text:
The history of the major pathogenic species of rapidly growing mycobacteria (RGM) can be traced back to the early 20th century beginning with Friedmann's recovery of Mycobacterium chelonae from the lungs of two sea turtles. Currently, the RGM are grouped into six major taxonomic groups according to pigmentation and genetic relatedness. The major groups are the M. fortuitum group, the M. chelonae/M. abscessus group, the Mycobacterium smegmatis group (M. smegmatis and Mycobacterium goodii), the Mycobacterium mucogenicum group, the Mycobacterium mageritense/Mycobacterium wolinskyi group, and the pigmented RGM. The RGM are ubiquitous in the environment. The disease pathogenesis likely results from microtrauma caused by shaving the legs prior to pedicures and footbath water that is heavily contaminated with RGM due to failure to routinely clear the footbath filters. High-Performance Liquid Chromatography (HPLC) of mycolic acids may be used in large reference laboratories but it can identify only a few species adequately. Restriction fragment length polymorphism analysis of selected gene targets such as hsp65 are currently used in some larger reference laboratories. Currently, the only nucleic acid probe available for identification of the RGM but not yet cleared by the Food and Drug Administration in the United States is the INNO- LiPA multiplex probe assay. Current antimicrobial regimens for treatment of disease caused by the RGM are based upon their unique in vitro susceptibility patterns. Finally, the chapter describes common clinical diseases caused due to RGM.
1. Adékambi, T.,, P. Berger,, D. Raoult, and, M. Drancourt. 2006. rpoB gene sequence-based characterization of emerging nontuberculous mycobacteria with descriptions of Mycobacterium bolletii sp. nov., M. phocaicum sp. nov. and Mycobacterium aubagnense sp. nov. Int. J. Syst. Evol. Microbiol. 56: 133– 143.
2. Adékambi, T.,, P. Colson, and, M. Drancourt. 2003. rpoB-based identification of nonpigmented and late pigmented rapidly growing mycobacteria. J. Clin. Microbiol. 41: 5699– 5708.
3. Adékambi, T.,, and M. Drancourt. 2004. Dissection of phylogenetic relationships among nineteen rapidly growing mycobacterium species by 16S rRNA, hsp65, sodA, recA, and rpoB gene sequencing. Int. J. Syst. Evol. Microbiol. 54: 2095– 2105.
4. Adékambi, T.,, M. Reynaud-Gaubert,, G. Greub,, M. J. Gevaudan,, B. La Scola,, D. Raoult, and, M. Drancourt. 2004. Amoebal coculture of “ Mycobacterium massiliense” sp. nov. from the sputum of a patient with hemoptoic pneumonia. J. Clin. Microbiol. 42: 5493– 5501.
5. Al Shaalan, M.,, B. J. Law,, S. J. Israels,, P. Pianosi,, A. G. Lacson, and, R. Higgins. 1997. Mycobacterium fortuitum interstitial pneumonia with vasculitis in a child with Wilms tumor. Pediatr. Infect. Dis. J. 16: 996– 1000.
6. Bange, F.-C.,, B. A. Brown,, C. Smaczny,, R. J. Wallace, Jr., and, E. C. Böttger. 2001. Lack of transmission of Mycobacterium abscessus among patients with cystic fibrosis attending a single clinic. Clin. Infect. Dis. 32: 1648– 1650.
7. Brown, B. A.,, B. Springer,, V. A. Steingrube,, R. W. Wilson,, G. E. Pfyffer,, M. J. Garcia,, M. C. Menendez,, B. Rodriguez-Salgado,, K. C. Jost,, S. H. Chiu,, G. O. Onyi,, E. C. Böttger, and, R. J. Wallace, Jr. 1999. Mycobacterium wolinskyi sp. nov. and Mycobacterium goodii sp. nov., two new rapidly growing species related to Mycobacterium smegmatis and associated with human wound infections: a cooperative study from the International Working Group on Mycobacterial Taxonomy. Int. J. Syst. Bacteriol. 49: 1493– 1511.
8. Brown, B. A.,, R. J. Wallace, Jr.,, G. Onyi,, V. DeRosas, and, R. J. Wallace III. 1992. Activities of four macrolides including clarithromycin against Mycobacterium fortuitum, Mycobacterium chelonae, and Mycobacterium chelonae-like organisms. Antimicrob. Agents Chemother. 36: 180– 184.
9. Brown-Elliott, B. A.,, M. McGlasson,, P. Painter,, L. Mann,, D. Hall,, L. Battee, and, R. J. Wallace, Jr. 2009. Comparison of antimicrobials including besifloxacin, ciprofloxacin, gatifloxacin, moxifloxacin, levofloxacin, azithromycin, clarithromycin, amikacin, imipenem, and tobramycin against ophthalmic isolates of nontuberculous mycobacteria, abstr. U-041, p. 583. 109th Gen. Meet. Am. Soc. Microbiol., Philadelphia, PA.
10. Brown-Elliott, B. A.,, and R. J. Wallace, Jr. 2002. Clinical and taxonomic status of pathogenic nonpigmented or late-pigmenting rapidly growing mycobacteria. Clin. Microbiol. Rev. 15: 716– 746.
11. Brown-Elliott, B. A.,, R. J. Wallace,, C. A. Petti,, L. B. Mann,, M. McGlasson,, S. Chihara,, G. L. Smith,, P. Painter,, D. Hail,, R. Wilson, and, K. E. Simmon. 2010. Mycobacterium neoaurum and Mycobacterium bacteremicum sp. nov. as causes of bacteremia. J. Clin. Microbiol. 48: 4377– 4385.
12. Brown-Elliott, B. A.,, R. J. Wallace, Jr.,, R. Blinkhorn,, C. J. Crist, and, L. M. Mann. 2001. Successful treatment of disseminated Mycobacterium chelonae infection with linezolid. Clin. Infect. Dis. 33: 1433– 1434.
13. Carson, L. A.,, L. A. Bland,, L. B. Cusick,, M. S. Favero,, G. A. Bolan,, A. L. Reingold, and, R. C. Good. 1988. Prevalence of nontuberculous mycobacteria in water supplies of hemodialysis centers. Appl. Environ. Microbiol. 54: 3122– 3125.
14. Centers for Disease Control and Prevention. 1998. Rapidly growing mycobacterial infection following liposuction and liposculpture—Caracas, Venezuela, 1996-1998. MMWR Morb. Mortal. Wkly. Rep. 47: 1065.
15. Centers for Disease Control and Prevention. 2004. Nontuberculous mycobacterial infections after cosmetic surgery—Santo Domingo, Dominican Republic, 2003-2004. MMWR Morb. Mortal. Wkly. Rep. 53: 509.
16. Chetchotisakd, P.,, P. Mootsikapun,, S. Anunnatsiri,, K. Jirarattanapochai,, C. Choonhakarn,, A. Chaiprasert,, P. N. Ubol,, L. J. Wheat, and, T. E. Davis. 2000. Disseminated infection due to rapidly growing mycobacteria in immunocompetent hosts presenting with chronic lymphadenopathy: a previously unrecognized clinical entity. Clin. Infect. Dis. 32: 29– 34.
17. Cobbett, L. 1918. An acid-fast bacillus obtained from a pustular eruption. Br. Med. J. 2: 158.
18. Cooksey, R. C.,, J. H. de Waard,, M. A. Yakrus,, I. Rivera,, M. Chopite,, S. R. Toney,, G. P. Morlock, and, W. R. Butler. 2004. Mycobacterium cosmeticum sp. nov., a novel rapidly growing species isolated from a cosmetic infection and from a nail salon. Int. J. Syst. Evol. Microbiol. 54: 2385– 2391.
19. Cooksey, R. C.,, M. A. Jhung,, M. A. Yakrus,, W. R. Butler,, T. Adékambi,, G. P. Morlock,, M. Williams,, A. M. Shams,, B. J. Jensen,, R. E. Morey,, N. Charles,, S. R. Toney,, K. C. Jost, Jr.,, D. F. Dunbar,, V. Bennett,, M. Kuan, and, A. Srinivasan. 2008. Multiphasic approach reveals genetic diversity of environmental and patient isolates of Mycobacterium mucogenicum and Mycobacterium phocaicum associated with an outbreak of bacteremias at a Texas Hospital. Appl. Environ. Microbiol. 74: 2480– 2487.
20. Covert, T. C.,, M. R. Rodgers,, A. L. Reyes, and, G. N. Stelma, Jr. 1999. Occurrence of nontuberculous mycobacteria in environmental samples. Appl. Environ. Microbiol. 65: 2492– 2496.
21. Cullen, A. R.,, C. L. Cannon,, E. J. Mark, and, A. A. Colin. 2000. Mycobacterium abscessus infection in cystic fibrosis. Am. J. Respir. Crit. Care Med. 161: 641– 645.
22. da Costa Cruz, J. C. 1938. Mycobacterium fortuitum: um novo bacilo acido-resistente patogenico para o homen (new acid fast bacillus pathogenic for man). Acta Med. (Rio de Jåneiro) 1: 298– 301.
23. del Castillo, M.,, D. J. Palmero,, B. Lopez,, R. Paul,, V. Ritacco,, P. Bonvehi,, L. Clara,, M. Ambroggi,, L. Barrera, and, C. Vay. 2009. Mesotherapy-associated outbreak caused by Mycobacterium immunogenum. Emerg. Infect. Dis. 15: 357– 358.
24. Duarte, R. S.,, M. C. Silva Lourenço,, L. de Souza Fonseca,, S. C. Leão,, E. D. L. T. Amorim,, I. L. L. Rocha,, F. S. Coelho,, C. Viana-Niero,, K. M. Gomes,, M. G. da Silva,, N. S. de Oliveira Lorena,, M. B. Pitombo,, R. M. C. Ferreira,, M. H. de Oliveira Garcia,, G. P. de Oliveira,, O. Lupi,, B. R. Vilaça,, L. R. Serradas,, A. Chebato,, E. A. Marques,, L. M. Teixeira,, M. Dalcolmo,, S. G. Senna, and, J. L. M. Sampaio. 2009. Epidemic of postsurgical infections caused by Mycobacterium massiliense. J. Clin. Microbiol. 47: 2149– 2155.
25. Eid, A. J.,, F. Bergari,, I. G. Sia,, N. L. Wengenack,, D. R. Osmon, and, R. R. Razonable. 2007. Prosthetic joint infection due to rapidly growing mycobacteria: report of 8 cases and review of the literature. Clin. Infect. Dis. 45: 687– 694.
