REPUBLIC OF THE PHILIPPINES COURT OF APPEALS MANILA FIFTH DIVISION 2IS0EC 20 ANID} 3h ANA MARIE Y, PINEDA, Petitioner, - versus - CA-GR. SP NO, 156864 HON. PRESIDING JUDGE OF BR. 197 OF THE RTC OF LAS PINAS (PUBLIC RESPONDENT) and ROSALINDA C. TEO (PRIVATE RESPONDENT), Respondents. Xo 2X COMMENT Private Respondent ROSALINDA C. TEO (“Private Respondent’), by counsel, respectfully states that: PREFATORY STATEMENT 1. The Petition for Certiorari filed by Petitioner is time- barred. 2. Petitioner filed two Motions for Reconsideration against the Order of the Public Respondent Hon. Presiding Judge of Branch 197, RTC of Las Pinas ("Public Respondent") allowing herein Private Respondent to present her evidence ex parte. 3. The first Motion for Reconsideration’ of said order was denied in an Order dated 30 January 2018 and received by Petitioner on 12 March 2018. The second Motion for Reconsideration? which was merely a rehash of grounds and arguments already passed upon ' Please see Annex 2 Please see No. 8 o 5 Please see Annex “ of Petitioner's Petition for Certiorari. titioner's Petition for Certiorari * of Petitioner's Petition for Certiorari.and resolved by the Public Respondent was denied in an Order dated 23 May 2018 and received by Petitioner on 06 June 2018‘ 4. Inthe case of Epifanio San Juan, Jr. vs. Judge Ramon A. Cruz, et al, the Supreme Court pronounced in a similar case, to wit: “It bears stressing however that while the motion for reconsideration filed by petitioner assailing the December 2, 2003 Order of the trial court based on the same grounds as those alleged in his first motion is not pro forma, such second motion for reconsideration can nevertheless be denied on the ground that it is merely a rehash or a mere reiteration f grounds and ments alread: upon and resolved by the court. x x x “The 60-day period should not be reckoned from petitioner's receipt on June 11, 2004 of the denial of hisMay 7, 2004second motion for reconsideration, The 60-day period shall be reckoned from the trial courts denial_of his first motion for reconsideration, otherwi indefinite_d will ensue.” 5. As such, the reckoning date in the instant case should be 12 March 2018 when Petitioner received the denial of her first motion. Petitioner, therefore, had until 10 May 2018 to file her petition for certiorari. Petitioner, however, filed it in August 2018. The petition for certiorari is, thus, time-barred. 6. As will be shown below and in the Assailed Orders themselves, Petitioner has exhibited a propensity of disrespecting rules especially those pertaining to time. This should not be tolerated. COMMENT PROPER 4 Please see No. 8 of Petitioner's Petition for Certiorari.7. Provided hereunder is the chronological order of the events leading to the Orders subject of the instant petition which allowed Private Respondent to present her evidence ex parte: * Please see Annex » |. As early as July 17, 2017, the Public Respondent set the case for Pre-Trial Conference on October 11, 2017. r On October 10, 2017, herein Private Respondent, through counsel, filed a Motion to Reset Pre-Trial Conference to November 6, 2017 specifically to enable Private Respondent who was still abroad to submit her Judicial Affidavit. c. On October 11, 2017, only Private Respondent's counsel appeared. Petitioner and her counsel were both absent. This Court reset the Pre-Trial Conference to November 8 ,2017 instead. a |. On November 2, 2017, Private Respondent submitted her Pre-Trial Brief and Judicial Affidavit. 2 . On November 8, 2017, again, Petitioner and her counsel were absent. The records on said date also showed that Petitioner did not submit her Pre-Trial Brief. and Judicial Affidavit. As such, Private Respondent, through counsel and in open court, moved pursuant to Section 5, Rule 18 of the Rules of Court to allow Private Respondent to present her evidence ex parte, Public Respondent found the motion meritorious and granted the same in an Order® on the same date. f. Petitioner then filed a Motion for Reconsideration’ from said Order which was denied by this Court in its Order dated January 30, 2018. Petitioner received said Order on March 12, 2018. of Petitioner's Petition for Certiorai mner's Petition for Certiorari mner’s Petition for Certiorarg. Petitioner again filed another Motion for Reconsideration? of the same Order which was again denied by this Court in its Order dated May 23, 2018."