Ernesto Cease, et al. vs. Court of Appeals

The corporate fiction of separate and distinct personality may be pierced or disregarded where the corporation is used as an alter ego, adjunct, or business conduit for the sole benefit of the stockholders or of another corporate entity, and the corporation will be treated merely as an association of persons or merged as one with the individual. A decision or order directing partition is not final and appealable where it leaves something more to be done in the trial court, namely, the appointment of commissioners and the proceedings before them, but this general rule does not apply where the appellant claims exclusive ownership of the whole property and denies the adverse party's right to any partition.

The parties are the children of Forrest L. Cease, a common predecessor in interest, who together with five other American citizens organized the Tiaong Milling and Plantation Company in June 1908. During the corporation's existence, all the other original incorporators were bought out by Forrest L. Cease together with his children. The charter of the company lapsed in June 1958, and Forrest L. Cease died on 13 August 1959. The dispute arose among the children over the disposition of the deceased's shares, with some children wanting actual division while others wanted reincorporation.

Forrest L. Cease, together with five other American citizens, organized the Tiaong Milling and Plantation Company in June 1908. During the course of its corporate existence, the company acquired various properties, but all the other original incorporators were bought out by Forrest L. Cease together with his children, namely Ernest, Cecilia, Teresita, Benjamin, Florence, and one Bonifacia Tirante, who was also considered a member of the family. The charter of the company lapsed in June 1958, and the record was silent as to whether there were steps to liquidate it. On 13 August 1959, Forrest L. Cease died, and by extrajudicial partition of his shares among the children, this was disposed of on 19 October 1959. It was here where the trouble among them arose because Benjamin and Florence wanted an actual division while the other children wanted reincorporation.

Proceeding on that, the other children, Ernesto, Teresita, and Cecilia, together with Bonifacia Tirante, incorporated themselves into the F.L. Cease Plantation Company and registered it with the Securities and Exchange Commission on 9 December 1959. In view of that, Benjamin and Florence initiated Special Proceeding No. 3893 of the Court of First Instance of Tayabas for the settlement of the estate of Forrest L. Cease on 21 April 1960, and one month afterwards, on 19 May 1960, they filed Civil Case No. 6326 against Ernesto, Teresita, and Cecilia Cease together with Bonifacia Tirante, asking that the Tiaong Milling and Plantation Corporation be declared identical to F.L. Cease and that its properties be divided among his children as his intestate heirs. This Civil Case was resisted by the defendants, and notwithstanding efforts of the plaintiffs to have the properties placed under receivership, they were not able to succeed because the defendants filed a bond to remain in possession.

During the pendency of Civil Case No. 6326, specifically on 21 May 1961, apparently on the eve of the expiry of the three-year period provided by law for the liquidation of corporations, the board of liquidators of Tiaong Milling executed an assignment and conveyance of properties and trust agreement in favor of F.L. Cease Plantation Co. Inc. as trustee of the Tiaong Milling and Plantation Co. Upon motion of the plaintiffs, the trial judge ordered that this alleged trustee be also included as party defendant. Both proceedings were assigned to the Honorable Respondent Judge Manolo L. Maddela, and the case was finally heard and submitted upon stipulation of facts. The trial judge, by decision dated 27 December 1969, held for the plaintiffs Benjamin and Florence, declaring that the assets or properties of the defunct Tiaong Milling and Plantation Company now appearing under the name of F.L. Cease Plantation Company as Trustee constitute the estate of the deceased Forrest L. Cease, ordered divided share and share alike among his six children in accordance with Rule 69 of the Rules of Court, set aside the Resolution to Sell dated October 12, 1959 and the Transfer and Conveyance with Trust Agreement as improper and illegal, removed F.L. Cease Plantation Company as trustee, and terminated and dismissed Special Proceedings No. 3893.

The trial court found that the corporation developed into a close family corporation, with the Board of Directors and stockholders belonging to one family, the head of which, Forrest L. Cease, always retained the majority stocks and hence the control and management of its affairs. The accounts of the corporation and its operation, as well as that of the family, appeared to be indistinguishable and apparently joined together. The corporation never had any account with any banking institution, or if any account was carried in a bank on its behalf, it was in the name of Mr. Forrest L. Cease. The trial court concluded that the operation of the corporation was merged with those of the majority stockholders, the latter using the former as his instrumentality and for the exclusive benefits of all his family, and that the corporation was only a business conduit of the father and an extension of his personality.