26. Falkinham, J. O., III. 2003. The changing pattern of nontuberculous mycobacterial disease. Can. J. Infect. Dis. 14: 281– 286.
27. Fauroux, B.,, B. Delaisi,, A. Clément,, C. Saizou,, D. Moissenet,, C. Truffot-Pernot,, G. Tournier, and, H. Vu Thien. 1997. Mycobacterial lung disease in cystic fibrosis: a prospective study. Pediatr. Infect. Dis. J. 16: 354– 358.
28. Flor, A.,, J. A. Capdevila,, N. Martin,, J. Gavaldá, and, A. Pahissa. 1996. Nontuberculous mycobacterial meningitis: report of two cases and review. Clin. Infect. Dis. 23: 1266– 1273.
29. Forbes, B. A.,, N. Banaiee,, K. G. Beavis,, B. A. Brown-Elliott,, P. Della Latta,, L. B. Elliott,, G. S. Hall,, B. Hanna,, M. D. Perkins,, S. H. Siddiqi,, R. J. Wallace, Jr., and, N. G. Warren. 2008. Laboratory Detection and Identification of Mycobacteria; Approved Guideline. CLSI Document M48-A. CLSI, Wayne, PA.
30. Friedman, N. D.,, and D. J. Sexton. 2001. Bursitis due to Mycobacterium goodii, a recently described, rapidly growing mycobacterium. J. Clin. Microbiol. 39: 404– 405.
31. Furuya, E. Y.,, A. Paez,, A. Srinivasan,, R. Cooksey,, M. Augenbraun,, M. Baron,, K. Brudney,, P. Della-Latta,, C. Estivariz,, S. Fischer,, M. Flood,, P. Kellner,, C. Roman,, M. Yakrus,, D. Weiss, and, E. V. Granowitz. 2008. Outbreak of Mycobacterium abscessus wound infections among “lipotourists” from the United States who underwent abdominoplasty in the Dominican Republic. Clin. Infect. Dis. 46: 1181– 1188.
32. Galassi, L.,, R. Donato,, E. Tortoli,, D. Burrini,, D. Santianni, and, R. Dei. 2003. Nontuberculous mycobacteria in hospital water systems: application of HPLC for identification of environmental mycobacteria. J. Water Health 1: 133– 139.
33. Galil, K.,, L. A. Miller,, M. A. Yakrus,, R. J. Wallace, Jr.,, D. G. Mosley,, B. England,, G. Huitt,, M. M. McNeill, and, B. A. Perkins. 1999. Abscesses due to Mycobacterium abscessus linked to injection of unapproved alternative medication. Emerg. Infect. Dis. 5: 681– 687.
34. Gira, A. K.,, H. Reisenauer,, L. Hammock,, U. Nadiminti,, J. T. Macy,, A. Reeves,, C. Burnett,, M. A. Yakrus,, S. Toney,, B. J. Jensen,, H. M. Blumberg,, S. W. Caughman, and, F. S. Nolte. 2004. Furunculosis due to Mycobacterium mageritense associated with footbaths at a nail salon. J. Clin. Microbiol. 42: 1813– 1817.
35. Gomila, M.,, A. Ramirez,, J. Gascó, and, J. Lalucat. 2008. Mycobacterium llatzerense sp. nov., a facultatively autotrophic, hydrogen-oxidizing bacterium isolated from haemodialysis water. Int. J. Syst. Evol. Microbiol. 58: 2769– 2773.
36. Griffith, D. E.,, T. Aksamit,, B. A. Brown-Elliott,, A. Catanzaro,, C. Daley,, F. Gordin,, S. M. Holland,, R. Horsburgh,, G. Huitt,, M. F. Iademarco,, M. Iseman,, K. Olivier,, S. Ruoss,, C. F. von Reyn,, R. J. Wallace, Jr., and, K. Winthrop. 2007. An official ATS/IDSA statement: diagnosis, treatment and prevention of nontuberculous mycobacterial diseases. American Thoracic Society statement. Am. J. Respir. Crit. Care Med. 175: 367– 416.
37. Gubler, J. G. H.,, M. Salfinger, and, A. von Graevenitz. 1992. Pseudoepidemic of nontuberculous mycobacteria due to a contaminated bronchoscope cleaning machine: report of an outbreak and review of the literature. Chest 101: 1245– 1249.
38. Hector, J. S. R.,, Y. Pang,, G. H. Mazurek,, Y. Zhang,, B. A. Brown, and, R. J. Wallace, Jr. 1992. Large restriction fragment patterns of genomic Mycobacterium fortuitum DNA as strain-specific markers and their use in epidemiologic investigation of four nosocomial outbreaks. J. Clin. Microbiol. 30: 1250– 1255.
39. Hennessee, C. T.,, J.- S. Seo,, A. M. Alvarez, and, Q. X. Li. 2009. Polycyclic aromatic hydrocarbon-degrading species isolates from Hawaiian soils: Mycobacterium crocinum sp. nov., Mycobacterium pallens sp. nov., Mycobacterium rutilum sp. nov., Mycobacterium rufum sp. nov., and Mycobacterium aromaticivorans sp. nov. Int. J. Syst. Evol. Microbiol. 59: 378– 387.
40. Jiménez, M. S.,, M. I. Campos-Herrero,, D. García,, M. Luquin,, L. Herrera, and, M. J. García. 2004. Mycobacterium canariasense sp. nov. Int. J. Syst. Evol. Microbiol. 54: 1729– 1734.
41. Jönsson, B. E.,, M. Gilljam,, A. Landblad,, M. Ridell,, A. E. Wold, and, C. Welinder-Olsson. 2007. Molecular epidemiology of Mycobacterium abscessus with focus on cystic fibrosis. J. Clin. Microbiol. 45: 1497– 1504.
42. Kim, H.-Y.,, Y. Kook,, Y.- J. Yun,, C. G. Park,, N. Y. Lee,, T. S. Shim,, B.- J. Kim, and, Y.-H. Kook. 2008. Proportion of Mycobacterium massiliense and Mycobacterium bolletii in strains among Korean Mycobacterium chelonae-Mycobacterium abscessus group isolates. J. Clin. Microbiol. 46: 3384– 3390.
43. Kim, H.-Y.,, Y.- J. Yun,, C. G. Park,, D. H. Lee,, Y. K. Cho,, B. J. Park,, S.- I. Joo,, E.- C. Kim,, Y. J. Hur,, B.- J. Kim, and, Y. H. Kook. 2007. Outbreak of Mycobacterium massiliense infection associated with intramuscular injections. J. Clin. Microbiol. 45: 3127– 3130.
44. Koh, W.-J.,, J. Kyeongman,, N.- Y. Lee,, B.- J. Kim,, Y.- H. Kook,, S.- H. Lee,, Y. K. Park,, C. K. Kim,, S. J. Shin,, G. A. Huitt,, C. L. Daley, and, D. J. Kwon. 2011. Clinical significance of differentiation of Mycobacterium massilense from Mycobacterium abscessus. Am. J. Respir. Crit. Care Med. 183: 405– 410.
45. Kusunoki, S.,, and T. Ezaki. 1992. Proposal of Mycobacterium peregrinum sp. nov., nom. rev., and elevation of Mycobacterium chelonae subsp. abscessus (Kubica et al.) to species status: Mycobacterium abscessus comb. nov. Int. J. Syst. Bacteriol. 42: 240– 245.
46. Lai, K. K.,, B. A. Brown,, J. A. Westerling,, S. A. Fontecchio,, Y. Zhang, and, R. J. Wallace, Jr. 1998. Long-term laboratory contamination by Mycobacterium abscessus resulting in two pseudo-outbreaks: recognition with use of random amplified polymorphic DNA (RAPD) polymerase chain reaction. Clin. Infect. Dis. 27: 169– 175.
47. Lamy, B.,, H. Marchandin,, K. Hamitouche, and, F. Laurent. 2008. Mycobacterium setense sp. nov., a Mycobacterium fortuitum group organism isolated from a patient with soft tissue infection and osteitis. Int. J. Syst. Evol. Microbiol. 58: 486– 490.
48. Leao, S. C.,, E. Tortoli,, C. Viana-Niero,, S. Y. M. Ueki,, K. V. B. Lima,, M. L. Lopes,, J. Yubero,, M. C. Menendez, and, M. J. Garcia. 2009. Characterization of mycobacteria from a major Brazilian outbreak suggests a revision of the taxonomic status of members of the Mycobacterium chelonae-abscessus group. J. Clin. Microbiol. 47: 2691– 2698.
49. Leao, S. C.,, E. Tortoli,, J. P. Euzeby, and, M. J. Garcia. 2010 (Epub ahead of print). Proposal that the two species Mycobacterium massilense and Mycobacterium bolletii be reclassified as Mycobacterium abscessus subsp. bolletii comb. nov., designation of Mycobacterium abscessus subsp. abscessus subsp. nov., and emendation of Mycobacterium abscessus. Int. J. Syst. Evol. Microbiol. doi:10.1099/ijs.0.023770-0.
50. Levendoglu-Tugal, O.,, J. Munoz,, A. Brudnicki,, M. F. Ozkaynak,, C. Sandoval, and, S. Jayabose. 1998. Infections due to nontuberculous mycobacteria in children with leukemia. Clin. Infect. Dis. 27: 1227– 1230.
51. Macheras, E.,, A.- L. Roux,, F. Ripoll,, V. Sivadon-Tardy,, C. Gutierrez,, J.- L. Gaillard, and, B. Heym. 2009. Inaccuracy of single-target sequencing for discriminating species of the Mycobacterium abscessus group. J. Clin. Microbiol. 47: 2596– 2600.
52. McNabb, A.,, D. Eisler,, K. Adie,, M. Amos,, M. Rodrigues,, G. Stephens,, W. A. Black, and, J. Isaac-Renton. 2004. Assessment of partial sequencing of the 65-kilodalton heat shock protein gene ( hsp65) for routine identification of Mycobacterium species isolated from clinical sources. J. Clin. Microbiol. 42: 3000– 3011.
53. Meyers, H.,, B. A. Brown-Elliott,, D. Moore,, J. Curry,, C. Truong,, Y. Zhang,, R. J. Wallace, Jr. 2002. An outbreak of Mycobacterium chelonae infection following liposuction. Clin. Infect. Dis. 34: 1500– 1507.