° h. Petitioner filed the instant petition only in August 2018 or nearly three (3) months after it should have been filed. 8. Petitioner is basically claiming that the Public Respondent committed grave abuse of discretion when it allowed the Private Respondent to present evidence ex parte for Petitioner's failure to appear during the two (2) pre-trial conferences. Petitioner claims that her absence at two (2) pre-trial conferences does not grant the Public Respondent the discretion to allow Private Respondent to present her evidence ex parte. 9. _ First, Petitioner admits the case was initially set for pre-trial conference on October 11, 2017. Yet, she and her counsel chose not to attend the same. Their reason for not attending is that Private Respondent had filed a motion to reset said conference to November 6, 2017. 10. However, on October 11, 2017, there was yet NO Order granting said motion to reset. That is precisely why Private Respondent, with fear that Public Respondent might have denied the motion to reset, and with fear of the adverse effects of her failure to appear on the scheduled pre-trial conference, appeared, through counsel, on October 11, 2017. 11. In along line of cases, the Supreme Court has consistently ruled that the parties cannot assume that a motion for postponement will be granted. 12. In Fernando vs. Alcazar,"'the Supreme court ruled that: “Petitioners filed their motion to reset the March 20, 2006 previously scheduled hearing, but the trial court did not act on the motion. Instead of attending the ° Please see Annex “B” of Pet Please see Annex “A” of Pe 11 GR. No. 183034, March 1 e's Petition for Certiorar t's Petition for Certiorar 4.March 20, 2006 hearing, petitioners’ counsel proceeded to absent himself and attended the supposed hearing of another case. This was improper. As we have held before, [A] party moving for postponement should be in court on the day set for trial if the motion is not acted upon favorably before that day. He has no right to rely either on the lil if the court or on the generosity of the adverse party. x x x The_grant_or denial of a motion for ost] nt _rests_on the court's st discretion; it is a matter of privilege, not a right. "A movant for postponement should _not_assume beforehand that his motion will be granted. The grant or denial of a motion for postponement is a matter that is addressed to the sound discretion of the trial court. Indeed, an order declaring a party to have waived the right to present evidence for performing dilatory actions upholds the trial court's duty to ensure that trial proceeds despite the deliberate delay and refusal to proceed on the part of one party." [Emphasis and underscoring supplied.] 13. While in Transport Corporation vs. Philhino Sales Corporation,’ the Supreme Court stressed that the parties MUST BE PREPARED on the day of the hearing despite the pendency of a motion for postponement, to wit: “Moreover, the grant of a motion for continuance or postponement is not a matter of right. It is addressed to the sound discretion of the courts, Parties asking for postponement have no right to assume that their motions would be granted nor to expect that their motion for reconsideration of their denied motion for postponement would be reconsidered. Thus, they must be prepared on the day of the hearing.” [Emphasis and underscoring supplied]. "= G.R.No. 148150, July 12, 2006.14. Then in Sy vs. Andok’s Litson Corporation," the Highest Court affirmed the trial court's order allowing therein respondent to present evidence ex-parte for therein petitioner's failure to appear during the preliminary conference under the assumption that the motion for postponement will be granted: "The affirmance by the Court of Appeals of the judgment of the trial court is correct. Section 4, Rule 18 of the Rules of Court requires the parties and their counsel to appear at pre-trial, thus: Section 4. Appearance of parties. - It shall be the duty of the parties and their counsel to appear at the