Opposition Brief — El Vocero De Puerto Rico v. Orsini

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FILED

No. 92-1394

WAY 17 1993

In the OFFICE OF THE CLERK

Supreme Court of the United States

OcToBER TERM, 1992

EL VOCERO DE PUERTO RICO

CARIBBEAN INTERNATIONAL NEWS CORP.

TOMAS DE JESUS MANGUAL,

PETITIONERS,

CARMEN LUCILA DOMINGUEZ ORSINI

AND OTHERS,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF PUERTO RICO

RESPONDENTS’ BRIEF IN OPPOSITION

Jorce E. PEREz

P.O. Box 191746

San Juan, PR 00919-1746

(809) 793-4998

Counsel for Respondents

May 17, 1993

Blanchard Press, Inc., Boston, Mass — Law Printers 617) 426-6690

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QUESTION PRESENTED

1. Whether the Resolutions of the Supreme Court of the

Commonwealth of Puerto Rico presented for review in the

present Petition for Writ of Certiorari are a final judgment

for purposes of 28 U.S.C. sec. 1258 thus providing jurisdiction

to the Supreme Court of the United States.

TABLE OF CONTENTS

Question Presented

Table of Authorities

1. Jurisdiction

Il. Staternent of the Case

Ht. Reason Why The Petition Should Be Denied

This Court Lacks Jurisdiction To Review The Reso

lntions OF The Supreme Court Of The Comrnon

wealth Of Puerto Rico Presented For Review In The

Petition For Writ Of Certiorari

IV. Conclusion

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10

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TABLE OF AUTHORITIES

Cases

FEDERAL CASES Page

Asarco Inc. v. Kadish. 490 U.S. 605 (1989) . 7

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)

RE Eat o. 7,

Duquesne Light Co. v. Barasch, 488 U.S. 299 (1989) 7

First English Eval. Luth. Church v. Los Angeles County,

182 U.S. 304 (1987) . 7

Flynt v. Ohio, 451 U.S. 619 (1981) | se

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) 7

Goodyear Atomic Corporation v. Miller, 486 U.S. 174

(1988) 7

Hathorn v. Lovorn, 457 U.S. 255, 262 (1982) 9)

Hughes Tool Co. v. T.W.A., 409 U.S. 363 (1973) g

Market Street R. Co. v. Railroad Commission, 324 U.S.

948 (1945) 1

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) iis

Posadas de Puerto Rico v. Tourism Company, 478 U.S

328 (1986) }, 9

Radio Station WOW Ine. v. Johnson. 326 U.S. 120

(1945) 1

Southland Corp. v. Keating, 465 U.S. 1 (1984) 7

PUERTO RICO CASES

Sociedad Legal de Gananciales v. Pauneto Rivera, 92 JTS

78, p. 9593 (Supreme Court of Puerto Rico, June 17,

1992) Dette oe ee Re pee or a

Sucesion Andrades v. Sosa, 45 P.R.R. 710 (1933) sy)

TABLE OF AUTHORITIES

Statutes

FEDERAL STATUTES

28 U.S.C. sec. 1257

28 U.S.C. sec. 1258. . a Be

PUERTO RICO STATUTES

P.R. Laws Ann.. T. 4, § 37(a)(b) (1980)

Articles 14(a) and (f) of the Judicial Act of Puerto Rico,

P.R. Laws Ann., T. 4, § 37 (a)(f) (1980)

P.R. Laws Ann., T. 4, § 37(f) (1980)

Rule 21 of the Regulations of the Supreme Court of

Puerto Rico, P.R. Laws Ann., T. 4, Ap. I-A

Rule 10.3 of the Puerto Rico Rules of Civil Procedure,

P.R. Laws Ann., T. 32, Rule 10.3

Art. 9, Act 21 of July 13, 1992

Other Authorities

R.L. Stern, E. Gressman & S.M. Shapiro, Supreme

Court Practice, 120-122 (6th Ed. 1986)

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In the

Supreme Court of the United States

OcToOBER TERM, 1992

No. 92-1394

EL VOCERO DE PUERTO RICO

CARIBBEAN INTERNATIONAL NEWS CORP.

TOMAS DE JESUS MANGUAL,

PETITIONERS,

v.

