G.R. No. 170479. February 18, 2008.

ANDRE T. ALMOCERA, petitioner, vs. JOHNNY ONG,

respondent.

Sales; Contracts to Sell; Words and Phrases; A contract to sell

is akin to a conditional sale where the efficacy or obligatory force
of the vendor’s obligation to transfer title is subordinated to the
happening of a future and uncertain event, so that if the
suspensive condition does not take place, the parties would stand
as if the conditional obligation had never existed.—It cannot be
disputed that the contract entered into by the parties was a
contract to sell. The contract was denominated as such and it
contained the provision that the unit shall be conveyed by way of
an Absolute Deed of Sale, together with the attendant documents
of Ownership—the Transfer Certificate of Title and Certificate of
Occupancy—and that the balance of the contract price shall be
paid upon the completion and delivery of the unit, as well as the
acceptance thereof by respondent. All these clearly indicate that
ownership of the townhouse has not passed to respondent. In
Serrano v. Caguiat, 517 SCRA 57 (2007) we explained: A contract
to sell is akin to a conditional sale where the efficacy or
obligatory force of the vendor’s obligation to transfer title is
subordinated to the happening of a future and uncertain event,
so that if the suspensive condition does not take place, the parties
would stand as if the conditional obligation had never existed.
The suspensive condition is commonly full payment of the
purchase price.
Same; Same; Reciprocal Obligations; Where one of the parties
to a contract did not perform the undertaking to which he was
bound by the terms of the agreement to perform, he is not entitled
to insist upon the performance of the other party.—The contract
subject of this case contains reciprocal obligations which were to
be fulfilled by the parties, i.e., to complete and deliver the
townhouse within six months from the execution of the contract
to sell on the part of petitioner and FBMC, and to pay the
balance of the contract price upon completion and delivery of the
townhouse on the part of the respondent. In the case at bar, the
obligation of petitioner and FBMC which is to complete and
deliver the townhouse unit within the prescribed

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* THIRD DIVISION.

165

period, is determinative of the respondent’s obligation to pay the

balance of the contract price. With their failure to fulfill their
obligation as stipulated in the contract, they incurred delay and
are liable for damages. They cannot insist that respondent
comply with his obligation. Where one of the parties to a contract
did not perform the undertaking to which he was bound by the
terms of the agreement to perform, he is not entitled to insist
upon the performance of the other party.
Same; Same; Same; Delay; Demand would be useless where
there would be impossibility of the other party complying with its
obligation due to its fault.—Demand is not necessary in the
instant case. Demand by the respondent would be useless
because the impossibility of complying with their (petitioner and
FBMC) obligation was due to their fault. If only they paid their
loans with the LBP, the mortgage on the subject townhouse
would not have been foreclosed and thereafter sold to a third
person.
Same; Same; Same; Same; For failure of one party to assume
and perform the obligation imposed on him, the other party does
not incur delay.—The obligation of respondent to pay the balance
of the contract price was conditioned on petitioner and FBMC’s
performance of their obligation. Considering that the latter did
not comply with their obligation to complete and deliver the
townhouse unit within the period agreed upon, respondent could
not have incurred delay. For failure of one party to assume and
perform the obligation imposed on him, the other party does not
incur delay.
Doctrine of Unjust Enrichment; Elements; The fundamental
doctrine of unjust enrichment is the transfer of value without just
cause or consideration.—Under the circumstances obtaining in
this case, we find that respondent is justified in refusing to pay
the balance of the contract price. He was never in possession of
the townhouse unit and he can no longer be its owner since
ownership thereof has been transferred to a third person who
was not a party to the proceedings below. It would simply be the
height of inequity if we are to require respondent to pay the
balance of the contract price. To allow this would result in the
unjust enrichment of petitioner and FBMC. The fundamental
doctrine of unjust enrichment is the transfer of value without just
cause or consideration. The elements of this doctrine which are
present in this case are: enrichment on the part

