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COURT OF APPEALS
Manila
_____________ Division
ABC SOFTWARE, INC.,
Petitioner,
CA-G.R. SP NO. ________________
1 Priscilla C. Mijares, et al. vs. Hon. Santiago Javier Ranada, G.R. No. 139325, 12 April 2005
1
TIMELINESS
On 24 February 2012, petitioner received a copy of the Omnibus
Order dated 17 February 2012 handed down by the Regional Trial Court
Makati City, Branch 58, in Civil Case No. 03-1341 entitled ABC
Software, Inc. vs. XYZ (Philippines) Inc., effectively DENYING the
following:
2 Section 7, Rule 18, 1997 Rules of Civil Procedure
3 Section 2, Rule 9, Id.
4 Security Bank Corporation vs. Court of Appeals, G.R. No. 135874, 25 January 2000
2
SO ORDERED.
THE PARTIES
Petitioner ABC Software, Inc., is a corporation organized and
existing under the laws of the state of Delaware, U.S.A., with principal
office at 1234 Five Six Boulevard, Suite 11111, Broomfield, Colorado
80021, U.S.A. It is engaged in the business of designing, manufacturing, and
selling computer-related products.
Petitioner may be served with court processes through the
undersigned counsel at the address stated below.
Private respondent XYZ (Philippines) Inc., is a corporation organized
and existing under the laws of the Republic of the Philippines with principal
office at 88th Floor, Corporation Building, 1111 Ayala Avenue, Makati City,
Philippines where it may be served with court processes.
Public respondent, Hon. Judge Hukom, is the incumbent Presiding
Judge of Branch 888 of the Regional Trial Court in Makati City.
6. On 1 July 2008, an Amended Pre-Trial Order was issued, setting the maiden
reception of evidence on 11 August 2008.
7. It was only after more than two (2) years, or on 27 September 2010, that
private respondent filed its Motion to Depose Mr. Seong Ang Kang and Ms.
Cher Liang Tan, with a prayer that such taking be set sometime in the third
or last week of October 2010.
8. Despite the lapse of nine (9) months after it filed its Motion to Depose,
private respondent deliberately neglected to move for the resolution of its
own motion. It was petitioner that took the liberty of asking the Court to
resolve private respondents motion when it filed a Motion to Resolve on 17
June 2011.
9. On 27 June 2011, petitioner received a copy of the Order dated 31 May
2011, granting the Motion to Depose, with a directive that the taking of
such deposition be set on the first week of July 2011.
10.On 1 July 2011, petitioner received a copy of private respondents Ex-Parte
Motion to Modify the Order (dated 31 May 2011), requesting that the taking
of the deposition be set on the first or second week of September 2011.
Petitioner filed an Opposition thereto on 11 July 2011.
11.Meanwhile, on 12 July 2011, petitioner filed a Motion for Reconsideration
(of the Order dated 31 May 2011), reiterating clearly the reasons why
allowing the deposition would result in manifest injustice.
12.On 19 August 2011, petitioner filed an Urgent Motion to Resolve its Motion
for Reconsideration and its Opposition (to the Ex-parte Motion to Modify).
In its Comment with Manifestation and Motion (to the Urgent Motion to
Resolve) dated 26 August 2011, private respondent claimed that while it
interposes no objection to the Motion for Reconsideration and to the
Opposition, its request for modification of the order to depose had become
moot. Private respondent conveniently reasoned out that it is the trial courts
fault that its motion was not heard because of the semestral inventory. It
went further by asking for another postponement of the taking of the
deposition since it is already the last week of August. Private respondent
requested that the taking of the deposition be set on the first or second week
of October 2011, without offering any justifiable reason why it failed to
take any step in complying with the Order from the time it was issued on 31
May 2011 up to the time that private respondent filed its Comment.