54. Moore, M.,, and J. B. Frerichs. 1953. An unusual acid fast infection of the knee with subcutaneous, abscess-like lesions of the gluteal region: report of a case study with a study of the organism, Mycobacterium abscessus. J. Investig. Dermatol. 20: 133– 169.
55. Nash, K. A. 2003. Intrinsic macrolide resistance in Mycobacterium smegmatis is conferred by a novel erm gene, erm( 38). Antimicrob. Agents Chemother. 47: 3053– 3060.
56. Nash, K. A.,, N. Andini,, Y. Zhang,, B. A. Brown-Elliott, and, R. J. Wallace, Jr. 2006. Intrinsic macrolide resistance in rapidly growing mycobacteria. Antimicrob. Agents Chemother. 50: 3476– 3478.
57. Nash, K. A.,, B. A. Brown-Elliott, and, R. J. Wallace, Jr. 2009. A novel gene, erm( 41), confers inducible macrolide resistance to clinical isolates of Mycobacterium abscessus but is absent from Mycobacterium chelonae. Antimicrob. Agents Chemother. 53: 1367– 1376.
58. Nash, K. A.,, Y. Zhang,, B. A. Brown-Elliott, and, R. J. Wallace, Jr. 2005. Molecular basis of intrinsic macrolide resistance in clinical isolates of Mycobacterium fortuitum. J. Antimicrob. Chemother. 55: 170– 177.
59. Olivier, K. N.,, D. J. Weber,, R. J. Wallace, Jr.,, A. R. Faiz,, J.- H. Lee,, Y. Zhang,, B. A. Brown-Elliott,, A. Handler,, R. W. Wilson,, M. S. Schechter,, L. J. Edwards,, S. Chakraborti, and, M. R. Knowles for the Nontuberculous Mycobacteria in Cystic Fibrosis Study Group. 2003. Nontuberculous mycobacteria. I. Multicenter prevalence study in cystic fibrosis. Am. J. Respir. Crit. Care Med. 167: 828– 834.
60. Petti, C. A.,, P. P. Bosshard,, M. E. Brandt,, J. E. Clarridge III,, T. V. Feldblyum,, P. Foxall,, M. R. Furtado,, N. Pace, and, G. Procop. 2007. Interpretive Criteria for Microorganism Identification by DNA Target Sequencing: Proposed Guideline. CLSI Document MM18-P. Clinical and Laboratory Standards Institute, Wayne, PA.
61. Phillips, M. S.,, and C. F. von Reyn. 2001. Nosocomial infections due to nontuberculous mycobacteria. Clin. Infect. Dis. 33: 1363– 1374.
62. Raad, I. I.,, S. Vartivarian,, A. Khan, and, G. P. Bodey. 1991. Catheter-related infections caused by the Mycobacterium fortuitum complex: 15 cases and review. Rev. Infect. Dis. 13: 1120– 1125.
63. Regnier, S.,, E. Cambau,, J.- P. Meningaud,, A. Guihot,, L. Deforges,, A. Carbonne,, F. Bricaire, and, E. Caumes. 2009. Clinical management of rapidly growing mycobacterial cutaneous infections in patients after mesotherapy. Clin. Infect. Dis. 49: 1358– 1364.
64. Reviglio, V.,, M. L. Rodriguez,, G. S. Picotti,, M. Paradello,, J. D. Luna, and, C. P. Juárez. 1998. Mycobacterium chelonae keratitis following laser in situ keratomileusis. J. Refract. Surg. 14: 357– 360.
65. Richter, E.,, S. Rüsch-Gerdes, and, D. Hillemann. 2006. Evaluation of the GenoType Mycobacterium assay for identification of mycobacterial species from cultures. J. Clin. Microbiol. 44: 1769– 1775.
66. Roux, A.-L.,, E. Catherinot,, F. Ripoll,, N. Soismier,, E. Macheras,, S. Ravilly,, G. Bellis,, M.- A. Vibet,, E. Le Roux,, L. Lemonnier,, C. Gutierrez,, V. Vincent,, B. Fauroux,, M. Rottman,, D. Guillemot,, J.- L. Gaillard, and, J.-L. Herrman for the OMA Group. 2009. Multicenter study of prevalence of nontuberculous mycobacteria in patients with cystic fibrosis in France. J. Clin. Microbiol. 47: 4124– 4128.
67. Runyon, H. 1972. Conservation of the specific epithet fortuitum in the name of the organism known as Mycobacterium fortuitum da Costa Cruz. Int. J. Syst. Bacteriol. 22: 50– 51.
68. Saluja, A.,, N. T. Peters,, L. Lowe, and, T. M. Johnson. 1997. A surgical wound infection due to Mycobacterium chelonae successfully treated with clarithromycin. Dermatol. Surg. 23: 539– 543.
69. Sampaio, J. L.,, E. Chimara,, L. Ferrazoli,, M. A. da Silva Telles,, V. M. Del Guercio,, Z. V. Jericó,, K. Miyashiro,, C. M. Fortaleza,, M. C. Padoveze, and, S. C. Leão. 2006. Application of four molecular typing methods for analysis of Mycobacterium fortuitum group strains causing post-mammaplasty infections. Clin. Microbiol. Infect. 12: 142– 149.
70. Schinsky, M. F.,, R. E. Morey,, A. G. Steigerwalt,, M. P. Douglas,, R. W. Wilson,, M. M. Floyd,, W. R. Butler,, M. I. Daneshvar,, B. A. Brown-Elliott,, R. J. Wallace, Jr.,, M. M. McNeil,, D. J. Brenner, and, J. M. Brown. 2004. Taxonomic variation in the Mycobacterium fortuitum third-biovariant complex: description of Mycobacterium boenickei sp. nov., Mycobacterium houstonense sp. nov., Mycobacterium neworleansense sp. nov., Mycobacterium brisbanense sp. nov., and recognition of Mycobacterium porcinum from human clinical isolates. Int. J. Syst. Evol. Microbiol. 54: 1653– 1667.
71. Schulze-Röbbecke, R.,, B. Janning, and, R. Fischeder. 1992. Occurrence of mycobacteria in biofilm samples. Tuberc. Lung Dis. 73: 141– 144.
73. Sudesh, S.,, E. J. Cohen,, L. W. Schwartz, and, J. S. Myers. 2000. Mycobacterium chelonae infection in a corneal graft. Arch. Ophthalmol. 118: 294– 295.
74. Telenti, A.,, F. Marchesi,, M. Balz,, F. Bally,, E. C. Böttger, and, T. Bodmer. 1993. Rapid identification of mycobacteria to the species level by polymerase chain reaction and restriction enzyme analysis. J. Clin. Microbiol. 31: 175– 178.
75. Tiwari, T. S. P.,, B. Ray,, K. C. Jost, Jr.,, M. K. Rathod,, Y. Zhang,, B. A. Brown-Elliott,, K. Hendricks, and, R. J. Wallace, Jr. 2003. Forty years of disinfectant failure: outbreak of postinjection Mycobacterium abscessus infection caused by contamination of benzalkonium chloride. Clin. Infect. Dis. 36: 954– 962.
76. Tortoli, E. 2003. Impact of genotypic studies on mycobacterial taxonomy: the new mycobacteria of the 1990s. Clin. Microbiol. Rev. 16: 319– 354.
77. Tortoli, E. 2006. The new mycobacteria: an update. FEMS Immunol. Med. Microbiol. 48: 159– 178.
78. Tortoli, E.,, A. Nanetti,, C. Piersimoni,, P. Cichero,, C. Farina,, G. Mucignat,, C. Scarparo,, L. Bartolini,, R. Valentini,, D. Nista,, G. Gesu,, C. Passerini Tosi,, M. Crovatto, and, G. Brusarosco. 2001. Performance assessment of new multiplex probe assay for identification of mycobacteria. J. Clin. Microbiol. 39: 1079– 1084.
79. Tortoli, E.,, M. Pecorari,, G. Fabio,, M. Messinò, and, A. Fabio. 2010. Commercial DNA probes for mycobacteria incorrectly identify a number of less frequently encountered species. J. Clin. Microbiol. 48: 307– 310.
80. Turenne, C. Y.,, L. Tschetter,, J. Wolfe, and, A. Kabani. 2001. Necessity of quality-controlled 16S rRNA gene sequence databases: identifying nontuberculous Mycobacterium species. J. Clin. Microbiol. 39: 3637– 3648.
81. van Dissel, J. T.,, and E. J. Kuijper. 2009. Rapidly growing mycobacteria: emerging pathogens in cosmetic procedures of the skin. Clin. Infect. Dis. 49: 1365– 1368.
82. Viana-Nicro, C.,, K. V. B. Lima,, M. L. Lopes,, M. C. da Silva Rabello,, L. R. Marsola,, V. C. R. Brilhante,, A. M. Durham, and, S. C. Leão. 2008. Molecular characterization of Mycobacterium massiliense and Mycobacterium bolletii in isolates collected from outbreaks of infections after laparoscopic surgeries and cosmetic procedures. J. Clin. Microbiol. 46: 850– 855.
83. Villanueva, A.,, R. V. Calderon,, B. A. Vargas,, F. Ruiz,, S. Aguero,, Y. Zhang,, B. A. Brown, and, R. J. Wallace, Jr. 1997. Report on an outbreak of post-injection abscesses due to Mycobacterium abscessus, including management with surgery and clarithromycin therapy and comparison of strains by random amplified polymorphic DNA polymerase chain reaction. Clin. Infect. Dis. 24: 1147– 1153.
84. Vugia, D. J.,, Y. Jang,, C. Zizek,, J. Ely,, K. L. Winthrop, and, E. Desmond. 2005. Mycobacteria in nail salon whirlpool footbaths, California. Emerg. Infect. Dis. 11: 616– 618.
85. Wallace, R. J., Jr. 2004. Infections due to nontuberculous mycobacteria, p. 461–478. In W. M. Scheld,, R. J. Whitley, and, C. M. Marra (ed.), Infections of the Central Nervous System, 3rd ed. Lippincott Williams & Wilkins, Philadelphia, PA.
86. Wallace, R. J., Jr.,, B. A. Brown-Elliott,, C. J. Crist,, L. Mann, and, R. W. Wilson. 2002. Comparison of the in vitro activity of the glycylcycline tigecycline (formerly GAR-936) with those of tetracycline, minocycline, and doxycycline against isolates of nontuberculous mycobacteria. Antimicrob. Agents. Chemother. 46: 3164– 3167.
