Comment

(1)

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS

MANILA

VIRGINIA T. DELA CRUZ,

Petitioner

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- Versus -

ersus -

CA-G.R. SP

No. 121972

ALFREDO ROMERO,

Respondent

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COMMENT  OPPOSITION

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ththe e RResespopondndenentt, , iin n ththe e ababovove- e-entitled case, by and through the Undersigned Counsel and entitled case, by and through the Undersigned Counsel and unto this Honorable Court, by way of Comment / Opposition unto this Honorable Court, by way of Comment / Opposition to

to tthhe e PPetetiittiioonenerrs s !!ototiioon n ffor or RReeccoonsnsiiddereraattiioonn, , mmoosstt respectfully avers"

respectfully avers"

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#$$ PPeettiittiioonneerrs s !!oottiioon n ffoor r RReeccoonnssiiddeerraattiioon n iis s nnoott accompanied by an %&davit of 'ervice in utter violation of accompanied by an %&davit of 'ervice in utter violation of 'ection #(, Rule #( of the Rules of Court which in part states 'ection #(, Rule #( of the Rules of Court which in part states -- If service is made by registered mail, proof shall be madeIf service is made by registered mail, proof shall be made by

by susuch ch aadadavivit t anand d ththe e reregigiststry ry rerececeipipt t isissusued ed by by ththee mailing oce.

mailing oce. 'e

'ectctioion n ####, , RRulule e #( #( of of ththe e RRulules es of of CoCoururt t lili))ewewisisee p

prroovviidde e iin n ppaarrt t tthhaat t -- ExExcecept pt wiwith th reresspepect ct to to ppapapererss emanati

emanating from the ng from the Court,Court, a resort to other modes must a resort to other modes must be

be acaccocompmpananieied d by by a a wrwrititteten n exexplplananatatioionn whwhy y ththee se

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this Rule may be cause to consider the paper as not led .

*hus, in utter violation of the Rule hinging on the re+uired %&davit of 'ervice which are miserably lac)ing in Petitioners subect !otion subect !otion, the same should be enied.

($ *hat traversing on the dis+uisitions advanced in the !otion, the same utterly presents no cogent, persuasive and and valid reasons to merit reconsideration and reversal of the ecision dated October 0, 1#(.

0$ Petitioner argues inter alia that even if respondent was allowed to adduce evidence ex parte, it will not necessarily follow that the reliefs will be automatically granted since petitioner 2led her answer with anne3es that should have been considered and that records shows that

she already paid P#4, 111$11 as evidenced by

deposit/payment slips$

Petitioners answer, her alleged P#4, 111$11 alleged payment and its supporting evidence, ust the same, could not be considered by the Honorable *rial Court owing to petitioners and her counsels failure to appear at the preliminary conference which conse+uence was under the Rules to allow respondent - plainti5 to present his evidence ex parte and for the Honorable *rial Court a quo to render udgment on the basis thereof$ *he Rule is clear that the Court shall render udgment based on the respondents evidences alone which was presented ex parte and not on the basis of petitioners evidence or receipt attached in her answer$ 'ections 0 and 6, Rule #7 of Rules Court which provides that

(3)

-8'ec$ 0$ %ppearance of Parties$ 9 :t shall be the duty of the parties and their counsel to appear at the pre-trial$ *he non-appearance of the party may be e3cused only if a valid cause is shown therefore or if a representative shall appear in his behalf fully authori;ed in writing to enter into an amicable settlement, to submit to alternative modes of dispute

resolution, and to enter into stipulations or admissions of facts and of documents$<

'ec$ 6$ =5ect of failure to appear$ 9 *he failure of the plainti5 to appear when so re+uired pursuant to the ne3t preceding section shall be cause for the dismissal of the action$ *he dismissal shall be with preudice, unless otherwise ordered by the court$  similar failure on the defendant shall be cause to allow the plainti! to present his evidence ex parte and the court to

render "udgment on the basis thereof. <

6$ *he cited Rules are clear and - In matters that are clear, there is no room for con"ecture # $in claris non est locus con"ectures.% .

>$ :t may not be amiss to state that to reconsider said P#4, 111$11 alleged payment would entail re-visiting and re-evaluating the evidence which, with all due respects, is not a function of this Honorable Court under its power of review since it is not a trier of facts$ &actual ndings of the trial court, especially when armed by the appellate court, are accorded the highest degree of respect and are considered conclusive between the parties$ ?UR@%A %P%R*!=A*' CORPOR%*:OA Bs$ P:OA==R :A'UR%AC= %A

'UR=* CORPOR%*:OA, D$R$ Ao$ #E40#4,

Fanuary #, 1## Citing" *itan Construction Corporation Bs$ Uni-Gield =nterprises, :nc$, D$R$ Ao$ #6(7E0, !arch E, 11E. 'igaya v$ !ayuga, 610 Phil$ >11, >## 116IJ 'the trial

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court%s factual ndings especially when armed by the appellate court court are accorded the highest degree of respect and are conclusive and binding on this Court $< ?P=OPK= OG *H= PH:K:PP:A=' Bs$ C%RKO U!%%D y RO!:O, D$R$ Ao$ #E>E01, Fune , 1##J.

E$ :n its entirety, or for most of its parts, the subect !otion for Reconsideration are mere reiterations or rewor)s of the Petitioners Petition for Review dated Aovember 6, 1##.

7$ *here are no patent or clear reversible error that may be culled from the ecision dated #1 ecember 1## of the Honorable Regional *rial Court of Balen;uela City, @ranch E6 which a&rmed the ecision dated ecember (, 117 of the Honorable !etropolitan *rial Court of Balen;uela City, @ranch 9 7$

P R A  E R

6HEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that this Comment / Opposition be given its due weight and credence and that Petitioners !otion for Reconsideration dated" Aovember 6, 1#(, be =A:= for utter lac) of merit$

Other reliefs and remedies ust and e+uitable under the premises are li)ewise prayed for$

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Suite 307 CCI Building 1091 Concepcion Street Ermita, Manila

PTR No No 1!7"!#! $ 1%1&%'013 IBP No 90"971 $ 11%'&%'01' Roll No '&19#

MC(E Compliance No I)%00'0""7 *une 13, '013

E X P L A N A T I O N

*his is to certify as an O&cer of the Court that a copy of this Comment / Opposition was served, not by personal service but by registered mail as herein-below indicated by reason of time, distance, lac) of manpower and urgency$

Copy furnished:

+TT C+R(IT- M S-RI+N-, SR Po.lacion, Mala/iui, Panga/inan

TT . LEOPOLDO . DEL ROS

Counsel for the Respondent

TY. LEOPOLDO . DE