166

of the defendant; impoverishment on the part of the plaintiff; and

lack of cause. The main objective is to prevent one to enrich
himself at the expense of another. It is commonly accepted that
this doctrine simply means a person shall not be allowed to profit
or enrich himself inequitably at another’s expense. Hence, to
allow petitioner and FBMC keep the down payment made by
respondent amounting to P1,060,000.00 would result in their
unjust enrichment at the expense of the respondent. Thus, said
amount should be returned.
Pleadings and Practice; Due Process; Points of law, theories,
issues and arguments not brought to the attention of the trial
court will not be and ought not to be considered by a reviewing
court, as these cannot be raised for the first time on appeal—it
would be unfair to the adverse party who would have no
opportunity to present further evidence material to the new theory
not ventilated before the trial court.—This issue of piercing the
veil of corporate fiction was never raised before the trial court.
The same was raised for the first time before the Court of
Appeals which ruled that it was too late in the day to raise the
same. The Court of Appeals declared: In the case below, the
pleadings and the evidence of the defendants are one and the
same and never had it made to appear that Almocera is a person
distinct and separate from the other defendant. In fine, we
cannot treat this error for the first time on appeal. We cannot in
good conscience, let the defendant Almocera raise the issue of
piercing the veil of corporate fiction just because of the adverse
decision against him. x x x. To allow petitioner to pursue such a
defense would undermine basic considerations of due process.
Points of law, theories, issues and arguments not brought to the
attention of the trial court will not be and ought not to be
considered by a reviewing court, as these cannot be raised for the
first time on appeal. It would be unfair to the adverse party who
would have no opportunity to present further evidence material
to the new theory not ventilated before the trial court.

PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
   Nilo G. Ahat for petitioner.
   Florido & Largo Law Offices for respondent.

167

CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari under
Rule 45 of the 1997 Rules of Civil Procedure which seeks to
set aside the Decision1 of the Court of Appeals dated 18
July 2005 in CA-G.R. CV No. 75610 affirming in toto the
Decision2 of Branch 11 of the Regional Trial Court (RTC)
of Cebu City in Civil Case No. CEB-23687 and its
Resolution3 dated 16 November 2005 denying petitioner’s
motion for reconsideration. The RTC decision found
petitioner Andre T. Almocera, Chairman and Chief
Executive Officer of First Builder Multi-Purpose
Cooperative (FBMC), solidarily liable with FMBC for
damages.
Stripped of non-essentials, the respective versions of the
parties have been summarized by the Court of Appeals as
follows:

“Plaintiff Johnny Ong tried to acquire from the defendants a

“townhome” described as Unit No. 4 of Atrium Townhomes in
Cebu City. As reflected in a Contract to Sell, the selling price of
the unit was P3,400,000.00 pesos, for a lot area of eighty-eight
(88) square meters with a three-storey building. Out of the
purchase price, plaintiff was able to pay the amount of
P1,060,000.00. Prior to the full payment of this amount, plaintiff
claims that defendants Andre Almocera and First Builders
fraudulently concealed the fact that before and at the time of the
perfection of the aforesaid contract to sell, the property was
already mortgaged to and encumbered with the Land Bank of the
Philippines (LBP). In addition, the construction of the house has
long been delayed and remains unfinished. On March 13, 1999,
Lot 4-a covered by TCT No. 148818, covering the unit was
advertised in a local tabloid for public auction for foreclosure of
mortgage. It is the assertion of the plaintiff that had it not for

_______________

1 Associate Justice Pampio A. Abarintos with Associate Justices Mercedes

Gozo-Dadole and Ramon M. Bato, Jr., concurring; Rollo, pp. 25-32.
2 Penned by Hon. Isaias P. Dicdican.
3 Id., at pp. 33-34. 