87. Wallace, R. J., Jr.,, B. A. Brown-Elliott,, J. M. Brown,, A. G. Steigerwalt,, L. Hall,, G. Woods,, J. Cloud,, L. Mann,, R. W. Wilson,, C. Crist,, K. C. Jost, Jr.,, D. E. Byrer,, J. Tang,, J. Cooper,, E. Stamenova,, B. Campbell,, J. Wolfe, and, C. Turenne. 2005. Polyphasic characterization reveals that the human pathogen Mycobacterium peregrinum type II belongs to the bovine pathogen species Mycobacterium senegalense. J. Clin. Microbiol. 43: 5925– 5935.
88. Wallace, R. J., Jr.,, B. A. Brown-Elliott,, L. Hall,, G. Roberts,, R. W. Wilson,, L. B. Mann,, C. J. Crist,, S. H. Chiu,, R. Dunlap,, M. J. Garcia,, J. T. Bagwell, and, K. C. Jost, Jr. 2002. Clinical and laboratory features of Mycobacterium mageritense. J. Clin. Microbiol. 40: 2930– 2935.
89. Wallace, R. J., Jr.,, B. A. Brown-Elliott,, S. C. Ward,, C. J. Crist,, L. B. Mann, and, R. W. Wilson. 2001. Activities of linezolid against rapidly growing mycobacteria. Antimicrob. Agents Chemother. 45: 764– 767.
90. Wallace, R. J., Jr.,, B. A. Brown-Elliott,, R. W. Wilson,, L. Mann,, L. Hall,, Y. Zhang,, K. C. Jost, Jr.,, J. M. Brown,, A. Kabani,, M. F. Schinsky,, A. G. Steigerwalt,, C. J. Crist,, G. D. Roberts,, Z. Black-lock,, M. Tsukamura, and, V. Silcox, and, C. Turenne. 2004. Clinical and laboratory features of Mycobacterium porcinum. J. Clin. Microbiol. 42: 5689– 5697.
91. Wallace, R. J., Jr.,, A. Meier,, B. A. Brown,, Y. Zhang,, P. Sander,, G. O. Onyi, and, E. C. Böttger. 1996. Genetic basis for clarithromycin resistance among isolates of Mycobacterium chelonae and Mycobacterium abscessus. Antimicrob. Agents Chemother. 40: 1676– 1681.
92. Washer, L. L.,, J. Riddell IV,, J. Rider, and, C. E. Chenoweth. 2007. Mycobacterium neoaurum bloodstream infection: report of 4 cases and review of the literature. Clin. Infect. Dis. 45: e10– e13.
93. Whipps, C. M., W. R. Butler,, F. Pourahmad,, V. G. Watral, and, M. L. Kent. 2007. Molecular systematics support the revival of Mycobacterium salmoniphilum (ex Ross 1960) sp. nov., nom. rev., a species closely related to Mycobacterium chelonae. Int. J. Syst. Evol. Microbiol. 57: 2525– 2531.
94. Wilson, R. W.,, V. A. Steingrube,, E. C. Böttger,, B. Springer,, B. A. Brown-Elliott,, V. Vincent,, K. C. Jost, Jr.,, Y. Zhang,, M. J. Garcia,, S. H. Chiu,, G. O. Onyi,, H. Rossmoore,, D. R. Nash, and, R. J. Wallace, Jr. 2001. Mycobacterium immunogenum sp. nov., a novel species related to Mycobacterium abscessus and associated with clinical disease, pseudo-outbreaks, and contaminated metalworking fluids: an international cooperative study on mycobacterial taxonomy. Int. J. Syst. Evol. Microbiol. 51: 1751– 1764.
95. Winthrop, K. L.,, K. Albridge,, D. South,, P. Albrecht,, M. Abrams,, M. C. Samuel,, W. Leonard,, J. Wagner, and, D. J. Vugia. 2004. The clinical management and outcome of nail salon-acquired Mycobacterium fortuitum skin infection. Clin. Infect. Dis. 38: 38– 44.
96. Winthrop, K. L.,, E. Chang,, S. Yamashita,, M. F. Iademarco, and, P. A. LoBue. 2009. Nontuberculous mycobacteria infections and anti-tumor necrosis factor-alpha therapy. Emerg. Infect. Dis. 15: 1556– 1561.
97. Wolinsky, E. 1979. State of the art: nontuberculous mycobacterial and associated disease. Am. Rev. Respir. Dis. 119: 107– 159.
98. Woo, P. C. Y.,, K.- W. Leung,, S. S. Y. Wong,, K. T. K. Chong,, E. Y. L. Cheung, and, K.-Y. Yuen. 2002. Relatively alcohol-resistant mycobacteria are emerging pathogens in patients receiving acupuncture treatment. J. Clin. Microbiol. 40: 1219– 1224.
99. Woods, G. L.,, B. A. Brown-Elliott,, E. P. Desmond,, G. S. Hall,, L. Heifets,, G. E. Pfyffer,, M. R. Ridderhof,, R. J. Wallace, Jr.,, N. G. Warren, and, F. G. Witebsky. 2003. Susceptibility Testing of Mycobacteria, Nocardia, and Other Aerobic Actinomycetes; Approved Standard M24-A. NCCLS, Wayne, PA.
100. Zelazny, A. M.,, J. M. Root,, Y. R. Shea,, R. E. Colombo,, I. C. Shamputa,, F. Stock,, S. S. Conlan,, S. McNulty,, B. A. Brown-Elliott,, R. J. Wallace, Jr.,, K. N. Olivier,, S. M. Holland, and, E. P. Sampaio. 2009. Cohort study of molecular identification and typing of Mycobacterium abscessus, Mycobacterium massiliense and Mycobacterium bolletii. J. Clin. Microbiol. 47: 1985– 1995.
101. Zhang, Y.,, M. Rajagopalan,, B. A. Brown, and, R. J. Wallace, Jr. 1997. Randomly amplified polymorphic DNA PCR for comparison of Mycobacterium abscessus strains from nosocomial outbreaks. J. Clin. Microbiol. 35: 3132– 3139.
102. Zhibang, Y.,, Z. Bixia,, L. Qishan,, C. Lihao,, L. Xiangquan, and, L. Huaping. 2002. Large-scale outbreak of infection with Mycobacterium chelonae subsp. abscessus after penicillin injection. J. Clin. Microbiol. 40: 2626– 2628.

matches: V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V.


text:
The paper proposes a method for constructing guaranteed regions of stability of nonstationary nonlinear systems on the plane of parameters of a fuzzy PID controller. It is shown that this method allows to determine the full stability areas, which are significantly larger than the areas determined by classical methods (frequency circle criterion, quadratic Lyapunov functions). This improvement is achieved by using the algorithm for constructing spline Lyapunov functions. This type of Lyapunov functions is based on the necessary and sufficient conditions of stability, while the classical methods are only sufficient conditions of stability. In this regard, on the basis of the proposed method, it is possible to calculate the maximum sizes of the sectors in which the nonlinear characteristics in the channels of the fuzzy PID controller should be located. Examples of the synthesis of fuzzy P, PI, PID controllers for a nonstationary control object of the third order are given. Numerical experiments show that the expansion of the boundaries of nonlinear characteristics allows to improve the accuracy in the steady state, and also to almost double the speed of the automatic control system with a nonstationary object. The advantages over linear controllers are demonstrated. The proposed method guarantees the stability inside the calculated stability regions for any character of the change in the nonstationary parameter, as well as for any character of the change in the nonlinear characteristics in the corresponding sectors.
Nonstationary Nonlinear System; Stability Regions; Lyapunov Functions; Circle Criteria; Spine Functions; PID Controllers; Fuzzy Logic; Adaptive Systems.
K. A. Pupkov, N. D. Egupov, Nonstationary Automatic Control Systems: analyze, synthesis and optimization, Moscow: Izdatelstvo MGTU im. N.E. Baumana, 2007.
N. Siddique, “Fuzzy control”, Studies in Computational Intelligence, vol. 517, pp. 95-135, 2014. doi: 10.1007/978-3-319-02135-5.
R. Guclu, “Sliding mode and PID control of a structural system against earthquake”, Mathematical and Computer Modelling, vol. 44, Iss. 1–2, pp. 210-217, 2006. doi: 10.1016/j.mcm.2006.01.014.
X. Liao, P. Yu. Absolute Stability of Nonlinear Control Systems, Dordrecht: Springer, 2008. doi: 10.1007/978-1-4020-8482-9.
V.P Berdnikov, “Algorithm of determination of non-stationary nonlinear systems full stability areas”, Russian Technological Journal, vol. 5, no. 6, pp. 55-72, 2017.
V.P. Berdnikov, “Modified algorithm of determination of non-stationary nonlinear systems full stability areas”, Russian Technological Journal, vol. 6, no 3, pp. 39-53, 2018.
V.P. Berdnikov, “Improving efficiency of the procedure of Lyapunov spline-functions construction for nonlinear nonstationary systems”, Russian Technological Journal, vol. 6, no. 5, pp. 25-44, 2018. doi: 10.32362/2500-316X-2018-6-5-25-44.S.
A.P Molchanov, E.S. Pyatnickij, “Lyapunov functions defining the necessary and sufficient conditions for absolute stability of nonlinear nonstationary control systems, I”, Automation and Remote Control, no. 47, pp. 344–354, 1986.
A.P Molchanov, E.S. Pyatnickij, “Lyapunov functions defining the necessary and sufficient conditions for absolute stability of nonlinear nonstationary control systems, II”, Automation and Remote Control, no. 47, pp. 443–451, 1986.
A.P Molchanov, E.S. Pyatnickij, “Lyapunov functions defining the necessary and sufficient conditions for absolute stability of nonlinear nonstationary control systems, III”, Automation and Remote Control, no. 47, pp. 620–630, 1986.
J. Jantzen, Foundations of Fuzzy Control: A Practical Approach. Chichester, England: John Wiley and Sons, 2013. doi: 10.1002/9781118535608.
D. Altshuller, Frequency domain criteria for absolute stability: a delay-integral-quadratic constraints approach, London: Springer, 2013. doi: 10.1007/978-1-4471-4234-8.
A.T. Barabanov, A. S. Lisogurskiy, “Algebraic approach to the formation of fast algorithms for the study of absolute stability”, Dynamic Systems, vol. 4, no. 2, pp. 121-134, 2014.