CARMEN LUCILA DOMINGUEZ ORSINI

AND OTHERS,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF PUERTO RICO

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents, Carmen Lucila Dominguez Orsini, Enrique

Martinez Dominguez, Elsa Maria Maldonado Rodriguez, Raul

Martinez Dominguez, Oraida Munoz Santiago, Carlos Luis

Martinez Dominguez, Carmen Lucila Dominguez Vazquez,

Carmen Martinez Bayo, Luz Maria Martinez Bayo, Ana Sele-

nia Dominguez Orsini, Irene Dominguez Orsini, Lourdes del

Carmen Martinez Negron, Jackeline Martinez Negron, Ileana

Martinez Maldonado, Lymari Martinez Maldonado, Irelys Mar-

tinez Munoz, and Oraidalys Martinez Munoz, respectfully re-

quest that this Court deny the petition for writ or certiorari

seeking review of two resolutions of the Supreme Court of the

Commonwealth of Puerto Rico, dated respectively November

13, 1992 and December 18, 1992. Certified translations of both

resolutions are reproduced in petitioners’ appendix at pages

16 and 17.

I. Jurisdiction

Petitioners invoke jurisdiction pursuant to 28 U.S.C. sec.

1258 which provides for the review by this Court of final judg-

ments or decrees of the Supreme Court of Puerto Rico. As

argued in detail below, however, this Court lacks jurisdiction

in this case since there is no final judgment or decree of the

Supreme Court of Puerto Rico.

II. Statement Of The Case

On May 2, 1990, respondents in this case filed a tort suit

against petitioners, El Vocero de Puerto Rico and Tomas de

Jesus Mangual, as well as against WUNO, a local radio station.

They alleged in essence that the defendants had published

false and injurious information about a deceased relative and

that as a result of said action they had suffered serious

damages. On January 18, 1991, defendants El Vocero de

Puerto Rico and Tomas de Jesus Mangual — petitioners in this

case — filed a motion to dismiss pursuant to Rule 10.3 of the

Puerto Rico Rules of Civil Procedure. P.R. Laws Ann., T. 32.

Through resolution of March 19, 1992, the trial Court, the

Superior Court of Puerto Rico, Ponce Part, denied the

motion. '

Thereafter, on April 2, 1992, petitioners sought review

before the Supreme Court of Puerto Rico of the resolution of

the Superior Court denying their motion to dismiss. They did

so by filing an appeal and a petition for writ of certiorari pur-

suant to Articles 14(a) and (f) of the Judicial Act of Puerto

Rico, P.R. Laws Ann., T. 4, § 37 (a)(f) (1980).

On November 13, 1992, the Supreme Court of Puerto Rico

denied the appea! since only certain final judgments of

Superior Court are appealable to the Supreme Court of Puerto

'A translation of the Superior Court resolution is included in the

Appendix to the Petition for Writ of Certiorari, pages 1-15.

Rico and, of course, petitioners were seeking review of an

interlocutory matter. See App. to Pet. at 16. As to the petition

for writ of certiorari, the Supreme Court denied it “at this

stage of the proceedings”. Id.? Petitioners requested recon-

sideration of the November 13, 1992 resolution and through

resolution of December 18, 1992, the Supreme Court denied

it’. In this case petitioners seek review by the Supreme Court

of the United States of both the November 13, 1992 and the

December 18, 1992 resolutions of the Supreme Court of Puerto

Rico.

Ili. Reason Why The Petition Should Be Denied

THis Court LAcks Jurtspiction To Review THe Resolutions

Or THe SupreEME Court Or THe COMMONWEALTH OF Puerto

Rico PresENtED For Review IN THe Peririon For Wrir Or

CERTIORARI.

The Jurisdiction in this case is sought invoking 28 U.S.C.

sec. 1258, which provides for the review by this Court through

writ of certiorari of “final judgments and decrees rendered by

the Supreme Court of Puerto Rico.” See 28 U.S.C. sec. 1258.4

> At the time, interlocutory decisions of the Superior Court were review-

able by the Supreme Court of Puerto Rico “through certiorari to be issued

at its discretion and not otherwise’. See, P.R. Laws Ann., T. 4, § 37(f)

(1980). The Judicial Act was later amended to add an intermediate Appeals

Court. This new Court of Appeals now reviews through certiorari interlocu-

tory decisions of the Superior Court. These decisions are in turn reviewable

by the Supreme Court of Puerte Rico also by certiorari. See Act No. 2]

of July 13, 1992.

* A certified translation of this resolution is included in the Appendix to

the Petition for Writ of Certiorari, at page 17.

* 28 U.S.C. sec. 1257, which provides jurisdiction to review “final judg

ments or decrees rendered by the highest court of a State in which a decision

could be had” is identical to 28 U.S.C. sec. 1258 which provides the same

authority in cases decided by the Supreme Court of the Commonwealth of

Puerto Rico. Therefore, decision of this Court regarding 24 U.S.C. see. 1257

control contr. ersies which, as in this case, arise from 28 U.S.C. sec. 1258.