168

the fraudulent concealment of the mortgage and encumbrance by

defendants, he would have not entered into the contract to sell.
On the other hand, defendants assert that on March 20, 1995,
First Builders Multi-Purpose Coop., Inc., borrowed money in the
amount of P500,000.00 from Tommy Ong, plaintiff’s brother. This
amount was used to finance the documentation requirements of
the LBP for the funding of the Atrium Town Homes. This loan
will be applied in payment of one (1) town house unit which
Tommy Ong may eventually purchase from the project. When the
project was under way, Tommy Ong wanted to buy another
townhouse for his brother, Johnny Ong, plaintiff herein, which
then, the amount of P150,000.00 was given as additional partial
payment. However, the particular unit was not yet identified. It
was only on January 10, 1997 that Tommy Ong identified Unit
No. 4 plaintiff’s chosen unit and again tendered P350,000.00 as
his third partial payment. When the contract to sell for Unit 4
was being drafted, Tommy Ong requested that another contract
to sell covering Unit 5 be made so as to give Johnny Ong another
option to choose whichever unit he might decide to have. When
the construction was already in full blast, defendants were
informed by Tommy Ong that their final choice was Unit 5. It
was only upon knowing that the defendants will be selling Unit 4
to some other persons for P4million that plaintiff changed his
choice from Unit 5 to Unit 4.”4 

In trying to recover the amount he paid as down

payment for the townhouse unit, respondent Johnny Ong
filed a complaint for Damages before the RTC of Cebu
City, docketed as Civil Case No. CEB-23687, against
defendants Andre T. Almocera and FBMC alleging that
defendants were guilty of fraudulent concealment and
breach of contract when they sold to him a townhouse unit
without divulging that the same, at the time of the
perfection of their contract, was already mortgaged with
the Land Bank of the Philippines (LBP), with the latter
causing the foreclosure of the mortgage and the eventual
sale of the townhouse unit to a third person.
In their Answer, defendants denied liability claiming
that the foreclosure of the mortgage on the townhouse unit
was

_______________

4 Rollo, pp. 26-27.

169

caused by the failure of complainant Johnny Ong to pay

the balance of the price of said townhouse unit.
After the pre-trial conference was terminated, trial on
the merits ensued. Respondent and his brother, Thomas Y.
Ong, took the witness stand. For defendants, petitioner
testified.
In a Decision dated 20 May 2002, the RTC disposed of
the case in this manner:

“WHEREFORE, in view of all the foregoing premises,

judgment is hereby rendered in this case in favor of the plaintiff
and against the defendants:
(a) Ordering the defendants to solidarily pay to the plaintiff
the sum of P1,060,000.00, together with a legal interest thereon
at 6% per annum from April 21, 1999 until its full payment
before finality of the judgment. Thereafter, if the amount
adjudged remains unpaid, the interest rate shall be 12% per
annum computed from the time when the judgment becomes
final and executory until fully satisfied;
(b) Ordering the defendants to solidarily pay to the plaintiff
the sum of P100,000.00 as moral damages, the sum of P50,000.00
as attorney’s fee and the sum of P15,619.80 as expenses of
litigation; and
(c) Ordering the defendants to pay the cost of this suit.”5

The trial court ruled against defendants for not acting

in good faith and for not complying with their obligations
under their contract with respondent. In the Contract to
Sell6 involving Unit 4 of the Atrium Townhomes,
defendants agreed to sell said townhouse to respondent for
P3,400,000.00. The down payment was P1,000,000.00,
while the balance of P2,400,000.00 was to be paid in full
upon completion, delivery and acceptance of the
townhouse. Under the contract which was signed on 10
January 1997, defendants agreed to com