After the defendants filed a notice of appeal with an appeal bond and a record on appeal, the plaintiffs moved to dismiss the appeal on the ground that the judgment was interlocutory and not appealable. The trial judge sustained this position, ruling that the appeal was premature and the Record on Appeal was disapproved as improper at that stage of the proceedings. The defendants then brought the matter to the Supreme Court on mandamus, certiorari, and prohibition, but the Supreme Court remanded the case to the Court of Appeals. The Court of Appeals dismissed the petition insofar as the mandamus was concerned but permitted the petition to proceed insofar as the prayer for certiorari and prohibition was concerned. The Court of Appeals, in its decision promulgated December 9, 1970, dismissed the petition with costs against the petitioners.

During the period that ensued after the filing in the Supreme Court of the respective briefs, several incidents transpired. The petitioners filed a petition for certiorari and prohibition in G.R. No. L-35629 challenging the order of respondent judge dated September 27, 1972 appointing his Branch Clerk of Court as receiver, which was denied. The petitioners also filed an urgent petition to restrain proceedings in the lower court, which was resolved by issuing a temporary restraining order, but this was later lifted. Several attempts at a compromise agreement failed to materialize, with the respondents repudiating a Tentative Compromise Agreement dated July 30, 1975.

• Jurisdiction and Simultaneous Proceedings: Petitioners argued that the lower court wrongfully exercised jurisdiction beyond the limits of authority conferred by law when it proceeded to hear, adjudge, and adjudicate Special Proceeding No. 3893 for the settlement of the estate of Forrest L. Cease simultaneously and concurrently with Civil Case No. 6326, wherein the lower court ordered partition under Rule 69 of the Rules of Court, the issue of legal ownership of the properties commonly involved in both actions having been raised at the outset by the Tiaong Milling and Plantation Company as the registered owner of such properties under Act 496.

• Lack of Evidence for Ownership Conclusion: Petitioners argued that the Court of Appeals affirmed, unsupported by any evidence whatsoever nor citation of any law to justify, the unwarranted conclusion that the subject properties, found by the lower court and the Court of Appeals as actually registered in the name of petitioner corporation and/or its predecessor in interest during all the 50 years of its corporate existence, are also properties of the estate of Forrest L. Cease.

• Interlocutory vs. Final Judgment: Petitioners claimed that the decision of the lower court in the partition case is not interlocutory but rather final, for it consists of final and determinative dispositions of the contentions of the parties, and that the Court of Appeals erred in affirming the arbitrary conclusion of the lower court that its decision of December 27, 1969 is an interlocutory decision, in dismissing the petition for writ of mandamus, and in affirming the manifestly unjust judgment rendered which contradicts the findings of ultimate facts therein contained.

• Improper Dismissal of Administration Proceedings: Petitioners argued that there was an irregular and arbitrary termination and dismissal of the special proceedings for judicial administration simultaneously ordered in the lower court's decision in Civil Case No. 6326 adjudicating the partition of the estate, without categorically reasoning the opposition to the petition for administration.

• Issue of Ownership Raised: Petitioners argued that the issue of ownership had been raised in the lower court when Tiaong Milling asserted title over the properties registered in its corporate name adverse to Forrest L. Cease or his estate, and that the said issue was erroneously disposed of by the trial court in the partition proceedings when it concluded that the assets or properties of the defunct company is also the estate of the deceased proprietor.

• Lack of Jurisdiction of Court of Appeals: Respondents raised the preliminary point that the Court of Appeals has no authority to give relief to petitioners because the petition was not in aid of its appellate jurisdiction, and that the questions presented cannot be raised for the first time before the Court of Appeals.

• Propriety of Dismissal of Administration Proceedings: Respondents observed that the parties in both cases are the same, so are the properties involved; that actual division is the primary objective in both actions; the theory and defense of the respective parties are likewise common; and that both cases have been assigned to the same respondent judge.

• Piercing the Corporate Veil: Respondents sustained the theory of "merger of Forrest L. Cease and The Tiaong Milling as one personality," or that "the company is only the business conduit and alter ego of the deceased Forrest L. Cease and the registered properties of Tiaong Milling are actually properties of Forrest L. Cease and should be divided equally, share and share alike among his six children."

