1

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA
VIRGINIA T. DELA CRUZ,
Petitioner,
- Versus No. 121972

CA-G.R. SP

ALFREDO ROMERO,
Respondent.
X *

COMMENT / OPPOSITION
(To the Petitioners Motion for
Reconsideration)
Dated: November 25, 2013
COMES NOW, the Respondent, in the aboveentitled case, by and through the Undersigned Counsel and
unto this Honorable Court, by way of Comment / Opposition
to

the

Petitioners

Motion

for

Reconsideration,

most

respectfully avers:
1.

Petitioners Motion for Reconsideration is not

accompanied by an Affidavit of Service in utter violation of

Section 13, Rule 13 of the Rules of Court which in part states
- If service is made by registered mail, proof shall be made
by such affidavit and the registry receipt issued by the
mailing office.
Section 11, Rule 13 of the Rules of Court likewise
provide in part that - Except with respect to papers
emanating from the Court, a resort to other modes must
be accompanied by a written explanation why the
service or filing was not done personally. A violation of

this Rule may be cause to consider the paper as not

filed.

Thus, in utter violation of the Rule hinging on the

required Affidavit of Service which are miserably lacking in
Petitioners subject Motion subject Motion, the same should
be Denied;
3.

That traversing on the disquisitions advanced in

the Motion, the same utterly presents no cogent, persuasive

and and valid reasons to merit reconsideration and reversal
of the Decision dated October 24, 2013;
4.

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 filed her answer with annexes that
should have been considered and that records shows that
she already paid

P19, 000.00 as evidenced by

deposit/payment slips.
Petitioners answer, her alleged P19, 000.00 alleged
payment and its supporting evidence, just the same, could
not be considered by the Honorable Trial Court owing to
petitioners and her counsels failure to appear at the
preliminary conference which consequence was under the
Rules to allow respondent - plaintiff to present his evidence
ex parte and for the Honorable Trial Court a quo to render
judgment on the basis thereof.

The Rule is clear that the

Court shall render judgment based on the respondents

evidences alone which was presented ex parte and not on
the basis of petitioners evidence or receipt attached in her
answer.

Sections 4 and 5, Rule 18 of Rules Court which

provides that -

Sec. 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 the party
may be excused only if a valid cause is shown
therefore 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

admissions of facts and of documents.

or

Sec. 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 the dismissal of the action. The dismissal
shall be with prejudice, unless otherwise ordered
by the court.
A similar
failure
on 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.

5.

The cited Rules are clear and - In matters that are

clear, there is no room for conjecture in claris non est

locus conjectures. ;
6.
said

It may not be amiss to state that to reconsider

P19, 000.00 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. Factual findings of the
trial court, especially when affirmed by the appellate court,
are accorded the highest degree of respect and are
considered conclusive between the parties.

(DURBAN

APARTMENTS CORPORATION Vs. PIONEER INSURANCE AND

SURETY CORPORATION,

G.R. No. 179419,

January 12, 2011 Citing: Titan Construction Corporation Vs.

Uni-Field Enterprises, Inc., G.R. No. 153874, March 7, 2007;
Sigaya v. Mayuga, 504 Phil. 600, 611 [2005]) the trial

courts factual findings especially when affirmed by the

appellate court court are accorded the highest degree of
respect and are conclusive and binding on this Court.
(PEOPLE OF THE PHILIPPINES Vs. CARLO DUMADAG y ROMIO,
G.R. No. 176740, June 22, 2011);

7.

In its entirety, or for most of its parts, the subject

Motion for Reconsideration are mere reiterations or reworks

of the Petitioners Petition for Review dated November 25,
2011;
8.

There are no patent or clear reversible error that

may be culled from the Decision dated 10 December 2011 of

the Honorable Regional Trial Court of Valenzuela City, Branch
75 which affirmed the Decision dated December 23, 2008 of
the Honorable Metropolitan Trial Court of Valenzuela City,
Branch 82.
P
WHEREFORE,

premises

considered,

it

is

most

respectfully prayed of this Honorable Court that this

Comment / Opposition be given its due weight and credence
and that Petitioners Motion for Reconsideration dated:
November 25, 2013, be DENIED for utter lack of merit.
Other reliefs and remedies just and equitable under the
premises are likewise prayed for.
City of Manila for Makati City, January 8, 2014.

ATTY. LEOPOLDO P. DELA

ROSA

Counsel for the Respondent

Suite 307 CCI Building
1091 Concepcion Street
Ermita, Manila
PTR No. No. 1476454 / 1-18-2013
IBP No. 906971 / 11-28-2012
Roll No. 28195
MCLE Compliance No. IV-0020667
June 13, 2013

EXPLANATION
This is to certify as an Officer 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,
lack of manpower and urgency.

ROSA

ATTY.

Copy furnished:

ATTY. CARLITO M. SORIANO, SR.

Poblacion, Malasiqui, Pangasinan

LEOPOLDO

P.

DELA