13.On 12 September 2011, the trial court issued an Order denying private
respondents Motion to Modify, which meant that its request to re-set the
taking of the deposition from the first week of July to the first or second
week of September 2011 was denied. This further meant that, at the time the
Order (dated 12 September 2011) was handed down, private respondent had
already lost its right to take the deposition because the original setting of the
5
taking of deposition was in the first week of July 2011. The court a quo
succinctly held that:
x x x
The Court resolve to DENY the same for the reason
that defendant has not shown any semblance of good
faith to make preparations or take initial steps for the
conduct of the deposition. The defense is deemed to
have waived the opportunity to take the intended
deposition.
x x x (emphasis and underscoring supplied)
20.It was only on 23 November 2011 that petitioner received a copy of the
Order dated 10 November 2011, granting private respondents Motion for
Reconsideration (of the Order dated 12 September 2011), with a directive
that the taking of the deposition be set on the first week of December 2011.
21.On 25 November 2011, petitioner filed an Urgent Motion for
Reconsideration (of the Order dated 10 November 2011) with Motion to
Suspend the Taking of Deposition.
22.On 28 November 2011, the trial court issued an Order giving private
respondent 5 days within which to file its Comment/Opposition to the
Objection to the Notice of Taking Deposition with Motion to Expunge.
Petitioner was given a similar period within which to file a Reply.
23.Instead of filing its Comment/Opposition to the Objection to the Notice of
Taking Deposition with Motion to Expunge, private respondent filed a
Manifestation dated 15 December 2011, saying that on 1 December 2011,
notwithstanding the pendency of the Objection to the Notice of Taking
Deposition with Motion to Expunge and of the Urgent Motion for
Reconsideration (of the Order dated 10 November 2011) with Motion to
Suspend the Taking of Deposition, the deposition6 of Mr. Ang Seong Kang
Samuel was taken at the Philippine Embassy in Singapore. On 26 December
2011, petitioner filed its Countermanifestation.
24.Finally, on 24 February 2012, petitioner received a copy of the Omnibus
Order rendered by the court a quo dated 17 February 2012, denying
petitioners Urgent Motion for Reconsideration with a directive that private
respondent must furnish to petitioner a copy of the Questions which were
propounded to Mr. Ang Seong Kang Samuel.
ASSIGNMENT OF ERRORS
Petitioner respectfully submits that public respondent issued the
Omnibus Order7 dated 17 February 2012 in contravention of settled rules
and existing jurisprudence, amounting to grave abuse of discretion
amounting to lack or excess of jurisdiction, for the following reasons:
I
6 Annex A
7 Annex B
7
and relevant facts, not only known to him and his witnesses but also those
known to the adverse party and the latter's own witnesses10.
There is no question that discovery measures are well-recognized. But
the mere fact that it is accorded liberal treatment, and that a party has a
recognized right to make discovery, does not necessarily mean that it
should be allowed without exception. In fact, in the case of Isidro T.
Pajarillaga vs. Court of Appeals and Thomas T. Kalangeg 11, the Supreme
Court has cautioned that while discovery measures are generally allowed,
they may be denied to a party who has caused delay to the proceedings.
Thus:
xxxx
11
xxxx
xxxx
12
In Pajarillaga, the Motion for Leave of Court to Take Deposition was filed
by petitioner Pajarillaga only about two (2) years after the case was filed
with the trial court. Petitioner moved to reset the hearings for the
presentation of his evidence only once12 but on the date on which the hearing
was reset, petitioner and his counsel were absent. Said the trial court:
Considering that the above-entitled case has been pending
since November 24, 1995, the hearings thereof have been
delayed almost always at the instance of the defendant, the
latters motion for leave of court to take said defendants
deposition upon written interrogatories at this late stage of
the proceedings is hereby denied.
10.
Defendant
XYZPhilippines),
Inc.
thus
respectfully requests the Honorable Court to direct the
Department of Foreign Affairs to request the
assistance of the Philippine Consul General of
Singapore in providing an officer authorized to
12 The petitioners presentation of evidence was set on October 28, 29 and 30, 1997. Petitioner
moved to rest to November 17, 1997 but the trial court reset the hearing to December 15, 1997.
On December 10, 1997, petitioner filed the Motion for Leave of Court to Take the Deposition of
the Defendant Upon Written Interrogatories.
