as substitute for the deceased devisee.San Juanpointed out that the December 2, 2003 Order of the probate court contravened itsAugust 14, 2002andNovember 22, 2002Orders.[7]The motion for reconsideration was denied on February 27, 2004 where the probate court declared that it had carefully evaluated the arguments raised by the parties and found no compelling ground or cogent reason to set aside its December 2, 2003 Order.[8]Petitioner received a copy of the Order onMarch 18, 2004.On May 7, 2004, San Juan filed a Motion to Admit his second motion for reconsideration dated May 6, 2004, appending thereto the December 2, 2003 Order of the RTC.[9]He citedTorres, Jr. v. Court of Appeals,[10]where it was held that the purpose behind the rule on substitution of parties is the protection of the right of every party to due process, to ensure that the deceased party would continue to be properly represented in the suit through the duly appointed legal representative of his estate.The need for substitution of heirs is based on the right to due process accruing to every party in any proceeding, and the exercise of judicial power to hear and determine a cause presupposes that the trial court acquires jurisdiction over the persons of the parties.San Juanemphasized that it is only in the absence of an executor or administrator that the heirs may be allowed by the court to substitute thedeceased party.He averred that the purported heirs simply agreed among themselves to appoint a representative to be substituted for the deceased, which is contrary to the requirement of a prior hearing for the court to ascertain who the rightful heirs are.The Orders of the Court datedDecember 2, 2003andFebruary 27, 2004may be used by purported heirs in order to inherit properties from estates of deceased parties, which will then allow the rules of procedure to be used as an instrument for fraud and undermining due process.[11]San Juanreiterated the rulings of this Court inDela Cruz v. Court of Appeals[12]andLawas v. Court of Appeals,[13]that court proceedings conducted or continued without a valid substitution of a deceased party cannot be accorded validity and binding effect.He prayed that the February 27, 2004 Order be reconsidered and a new order be issued as follows:(a)declaring the Appointment of Administrator datedFebruary 14, 2003insufficient or inadequate compliance with the rules of procedure on substitution of a deceased party;(b)directing petitioner to secure from the appropriate court the appointment of an administrator of the estate of the deceased Oscar Casa; and(c)directing that further proceedings in the case be deferreduntil after the substitution of the deceased Oscar Casa by the court-appointed administrator or executor of his estate.Oppositor prays for other and further reliefs which may be just and equitable.[14]OnJune 11, 2004, the probate court issued an order denying the second motion for reconsideration ofSan Juan.It noted that the motion merely reiterated the same arguments in his first motion for reconsideration which had already been passed upon.Citing the rulings inMontaano v. Suesa[15]andRiera v. Palmanori,[16]it concluded that there was no need for theappointment of an administrator of the estate of the deceased Oscar Casa at that stage of the proceedings since a legatee is not considered either as an indispensable or necessary party in the probate of a will.[17]WhenSan Juanreceived a copy of theJune 11, 2004Order of the trial court, he filed, onJuly 23, 2004, a motion for reconsideration thereof.He took exception to the probate courts reliance in theMontaanoandRieracases, as claiming that said rulings were not relevant to the issue of the validity of the appointment of Federico Casa Jr., by the alleged heirs of Oscar Casa, as administrator and substitute for the deceased devisee.He insisted that the cases dealt only with the question of whether or not the probate court can rule on the validity of the provisions of the will; they do not involve the same issue presented by the oppositor, namely, whether or not a substitution of a legatee under the will who died during the probate proceedings may be done by simply submitting an Appointment of Administrator, or whether or not there is a need for a deceased legatee to be substituted by his/her duly appointed legal representative or administrator of his estate.San Juan further posited that the estate court, sitting as a probate court, does not only decide on the questions of identity and testamentary capacity of the testator and the due execution of the will; it is likewise charged with the settlement of the estate of the testator after the will has been approved.Thus, the probate court must not only determine the validity of the will, but also the rightful heirs, legatees and devisees for the purpose of settling the estate of the testator.[18]Aquino opposed the motion, contending that it was, in fact, a third motion for reconsideration, a prohibited pleading under Section 3, Rule 37 of the 1997 Rules of Civil Procedure.[19]