V. A. Kamenetskiy, “Frequency-domain stability conditions for hybrid systems”, Automation and Remote Control, vol. 78, no. 12, pp. 2101–2119, 2017. doi: 10.1134/S0005117917120013.
M. Lipkovich, A. Fradkov, “Equivalence of MIMO Circle Criterion to Existence of Quadratic Lyapunov Function”, IEEE Transactions on Automatic Control, vol. 61, no. 7, pp. 1895 – 1899, 2016. doi: 10.1109/TAC.2015.2487479.
S. Boyd, L. El Ghaoui, E. Feron, V. Balakrishnan, Linear Matrix Inequalities in System and Control Theory, Philadelphia, PA: Society for Industrial Mathematics, 1994.
S. Boyd, L. Vandenberghe, Convex Optimization, Cambridge: Cambridge University Press, 2004. doi: 10.1017/CBO9780511804441.
I. M. Makarov, V. M. Lokhin, Intellectual Automatic Control Systems. Moscow: Fizmatlit, 2001.
N. A. Kazachek, “The use of intelligent algorithms based on fuzzy logic in management of industrial facilities”, Science Review, no. 20, pp. 165-170, 2015.
V. M. Lokhin, N. A. Kazachek, V. A. Ryabcov. Complex research of dynamics of control systems with fuzzy P–controller. International Journal of Materials, Mechanics and Manufacturing. vol.4, no. 2 pp. 140-144, 2016. doi: 10.7763/IJMMM.2016.V4.242.
Y. Boutalis, D. Theodoridis, T. Kottas, M. A. Christodoulou, System Identification and Adaptive Control: Theory and Applications of the Neurofuzzy and Fuzzy Cognitive Network Models. Berlin: Springer, 2014. doi: 10.1007/978-3-319-06364-5.
F. Manenti, F. Rossi a, A. G. Goryunov, V. F. Dyadik, K. A. Kozin, I. S. Nadezhdin, S. S. Mikhalevich, “Fuzzy adaptive control system of a non-stationary plant with closed-loop passive identifier”, Resource-Efficient Technologies, vol. 9, no. 1, pp. 10-18, 2015. doi: 10.1016/j.reffit.2015.07.001.
I. S. Nadezhdin, A. G. Goryunov, F. Manenti, “Fuzzy Adaptive Control System of a Non-Stationary Plant”, IOP Conference Series: Materials Science and Engineering, vol. 142, no. 1, pp. 1–8, 2016. doi: 10.1088/1757-899X/142/1/012048.

matches: V. V. V. V. V. V.


text:
ESTATE OF THEODORE R. MORTNER & a.
Bianco Professional Association, of Concord (Jason B. Dennis on the brief and orally), for the plaintiffs.
Coughlin, Rainboth, Murphy & Lown, P.A., of Portsmouth (Timothy C. Coughlin on the memorandum of law and orally), for the defendant.
This appeal arises in the wake of our decision in In the Matter of Mortner & Mortner, 168 N.H. 424, 429 (2015), in which we held that the death of Theodore Mortner (Husband) prior to issuance of a divorce decree abated the divorce action instituted by his then-wife, defendant Lindsay Thompson (Wife). We declined on preservation grounds in that case to address whether a property settlement agreement entered into by Husband and Wife during the divorce action's pendency survived the action's abatement as an independently enforceable contract. See Mortner, 168 N.H. at 429-30. Following our decision, the plaintiffs, Husband's estate (the "Estate") and his daughter, Judith Mortner ("Judith"), filed this action against Wife, alleging breach of the property settlement agreement and unjust enrichment. The Estate and Judith now appeal an order of the Superior Court (Howard, J.) dismissing both claims. We affirm.
The pertinent factual and procedural background is set forth in our opinion in Mortner and need not be recapitulated here. See id. at 426-27. Subsequent to our decision in that case, the Estate and Judith instituted this action claiming that Wife remained contractually bound to the "Memorandum of Understanding" - a settlement agreement reached by Husband and Wife during the divorce action's pendency concerning division of the marital assets and debts. We shall refer to this agreement as the "property settlement agreement" for purposes of this appeal. The Estate and Judith also asserted an alternative claim against Wife for unjust enrichment, alleging that, as a result of Husband's death, Wife "wrongly secured" or unjustly retained certain assets that she had agreed to part with under the property settlement agreement.
Wife subsequently moved to dismiss the contract claim, arguing that the property settlement agreement's enforceability was contingent upon the issuance of a divorce decree and, because one never issued, the agreement was unenforceable. At a hearing held on her motion, Wife also orally moved to dismiss the unjust enrichment claim, contending that the Estate and Judith had alleged insufficient facts to establish that she had received anything of value from Husband or Judith, or that it would be unconscionable for Wife to retain the disputed assets. The Estate and Judith objected.
Following the hearing, the trial court issued an order agreeing with Wife on both fronts. With regard to the contract claim, the trial court found that the plain language of the property settlement agreement, read in light of the agreement's purpose and the context in which it was negotiated, demonstrated that a divorce decree was an "implied condition precedent" to its contractual enforceability. As to the unjust enrichment claim, the trial court concluded that the facts set forth in the Estate's and Judith's complaint were insufficient to allege that Wife engaged in any wrongdoing, or that her retention of the disputed assets rose to "the requisite level of indecency necessary to establish unconscionability." The Estate and Judith filed a motion for reconsideration and partial clarification, which was denied. This appeal followed.
The Estate and Judith first challenge the trial court's dismissal of their contract claim against Wife, contending that the property settlement agreement does not contain any of the signal words generally recognized to create conditions precedent in a contractual agreement. See Holden Eng'g and Surveying v. Pembroke Rd. Realty Trust, 137 N.H. 393, 396 (1993). Thus, according to the Estate and Judith, the trial court should have concluded that Husband and Wife intended the agreement to be an enforceable contract upon execution, not upon issuance of a divorce decree.
An essential premise of the Estate's and Judith's claim, however, is that in this State, as in some other jurisdictions, a property settlement agreement between parties in a divorce proceeding constitutes an independently enforceable contract. See generally Annotation, Separation Agreements: Enforceability of Provision Affecting Property Rights upon Death of One Party Prior to Final Judgment of Divorce, 67 A.L.R.4th 237 (1989). This premise is incorrect. It has long been common practice in New Hampshire for parties in a divorce proceeding to reach a stipulated agreement, like Husband's and Wife's property settlement agreement, regarding matters arising out of dissolution of the marital relationship. See, e.g., Miller v. Miller, 133 N.H. 587, 590 (1990); Narins v. Narins, 116 N.H. 200, 202 (1976); Pindar v. Pindar, 109 N.H. 76, 76 (1968). And we have long held that such agreements are binding upon the parties. See Bossi v. Bossi, 131 N.H. 262, 265 (1988); Leighton v. Leighton, 122 N.H. 721, 723 (1982). Yet, it must be recognized that, although parties in a divorce proceeding are free to negotiate and bind themselves to such an agreement, the agreement itself is not self-executing in this State, but rather becomes enforceable only through the action of the court. Compare Bossi, 131 N.H. at 265 (explaining that a master in a divorce proceeding has the discretion "to accept or reject a settlement agreement based on its terms") with Estate of Ladd v. Estate of Ladd, 640 A.2d 29, 32 (Vt. 1994) ("[A] pretrial agreement [between spouses] to distribute property is a contract, which the court can set aside only for grounds sufficient to set aside a contract." (quotation omitted)), overruled by Pouech v. Pouech, 904 A.2d 70, 77 (Vt. 2006), and Surabian v. Surabian, 285 N.E.2d 909, 911 (Mass. 1972) ("Because the separation agreement [between husband and wife] exists independently of the divorce decree, the [wife] could seek to have the support provision enforced in a contract action.").

matches: v. v. v. v. v. v. v. v. v.


text:
NILDA VERGINESA-SUAREZ, Complainant, v. JUDGE RENATO J. DILAG AND COURT STENOGRAPHER III CONCEPCION A. PASCUA, Respondents.
OFFICE OF THE COURT ADMINISTRATOR, Complainant, v. JUDGE RENATO J. DILAG, Respondent.
These consolidated cases involve (a) the administrative charges of graft and corruption against respondents Judge Renato J. Dilag (Judge Dilag) and Court Stenographer III Concepcion A. Pascua (Pascua) of Branch 73 of the Regional Trial Court (RTC) of Olongapo City, Zambales filed by Nilda Verginesa-Suarez (Suarez), Court Stenographer III of the same court; and (b) the administrative charges for gross misconduct and gross ignorance of the law against Judge Dilag filed by the Office of the Court Administrator (OCA). These cases also include the counter-charges of Judge Dilag and Pascua against Suarez for falsification, negligence in the transcription of stenographic notes, and absence without official leave.
3. Special Proceeding No. 436-0-2002 entitled "Petition for Voluntary Dissolution of the Conjugal Partnership of Gains and for the Separation of the Common Properties, Danilo del Rosario and Rachelle del Rosario, Petitioners" (Del Rosario case) which was dismissed in a Decision dated July 27, 2004 but granted in a Decision dated September 7, 2004.
Judge Dilag and Pascua filed their respective answers to the complaint in compliance with the directive of the OCA. In his Answer3 dated February 21, 2006, Judge Dilag denied the allegation of graft and corruption and he filed administrative countercharges against Suarez for falsification or fabrication of the purported dismissed decisions; negligence in the transcription of stenographic notes assigned to her, supported by several manifestations and motions of lawyers; and absence without official leave from November 22, 2005 to December 12, 2005.
In her Kontra-Salaysay4 dated February 23, 2006, Pascua denied that she collected money from litigants for Judge Dilag and also filed countercharges against Suarez.
Suarez filed a Supplemental Affidavit5 dated March 16, 2006 and alleged therein that Judge Carmelita Fruelda of Branch 43 of the RTC of San Fernando, Pampanga, attempted to persuade her to withdraw the administrative case she filed against Judge Dilag and Pascua. Suarez also filed separate replies to the comments of Judge Dilag and Pascua. In her Reply to the Comment of Judge Renato Dilag6 dated May 10, 2006, Suarez contended that she had transcribed her pending transcript of stenographic notes and denied that she went on absence without official leave during the period adverted to by Judge Dilag. Suarez further pointed out that Judge Dilag had been previously charged and sanctioned administratively in Ma. Teresa De Jesus v. Judge Renato J. Dilag,7 wherein Judge Dilag was fined P30,000.00 for gross ignorance of the law.