See. e.g.. Posadas de Puerto Rico v. Tourism Co.. 478 U.S. 328, 338 (1986)

4

It is not even arguable that the resolutions in question in this

case are not final judgments of the Supreme Court of Puerto

Rico. Therefore, it is likewise not even arguable that this

Court lacks jurisdiction in this case.

The general rule is that the final judgment requirement

“precludes reviewability where anything further remains to

be determined by a State court, no matter how dissociated

from the only federal issue that has finally been adjudicated

by the highest court of the State”. Radio Station WOW Inc.

v. Johnson, 326 U.S. 120, 124 (1945); See also, Pennsylvania

v. Ritchie, 480 U.S. 39, 47 (1987); Flynt v. Ohio, 451 U.S.

619, 620 (1981).

In essence, to meet the final judgment requirement, the

decision to be reviewed by the Supreme Court of the United

States must be “the final word of a final court”. Market Street

R. Co. v. Railroad Commission, 324 U.S. 548, 551 (1945);

See also, R.L. Stern, E. Gressman & S.M. Shapiro, Supreme

Court Practice, 120-122 (6th Ed. 1986).

In this case, further substantive proceedings in the courts

of the Commonwealth of Puerto Rico must be had before a

decision on the case can be said to be the final word of the

Supreme Court of Puerto Rico.

As stated before, petitioners seek review by this Court of

two resolutions issued by the Supreme Court of Puerto Rico.

The first resolution, dated November 13, 1992, is a denial by

the Puerto Rico Supreme Court to review through certiorari,

at that time of the proceedings, a decision of the Superior

Court of Puerto Rico denying a motion to dismiss the com-

plaint filed by petitioners pursuant to Rule 10.3 of Puerto Rico

Rules of Civil Procedure. This request was, of course, for a

review of an interlocutory decision of the Superior Court,

which at the time could be reviewed by the Supreme Court

of Puerto Rico “through certiorari to be issued at its discre-

tion”. P.R. Laws Ann., T. 4, § 37(f)5. The second resolution

* See note 2, supra.

5)

presented to this Court in this case is merely a denial to recon-

sider the first resolution.

These denials by the Supreme Court of Puerto Rico are not

a decision on the merits of the case; rather, these denials mean

nothing more than the fact that the Supreme Court of Puerto

Rico has exercised its discretion of not reviewing an interlocu-

tory matter at that stage of the proceedings. Sociedad Legal

de Gananciales v. Pauneto Rivera 92 JTS 78, pp. 9593, 9596

(Supreme Court of Puerto Rico, June 17, 1992)°. Hence,

several substantive proceedings were, and continue to be,

pending or available at the courts of the Commonwealth of

Puerto Rico. The Superior Court has yet to issue a final judg-

ment in the case. Moreover, once this occurs, the losing party

can either file a writ of review or an appeal before the

Supreme Court of Puerto Rico seeking review of the Superior

Court judgment. P.R. Laws Ann., T. 4, § 37(a)(b)’. On this

new occasion the petitioner can once more present his federal

question to the Supreme Court of Puerto Rico, as well as any

other issue properly before the Court. Sociedad Legal de

Gananciales v. Pauneto Rivera, 92 JTS 78 at 9596 (see

Appendix at 17-18). Only after this occurs, that is, until the

matter is again presented to the Supreme Court of Puerto Rico

after a final judgment of the trial court and the Supreme

Court decides the case, is the finality requirement of 28

U.S.C. sec. 1258 satisfied, for only that would be the “final

word of the final Court”. See, Posadas de Puerto Rico v.

Tourism Company, 478 U.S. 328, 338 (1986).

Despite the discussion above, petitioners contend, without

much argument, that “the judgment issued by the court below

* A certified translation of this case is included in the Appendix.

” Although Puerto Rico's Judicial Code was recently amended to add a

new intermediate court, see n. 2, supra, the provision giving this new Court

jurisdiction to review final judgments of the Superior Court has yet to take

effect. See, Art. 9, Act 21 of July 13, 1992. Hence, final judgments of the

Superior Court continue to be reviewed by the Supreme Court of Puerto

Rico through appeals or writ of review. P.R. Laws Ann. T. 4., § 37(a)(b)

(1980).

ie ,

6

is a ‘final judgment’ reviewable by this Court”. Pet. at 2. For

this proposition, petitioners cite Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469 (1975).

In Cox, this Court recognized that there are four categories

of cases in which a judgment is considered final within 28

U.S.C. sec. 1257 even though further state court proceedings

are anticipated. /d at 477-486. Without much discussion, peti-

tioners state that this case falls within categories one, two and

four of Cox. Pet. at 2, n.2. Reliance on Cox in this case,

however is completely inappropriate. This Court made clear

in Cox that the narrow exceptions recognized in the case apply

only when the highest State Court has finally decided the fed-

eral issue present in the case. Thus, in referring to all of these

exceptions, this Court states:

[T]he Court has recurringly encountered situations in

which the highest Court of a State has finally determined

the federal issue present in a particular case, but in which

there are further proceedings in the lower state courts to

come.