OnSeptember 8, 2004, the probate court issued an Order sustaining Aquinos argument and denied the motion for reconsideration ofSan Juan.[20]San Juan, now petitioner, filed a petition forcertiorariwith the CA onNovember 22, 2004for the nullification of the orders issued by the probate court on the following grounds:A.THE RESPONDENT REGIONAL TRIAL COURT OF QUEZON CITY GRAVELY ABUSED ITS DISCRETION WHICH AMOUNTS TO LACK, OR IN EXCESS, OF JURISDICTION IN RULING THAT THE APPOINTMENT OF ADMINISTRATOR DATED FEBRUARY 14, 2003 MADE BY PRIVATE RESPONDENT IS IN ACCORDANCE WITH THE RULES ON CIVIL PROCEDURE ON PROPER SUBSTITUTION OF PARTIES.B.THE RESPONDENT REGIONAL TRIAL COURT OF QUEZON CITY GRAVELY ABUSED ITS DISCRETION WHICH AMOUNTS TO LACK, OR IN EXCESS, OF JURISDICTION IN DENYING DUE COURSE TO PETITIONERS MOTION FOR RECONSIDERATION ON THE GROUND THAT SAID MOTION IS A THIRD MOTION FOR RECONSIDERATION WHICH IS A PROHIBITED PLEADING UNDER SEC. 5, RULE 37 OF THE RULES OF COURT.[21]OnDecember 1, 2004, the CA dismissed the petition on the ground that it was filed beyond the 60-day period counted from notice to petitioner of the trial courtsFebruary 27, 2004Order.The appellate court declared that theMay 6, 2004motion for reconsideration of petitioner was apro formamotion because it was a second motion for reconsideration which sought the same relief as the first motion, hence, did not toll the running of the 60-day period.[22]The appellate court cited the ruling of this Court inUniversity of Immaculate Concepcion v. Secretary of Labor and Employment.[23]Petitioner filed a motion for reconsideration of the resolution of the CA, contending that the orders sought to be reconsidered by him were interlocutory, hence, cannot be consideredpro formaor forbidden by the Rules of Court.He cited the rulings of this Court inDizon v. Court of Appeals,[24]Philgreen Trading Construction Corporation v. Court of Appeals,[25]and the cases cited in the latter decision.[26]However, onFebruary 24, 2005, the CA resolved to deny the motion of petitioner.[27]Petitioner now seeks relief from this Court, via a petition for review oncertiorari, for the reversal of the resolutions of the appellate court.He raises the following issues:(A)WHETHER OR NOT THE SIXTY-DAY PERIOD FOR FILING A PETITION FORCERTIORARIUNDER RULE 65 OF THE RULES OF COURT IS RECKONED FROM NOTICE OF DENIAL OF THE FIRST MOTION FOR RECONSIDERATION OF AN INTERLOCUTORY ORDER EVEN THOUGH A SECOND AND THIRD MOTION FOR RECONSIDERATION (WHICH ARE NOT PROHIBITED MOTIONS) OF THE SAME INTERLOCUTORY ORDER HAD BEEN FILED AND WERE LATER DENIED.(B)WHETHER OR NOT A PERSON NOMINATED AS ADMINISTRATOR BY PURPORTED HEIRS OF A DEVISEE OR LEGATEE IN A WILL UNDER PROBATE MAY VALIDLY SUBSTITUTE FOR THAT DEVISEE OR LEGATEE IN THE PROBATE PROCEEDINGS DESPITE THE FACT THAT SUCH ADMINISTRATOR IS NOT THE COURT-APPOINTED ADMINISTRATOR OF THE ESTATE OF THE DECEASED DEVISEE OR LEGATEE.[28]On the first issue, petitioner avers that the reckoning of the 60-day period for filing a petition forcertiorariunder Rule 65 of the Rules of Court from the notice of denial of the first motion for reconsideration is applicable only if the subject of the petition is a judgment, final resolution, or order.It does not apply if the subject of the petition is merely an interlocutory order.He points out that the reason for this is that only one motion for reconsideration of a judgment or final order is allowed under Section 5, Rule 37 of the Rules of Court.A second motion for reconsideration of ajudgment or final order is a prohibited pleading; hence, the period for filing a petition forcertiorarimay not be reckoned from notice of denial of such second and prohibited motion for reconsideration.Petitioner asserts that a second (or even a third) motion for reconsideration of an interlocutory order is not prohibited; hence, the 60-day period for filing a petition forcertiorarimay be reckoned from notice of denial of subsequent motions for reconsideration.Petitioner further claims that the Orders datedDecember 2, 2003,February 27, 2004,June 11, 2004andSeptember 8, 2004issued by the RTC are only interlocutory orders.They deal solely with the issue concerning the proper substitution of the deceased Oscar Casa who is one of the devisees and legatees named in the purported will of the testatrix, Loreto San Juan, which is the subject matter of the probate proceedings pending with the respondent court.Said orders did not terminate or finally dispose of the case but left something to be done by the respondent court before the case is finally decided on the merits.The assailed orders do not go into the merits of the probate case, particularly on the due execution and validity of the will.It pertains only to the proper substitution of the parties.Thus, the orders are not final orders from which no second or third motion for reconsideration may be filed.[29]It cannot also be said that the second motion for reconsideration did not toll the running of the reglementary period for filing a petition forcertiorari, considering that there is no prohibition in the filing of a second motion for reconsideration of an interlocutory order.Furthermore, there is no intention on the part of petitioner to delay proceedings before the lower court when he filed the third motion for reconsideration, as he only sought to correct the probate courts patently erroneous application of the law.Petitioner emphasizes that he filed the petition forcertiorariwith the CA in view of the grave abuse of discretion which amounted to lack of or excess of jurisdiction committed by respondent trial court when it wrongfully assumed in its Order denying thethird motion for reconsideration that the order sought to be reconsidered is a final order on the merits of the case and that the motion for recon