The OCA observed that the controversies between the parties were replete with substantial factual issues, and so it recommended a formal administrative inquiry to be conducted by a designated Associate Justice of the Court of Appeals. In a Resolution8 dated August 2, 2006, this Court resolved, upon the recommendation of the OCA, to: (1) treat the comment of Judge Dilag as a complaint against Suarez; (2) redocket the instant matter as an administrative matter and refer the same to an Associate Justice of the Court of Appeals for investigation within ninety (90) days from receipt of the record; and (3) require the Investigating Justice to submit a report within thirty (30) days from termination of the investigation.
(a) In Lilibeth Agustin v. Angel B. Lopez, CV. No. 242-0-2003, a petition dated May 4, 2003 was filed for declaration of nullity of marriage on the ground of lack of a valid marriage license and psychological incapacity of the respondent. In a Decision dated July 22, 2005, the petition was dismissed for lack of merit for failure of the petitioner to establish that the record or entry of the marriage license applied for and issued from 1983 to 1991 was unavailable due to destruction when Mt. Pinatubo erupted in 1991. On August 2, 2005, a motion for reconsideration was filed stressing the psychological incapacity of the defendant. In a Resolution dated September 30, 2005, the marriage was declared null and void ab initio pursuant to Art. 36 of the Family Code.
(b) There were two (2) conflicting decisions in SP No. 436-0-2002, "Danilo del Rosario and Rachelle del Rosario, an action for the Voluntary Dissolution of the Conjugal Partnership of Gains and for the Separation of the Common Properties." To the Monthly Report for the Month of July 2004, attached was a Decision dated July 27, 2004 dismissing the petition for an Agreement on a Voluntary Dissolution of Conjugal Partnership of Gains dated December 19, 2001 entered into by petitioner spouses for being contrary to law, moral, public policy and public order. However, in the case record, attached was a Decision dated September 7, 2004, granting the petition based on the same Agreement for not being contrary to law, moral, public policy and public order.
(c) In Lourdes Sotto v. Cresencio Diwa, CV No. 221-0-2005, which involved a Petition for Declaration of Nullity of Marriage, a decision (dated January 24, 2006) was rendered before the expiration of the period for the parties to submit memoranda (on January 26, 2006). Also, an entry of judgment dated February 20, 2006 was issued despite lack of a certificate from the Office of the Solicitor General (OSG) that it had received a copy of the decision.
(d) In Joyce Moreno v. Alvin Moreno, CV No. 188-0-01, also a Petition for Declaration of Nullity of Marriage, the petition was originally denied in a decision dated February 12, 2003. On February 24, 2003, a Motion for New Trial was filed alleging newly discovered evidence consisting, among other things, of the psychological report concerning defendant, which would show that indeed he was psychologically incapacitated to perform the marital obligations. On March 20, 2003, the Motion was granted and the marriage was declared null and void. Entry of Judgment was made on June 9, 2003 with no return or certificate showing that the OSG had received a copy of the decision / order.
(e) Two (2) petitions entitled Eliodoro Q. Perez v. Adelita Perez for declaration of nullity of marriage were filed. The first petition was filed on July 17, 2001 and docketed as CV No. 328-0-2001. In an Order dated October 28, 2003, the Motion to Dismiss dated September 25, 2003 filed by the plaintiff was granted, considering that no counterclaim was pleaded by the defendant in her answer and there was no opposition interposed by the public prosecutor. The case was considered dismissed with prejudice. However, a second petition was filed on February 01, 2005 docketed as CV No. 44-0-05 involving the same parties and also for declaration of nullity of marriage. The petition was granted in a Decision dated June 15, 2005, wherein the marriage was declared null and void ab initio. Entry of Judgment was effected on July 11, 2005 without proof of receipt of the decision by the OSG. There was a rumor circulating within the courts that petitioner in these cases sponsored the family vacation of Judge Dilag in the US worth US$6,000.00. The audit team also noted the speed in the disposition of this case, having been filed only on February 01, 2005 and decided on July 15, 2005.
(f) In Aurea Rowena Cayabyab v. Carlo Cayabyab, CV No. 125-0-05, an action for Declaration of Nullity of Marriage, the petition was granted in a Decision dated February 7, 2006, and a Certificate of Finality was issued on March 01, 2006 by Clerk of Court VI John V. Aquino of the Office of the Clerk of Court (OCC) based on the registry return card with a stamped receipt by the OSG of the subject decision. Subsequently, the OSG filed a Manifestation and Motion dated March 21, 2006 to Recall Certificate of Finality dated March 01, 2006, asserting that the OSG was never furnished with a copy of the decision. In an Order dated March 21, 2006, the Certificate of Finality issued on March 1, 2006 was recalled, and the OSG was furnished with a copy of the decision. During a conference with the audit team, Judge Dilag relayed to the Team Leader that he had his own investigation on the matter, and that he found out that the fake registry return card attached to the records was the wrongdoing of Pascua. Consequently, he asked Pascua to resign in order to preserve the integrity of the Court. Pascua resigned per a letter dated May 11, 2006 effective May 16, 2006 for personal reasons.
(g) In a petition for adoption filed by the spouses Angelito D. Roldan and Yolanda Roldan, a similarly fake registry return card purportedly showing receipt of the subject decision by the OSG was found in the case records.
The judicial audit team recommended to the OCA that the foregoing findings be consolidated with Administrative Matter No. RTJ-06-2014 and referred to an Investigating Justice of the Court of Appeals. It was also recommended that the resolution of the issue of the resignation of respondent Pascua be deferred and subjected to the outcome of the investigation by the Investigating Justice. The OCA adopted the recommendations of the judicial audit team. In a Resolution15 dated August 1, 2006, this Court approved the recommendation of the OCA.
These cases were then assigned to Associate Justice Ramon R. Garcia of the Court of Appeals for investigation, report and recommendation.
2) Whether or not a certain Belen Trapane, paid in behalf of plaintiff Lanie Pancho, in Civil Case No. 180-0-2001 for declaration of nullity of marriage, the amount of P30,000.00 to respondents through respondent Pascua.
3) Whether or not respondents, through respondent Pascua, are charging P30,000.00 to P40,000.00 for the grant of every petition for annulment or declaration of nullity of marriage.
1) Whether or not the three (3) Dismissed Decisions are falsified.
2) Whether or not private complainant failed to transcribe the transcript of stenographic notes of several cases . . . as enumerated in respondent Judge's answer.
3) Whether or not private complainant went on absence without official leave (AWOL) from November 22, 2005 to December 12, 2005.
Based on the . . . specific accusations of complainant OCA against respondent Judge, the core issue involved herein is whether or not respondent Judge is guilty of gross misconduct and/or gross negligence in the handling of the above-mentioned cases as set forth [by the OCA].
Thereafter, the parties presented their respective sets of evidence.
Private complainant Suarez was a Court Stenographer III and a colleague of Pascua. They were both assigned to Branch 73 of the RTC of Olongapo City, Zambales, under the direct supervision of Judge Dilag during the time material to these cases. Private complainant testified that Judge Dilag and Pascua collected payments for favorable judgments on cases assigned to their court, and that respondent Pascua acted as the "bagman" of Judge Dilag. The respondent judge would allegedly dismiss or deny first the case/incident and then, after payment through Pascua, he would approve or grant said case/incident. Suarez presented the sets of dismissed and granted decisions in the Pancho, Tomboc, and Del Rosario cases, and identified the signatures of Judge Dilag in the said dismissed decisions.
In connection with the countercharges against her, Suarez substantiated her claim that she had accordingly transcribed her transcript of stenographic notes, 28 and that she was not on absence without official leave from November 22, 2005 to December 12, 2005, as she had an application for leave therefor, which was disapproved by Judge Dilag but duly approved by the Leave Division of the Office of Administrative Services of the OCA.29 Suarez contended that Judge Dilag filed these countercharges against her in retaliation for her filing a complaint against him.
Belen Trapane testified that, on behalf of her friend who was the plaintiff in the Pancho case, she gave the amount of P30,000.00 to Pascua to obtain a favorable judgment. Trapane narrated that, when she earlier inquired from Pascua about the status of the said case, the latter told her that the same was dismissed but the decision could be replaced with another one granting the petition upon payment of P30,000.00, purportedly as required by Judge Dilag.
Admer Lumanog was the Docket Clerk in charge of the monthly report on civil cases of the court presided by Judge Dilag during the time material to these cases. He attested to the existence of the Decision dated July 27, 2004 or the decision of dismissal of the Del Rosario case. He said that this decision was included in the monthly report duly submitted to this Court through the Court Management Office of the OCA. Being familiar with the signatures of the official signatories in the said monthly report of cases, Lumanog identified the signature of Judge Dilag therein as well as in the decision of dismissal in the Del Rosario case.
Marissa Pascual and Evelyn Tec were also court employees at Branch 73 of the RTC of Olongapo City, Zambales, during the time material to these cases. Both testified that they became familiar with the customary signature of Judge Dilag in the course of their official functions, and that the signature appearing in the decision of dismissal of the Del Rosario case belonged to Judge Dilag.
Luzviminda Lacaba was a Utility Worker at Branch 73 of the RTC of Olongapo City, Zambales. She testified that, from the period of 2003 to 2005, Judge Dilag assigned and authorized her to take part in the releasing of decisions of their court and that, in the course of such function, she happened to read the decision of dismissal in the Del Rosario case.
Aurea Rowena Cayabyab was the plaintiff in Cayabyab v. Cayabyab, an annulment case lodged before Branch 73 of the RTC of Olongapo City, Zambales. She stated under oath that she also paid the amount of P30,000.00 to Pascua to facilitate the early termination of her case; and that she even paid the additional amount of P1,000.00 for the service on the OSG of the decision rendered by Judge Dilag in the said case. She, however, was disappointed to learn later on that the "Registry Return Receipt" which purportedly showed receipt of the said decision by the OSG was a fake document, as the OSG manifested that there was no such service of the said decision and that it moved to recall the certificate of finality of this decision.
Atty. Teresita A. Tuazon was the Judicial Supervisor of the OCA who headed the judicial audit team which conducted the investigation and physical inventory of the cases in the court presided by Judge Dilag. She also testified to the existence of the conflicting decisions in the Del Rosario case. She further substantiated and expounded on the findings of the judicial audit team as to the irregularities in the disposition of the petitions for the declaration of nullity of marriage in Lilibeth Agustin v. Angel Lopez, Lourdes Sotto v. Cresencio Diwa, Joyce Moreno v. Alvin Moreno, Eliodoro Perez v. Adelita Perez and Aurea Rowena Cayabyab v. Carlo Cayabyab, and the petition for adoption in Angelito Roldan and Yolanda Roldan.