Id. at 477 (emphasis added). Furthermore, in discussing each

of the four categories, this Court reiterates the need for a final

determination of the federal issue by the highest court of the

State before the final judgment requirement of section 28

U.S.C. sec. 1257 is met:

In the first category are those cases in which there are

further proceedings — even entire trials — yet to occur

in the state court but where for one reason or another

the federal issue is conclusive ...

Id. at 479 (emphasis added)

Second, there are cases ... in which the federal issue,

finally decided by the highest court in the State, will

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survive and require decision regardless of the outcome of

further state court proceedings.

Id. at 480 (emphasis added)

In the third category are those situations where the fed-

eral claim has been finally decided, with further

proceedings on the merits in the State courts to come

Id. at 481 (emphasis added)

Lastly, there are those situations where the federal issue

has been finally decided in the State Courts with further

proceedings pending |...

Id. at 482 (emphasis added).

Indeed, in later cases discussing or applying the four

categories recognized in Cox, this Court has continued to

emphasize the absolute need for a consideration on the merits

and a final decision of the federal issue present in the case,

by the highest court of the state. See e.g. Asarco Inc. v.

Kadish, 490 U.S. 605, 611-612 (1989); Fort Wayne Books,

Inc. v. Indiana, 489 U.S. 46, 54-57 (1989); Duquesne Light

Co. v. Barasch, 488 U.S. 299, 306-307 (1989); Goodyear

Atomic Corporation v. Miller, 486 U.S. 174, 178-180 (1988);

First English Evan. Luth. Church v. Los Angeles County, 482

U.S. 304, 309, n.3 (1987); Pennsylvania v. Ritchie, 480 U.S.

39, 46 (1987); Southland Corp. v. Keating, 465 U.S. 1, 6-7

(1984); Flynt v. Ohio, 451 U.S. 619, 620-623 (1981).

This absolute requirement of final determination of the fed-

eral issue is, of course, not present in this case. As stated

earlier, the resolutions brought for review to this Court in this

case are nothing more than a denial by the Supreme Court

of Puerto Rico to review through certiorari, at that particular

8

moment, an interlocutory decision of the trial court not to

dismiss the case.

In their petition, petitioners make a wrong statement

regarding the meaning or the consequences of this denial by

the Supreme Court of Puerto Rico. They state:

As a result, the Supreme Court of Puerto Rico has

implicitly recognized the respondents a cause of action

for both libel and invasion of privacy. It has sanctioned

the view that the First Amendment requirement that a

publication be “of and concerning the plaintiff", as an

element of a cause of action for libel or invasion of

privacy, is not applicable to a plaintiff who is a “private”

individual, even if the news items pertain to a matter of

legitimate public interest.

Pet. at 6-7.

This statement is clearly incorrect. On June 17, 1992, less

than a vear before the petition in this case was filed, the

Supreme Court of Puerto Rico reiterated a well established

doctrine on the meaning or consequence of a denial of a writ

of certiorari to review an interlocutory matter. In Sociedad

Legal de Gananciales v. Pauneto Rivera, 92 JTS 78, p. 9593,

the Supreme Court of Puerto Rico stated:

It is a well-known fact that this Court's refusal to issue

a writ of certiorari does not mean that the Court has

assumed a position with regard to the merits of the cause

before its consideration. In other words, a ruling by this

Court denying a petition for certiorari does not implicitly

resolve any matter against the petitioner for purposes of

res judicata. The denial is simply representative of the

discretionary power of this Court to refuse to review, at

a given moment, a ruling issued by a court of first

instance. See Rule 21 of the Supreme Court (4 L.P.R.A.

9

App. I-A). See also: Heirs of Andrades v. Sosa, 45 P.R.R.

710 (1933): and Hughes Tool Co. v. T.W.A., 409 US 363

(1973).

Id. at 9596 (emphasis added) (see App. at 17-18)*. It is thus

clear that, contrary to petitioners’ contention, the denial of

the petition for certiorari by the Supreme Court of Puerto Rico

does not imply that Court's position regarding the merits of

their federal defense nor does it “implicity” resolve anything

regarding the merits of the case.° The Supreme Court of

Puerto Rico simply exerc*sed its discretion of not reviewing

this interlocutory matter at that stage of the proceedings.'"

Hence, there is no doubt that the Supreme Court of Puerto

Rico has not finally decided the federal question that peti-

tioners present to this Court in this petition.