• Simultaneous Proceedings and Jurisdiction: Whether the trial court wrongfully exercised jurisdiction beyond the limits of authority conferred by law when it proceeded to hear, adjudge, and adjudicate Special Proceeding No. 3893 for the settlement of the estate of Forrest L. Cease simultaneously and concurrently with Civil Case No. 6326, wherein the lower court ordered partition under Rule 69 of the Rules of Court.

• Ownership of the Properties: Whether the conclusion that the subject properties registered in the name of petitioner corporation and/or its predecessor in interest are also properties of the estate of Forrest L. Cease was supported by evidence and law.

• Interlocutory vs. Final Judgment: Whether the decision of the lower court dated December 27, 1969 is interlocutory and not appealable, or final and appealable.

• Simultaneous Proceedings and Jurisdiction: No. The propriety of the dismissal and termination of the special proceedings for judicial administration was affirmed in spite of its rendition in another related case in view of the established jurisprudence which favors partition when judicial administration becomes unnecessary. The dismissal of the administration proceedings was a judicious move, appreciable in today's need for effective and speedy administration of justice.

• Ownership of the Properties: No. The trial court's finding that the assets of the defunct Tiaong Milling and Plantation Company constitute the estate of Forrest L. Cease was sustained, based on the well-entrenched principle of disregarding the legal fiction of distinct and separate corporate personality. The corporation was merely the alter ego and business conduit of the deceased, and the corporate veil was properly pierced.

• Interlocutory vs. Final Judgment: Moot and academic. The question of whether the decision was interlocutory or final was rendered moot and academic because the very issue of exclusive ownership claimed by petitioners to deny and defeat respondents' right to partition — which is the very core of their rejected appeal — was squarely resolved against them, as if the appeal had been given due course.

• Simultaneous Proceedings and Jurisdiction: The Court affirmed the propriety of the dismissal and termination of the special proceedings for judicial administration in spite of its rendition in another related case. Judicial rulings consistently hold the view that where partition is possible, either judicial or extrajudicial, the estate should not be burdened with an administration proceeding without good and compelling reason. When the estate has no creditors or pending obligations to be paid, the beneficiaries in interest are not bound to submit the property to judicial administration which is always long and costly. In the records of this case, the Court found no indication of any indebtedness of the estate. No creditor has come up to charge the estate within the two-year period after the death of Forrest L. Cease, hence, the presumption under Section 1, Rule 74 that the estate is free from creditors must apply. Neither has the status of the parties as legal heirs been raised as an issue. The parties in both cases are the same, so are the properties involved; actual division is the primary objective in both actions; the theory and defense of the respective parties are likewise common; and both cases have been assigned to the same respondent judge. The Court also noted that the dismissal of Special Proceedings No. 3893 was a dismissal that petitioners themselves had sought and solicited from respondent judge, and on the principle that not he who is favored but he who is hurt by a judicial order is he only who should be heard to complain, petitioners should not now complain of an order they had themselves asked in order to attack such an order afterwards.

• Ownership of the Properties: The Court sustained the trial court's application of the doctrine of disregarding or piercing the veil of corporate fiction. Generally, a corporation is invested by law with a personality separate and distinct from that of the persons composing it as well as from that of any other legal entity to which it may be related. This separate and distinct personality is, however, merely a fiction created by law for convenience and to promote the ends of justice. It may not be used or invoked for ends subversive of the policy and purpose behind its creation, particularly where the fiction is used to defeat public convenience, justify wrong, protect fraud, defend crime, confuse legitimate legal or judicial issues, perpetrate deception or otherwise circumvent the law. This is likewise true where the corporate entity is being used as an alter ego, adjunct, or business conduit for the sole benefit of the stockholders or of another corporate entity. The trial court found that the corporation developed into a close family corporation, with Forrest L. Cease always retaining the majority stocks and hence the control and management of its affairs. The accounts of the corporation and its operation, as well as that of the family, appeared to be indistinguishable. The corporation never had any account with any banking institution, or if any account was carried in a bank on its behalf, it was in the name of Mr. Forrest L. Cease. The Court concluded that the business of the corporation is largely, if not wholly, the personal venture of Forrest L. Cease, and that were the Court to sustain the theory of petitioners, the legal fiction of separate corporate personality would have been used to delay and ultimately deprive and defraud the respondents of their successional rights to the estate of their deceased father. Hence, it became necessary and imperative to pierce the corporate veil.