13
Remarkably, while private respondent did not seem to mind the costs
of paying its lawyers for legal services rendered for a seven-year protracted
litigation, all of sudden when it filed its Motion to Depose in 2010, it
claimed that paying for airfare is too costly. As it eventually turned out, it
intended to take the deposition of only one witness after allthat of Mr.
Seong Ang Kangs.
Contrary to private respondents assertion, it would have been more
cost-efficient, more convenient and less time-consuming had Mr. Seong Ang
Kang been presented in court to testify. The witness could have been flown
into the country from Singapore in the morning, then straight to the trial
court where petitioner could have conducted a cross-examination, and the
public respondent could have personally observed the demeanor of the
witness while testifying, thereby expediting the proceedings and validating
the testimony. Thereafter, he could have taken the next flight back to
Singapore in the evening. But private respondent opted to take the
alternative which was demonstrably malicious and more prejudicial to
petitioner, consequently squandering the time and resources of everyone
involved.
Public respondent should not have
allowed the taking of the deposition
because the purpose for which the
deposition was taken addresses an
issue which is outside of those
enumerated in both the Pre-Trial
Order and the Amended Pre-Trial
Order.
---------------------------------------------In its Motion to Depose, private respondent alleged the following
reasons for the trial court to allow the deposition in Singapore:
10. Defendant XYZ (Philippines), Inc. thus
respectfully requests the Honorable Court to direct the
Department of Foreign Affairs to request the
assistance of the Philippine Consul General of
Singapore in providing an officer authorized to
14
13 Annex E
15
in
their
It is very easy to see that the issue of whether or not Mr. Seong Ang
Kang would have personal knowledge of the manner, the circumstances and
the events which led to XYZ Telecommunications, Ltd.s dealings with ABC
Software, Inc.; and whether or not Mr. Kang would know whether XYZ
Telecommunications, Ltd. did in fact order the goods subject of the case are
not issues to be resolved, nor do they pertain to any matter related to
any of the issues to be resolved in the case.
14 Annex F
16
To go beyond what has been determined by the trial court as the issues
to be resolved in a particular case puts at naught the rules on pre-trial. The
provisions of Rule 18 of the 1997 Rules of Civil Procedure are not mere
superfluities. They go to the very reason why the Supreme Court
promulgated the rules of court to begin withto provide a simplified and
inexpensive procedure for the speedy disposition of cases. To disregard what
is provided in the pre-trial order defeats the purpose of its issuance.
Hailed as the most important procedural innovation in Anglo-Saxon
justice in the nineteenth century, pre-trial paves the way for a less cluttered
trial and resolution of the case15. The policy behind the pre-trial guidelines is
to abbreviate court proceedings and ensure prompt disposition of cases and
decongest court dockets16.
Section 7, Rule 1817 is crystal clearthe pre-trial order controls the
course of a case. It provides:
Section 7. Record of pre-trial. The proceedings in
the pre-trial shall be recorded. Upon the termination thereof,
the court shall issue an order which shall recite in detail the
matters taken up in the conference, the action taken thereon,
the amendments allowed to the pleadings, and the
agreements or admissions made by the parties as to any of
the matters considered. Should the action proceed to trial,
the order shall, explicitly define and limit the issues to
be tried. The contents of the order shall control the
subsequent course of the action, unless modified before
trial to prevent manifest injustice. (5a, R20)" (emphasis
and underscoring supplied)
trial18, an issue which is outside the pre-trial order, in order that it may
be taken up during the trial as being impliedly included in the issues to
be tried, must, at the very least, be inferrable from the issues expressly
enumerated.
In the present case, however, there is nothing in the issues defined in
both the Pre-Trial Order and the Amended Pre-Trial Order that would even
remotely suggest that the purpose of the taking of the deposition is an issue
that is inferrable therefrom. Again, the issue of the alleged separate
personalities of XYZ (Philippines), Inc. and XYZ Telecommunications Ltd.
which would have been the basis for the taking of the deposition, is not an
issue to be resolved. Therefore, there was no reason for the trial court to
have entertained the motion to depose.