In sum, it is absolutely beyond dispute that this Court lacks

jurisdiction in this case. 28 U.S.C. sec. 1258 limits review by

this Court to “final judgment or decrees of the Supreme Court

of Puerto Rico”. The resolutions presented for review to this

Court in this petition do not constitute a final judgment or

decree of the Supreme Court of Puerto Rico for, as shown

above, there are several substantive proceedings still pending

* The procedural history of Sociedad Legal de Gananciales v. Pauneto

Rivera is similar to that in this case. There. as here. defendants had filed

a motion to dismiss that had been denied by the trial court. Defendants

in Sociedad Legal de Gananciales sought review through certiorari of this

denial before the Supreme Court of Puerto Rico. The Supreme Court. as

here, denied the certiorari. The case eventually returned to the Supreme

Court of Puerto Rico and one of the controversies presented was the conse-

quence or meaning of the original denial.

’ This Court holds a similar view regarding the meaning of a denial of

a petition for certiorari. See e.g.. Hathorn vy. Lovorn, 457 U.S. 255. 262.

n.1l (1982); Hughes Tool Co. vy. T.W.A.. Inc.. 409 U.S. 363. 366. n.1

(1973) (It is “well settled that a denial of certiorari imparts no implica-

tion or inference concerning the court's view of the merits’).

'’ Indeed, the fact that, in denying the certiorari, the Supreme Court of

Puerto Rico added the phrase “in this stage of the proceedings”. see. App

to Pet., at 16, although unnecessary to reach this conclusion, certainly sup-

ports it.

10

or available in the courts of the Commonwealth of Puerto

Rico. Moreover, the narrow exceptions to the finality require-

ment recognized in Cox Broadcasting Corp. v. Cohn, 420 U.S.

169 (1975) are inapplicable here pecause the federal issue

»resented in this petition has not been finally decided by the

Supreme Court of Puerto Rico.

IV. Conclusion

For the reasons presented in this brief, the petition for a

writ of certiorari should be denied.

Respectfully submitted,

Jorce EF. Perez

P.O. Box 191746

San Juan, PR 00919-1746

(SO9) 793-4998

Counsel for Respondents

May 17, 1993.

1]

APPENDIX A

ESTADO LIBRE ASOCIADO DE PUERTO RICO

TRIBUNAL SUPREMO

SECRETARIA

NEGOCIADO DE TRADUCCIONES

APARTADO 2392

SAN JUAN, Puerto Rico 00902-2392

CERTIFICATE OF TRANSLATION

This is to certify that the attached translation of the Opinion

rendered by this Court on June 17, 1992, Case No. RE-88-181,

Conjugal Partnership constituted by Nunez Borges and

Huergo Menendez v. Pauneto Rivera and his wife. ete. -

anna eeenneneenennnnneee------ 22. -- "saence--------------- made by the

Bureau of Translations of the Supreme Court of Puerto Rico.

is an accurate rendition into the English language of the

original Spanish.

s/Olga A. Lasa Delgado

Olga A. Lasa Delgado, Director

Bureau of Translations

Supreme Court of Puerto Rico

CHIEF CLERK’S CERTIFICATE

I, Francisco R. Agrait-Llado, Chief Clerk of the Supreme

Court of Puerto Rico, DO HEREBY CERTIFY:

That the annexed document is a photocopy of the official

translation of the Opinion rendered by this Court on June 17,

1992, Case No. RE-88-181, Conjugal Partnership constituted

by Nunez Borges and Huergo Menendez v. Pauneto Rivera

RN NI, UE Rannnnnseresccicnennssuacasemsnesnnmsaneacocsnece

made by the Bureau of Translations of this Court under the

12

authority of Act No. 87 of May 31, 1972, the original of which

in Spanish is under my custody in this Office.

IN WITNESS WHEREOF, at the request of the interested

party, and upon collection of the appropriate fees, I issue

these presents under my hand and seal of this Court in San

Juan, Puerto Rico, this L0th day of May, 1993.

s/Francisco R. Agrait-Llado

Francisco R. Agrait-Llado

Chief Clerk

Supreme Court of Puerto Rico

lseal]

[stamp]

13

(TRANSLATION)

IN THe SupreME Court Or Puerto Rico

No. RE-88-181

Conjugal Partnership constituted by

Ivan Nunez Borges and Margarita Huergo Menendez,

and each one individually,

Plaintiffs and appellees

Edwin Pauneto Rivera, his wife Laura Cosme de Pauneto,

and the Conjugal Partnership constituted by both,

Defendants, counterclaimants, and appellants.

REVIEW

JUSTICE REBOLLO LOPEZ delivered the opinicn of the

Court. San Juan, Puerto Rico, June 17, 1992.