• Interlocutory vs. Final Judgment: The Court noted that under the 1961 pronouncement in Vda. de Zaldarriaga vs. Enriquez, the lower court's dismissal of petitioners' proposed appeal from its December 27, 1969 judgment on the ground of prematurity in that the judgment was not final but interlocutory was in order. However, the Court also noted that the ruling in Zaldarriaga, based on Fuentebella vs. Carrascoso, has been expressly abandoned by the Court in Miranda vs. Court of Appeals, which laid down the doctrine that where the primary purpose of a case is to ascertain and determine who between plaintiff and defendant is the true owner and entitled to the exclusive use of the disputed property, the judgment rendered by the lower court is a judgment on the merits, and an appeal lies from the rendition of the judgment as rendered. The Miranda ruling held that the general rule of partition that an appeal will not lie until the partition or distribution proceedings are terminated will not apply where appellant claims exclusive ownership of the whole property and denies the adverse party's right to any partition. However, the Court found that this question has been rendered moot and academic because the very issue of exclusive ownership claimed by petitioners to deny and defeat respondents' right to partition has been squarely resolved against them, as if the appeal had been given due course. The Court expressly sustained the trial court's findings that the assets or properties of the defunct company constitute the estate of the deceased proprietor, and the defunct company's assertion of ownership of the properties is a legal contradiction and would but thwart the liquidation and final distribution and partition of the properties among the parties as children of their deceased father.

• Doctrine of Piercing the Veil of Corporate Fiction — Generally, a corporation is invested by law with a personality separate and distinct from that of the persons composing it as well as from that of any other legal entity to which it may be related. This separate and distinct personality is merely a fiction created by law for convenience and to promote the ends of justice, and may not be used or invoked for ends subversive of the policy and purpose behind its creation. The fiction may be pierced or disregarded where the corporate entity is being used as an alter ego, adjunct, or business conduit for the sole benefit of the stockholders or of another corporate entity, and the corporation will be treated merely as an association of persons or merged as one with the individual. In this case, the Court applied the doctrine where the corporation was found to be the business conduit and alter ego of Forrest L. Cease, with the accounts of the corporation and the family being indistinguishable, and where sustaining the corporate fiction would have been used to delay and ultimately deprive and defraud the respondents of their successional rights to the estate of their deceased father.

• Doctrine on Unnecessary Judicial Administration — Where partition is possible, either judicial or extrajudicial, the estate should not be burdened with an administration proceeding without good and compelling reason. When the estate has no creditors or pending obligations to be paid, the beneficiaries in interest are not bound to submit the property to judicial administration which is always long and costly, or to apply for the appointment of an administrator by the court, especially when judicial administration is unnecessary and superfluous. In this case, the Court found no indication of any indebtedness of the estate, no creditor came up to charge the estate within the two-year period after the death of Forrest L. Cease, and the parties in both cases were the same, so were the properties involved, hence the dismissal of the administration proceedings was proper.

• Doctrine on Finality of Partition Judgments — A decision or order directing partition is not final because it leaves something more to be done in the trial court for the complete disposition of the case, namely, the appointment of commissioners, the proceedings to be had before them, the submission of their report which, according to law, must be set for hearing. However, the general rule of partition that an appeal will not lie until the partition or distribution proceedings are terminated will not apply where appellant claims exclusive ownership of the whole property and denies the adverse party's right to any partition. In this case, the Court found that the question of appealability was rendered moot and academic because the very issue of exclusive ownership claimed by petitioners was squarely resolved against them.

• "Generally, a corporation is invested by law with a personality separate and distinct from that of the persons composing it as well as from that of any other legal entity to which it may be related. By virtue of this attribute, a corporation may not, generally, be made to answer for acts or liabilities of its stockholders or those of the legal entities to which it may be connected, and vice versa. This separate and distinct personality is, however, merely a fiction created by law for convenience and to promote the ends of justice." — This passage articulates the general rule of corporate personality and the basis for the doctrine of piercing the veil of corporate fiction, which the Court applied to the facts of this case.