_______________

5 Id., at p. 47.
6 Exhibit “A.”

170

plete and convey to respondent the unit within six months

from the signing thereof.
The trial court found that respondent was able to make
a down payment or partial payment of P1,060,000.00 and
that the defendants failed to complete the construction of,
as well as deliver to respondent, the townhouse within six
months from the signing of the contract. Moreover,
respondent was not informed by the defendants at the time
of the perfection of their contract that the subject
townhouse was already mortgaged to LBP. The mortgage
was foreclosed by the LBP and the townhouse was
eventually sold at public auction. It said that defendants
were guilty of fraud in their dealing with respondent
because the mortgage was not disclosed to respondent
when the contract was perfected. There was also non-
compliance with their obligations under the contract when
they failed to complete and deliver the townhouse unit at
the agreed time. On the part of respondent, the trial court
declared he was justified in suspending further payments
to the defendants and was entitled to the return of the
down payment.
Aggrieved, defendants appealed the decision to the
Court of Appeals assigning the following as errors:

1. THE LOWER COURT ERRED IN HOLDING THAT

PLAINTIFF HAS A VALID CAUSE OF ACTION FOR
DAMAGES AGAINST DEFENDANT(S).
2. THE LOWER COURT ERRED IN HOLDING THAT
DEFENDANT ANDRE T. ALMOCERA IS SOLIDARILY
LIABLE WITH THE COOPERATIVE FOR THE DAMAGES TO
THE PLAINTIFF.7 

The Court of Appeals ruled that the defendants

incurred delay when they failed to deliver the townhouse
unit to the respondent within six months from the signing
of the contract to sell. It agreed with the finding of the trial
court that the

_______________

7 Rollo, pp. 15-16.

171

nonpayment of the balance of P2.4M by respondent to

defendants was proper in light of such delay and the fact
that the property subject of the case was foreclosed and
auctioned. It added that the trial court did not err in
giving credence to respondent’s assertion that had he
known beforehand that the unit was used as collateral
with the LBP, he would not have proceeded in buying the
townhouse. Like the trial court, the Court of Appeals gave
no weight to defendants’ argument that had respondent
paid the balance of the purchase price of the townhouse,
the mortgage could have been released. It explained:

“We cannot find fault with the choice of plaintiff not to further
dole out money for a property that in all events, would never be
his. Moreover, defendants could, if they were really desirous of
satisfying their obligation, demanded that plaintiff pay the
outstanding balance based on their contract. This they had not
done. We can fairly surmise that defendants could not comply
with their obligation themselves, because as testified to by Mr.
Almocera, they already signified to LBP that they cannot pay
their outstanding loan obligations resulting to the foreclosure of
the townhouse.”8

Moreover, as to the issue of petitioner’s solidary

liability, it said that this issue was belatedly raised and
cannot be treated for the first time on appeal.
On 18 July 2005, the Court of Appeals denied the
appeal and affirmed in toto the decision of the trial court.
The dispositive portion of the decision reads:

“IN LIGHT OF ALL THE FOREGOING, this appeal is

DENIED. The assailed decision of the Regional Trial Court,
Branch 11, Cebu City in Civil Case No. CEB-23687 is
AFFIRMED in toto.”9 

In a Resolution dated 16 November 2005, the Court of

Appeals denied defendants’ motion for reconsideration.

_______________

8 Id., at p. 30.
9 Id., at p. 32.

172

Petitioner is now before us pleading his case via a Petition

for Review on Certiorari under Rule 45 of the 1997 Rules
of Civil Procedure. The petition raises the following issues:

“I. THE HONORABLE COURT OF APPEALS GRAVELY

ERRED IN HOLDING THAT DEFENDANT HAS INCURRED
DELAY.
II. THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN SUSTAINING RESPONDENT’S REFUSAL TO PAY
THE BALANCE OF THE PURCHASE PRICE.
III. THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN HOLDING THAT DEFENDANT ANDRE T.
ALMOCERA IS SOLIDARILY LIABLE WITH THE
DEFENDANT COOPERATIVE FOR DAMAGES TO
PLAINTIFF.10 

It cannot be disputed that the contract entered into by

the parties was a contract to sell. The contract was
denominated as such and it contained the provision that
the unit shall be conveyed by way of an Absolute Deed of
Sale, together with the attendant documents of Ownership
—the Transfer Certificate of Title and Certificate of
Occupancy—and that the balance of the contract price
shall be paid upon the completion and delivery of the unit,
as well as the acceptance thereof by respondent. All these
clearly indicate that ownership of the townhouse has not
passed to respondent.
In Serrano v. Caguiat,11 we explained:

“A contract to sell is akin to a conditional sale where the

efficacy or obligatory force of the vendor’s obligation to transfer
title is subordinated to the happening of a future and uncertain
event, so that if the suspensive condition does not take place, the
parties would stand as if the conditional obligation had never
existed. The suspensive condition is commonly full payment of
the purchase price.