The facts relevant to the correct adjudication of this peti-

tion, as they come forth, first and foremost, from the decision

of this Court in Pauneto v. Nunez, 115 D.P.R. 591 (1984),

are the following:

By contract dated July 30, 1974, Edwin Pauneto Rivera and

his wife leased some business premises belonging to them and

‘ located in Levittown, Toa Baja, Puerto Rico, to Ivan Nunez

Borges who was married to Margarita Huergo. While the lease

was still in force, Nunez Borges made certaii alterations that

14

damaged the building structure and, on the expiration of the

contract, left the premises without paying some rents.

Pauneto Rivera and his wife sued Nunez Borges in the Dis-

trict Court of Puerto Rico, Toa Alta Part, seeking overdue and

uncollected rents and compensation for the damage sustained

as a result of the alterations to the structure. Neither Nunez

Borges’s wife nor the conjugal partnership cinstituted by them

was joined as defendant.

The court rendered judgment against Nunez Borges and

ordered him to pay Pauneto Rivera and his wife $15,000 in

property damages, $400 in overdue rents, $4,308 in

uncollected rents, plus the costs, and $500 in attorney's fees.

The judgment became final and unappealable.

Two years later. Pauneto Rivera and his wife moved the Dis

trict Court under Civil Procedure Rule 51.7 to summons Mar-

garita Huergo — Nunez Borges’s wife — and the conjugal part-

nership constituted by them, to show cause why they should

not be bound by the judgment in the same manner as if they

had been originally sued. The District Court denied the peti-

tion and Pauneto Rivera sought review in the Superior Court,

Bayamon Part. The Superior Court reversed the judgment and

ruled that Rule 51.7 was applicable to the case at bar.

Nunez Borges sought review before this Court. We agreed

to review and issued a show cause order. While Nunez

Borges’s petition for review was pending before the Court,

Pauneto Rivera entered in the Registry of the Property an

[order for the] attachment of a real property belonging to

Nunez Borges and his wife, that is, to the conjugal partnership

constituted by them.

When we reversed the ruling of the Superior Court in an

Opinion issued at the time, we held that two requirements

must be met when invoking Rule 51.7: “(1) previous joint lia-

bility arising from a contractual ‘obligation’; and (2) that the

persons against whom the Rule is invoked could have been

sued and summoned when the action was filed.” Pauneto v.

Nunez, supra, at 596. With regard to the specific facts under

15

our consideration at the time, this Court concluded that

Pauneto Rivera could not resort to the Rule 51.7 mechanism

because “the joint liability bond as contemplated by said Rule

[did] not exist a priori.” Id. at 597.

At that point, Nunez Borges and his wife Margarita Huergo

filed two actions in the Superior Court, Bayamon Part,

against Pauneto Rivera and his wife. The first action sought

to squash the attachment, which they believed was illegal,

and the second action sought redress for the alleged damage

sustained as a result of the unlawful attachment. Both actions

were consolidated. Codefendants Pauneto Rivera and his wife

filed a counterclaim against the spouses Nunez-Huergo for the

“subsidiary collection” of the judgment issued in the first

action involving the parties. Nunez Borges and his wife Mar-

garita Huergo moved the court for the dismissal of the coun-

terclaim. The trial court denied the motion. Nunez Borges and

his wife then filed a petition for certiorari with this Court.

We denied the same.

The spouses Nunez-Huergo then filed in the trial court a

second motion to dismiss the counterclaim. This time, the

court below granted the petition, and ruled that Pauneto’s

“counterclaim ... only lies against Mr. Ivan Nunez Borges

and not against the Conjugal Partnership constituted by him

and his wife Margarita Huergo, .. inasmuch as the judgment

rendered by the District Court, Toa Alta Part, ... was only

directed against Mr. Ivan Nunez Borges. [Pauneto] had to

exhaust the property of Mr. Nunez Borges in the previous

action, which was not done, in order to properly include the

Conjugal Partnership constituted by Nunez Borges and his

wife, the defendants in the counterclaim in the above-

captioned case.” Exh. | of the Petition for Review.

Feeling aggrieved, Pauneto Rivera sought review of said

judgment before this Court. He assigns three errors to the trial

court:

—————

16

Error No. 1: Refusing sub-silentio the “law of the case”

argument raised with regard to the right of exhaustion

in this action.

Error No. 2: Ruling that exhaustion of the property of

coplaintiff Ivan Nunez Borges had to be made in the

previous action, where he was ordered to compensate the

Appellants.

Error No. 3: Failing to act on our alternative petition

to join the appellees as third-party defendants. Petition

for Review, at 3-4.