• "In any of these cases, the notion of corporate entity will be pierced or disregarded, and the corporation will be treated merely as an association of persons or, where there are two corporations, they will be merged as one, the one being merely regarded as part or the instrumentality of the other." — This passage states the effect of piercing the corporate veil, which the Court applied in treating the corporation and Forrest L. Cease as one and the same.

• "Were we sustain the theory of petitioners that the trial court acted in excess of jurisdiction or abuse of discretion amounting to lack of jurisdiction in deciding Civil Case No. 6326 as a case for partition when the defendant therein, Tiaong Milling and Plantation Company, Inc. as registered owner asserted ownership of the assets and properties involved in the litigation, which theory must necessarily be based on the assumption that said assets and properties of Tiaong Milling and Plantation Company, Inc. now appearing under the name of F. L. Cease Plantation Company as Trustee are distinct and separate from the estate of Forrest L. Cease to which petitioners and respondents as legal heirs of said Forrest L. Cease are equally entitled share and share alike, then that legal fiction of separate corporate personality shall have been used to delay and ultimately deprive and defraud the respondents of their successional rights to the estate of their deceased father." — This passage explains the Court's rationale for piercing the corporate veil, emphasizing that the corporate fiction would have been used to defeat the successional rights of the respondents.

• "The Court's considered opinion is that imperative considerations of public policy and of sound practice in the courts and adherence to the constitutional mandate of simplified, just, speedy and inexpensive determination of every action call for considering such judgments for recovery of property with accounting as final judgments which are duly appealable (and would therefore become final and executory if not appealed within the reglementary period) with the accounting as a mere incident of the judgment to be rendered during the course of the appeal." — This passage quotes the Miranda doctrine on the finality of judgments for recovery of property with accounting, which the Court discussed in resolving the issue of appealability.

• Ilustre vs. Alaras Frondosa, 17 Phil. 321 — Cited for the doctrine that judicial administration and the appointment of an administrator are superfluous and unnecessary proceedings where a person dies without leaving pending obligations to be paid.

• Malahacan vs. Ignacio, 19 Phil. 434 — Cited for the same doctrine on unnecessary judicial administration.

• Bondad vs. Bondad, 34 Phil. 232 — Cited for the same doctrine on unnecessary judicial administration.

• Baldemor vs. Malangyaon, 34 Phil. 367 — Cited for the same doctrine on unnecessary judicial administration.

• Fule vs. Fule, 46 Phil. 317 — Cited for the same doctrine on unnecessary judicial administration.

• Intestate Estate of Mercado vs. Magtibay, 96 Phil. 383 — Cited for the doctrine that where the estate has no debts, recourse may be had to an administration proceeding only if the heirs have good reasons for not resorting to an action for partition.

• Rodriguez vs. Ravilan, 17 Phil. 63 — Cited for the doctrine that in an action for partition, it is assumed that the parties are all co-owners or co-proprietors of the property to be divided, and that the question of common ownership is not to be argued, but only as to how and in what manner and proportion the said property of common ownership shall be distributed. Distinguished by the Court in this case.

• Laguna Transportation Company vs. Social Security System, L-14606, April 28, 1960 — Cited for the doctrine that the separate and distinct corporate personality is merely a fiction created by law for convenience and to promote the ends of justice.

• La Campana Coffee Factory, Inc. vs. Kaisahan ng mga Manggagawa sa La Campana, L-5677, May 25, 1953 — Cited for the same doctrine on the corporate fiction.

• Emiliano Cano Enterprises, Inc. vs. CIR, L-20502, Feb. 26, 1965 — Cited for the doctrine that the corporate fiction may not be used or invoked for ends subversive of the policy and purpose behind its creation.

• McConnel vs. Court of Appeals, L-10510, March 17, 1961, 1 SCRA 722 — Cited for the doctrine that the corporate fiction may not be used for ends which could not have been intended by law to which it owes its being, and where the corporate entity is being used as an alter ego, adjunct, or business conduit.

• Yutivo Sons Hardware Company vs. Court of Tax Appeals, L-13203, Jan. 28, 1961, 1 SCRA 160 — Cited for the doctrine that the corporate fiction may be pierced where it is used to defeat public convenience, justify wrong, protect fraud, or defend crime.

• R. F. Sugay & Co. vs. Reyes, L-20451, Dec. 28, 1964 — Cited for the doctrine that the corporate fiction may be pierced where it is used to confuse legitimate legal or judicial issues.