_______________

10 Id., at p. 16.
11 G.R. No. 139173, 28 February 2007, 517 SCRA 57, 64-65. 

173

The differences between a contract to sell and a contract of

sale are well-settled in jurisprudence. As early as 1951, in Sing
Yee v. Santos [47 O.G. 6372 (1951)], we held that:
“x x x [a] distinction must be made between a contract of sale in
which title passes to the buyer upon delivery of the thing sold
and a contract to sell x x x where by agreement the ownership
is reserved in the seller and is not to pass until the full
payment of the purchase price is made. In the first case, non-
payment of the price is a negative resolutory condition; in the
second case, full payment is a positive suspensive condition.
Being contraries, their effect in law cannot be identical. In the
first case, the vendor has lost and cannot recover the
 ownership of the land sold until and unless the contract of sale
is itself resolved and set aside. In the second case, however,
the title remains in the vendor if the vendee does not comply
with the condition precedent of making payment at the time
specified in the contract.”
In other words, in a contract to sell, ownership is retained by
the seller and is not to pass to the buyer until full payment of the
price.

The Contract to Sell entered into by the parties contains

the following pertinent provisions:

“4. TERMS OF PAYMENT:

4a. ONE MILLION PESOS (P1,000,000.00) is hereby
acknowledged as Downpayment for the above-mentioned
Contract Price.
4b. The Balance, in the amount of TWO MILLION FOUR
HUNDRED PESOS (P2,400,000.00) shall be paid thru financing
Institution facilitated by the SELLER, preferably Landbank of
the Philippines (LBP).
Upon completion, delivery and acceptance of the BUYER of
the Townhouse Unit, the BUYER shall have paid the Contract
Price in full to the SELLER.
xxxx
6. COMPLETION DATES OF THE TOWNHOUSE UNIT:
The unit shall be completed and conveyed by way of an Absolute
Deed of Sale together with the attendant documents of Owner-

174

ship in the name of the BUYER—the Transfer Certificate of Title

and Certificate of Occupancy within a period of six (6) months
from the signing of Contract to Sell.”12

From the foregoing provisions, it is clear that petitioner

and FBMC had the obligation to complete the townhouse
unit within six months from the signing of the contract.
Upon compliance therewith, the obligation of respondent
to pay the balance of P2,400,000.00 arises. Upon payment
thereof, the townhouse shall be delivered and conveyed to
respondent upon the execution of the Absolute Deed of
Sale and other relevant documents.
 The evidence adduced shows that petitioner and FBMC
failed to fulfill their obligation—to complete and deliver
the townhouse within the six-month period. With
petitioner and FBMC’s non-fulfillment of their obligation,
respondent refused to pay the balance of the contract price.
Respondent does not ask that ownership of the townhouse
be transferred to him, but merely asks that the amount or
down payment he had made be returned to him.
Article 1169 of the Civil Code reads:

“Art. 1169. Those obliged to deliver or to do something incur

in delay from the time the obligee judicially or extrajudicially
demands from them the fulfillment of their obligation.
However, the demand by the creditor shall not be necessary in
order that delay may exist:
(1) When the obligation or the law expressly so declares; or
(2) When from the nature and the circumstances of the
obligation it appears that the designation of the time when the
thing is to be delivered or the service is to be rendered was a
controlling motive for the establishment of the contract; or
(3) When demand would be useless, as when the obligor has
rendered it beyond his power to perform.