We issued the writ of review and decide as follows:

In the first place, we must determine whether the trial

court’s denial of the first motion to dismiss filed by Nunez

Borges and his wife Margarita Huergo and our denial of the

petition for certiorari filed by them, barred the trial court

from subsequently granting the spouses Nunez-Huergo’s

second motion to dismiss. In other words, if the first denial

became “law of the case” governing the issue raised here and

precluding further review by the trial court.

In common law, “[i]n the absence of statute the phrase, law

of the case, as applied to the effect of previous orders on the

later action of the court rendering them in the same case,

merely expresses the practice of courts generally to refuse to

reopen what has been decided.”” Messenger v. Anderson, 225

U.S. 436, 444 (1912). More than an unchanging, inflexible

rule of law, the doctrine incorporates a desirable practice: the

controversies of a cause heard, litigated and decided by a

court, should ordinarily be deemed final. Thus, the parties

to an action may, as far as possible, have reliable guidance

17

on how to conduct their affairs. Dictograph Products Com-

pany v. Sonotone Corporation, 230 F.2d 131, 135 (1956).

It is well known that “[i]n Puerto Rico, there does not exist

a valid ground for the application of the law of the case .. .

in the Anglo-American manner. ... This matter is governed

here, of course by the Civil Code.” Torres Cruz v. Municipio

de San Juan, 103 D.P.R. 217, 222 (1975). The practice

approved by this Court, however, does not depart from the

rules adopted by any advanced legal system. “{I}n order to

watch for the orderly and speedy prosecution of the litiga-

tions, as well as for the stability and certainty of the law, a

trial court should not resist itself to alter its pronouncements

within the same case except when it is convinced that the same

are erroneous. This is a matter of sound practice ... and not

an inviolable rule.” id. It is precisely because this principle

does not constitute a steadfast rule or a bar to the power of

the courts that in Torres Cruz we allowed a second judge to

reverse the erred decision of a first judge of equal rank within

the same case.

In view of the above, and despite the fact that we believe

that courts of first instance must do an all-out effort to prevent

contradictory and inconsistent rulings, in principle, there is

no absolute legal bar precluding the court below in this case

from reconsidering, so to speak, its original interlocutory deci-

sion or from granting the second motion to dismiss filed with

said court by the spouses Nunez-Huergo.

On the other hand, the fact that this Court had denied the

spouses Nunez-Huergo’s petition for certiorari seeking review

of the original denial of the court below does not affect the

correctness of the subsequent action of said court granting the

second motion to dismiss. It is a well-known fact that this

Court's refusal to issue a writ of certiorari does not mean that

the Court has assumed a position with regard to the merits

of the cause before its consideration. In other words, a ruling

by this Court denying a petition for certiorari does not

implicitly resolve any matter against the petitioner for pur-

18

poses of res judicata. The denial is simply representative of

the discretionary power of this Court to refuse to review, at

a moment, a ruling issued by a court of first instance. See Rule

21 of the Supreme Court (4 L.P.R.A. App. I-A). See also:

Heirs of Andrades v. Sosa, 45 P.R.R. 710 (1933), and Hughes

Tool Co. v. Trans World Airlines, 409 U.S. 363 (1973).

il

Consequently, we must decide whether the dismissal of the

trial court — granting the second motion to dismiss — was

proper at law.

The first ground adduced by the trial court to dismiss the

counterclaim filed by Pauneto Rivera and his wife was that

their “counterclaim ... only lies against Mr. Ivan Nunez

Borges and not against the Conjugal Partnership constituted

by him and his wife Margarita Huergo, ... inasmuch as the

judgment rendered by the District Court, Toa Alta Part, ...

was only directed against Mr. Ivan Nunez Borges.” Exh. 1 of

the Petition for Review. This reasoning, however, does not

take into consideration the fact that Pauneto’s counterclaim

actually seeks to make the conjugal partnership constituted by

Nunez and Huergo secondarily liable for the acts committed

by one of its members — Ivan Nunez — under Civil Code

sec. 1310, which provides that:

Section 3663. Debts contracted before marriage; fines

The payment of debts contracted by the husband or by

the wife, before marriage, shall not be borne by the part-

nership.

Neither shall it bear the payment of fines or of pecuniary

condemnations which may be imposed on either of them.

19

However, the payment of debts contracted by the husband

or by the wife, prior to the marriage, and that of fines and

condemnations imposed on either of them, may be claimed

against the partnership property, after covering the expenses,

mentioned in section 3661 of this title, if the debtor spouse

should have no private capital, or were it insufficient; but at

the time of the liquidation of the partnership the payments,

made for the specified causes, shall be charged to said spouse.