pre- trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized 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. Section 5 of the same rule states the consequences of failure to appear during pre-trial, thus: Section 5. Effect of failure to appear. — The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex-parte and the court to render judgment on the basis thereof. What constitutes a valid ground to excuse litigants and their counsels from appearing at the pre-trial under Section 4, Rule 18 of the Rules of Court is subject to the sound discretion of a judge- Such discretion was shown by the trial court, which was correct in putting into effect the consequence of petitioners’ non-appearance at the pre-trial. While Sy 8 G.R.No. 192108, November 21, 2012,filed an Urgent Motion to Reset Pre-trial, she cannot assume that her motion would be automatically granted.” [Emphasis and underscoring supplied] 15. In the case at bar, it must be stressed that Petitioner is not even the movant of the Motion to Reset. If jurisprudence is firm that the movant cannot expect the motion for postponement to be granted, with more reason should the other party, who has not manifested any justifiable reason to miss the pre-trial conference, be excused for failing to appear during the scheduled hearing. 16. Now despite Petitioner and her counsel's failure to attend the October 11, 2017 pre-trial conference, the Public Respondent gave Petitioner another chance. Another preliminary conference was scheduled on November 8, 2017. 17. Petitioner AGAIN failed to appear during the November 8, 2017 pre-trial conference. This is where Petitioner's alibi gets ridiculous. Petitioner claims that the earlier Motion to Reset filed by Private Respondent was requesting for a November 6, 2017 hearing and not a November 8, 2017 hearing. As such, Petitioner claims that she was under the belief that the hearing would be set on November 6, 2017. 18. If Petitioner's representation is true that the reason she failed to appear was due to her belief that the pre-trial conference was scheduled on November 6, 2017 and not November 8, 2017, then why was she not in court on November 6, 2017? Had Petitioner went to court on November 6, 2017 then she would have been informed that the hearing was still two (2) days after or on November 8, 2017. The fact is, be it November 6 or November 8, Petitioner simply did_not attend. 19. Petitioner is blaming the Public Respondent that she was not properly informed of the second pre-trial conference when she knew of the first schedule on October 11, 2017 and chose not to attend the same. Petitioner chose not to verify what happened on said date. Petitioner chose to “believe” that the hearing was reset to November 6, 2017 and again did not go to court on said date. Yet, Petitioner hasthe audacity to accuse the Public Respondent of grave abuse of discretion. 20. Second, Petitioner claims that the Public Respondent committed grave abuse of discretion when it did not apply Section 3, Rule 9 of the Rules of Court. 21. Petitioner is wrong. The applicable rule is Section 5 of Rule 18 of the Rules of Court, wherein it is expressly provided that the defendant's failure to appear during pre-trial “shall cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof”. 22. The Supreme Court had the opportunity to distinguish again the difference between a declaration of default under Rule 9 and the effect of failure to appear in Pre-trial under Rule 18 in the case of Paramount Life & General Insurance Corporation vs. Cherry T. Castro and Glenn Anthony T. Castro", to wit: “With regard to the second issue, counsel apparently confuses a declaration of default under Section 3 of Rule 9 with the effect of failure to appear under Section 5 of Rule 18. Failure to file a responsive pleading within the reglementary period is the sole ground for_an order of default under Rule 9.On the other hand, under Rule 18, failure of the defendant to appear at the pre-trial conference results in the plaintiff being allowed to present evidence ex parte. The difference is that a declaration of default under Rule 9 allows the Court to proceed to render judgment granting the claimant such relief as his pleading may