In Lilibeth Agustin v. Angel Lopez, the records allegedly revealed an evidentiary dearth of support for the decision rendered therein. Judge Dilag initially dismissed the petition for lack of proof that there was no valid marriage license, without resolving the issue about the psychological incapacity of the parties to contract marriage. However, upon motion for reconsideration, the marriage was nullified on the ground of psychological incapacity of one of the parties to the marriage.
In Lourdes Sotto v. Cresencio Diwa, the decision rendered by Judge Dilag was allegedly done with undue haste. Judge Dilag required the parties to file their respective memoranda within a certain period, but he then decided the case without waiting for those memoranda or even before the lapse of the period to file said memoranda.
In Joyce Moreno v. Alvin Moreno, the final ruling issued by Judge Dilag was allegedly based on a motion for new trial on the ground of newly discovered evidence, even if the said evidence was not attached to the motion, in violation of Section 2 of Rule 37 of the Rules of Court. Moreover, the purported newly discovered evidence consisted of a psychological report of a psychiatrist, which should had been presented before or during the trial proceedings and not after the case had been dismissed. In any event, the entry of judgment of the final ruling was made without furnishing the OSG a copy thereof.
In Eliodoro Perez v. Adelita Perez, Judge Dilag was allegedly grossly ignorant of basic legal procedures, particularly of Section 2 of Rule 17 of the Rules of Court, because, despite the fact that the first petition filed had been "dismissed with prejudice" at the instance of the plaintiff, the second petition filed was subsequently granted. Moreover, the case was decided even before the submission of a report on the existence of collusion between the parties as required by Section 9 of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages.
In Cayabyab v. Cayabyab, a fake registry return card showing receipt by the OSG of the decision rendered therein was exposed; Pascua was allegedly responsible therefore and allegedly asked by Judge Dilag to resign because of such incident.
In the Angelito Roldan and Yolanda Roldan adoption case, the records of this case and those of the OSG conflicted as to the date of receipt by the latter of the decision rendered therein, which resulted in a premature entry of judgment on the said decision.
Finally, in Dinoso v. Corpuz, the decision rendered by Judge Dilag showed receipt by the OSG and an entry of judgment that had been made but the records of the OSG revealed that it had no records of the case.
However, she also attested to the fact that the OSG had no copies of the decisions rendered in Joyce Moreno v. Alvin Moreno and Dinoso v. Corpuz, and that the records of the OSG revealed a later date of receipt of the decision in the Angelito Roldan and Yolanda Roldan adoption case.
Judge Dilag denied that he collected fees from litigants in exchange for favorable decisions. He also denied that he rendered the three dismissed decisions in the Pancho, Tomboc, and Del Rosario cases and claimed that the signatures therein were not his. He further contended that he had no hand in the preparation of the monthly report of cases submitted to this Court, to which the dismissed decision in the Del Rosario case was attached.
As to the alleged irregularities in the disposition of cases raised by the judicial audit team, Judge Dilag argued that the said cases were decided upon due consideration of the evidence presented by the parties and pursuant to the applicable laws and rules of procedure. He further claimed that he exercised sound judicial discretion in the disposition of the said cases. Judge Dilag pointed out that the OSG did not even question the propriety or correctness of the decisions he rendered.
Respondent Pascua also denied that she collected money for Judge Dilag in exchange for favorable decisions, and she claimed that the accusations hurled by Suarez against her were merely fabricated.
Atty. Ma. Soledad M. Santos was the counsel on record of the plaintiff in the Tomboc case. She testified that she had not seen or received any decision denying the petition filed in the said case.
Ester A. Asilo was a Court Stenographer and designated Officer-in-Charge of the court presided by Judge Dilag. Upon examination of the records of the said cases under the instruction of Judge Dilag, she attested that the alleged decisions of dismissal in the Pancho, Tomboc and Del Rosario cases were not part of the aforesaid records. She further testified that Suarez failed to report for work from November 22, 2005 to December 12, 2005.
Bernardo Esteban was the Process Server of the court presided by Judge Dilag. He testified that Suarez was duly served with a memorandum issued by Judge Dilag which pertained to the present administrative countercharges against Suarez.
Judge Carmelita Gutierrez-Fruelda denied the allegation that she attempted to influence Suarez to withdraw the instant administrative case against Judge Dilag.
Atty. Lourdes I. de Dios was the counsel on record in the Del Rosario case. She testified that the said case was decided favorably by Judge Dilag, and that she was not aware of a purported previous decision of dismissal therein. During the course of the trial, Atty. De Dios also admitted that she was ordered suspended for a period of six (6) months from the practice of law by this Court in a Resolution dated January 26, 2001 rendered in Administrative Case No. 4943 entitled Diana de Guzman v. Atty. Lourdes I. de Dios, and that she commenced the practice of law again without any resolution from this Court lifting the said administrative sanction.
After the trial, the parties filed their respective memoranda. The OCA filed its Memorandum38 dated February 23, 2007; Suarez separately filed her Memorandum39 dated March 2, 2007; and Judge Dilag filed his Memorandum40 dated February 23, 2007.
In his Report and Recommendation,41 the Investigating Justice dismissed the administrative charges of graft and corruption against Judge Dilag and the countercharges of falsification, negligence in the transcription of stenographic notes, and absence without official leave against Suarez for insufficiency of evidence.
However, the Investigating Justice found Judge Dilag liable for: (1) "gross misconduct constituting violations of the Code of Judicial Conduct" for signing conflicting decisions in the Pancho, Tomboc, and Del Rosario cases; (2) "gross ignorance of the law and procedure" in handling Joyce Moreno v. Alvin Moreno and Eliodoro Perez v. Adelita Perez; and (3) "gross negligence and inefficiency" for failing to administer proper supervision over his staff when a fake registry return receipt was effected in Cayabyab v. Cayabyab and entries of judgment were effected in Joyce Moreno v. Alvin Moreno, Angelito and Yolanda Roldan, and Dinoso v. Corpuz. The Investigating Justice also found Pascua guilty of the administrative charges of graft and corruption.
The Investigating Justice further recommended that the matter raised by the OCA against Atty. Lourdes I. de Dios be referred to the Office of the Bar Confidant for appropriate action.
This Investigating Justice finds that there is no sufficient, clear and convincing evidence to hold respondent Judge administratively liable for graft and corruption. Jurisprudence dictates that the ground for the removal of a judicial officer must be established beyond reasonable doubt. The general rules regarding the admissibility of evidence in criminal trials apply to charges of misconduct in office, willful neglect, corruption or incompetence.
In the instant case, there is no clear and convincing evidence that indeed respondent Judge received money from litigants to obtain favorable decisions. The testimonies of Belen Trapane and Aurea Rowena Cayabyab, stating to the effect that they each paid P30,000.00 to respondents, through respondent Pascua, cannot be given due weight against respondent Judge for being hearsay evidence. By the same token, the rumors relative to the alleged acceptance of money in exchange for a favorable decision remain as such and cannot be admitted as evidence, let alone given due evidentiary weight. Corollary, private complainant Suarez fell short of the required degree of proof needed in an administrative charge of graft and corruption.
Canon 2. Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges.
Section 1. Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer.
Section 2. The behavior and conduct of judges must reaffirm the people's faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done.
Canon 3. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision to made.
Section 2. Judges shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and the judiciary.
Canon 4. Propriety and the appearance of propriety are essential to the performance of all the activities of a judge.
Section 1. Judges shall avoid impropriety and the appearance of impropriety of a judge.
This finds support in the case of Kaw v. Judge Osorio [A.M. No. RTJ-03-1801, March 23, 2004], where the Supreme Court, though dismissing the charges of extortion and graft and corruption against respondent judge therein, nevertheless, held him administratively liable for violations of the Code of Judicial Conduct.
In the case at bench, the existence of the two (2) sets of conflicting decisions in the Pancho, Tomboc and Del Rosario cases, respectively, though speculative, absent clear evidence that respondent Judge received monetary considerations, the same, however, from a reasonable point of view, would seriously arouse the suspicion of a reasonable mind that something is wrong. In other words, while not conclusively and clearly proving the charge of graft and corruption, the same casts a cloud of suspicion upon the integrity, impartiality and propriety of which respondent Judge is expected to possess and manifest. These requirements are concepts of the mind which can only be manifested through actuations of a magistrate. Thus, as explicitly worded in the New Code of Judicial Conduct, a judge must not merely possess these requirements but he must be also be seen and perceived to be such. The judiciary is the bastion of justice, fairness and equity. Certainly, it cannot afford to have erring magistrates who will only tarnish its image rather than maintain and preserve the same.
Section 22. How genuineness of handwriting proved. - The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen the writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting of such person may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.
In the case at bench, a comparison of and closer look at the several documents admittedly bearing the signature of respondent Judge sufficiently show that indeed the signature in the three (3) dismissed Decisions were his. Furthermore, three (3) court personnel of respondent Judge, who are familiar with his signature, testified that the signature in the dismissed Decision dated July 27, 2005 in the Del Rosario case belongs to respondent Judge.
Rule 3.08. A judge should diligently discharge administrative responsibilities, maintain professional competence in court management, and facilitate the performance of the administrative functions of other judges and court personnel.
Rule 3.09. A Judge should organize and supervise the court personnel to ensure prompt and efficient dispatch of business, and require at all time the observance of high standards of public service and fidelity.
'[I]t is unheard of, verging on the suspicions, that on the same day should sign two decisions, one of conviction and one of acquittal, and on extremely irreconcilable terms. That is what happened in the Elpedes incident. Therefore, counsel for the losing party (AÃ±osa) could not be blamed for implying something wrong and resorting to this Court against Judge Benitez, and enclosing in support of his accusation, a copy of the unpromulgated decision.
The unpromulgated decision was relevant evidence against the judge in the administrative case which the Supreme Court had given due course.
The undersigned Investigating Justice finds respondent Pascua guilty of graft and corruption.