31 L.P.R.A. sec. 3663 (Emphasis supplied.)

In Lugo Montalvo v. Gonzalez Manon, 104 D.P.R. 372

(1975), we construed the second paragraph of sec. 1310 —

that is, “the meaning of ‘fines’ and, particularly ... what con-

stitutes ‘pecuniary condemnations ” (id. at 374) — and stated

that:

It seems evident, then, that the doctrine understands,

quite rightfully in our opinion, that when the fine or

penalty is produced by the commission of an offense, as

a general rule — since there are exceptions, as we have

seen — the liability is something personal of the spouse

who committed it: but in the cases of extracontractual

civil liability, the liability shall be personal or of the com-

munity according to the facts which gave rise to it. It

is generally recognized that if the husband’s action or

enterprise produces financial benefits to the bulk of the

community property, the liability shall also fall upon said

property. As Scaevola states, “he who expects profits,

should also expect losses,” principle whiclrin his opinion

has been governing in matters of partnership from time

immemorial. Jd. at 378. (Emphasis supplied.)

The “obligation or liability” arising from the contract

signed by the spouses Pauneto-Cosme and Nunez Borges —

established in the original action between the parties — had

all the “characteristics” appertaining to a “conjugal partner-

20

ship liability,” inasmuch as it originated in a business transac-

tion involving Nunez Borges which, in all probability,

benefitted the conjugal partnership constituted by him and his

wife, Margarita Huergo. W.R.C. Props... Inc. v. Santana, 116

DPR. 4974135 (1985). This fact, however, is totally irrele-

rant for two reasons: Margarita Huergo, Nunez Borges’s wife,

did not take part in the lease, and Pauneto Rivera and his

wife only sued Nunez Borges. Consequently, judgment teas

rendered only against the latter.

Although this is correct, we cannot lose sight of the fact

that Pauneto Rivera and his wife allege in their counterclaim

that Nunez Borges does not presently have any property

against which to enforce the judgment rendered by the Dis-

trict Court. Toa Baja Part, but that the conjugal partnership

has enough. Thus, they pray the Superior Court, Bayamon

Part. to “declare that the separate property of coplaintiff

Nunez has been duly exhausted” and to proceed to enforce

the above-mentioned judgment against the conjugal partner

ship constituted by the spouses Nunez-Huergo. Exh. 9 of the

Petition for Review, at 23.

In view of these allegations and of the sec. 1310 subsiciary

cause of action against the community property of the con-

jugal partnership constituted by the plaintiffs, the legality of

the counterclaim filed by the spouses Pauneto-Rivera seems,

at first sight, unquestionable. “(T]he conjugal partnership,”

according to Manresa, “is not liable for the payment, but

there are legitimate interests at stake, creditors that must not

lose their credits, torts, wrongs or injuries that must be

redressed: and when the debtor spouse does not have separate

property and there is an excess of community property, the

law provides that compensation or redress be had against the

conjugal partnership.” J.M. Manresa y Navarro, IX-1 Comen-

tarios al Codigo Civil espanol 626, Madrid, Reus (rev. 5th ed.

1950).

The trial court further reasoned that Pauneto Rivera “had

to exhaust the property of Mr. Nunez Borges in the previous

ee

21

action, which was not done, in order to properly include the

Conjugal Partnership constituted by Nunez Borges and his

wife. the defendants in the counterclaim in the above.

captioned case.” Exh. | of the Petition for Review. From the

outset, we should point out that this pronouncement correctly

recognizes that, pursuant to Civil Code sec. 1310, before

recovering from the community property, it must be estab-

lished that the liable spouse does not have assets or that said

assets are insufficient, and that the conjugal partnership has

the assets to satisfy the obligations. Cruz Viera v. Registrador,

118 D.P.R. 9LL (1987). There is no doubt, on the other hand.

in view of our decision in Cruz Viera, that the entry in the

Registry of Property of an [order for the| attachment of a real

property belonging to the spouses Nunez-Huergo was void and

illegal. Cruz Viera v. Registrador, supra, at 916.

However, in our opinion, nothing in this case bars the very

Superior Court, Bayamon Part, from adjudicating in a single

action not only the claim for the damage, if any, sustained

by the spouses Nunez-Huergo as a resuit of the attachment,

but also the legality of the action; and from conducting the

exhaustion and recovery proceedings against the community

property under Civil Code sec. 1310. This course of action

is advisable in order to secure the “just, speedy and inexpen-

sive determination” of the issues raised here. See Civil Proce-

dure Rule 1 of 1979 (32 L.P.R.A. App. III).

Consequently, the judgment appealed is reversed and the

case remanded to the trial court for further proceedings consis-

tent with this opinion.' Judgment will he rendered accordingly

Justices Negron Garcia and Hernandez Denton concur in

the result without a written opinion.

[stamp]

‘In view of our decision we need not pass upon the third assignment

of error