• Gregorio Araneta, Inc. vs. Tuason de Paterno, L-2886, Aug. 22, 1952, 49 O.G. 721 — Cited for the doctrine that the corporate fiction may be pierced where it is used to perpetrate deception or otherwise circumvent the law.

• Commissioner of Internal Revenue vs. Norton Harrison Co., L-7618, Aug. 31, 1964 — Cited for the doctrine that the corporate entity may be pierced where it is being used as an alter ego, adjunct, or business conduit for the sole benefit of the stockholders.

• Koppel (Phil.) Inc. vs. Yatco, 77 Phil. 496 — Cited for the doctrine that where the corporate entity is pierced, the corporation will be treated merely as an association of persons or merged as one, the one being merely regarded as part or the instrumentality of the other.

• Vda. de Zaldarriaga vs. Enriquez, 1 SCRA 1188 — Cited for the ruling that a decision or order directing partition is not final because it leaves something more to be done in the trial court for the complete disposition of the case. Noted as having been abandoned by the Miranda ruling.

• Vda. de Zaldarriaga vs. Zaldarriaga, 2 SCRA 356 — Cited as the sequel case to Vda. de Zaldarriaga vs. Enriquez.

• Fuentebella vs. Carrascoso, XIV Lawyers Journal 305 (May 27, 1942) — Cited as the ruling that a decision for recovery of property with accounting is not final but merely interlocutory and therefore not appealable. Expressly abandoned by the Miranda ruling.

• Miranda vs. Court of Appeals, 71 SCRA 295 (June 18, 1976) — Controlling precedent. Laid down the doctrine that where the primary purpose of a case is to ascertain and determine who between plaintiff and defendant is the true owner and entitled to the exclusive use of the disputed property, the judgment rendered by the lower court is a judgment on the merits, and an appeal lies from the rendition of the judgment as rendered. The Court applied this ruling in resolving the issue of appealability.

• Valdez vs. Bagasao, 82 SCRA 22 (March 8, 1978) — Cited as having applied the Miranda ruling as the new rule by a unanimous Court.

• Ron vs. Mojica, 8 Phil. 328 — Cited as an example of the line of conflicting decisions in partition proceedings holding that an order for partition of real property is not final and appealable until after the actual partition of the property as reported by the court-appointed commissioners and approved by the court.

• Africa vs. Africa, 42 Phil. 934 — Cited for the ruling contrary to Ron vs. Mojica that in a partition case where defendant relies on the defense of exclusive ownership, the action becomes one for title and the decision or order directing partition is final.

• H. E. Heacock Co. vs. American Trading Co. — Cited in the Miranda ruling as the better rule, that where the primary purpose of a case is to ascertain and determine who between plaintiff and defendant is the true owner and entitled to the exclusive use of the disputed property, the judgment rendered by the lower court is a judgment on the merits, and an appeal lies from the rendition of the judgment as rendered.

• Section 77, Act No. 1459 (Corporation Law) — Provides that upon the expiration of the charter period, the corporation ceases to exist and is dissolved ipso facto except for purposes connected with the winding up and liquidation. The provision allows a three-year period from expiration of the charter within which the entity gradually settles and closes its affairs, disposes and conveys its property, and divides its capital stock, but not for the purpose of continuing the business for which it was established. The Court applied this provision in finding that Tiaong Milling may no longer persist to maintain adverse title and ownership of the corporate assets as against the prospective distributees when at this time it merely holds the property in trust.

• Rule 69, Rules of Court — Governs the partition of real estate. The Court applied this rule in affirming the trial court's order for partition of the properties among the six children of Forrest L. Cease, and in discussing the finality of the judgment directing partition.

• Section 1, Rule 74, Rules of Court — Provides the presumption that the estate is free from creditors. The Court applied this provision in finding that no creditor has come up to charge the estate within the two-year period after the death of Forrest L. Cease, hence, the presumption that the estate is free from creditors must apply.

• Act No. 496 — The Land Registration Act, under which the properties of Tiaong Milling were registered. The petitioners argued that the properties were registered under this Act in the name of Tiaong Milling as lawful owner and possessor for the last 50 years of its corporate existence.

Teehankee, Actg. C.J. (Chairman), Makasiar, Fernandez, De Castro, and Melencio-Herrera, JJ., concurred.