Besides, it was the public respondent who issued these orders
delineating the issues to be resolved. Therefore, public respondent acted
with grave abuse of discretion in allowing the taking of the deposition which
sought to address an issue which he purposely did not include.
Public respondent should not have
allowed the taking of the deposition
since private respondent, in its
Motion to Dismiss and Answer,
never even hinted at availing of
modes of discovery.
---------------------------------------------Defenses and objections not pleaded either in a motion to dismiss or
in the answer are deemed waived19. A motion attacking a pleading, order,
judgment, or proceeding shall include all objections then available, and all
objections not so included shall be deemed waived20. As earlier mentioned,
what private respondent wanted to do, in availing of deposition as a mode of
discovery, was to prove a matter which it never raised in its motion to
dismiss or in its answer.
In its Motion to Dismiss21 filed on 5 January 2004 (which was
subsequently denied by the trial court in an Order dated 6 October 2004),
private respondent alleged the following grounds for the dismissal of the
Complaint:
18 Balatico Vda. De Agatep vs.Rodriguez, G.R. No. 170540, 28 October 2009
19 Section 1, Rule 9, 1997 Rules of Civil Procedure
20 Section 8, Rule 15, Id.
21 Annex G
18
26 Annex L
27 Annex M
28 Annex N
29 Annex O
30 Annex P
31 Annex Q
32 Annex R
22
CLOSING STATEMENT
What should have been a simple case of enforcement of a foreign
judgment became a full-blown litigation simply because of private
respondents refusal to abide by the rudiments of fair play and public
respondents misplaced sense of leniency.
Inasmuch as petitioner desires to have this case concluded once and
for all at the soonest possible time, it was constrained to file this petition
because of the detestable course that this case had taken. Public respondent
should not have allowed this enforcement of a foreign judgment to be this
oppressive.
This is not an ordinary civil case. The cause of action in this case
arises from the foreign judgment itself and not from the facts or allegations
24
that occasioned such foreign judgment. They may pertain to the same set of
facts, but there is an essential difference in the right-duty correlatives that
are sought to be vindicated. More importantly, the matters for proof are
different. In ordinary litigation, the complainant will have to establish before
the court the tortuous act or omission committed by the tortfeasor. Extensive
litigation is thus necessary. On the other hand, in enforcement of a foreign
judgment, the matter left for proof is the foreign judgment itself, and not the
facts from which it prescinds36.
The taking of the deposition of Mr. Ang Seong Kang Samuel was a
mere ploy to frustrate the ends of justice. Private respondent masterfully
transformed this case into an extensive litigation contrary to the policy of
preclusion embodied in Section 48, Rule 39 of the Rules of Court, the
rationale of which is to safeguard against the harassment of parties, and to
insure that the task of courts be not increased by never-ending litigation of
the same disputes, andin a larger senseto promote what Lord Coke in
the Ferrers Case of 1599 stated to be the goal of all law: rest and
quietness37.
27
-andRAYMOND P. ROMANO
PTR NO. 3286962, Apr. 2, 2012, Makati City
IBP NO. 893211, Mar. 13, 2012 (CY 2012)
Roll of Attorneys No. 61646
2011 Bar Passer. MCLE Compliance No. III Exempt
(MCLE Governing Board Order No. 1, Series of 2008)
Copy furnished:
ABUGADO LAW OFFICES
Counsel for Private Respondent
8/F Gusali Building
888 Kalye Street, Salcaspi Village
Makati City, Metro Manila
HON. JUDGE HUKOM
Presiding Judge
Regional Trial Court, Branch 888
Makati City
EXPLANATION
A copy of this Petition was served upon the other parties through
registered mail because the undersigned counsel do not have sufficient
manpower to personally file and serve all the numerous pleadings they
prepare every day.
ORTEGA, BACORRO, ODULIO
CALMA & CARBONELL
By:
RAYMOND P. ROMANO
28
LIST OF ANNEXES
ANNEX
DESCRIPTION
No. of
Pages
23
31
31
15
19
29
10
30