Witnesses Belen Trapane and Aurea Rowena Cayabyab categorically and straightforwardly testified that they each paid the amount of P30,000.00 to respondent Pascua so as to facilitate a favorable outcome of their cases. The bare and flat denial of respondent Pascua cannot overcome the positive and straightforward testimony of Belen Trapane. It is well-settled that to find merit in denial, the same must be buttressed by strong evidence of non-culpability. Likewise, the testimony of Aurea Rowena Cayabyab remains uncontroverted despite the opportunity to refute the same. It should be noted that during the latter part of the investigation, respondent Pascua did not anymore appear, nor can she be reached or contacted even by her own lawyers. Such disappearance is indicative of guilt.
The counter-charges of respondent Judge against private complainant Suarez must be dismissed for lack of merit.
The allegation of respondent Judge that private complainant falsified the three (3) dismissed Decisions dated March 14, 2005, April 29, 2005, and July 27, 2004, respectively, must fail. There is absolutely no proof advanced by respondent Judge that the three (3) dismissed Decisions were falsified. Respondent Judge should know that mere allegation, absent any proof, is not evidence. On the contrary, it was indubitably established by private complainant that the three dismissed decisions do exist and that they genuinely bear the signature of respondent judge.
The charge of failure to transcribe TSNs must also fail. Respondent Judge had not shown any clear proof that indeed private complainant failed to transcribe the TSNs of the cases that were assigned to her. It is elementary that he who alleges must prove the same. Be that as it may, private complainant has sufficiently established that she has already transcribed the TSNs of the cases that were assigned to her.
Finally, there is also no merit in the charge of AWOL from November 22, 2005 to December 12, 2005. Evidence on record shows that on November 21, 2005 and November 30, 2005, respectively, private complainant filed two (2) applications for leave for November 22 to 25 and 29 to 30, 2005 and December 1, 2, 5 to 9, and 12 to 16, 2005. Though these applications were initially disapproved by respondent Judge, the same, however, were already inconsequential since the Supreme Court, through the OCA, had already acted upon her applications for leave as four (4) days of vacation leave with pay from December 13 to 16, 2005 and fourteen (14) days of vacation leave with pay from November 22 to December 12, 2005, as evidenced by the Certification dated May 24, 2006 signed by Hermogena F. Bayani, SC Chief Judicial Staff Officer, Leave Division.
Anent the OCA's charge of gross negligence, gross inefficiency, gross misconduct and/or gross ignorance of the law and procedure, this Investigating Justice finds respondent Judge guilty thereof.
Respondent Judge exhibited acts amounting to gross ignorance of the law and procedure in handling the cases cited in the Audit Report.
The grant of the Motion for New Trial in the Joyce Moreno v. Alvin Moreno case was not proper because the psychological report and the affidavit of the psychiatrist who conducted the examination were not attached to the motion pursuant to 2nd paragraph of Section 2, Rule 37 of the 1997 Rules of Civil Procedure which requires that a motion for new trial based on newly-discovered evidence shall be supported by affidavits of witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence. Likewise, the psychological report cannot be considered as newly discovered evidence shall be supported by affidavits of witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence. Likewise, the psychological report cannot be considered as newly discovered evidence because it did not exist yet at the time of the trial as the psychological examination was conducted only after the case was initially dismissed. It is well-entrenched that newly-discovered evidence refers to evidence already existing prior or during the trial but which could not have been secured and presented during the trial despite reasonable diligence on the part of the litigant offering it or his counsel.
In the Eliodoro Perez v. Adelita Perez case, respondent Judge was grossly ignorant when he erroneously took cognizance of the second petition for declaration of nullity of marriage on the ground of psychological incapacity filed by petitioner therein considering that he had already dismissed with prejudice the first petition involving the same parties, issues and causes of action with that of the first petition. Under Section 2, Rule 17 of the 1997 Revised Rules of Civil Procedure, the dismissal of the complaint upon the motion of plaintiff is without prejudice unless otherwise specified in the order. Thus, the only instance when dismissal of an action under the rule is with prejudice is when the order itself so states. In the instant case, the Order dated October 28, 2003 dismissing the petition stated that the dismissal was with prejudice. Corollary, in accordance with elementary legal procedure, a dismissal with prejudice is an adjudication on the merits which would bar its refilling on the ground of res judicata. It must be stressed that respondent Judge's ignorance of the procedure was re-affirmed during this investigation when he was asked the reason for the qualification of the dismissal with prejudice, to which he answered that whether the dismissal is with or without prejudice, the parties can still re-file the case.
In the same Perez case, respondent Judge also disregarded basic law and procedure when he decided the case even before the submission of the City Prosecutor relative to the investigation to determine collusion between the parties as required under Section 9 of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages.
A judge is the embodiment of competence, integrity and independence to uphold and maintain public confidence in the legal system. Thus, while he is expected to keep abreast of developments in law and jurisprudence, he is presumed to have more than a cursory knowledge of the rules of procedure. Not every error is indicative of ignorance, for if committed in good faith, no administrative sanction is imposed. Good faith, however, inheres only within the parameters of tolerable judgment. It does not apply where the issues are so simple and the applicable legal procedures evident and basic as to be beyond possible margins of error. In the case at bench, respondent Judge failed to follow basic legal procedures which are not excusable but renders him liable to administrative sanction for gross ignorance of the law and procedure.
Respondent judge is charged with gross ignorance of the law. However, to warrant a finding of gross ignorance of the law, the error must be so gross and patent as to produce an inference of bad faith. The acts complained of must not only be contrary to existing law and jurisprudence, but were also motivated by bad faith, fraud, dishonesty, and corruption. For to hold a judge administratively accountable for every erroneous order or decision he renders would be intolerable.
In the case at bar, there was no allegation whatsoever that respondent judge was motivated by bad faith, malice or corruption when he issued the premature warrant of arrest. Be that as it may, however, we hold him administratively liable for his unfamiliarity with the rules on the conduct of preliminary investigations. We have always exhorted judges to be conversant with basic legal norms and precepts as well as with statutes and procedural rules. They are expected to follow developments in the law and to apply them. Having accepted the exalted position of a judge, whereby he judges his fellowmen, the judge owes it to the public who depend on him, and to the dignity of the court he sits in, to be proficient in the law. Thus, the Code of Judicial Conduct requires a judge to be faithful to the law and be the embodiment of professional competence.
In his desperate bid to evade liability, respondent Judge reasoned out that since the OSG did not appeal, the same indicates the correctness of his decisions. The argument, however, has no persuasive effect. It bears stressing that in the instant case, no private rights are involved. The Supreme Court, however, is not proscribed from taking cognizance of the irregularities committed by judges and justices. The Court, through the OCA, has the power of judicial discipline over lower court justices, judges, and court personnel pursuant to paragraph C (1) of the Supreme Court Administrative Circular No. 30-91. The findings, therefore, contained in the Audit Report and approved by the Supreme Court to be included in this investigation is merely an exercise of such power.
3. A fine of more than P20,000.00 but not exceeding P40,000.00.
Considering that Judge Dilag had already been administratively sanctioned in Ma. Teresa De Jesus v. Judge Renato J. Dilag42 wherein he was fined in the amount of P30,000.00 for gross ignorance of the law, Judge Dilag's already grave offenses are further aggravated. Therefore, this Court imposes upon Judge Dilag the extreme administrative penalty of dismissal from the service with forfeiture of all retirement benefits, excluding accrued leave benefits, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations.
Par. A (9), Section 52. - Receiving for personal use of a fee, gift, or other valuable thing in the course of official duties or in connection therewith when such fee, gift or other valuable thing is given by any person in the hope or expectation of receiving a favor or better treatment than that accorded to other persons, or committing acts punishable under the anti-graft laws. 1st Offense - Dismissal.
Thus, the Court imposes upon Pascua the penalty of dismissal from the service which carries the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification from reemployment in the government service. The Court further agrees with the Investigating Justice that in view of the evidence on record, Pascua should be investigated for possible criminal liability for the same acts.
Finally, the Court approves the recommendation to refer the charge of illegal practice of law against Atty. Lourdes I. de Dios (raised by the OCA in its memorandum) to the Office of the Bar Confidant.
3. The counter-administrative charges of falsification, negligence in the transcription of stenographic notes, and absence without official leave against private complainant Nilda Verginesa-Suarez are hereby DISMISSED for lack of merit.
4. The manifestation of the counsel of the Office of the Court Administrator in its Memorandum43 dated February 23, 2007 concerning the alleged irregularities committed by Atty. Lourdes I. de Dios is hereby REFERRED to the Office of the Bar Confidant for appropriate action.
7 A.M. No. RTJ-05-1921, September 30, 2005, 471 SCRA 176.
9 Records, Folder of Exhibits for the OCA, Exhibit "O-OCA."
18 Records, Folders of Exhibits for Private Complainant (Exhibits "A" to "RR" with submarkings) and the OCA (Exhibits "A-OCA" to "DDDD-OCA" with submarkings).
19 TSN dated January 17, 2007, pp. 19-51; and TSN dated February 6, 2007, pp. 9-43.
20 TSN dated January 17, 2007, pp. 53-89; and TSN dated January 29, 2007, pp. 9-28.
21 TSN dated January 17, 2007, pp. 92-151; TSN dated January 22, 2007, pp. 7-52; TSN dated January 29, 2007, pp. 28-42; and TSN dated January 31, 2007, pp. 7-123.
22 TSN dated January 22, 2007, pp. 56-112; TSN dated February 6, 2007, pp. 103-211; and TSN dated February 8, 2007, pp. 42-67.
23 TSN dated February 6, 2007, pp. 46-55.
26 TSN dated February 6, 2007, pp. 213-223; and TSN dated February 12, 2007, pp. 5-8.
27 TSN dated February 8, 2007, pp. 6-40.
28 Folder of Exhibits for Private Complainant, Exhibits "R" to "JJ."
29 Id., Exhibits "KK" to "LL."
30 Records, Folders of Exhibits for Respondent Judge (Exhibits "1-Dilag to 9-Dilag" with submarkings) and Respondent Pascua (Exhibits "1-Pascua" to "4-Pascua" with submarkings).
31 TSN dated January 26, 2007, pp. 8-73; TSN dated January 29, 2007, pp. 113-154; and February 13, 2007, pp. 5-68.
32 TSN dated January 29, 2007, pp. 44-104.
33 TSN dated January 23, 2007, pp. 7-12.
36 TSN dated January 25, 2007, pp. 26-37.
37 Id. at 38-48; and TSN dated February 12, 2007, pp. 9-33.
42 Supra at note 7.
43 Supra at note 40.

matches:
v.
v.
v.
v.
Art. 36
v.
v.
v.
v.
V.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.