warrant; while the effect of default under Rule 18 allows the plaintiff to present evidence ex parte and for the Court to render judgment on the basis thereof. The lower court may have declared defendants therein as in default; however, it did not issue an order of default, rather, it ordered the plaintiff to present evidence ex GR. No. 198728, 19 April 2016parte in accordance with the Rules. In any case, the Castro's could have availed themselves of appropriate legal remedies when the CA failed to resolve the issue, but they did not. They cannot now resurrect the issue through a Comment before this Court.” (Emphasis and underscoring ours) 23. Finally, and knowing she has run out of ruses, Petitioner is falsely claiming that she was made to believe by Private Respondent that an amicable settlement was possible. 24. It is important to note that prior to the institution of this specific performance case, Petitioner had earlier filed two cases against Private Respondent.!5 25. On March 25, 2013, Petitioner filed her own complaint for specific performance against Private Respondent with the Regional Trial Court of Parafiaque City praying that the latter pay her P500,000.00 instead of the P480,000 owing her (involving the same transaction in the instant case). While the case was ongoing, Petitioner demanded P1,000,000.00 from Private Respondent to withdraw the above-mentioned case to which the latter refused. Petitioner suddenly withdrew the case and filed a criminal case against Private Respondent on October 13, 2014 for falsification of public documents. In this new case, Petitioner claimed that Private Respondent falsified a Deed of Absolute Sale dated 01 August 2011. Private Respondent was acquitted as Petitioner not only failed to prove any falsification or use thereof but instead showed that Petitioner herself was the one in possession of the document she was claiming to have been falsified. 26. After these above-mentioned two cases, it was now Private Respondent who brought the instant Specific Performance against Petitioner. Instead of actively participating in the instant case, Petitioner filed an ejectment case against Private Respondent which is now pending before the Branch 123 of the Metropolitan Trial Court of Las Pinas City."® 27. During the Judicial Dispute Resolution of said ejectment case, Petitioner in a desperate attempt to force Private Respondent to 'S Please see Annexes "© Please see Annex and “C” of Private Respondent's Compliance dated December 17, 2018. i Private Respondent's Compliance dated December 17, 2018,shoulder half of the capital gains tax presented a Deed of Absolute Sale dated August 1, 2011 before the handling judge. It must be emphasized that said Deed of Absolute Sale was subject to the earlier- mentioned falsification case filed by Petitioner_against_Private Respondent. According to the Petitioner in the falsification case, the same Deed of Absolute Sale was falsified by the Private Respondent! And yet, in the latest case filed by Petitioner against Private Respondent, she wants the handling judge in the JDR proceedings to believe that said Deed of Absolute Sale is genuine and authentic in order to claim rights. 28. How then can Petitioner claim that she was under the belief that the case could be amicably settled when she ensured it would not be settled by her devious machinations? 29. The truth of the matter is that Petitioner chose not to attend these pre-trial conferences as she was delaying the instant case in the hopes that the ejectment case {filed AFTER the instant case} would be decided earlier. Petitioner clearly knows that the decisions in the specific performance case and the ejectment case have a clear potential of clashing with each other as it involves the same subject property. The wrongful actions of Petitioner should not be countenanced. PRAYER WHEREFORE, it is most respectfully prayed that the foregoing be considered sufficient compliance to the Resolution of this Honorable Court dated November 13, 2018 which was received by the undersigned on December 13, 2018. Furthermore, premises considered, the Private Respondent respectfully prays that the Honorable Court of Appeals issue an Order dismissing the