Fabella vs.

Judge Sy

FACTS:

Atty. Fabella is the counsel for the defendant-clients in Civil

Case No. 38-28457 “Star Paper Corporation vs. Society of St.
Paul & Fr. Eleazar.

The clients of Atty. Fabella were served a copy of the compliant

and a Writ of Attachment, based on the allegation that the said
clients contracted a debt in bad faith with no intention of paying
the same.

On July 9, 2002, an Urgent Ex-parte Motion to Withdraw Cash

Deposit was filed.

Consequently, Judge Lee granted the Ex-Parte Motion to

Withdraw Cash Deposit without notice given to Atty. Fabella
and his clients and despite the failure to set such litigious
motion for hearing and contrary to existing laws and
jurisprudence.

In short, Judge Lee granted the motion without any prior notice
or hearing.

Atty. Fabella and his clients only learned of the withdrawal

when they received a copy of the said Order.

Atty. Fabella now comes to the Court alleging that Judge Lee
committed a violation of Rule 15, Section 4 of the Rules of
Court, when he granted the Urgent Ex-Parte Motion to
Withdraw Cash Deposit without any prior service of notice or
hearing.

Issue: W/N Judge Lee violated Rule 15, Section 4 of the Rules
of Court? YES

HELD:

The Court held that Judge Lee has violated Rule 15, Section 4
of the Rules of Court.

Rule 15, Section 4 provides:

Section 4. Hearing of motion. — Except for motions which the

court may act upon without prejudicing the rights of the
adverse party, every written motion shall be set for hearing by
the applicant.

Every written motion required to be heard and the notice of the

hearing thereof shall be served in such a manner as to ensure
its receipt by the other party at least three (3) days before the
date of hearing, unless the court for good cause sets the hearing
on shorter notice

In the case at bar, the Motion to Withdraw the Cash Deposit

lacked notice of hearing and proof of service.

Judge Lee should have not acted upon it. However, because he
had erroneously thought that the rights of the Atty. Fabella’s
clients would not be prejudiced thereby, he took action.

His poor judgment obviously resulted in his issuance of the

erroneous Order that granted the release of the deposit.