_______________

12 Rollo, pp. 28-29.

175

In reciprocal obligations, neither party incurs in delay if the

other does not comply or is not ready to comply in a proper
manner with what is incumbent upon him. From the moment one
of the parties fulfills his obligation, delay by the other begins.”

The contract subject of this case contains reciprocal

obligations which were to be fulfilled by the parties, i.e., to
complete and deliver the townhouse within six months
from the execution of the contract to sell on the part of
petitioner and FBMC, and to pay the balance of the
contract price upon completion and delivery of the
townhouse on the part of the respondent.
In the case at bar, the obligation of petitioner and
FBMC which is to complete and deliver the townhouse
unit within the prescribed period, is determinative of the
respondent’s obligation to pay the balance of the contract
price. With their failure to fulfill their obligation as
stipulated in the contract, they incurred delay and are
liable for damages.13 They cannot insist that respondent
comply with his obligation. Where one of the parties to a
contract did not perform the undertaking to which he was
bound by the terms of the agreement to perform, he is not
entitled to insist upon the performance of the other
party.14
On the first assigned error, petitioner insists there was
no delay when the townhouse unit was not completed
within six months from the signing of the contract
inasmuch as the mere lapse of the stipulated six (6) month
period is not by itself enough to constitute delay on his
part and that of FBMC, since the law requires that there
must either be judicial or extrajudicial demand to fulfill an
obligation so that the obligor may be declared in default.
He argues there was no evidence introduced showing that
a prior demand was made by

_______________

13 Leaño v. Court of Appeals, 420 Phil. 836, 848; 369 SCRA 36, 45-46
(2001).
14  Agustin v. Court of Appeals, G.R. No. 84751, 6 June 1990, 186
SCRA 375, 383. 

176

respondent before the original action was instituted in the

trial court.
We do not agree.
Demand is not necessary in the instant case. Demand
by the respondent would be useless because the
impossibility of complying with their (petitioner and
FBMC) obligation was due to their fault. If only they paid
their loans with the LBP, the mortgage on the subject
townhouse would not have been foreclosed and thereafter
sold to a third person.
Anent the second assigned error, petitioner argues that
if there was any delay, the same was incurred by
respondent because he refused to pay the balance of the
contract price.
We find his argument specious.
As above-discussed, the obligation of respondent to pay
the balance of the contract price was conditioned on
petitioner and FBMC’s performance of their obligation.
Considering that the latter did not comply with their
obligation to complete and deliver the townhouse unit
within the period agreed upon, respondent could not have
incurred delay. For failure of one party to assume and
perform the obligation imposed on him, the other party
does not incur delay.15
Under the circumstances obtaining in this case, we find
that respondent is justified in refusing to pay the balance
of the contract price. He was never in possession of the
townhouse unit and he can no longer be its owner since
ownership thereof has been transferred to a third person
who was not a party to the proceedings below. It would
simply be the height of inequity if we are to require
respondent to pay the balance of the contract price. To
allow this would result in the unjust enrichment of
petitioner and FBMC. The fundamental doctrine of unjust
enrichment is the transfer of value without just cause or
consideration. The elements of this doctrine

_______________

15 Agustin v. Court of Appeals, id., citing Abaya v. Standard-Vacuum

Oil Co., 101 Phil. 1262 (1957).

177

which are present in this case are: enrichment on the part

of the defendant; impoverishment on the part of the
plaintiff; and lack of cause. The main objective is to
prevent one to enrich himself at the expense of another. It
is commonly accepted that this doctrine simply means a
person shall not be allowed to profit or enrich himself
inequitably at another’s expense.16 Hence, to allow
petitioner and FBMC keep the down payment made by
respondent amounting to P1,060,000.00 would result in
their unjust enrichment at the expense of the respondent.
Thus, said amount should be returned.
What is worse is the fact that petitioner and FBMC
intentionally failed to inform respondent that the subject
townhouse which he was going to purchase was already
mortgaged to LBP at the time of the perfection of their
contract. This deliberate withholding by petitioner and
FBMC of the mortgage constitutes fraud and bad faith.
The trial court had this say:

“In the light of the foregoing environmental circumstances and

milieu, therefore, it appears that the defendants are guilty of
fraud in dealing with the plaintiff. They performed voluntary and
willful acts which prevent the normal realization of the
prestation, knowing the effects which naturally and necessarily
arise from such acts. Their acts import a dishonest purpose or
some moral obliquity and conscious doing of a wrong. The said
acts certainly give rise to liability for damages (8 Manresa 72;
Borrell-Macia 26-27; 3 Camus 34; O’Leary v. Macondray &
Company, 454 Phil. 812; Heredia v. Salinas, 10 Phil. 157). Article
1170 of the New Civil Code of the Philippines provides expressly
that “those who in the performance of their obligations are guilty
of fraud and those who in any manner contravene the tenor
thereof are liable for damages”17

_______________

16 P.C. Javier & Sons, Inc. v. Court of Appeals, G.R. No. 129552, 29
June 2005, 462 SCRA 36, 47.
17 Rollo, p. 44. 

178

On the last assigned error, petitioner contends that he

should not be held solidarily liable with defendant FBMC,
because the latter is a separate and distinct entity which is
the seller of the subject townhouse. He claims that he, as
Chairman and Chief Executive Officer of FBMC, cannot be
held liable because his representing FBMC in its dealings
is a corporate act for which only FBMC should be held
liable.
 This issue of piercing the veil of corporate fiction was
never raised before the trial court. The same was raised for
the first time before the Court of Appeals which ruled that
it was too late in the day to raise the same. The Court of
Appeals declared:

“In the case below, the pleadings and the evidence of the
defendants are one and the same and never had it made to
appear that Almocera is a person distinct and separate from the
other defendant. In fine, we cannot treat this error for the first
time on appeal. We cannot in good conscience, let the defendant
Almocera raise the issue of piercing the veil of corporate fiction
just because of the adverse decision against him. x x x.”18

To allow petitioner to pursue such a defense would

undermine basic considerations of due process. Points of
law, theories, issues and arguments not brought to the
attention of the trial court will not be and ought not to be
considered by a reviewing court, as these cannot be raised
for the first time on appeal. It would be unfair to the
adverse party who would have no opportunity to present
further evidence material to the new theory not ventilated
before the trial court.19
As to the award of damages granted by the trial court,
and affirmed by the Court of Appeals, we find the same to
be proper and reasonable under the circumstances.

_______________

18 Id., at p. 31.
19 Valdez v. China Banking Corporation, G.R. No. 155009, 12 April
2005, 455 SCRA 687, 696. 

179

WHEREFORE, the petition is DENIED. The Decision of

the Court of Appeals dated 18 July 2005 in CA-G.R. CV
No. 75610 is AFFIRMED. Costs against the petitioner.
SO ORDERED.

Ynares-Santiago (Chairperson), Austria-Martinez,

Nachura and Reyes, JJ., concur.
 Petition denied, judgment affirmed.

Notes.—The recovery of attorney’s fees on the basis of

quantum meruit is permitted where there is no express
agreement for the payment of attorney’s fees, and it is
basically a legal mechanism which prevents an
unscrupulous client from running away with the fruits of
the legal services of counsel without paying for it while
avoiding unjust enrichment on the part of the lawyer
himself. (Pineda vs. De Jesus, 499 SCRA 608 [2006])
It doesn’t take a genius to realize that a newly-formed
direct-selling business by making petitioner company’s
supervisor an important part of its distribution arm, would
be saving time, effort and money as it will no longer have
to recruit, train and motivate supervisors and dealers—
said supervisor, who learned the tricks of the trade from
the petitioner corporation will do it for them, an act which
is tantamount to unjust enrichment. (Avon Cosmetics,
Incorporated vs. Luna, 511 SCRA 376 [2006])
——o0o——

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