instant petition. Private Respondent likewise prays for other relief and remedy that this Honorable Court may find just and equitable under the circumstances.Respectfully submitted. San Juan City for City of Manila, 17 December 2018. LAGMAY OLAVERE RAE & DINO LAW OFFICE Counsel for Private Respondent The Penthouse, ALCCO Bldg. Ortigas Ave., Greenhills San Juan City 1502, Metro Manila Telephone No. (02) 219-7482 Roll df Attorneys No. 58434 PTR No. 7003149; 01/04/2018; City of Manila IBP No. 1062683; 01/03/2018; Pasig City MCLE Compliance No. V-0020395 Copy furnished: HON. ISMAEL T. DULDULAO Presiding Judge R RIC, Branch 197 RE WH 7B) 123 22 1740, Las Pitias City MENDOZA LEGASPI & ASSOCIATES Counsel for Petitioner - Unit R, PSCOR Bldg., & om 73) 147 22 TM Kalaw St. cor. Elsie Gatches St. BF Homes Subd,, Parafiaque City Explanation for Service by Registered Mail A copy of the foregoing Comment was served to the Presiding Judge and counsel for Petitioner by registered mail due to distance constraints of the undersigned counsel making personal servige both difficult and impracticalVERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING I, ROSALINDA C. TEO, of legal age, Filipino, married and is residing at Unit 111 Maui Bldg., Ohana Place Condominium, Alabang Zapote Road, Las Pifias City. after having been duly sworn to in accordance with law, hereby depose and state that: 1. 1am the Private Respondent in the instant case; 2. Ihave caused the preparation and filing of the foregoing Comment; 3. | have read and understood the allegations contained therein and the same are true and correct of my own personal knowledge and/or based on authentic documents and records; 4. | hereby state that | have not commenced any other action or proceeding involving the same issues in the Supreme Court, any other Division of the Court of Appeals, or any other tribunal or agency; that to the best of my own knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; and if | should thereafter learn that any other similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, | undertake to report that fact within five (5) days therefrom to this Honorable Court. IN WITNESS WHEREOF, | have hereunto set my hands ARE is 2May of December 2018 in the __*¢RatanUe coy Alc eo Private Respondent SUBSCRIBED AND SWORN to before me the! 44V'8r December 2018, affiant exhibiting to me her 2 issued on at Doc No. ua Until ‘31,2018 Page No. |34; 911 San nti Ave, SAV. Parag City Book No. 1; Hacc Roll No. 45535 : Jo. 935730 rage Ci Series of 2018. TBPro OST 2416 Petit MCLE Compliance No. V9023773 0905 16/Paig City ‘fants Gene oeAFFIDAVIT OF SERVICE REPUBLIC OF THE PHILIPPINES ) CITY OF MANILA’) SS |, DARWIN TAER, Filipino, of legal age, a resident of Sauyo Road, Novaliches, Quezon City , after being duly sworn, depose and state: 1. Lam one of the liaison officers in the law firm of Lagmay Olavere Rae & Dino Law Office, with office address at The Penthouse, ALCCO Bldg., Ortigas Ave., Greenhills, San Juan City 1502, Metro Manila. 2. My duties include the filing and service of pleadings, demand letters and other documents. 3. On 20 December 2018 | served a copy of the following pleading/paper: “Comment” Dated 17 December 2018 in the case entitled “Ana Marie Y. Pineda vs. Hon. Presiding Judge of Br. 197 of the RTC of Las Pinas, et. al,” docketed as CA-GR, SP No. 156864 pending before the Court of Appeals, City of Manila, pursuant to Section 3, 4, 5, 7 and 10 of Rule 13 of the Rules of Court, by registered mail to: HON. ISMAEL T. DULDULAO- Presiding Judge RTC, Branch 197 1740 Las Pinas City Registry Receipt Nox RE DOY 73) 133 Q MENDOZA LEGASPI & ASSOCIATES Unit R, PSCOR Bldg, TM. Kalaw St. cor. Elsie Gatches St. BF Homes Subd. 1700 Paranaque City Registry Receipt No. ) A 22 4, execute this Affidavit pursuant to and in accordance with Rule 13 of the 1997 Rules of Civil Procedure as proof of Service of the aforesaid pleading/motion. ont wi) 99 IIN WITNESS WHEREOF, | have executed this affidavit this __ day off LY 2018, Di IN/TAER Affiagt co 2 pe ~yyy, SUBSCRIBED AND SWORN to before me this __day Be 2018, _ ‘ffiant exhibiting to me his Philhealth ID with number 03-026247938-9 issued on at 5 Doc. No._3 4 PaaeNo. 7