KRISHA B. SANTOS 16-172 ATTY. CARLOS ROBERTO Z.

LOPEZ
MEMORANDUM| EVIDENCE JUNE 20, 2019

Court: Regional Trail Court of Makati Branch 132

Judge: Honorable Rommel Baybay
Title of the Case: Dr. Prudencio Dy vs. Patricia Ann B. Versoza and Elizabeth Versoza
Docket No: R-MKT-17-02835-CV
Date of Hearing: May 27, 2019

Dr. Dy (petitioner), a 65 year old medical doctor at Medical City, filed a collection of
money suit against Kitchen Kitchen Corporation and its owner, Patricia (respondent). The
company is engaged in the food service industry. Dr. Dy, one of the principal sponsors at
Patrcia’s wedding, lent a total amount of P2,000,000 to his goddaughter, Patricia, so the latter
can proceed with the opening of her restaurant. In the testimony of Dr. Dy, the issued four
checks; the first check amounted to P1,000,000 which was used by Patricia to open her newly
founded restaurant. However, the business was not going well which prompted Patricia to
borrowed money from Dr. Dy amounting to P500,000, P250,000, and P250,000, as evidenced by
the checks presented in court. When the loan matured, Dr. Dy demanded payment from Patricia,
however, this was left unheeded, hence, this collection suit was instituted.

The hearing before the court of Judge Rommel Baybay commenced with the objection of
Patricia’s counsel with regard to the judicial affidavit filed by the Dr. Dy. According to the
respondent, the judicial affidavit was filed out of time. The Section 2 of the Judicial Affidavit
Rule (JAR) provides that “the parties shall file with the court and serve on the adverse party,
personally or by licensed courier service, not later than 5 days before pre-trial or preliminary
conferences or the scheduled hearing with respect to motions and incidents […]”. The
respondent raised an objection because she received the judicial affidavit on May 23 (Thursday)
and the hearing was scheduled on May 27 (Monday), hence, the five-day period was not
complied with. The petitioner opposed the objection by presenting in court the receipt issued by
LBC where it was stated that the delivery was made on May 22 (Wednesday). Judge Baybay
overruled the objection stating that there was really no issue since it was clear that the judicial
affidavit was filed on time.
KRISHA B. SANTOS 16-172 ATTY. CARLOS ROBERTO Z. LOPEZ
MEMORANDUM| EVIDENCE JUNE 20, 2019
This situation made it clear to me that the counting of days includes weekends. Under the
JAR, it was not explicitly stated that counting is based on calendar days, and not on business
days. Otherwise, the judge would have to sustain the objection, and consequently, the judicial
affidavit of Dr. Dy would not have been admitted in evidence. Moreover, this situation also
emphasized that the reckoning point is the time when the proponent sent the judicial affidavit
and not the time when the adverse party received it.

A minor issue that was presented in the hearing concerns the amendment of Dr. Dy’s
judicial affidavit. While on the witness stand, Dr. Dy wanted to change his answer on one of the
questions, which involves the relationship between Dr. Dy and Patricia. In his judicial affidavit,
Dr. Dy claimed that he was the “ninong” of Patricia. He wanted to change it to “principal
sponsor at Patricia’s wedding”. Judge Baybay did not allow such amendment considering that
these two terms were basically the same. Dr. Dy and his counsel agreed. This situation showed
me that judicial affidavits may be amended if the maker testifies on the witness stand and raised
his concern regarding the amendment. However, this is still subject to a judge’s discretion.

The hearing was the presentation of a judicial affidavit in lieu of Dr. Dy’s direct
testimony. After the objection on the 5-day prescriptive period was resolved, the counsel of Dr.
Dy started to offer the judicial affidavit including the documentary and object evidence attached
to it. The offer started with the Dr. Dy testifying that he was the one who executed the judicial
affidavit and that his signature was genuinely attached to it. The defendant’s counsel raised no
objection as to the questions and answers stated in the affidavit and to the presentation of Dr. Dy
as a witness pursuant to Section 6 of JAR, which provides that, “ […] The adverse party may
move to disqualify the witness or to strike out his affidavit or any of the answers found in it on
the ground of inadmissibility.”

However, Patricia’s counsel objected to the offer of two specific documents attached to
the judicial affidavit. The first one was the account number stated in the deposit slip. According
to the defendant, the account number was not hers, since the one stated in the deposit slip
consists of different numbers. This piece of documentary evidence was being objected to
establish that Patricia did not receive the amount stated in the deposit slip. The judge overruled
KRISHA B. SANTOS 16-172 ATTY. CARLOS ROBERTO Z. LOPEZ
MEMORANDUM| EVIDENCE JUNE 20, 2019
the objection. It turned out that Patricia’s counsel failed to object when a photocopy of the
deposit slip was presented in court. He agreed that it was a faithful reproduction of the original.
The judge ruled that since defendant’s counsel did not object to the presentation of the deposit
slip, it followed that any texts or symbols written on the deposit slip is deemed true and correct,
including the account number stated therein. This situation made it clear to me that a party
cannot object to specific items or details written on the document, instead, he must object to the
offer of the whole document to render it inadmissible.

The second document objected to was Exhibit N, a print out copy of an email from the
Securities and Exchange Commission (SEC). According to Dr. Dy’s testimony, he sent an email
to the SEC to determine if Kitchen Kitchen Incorporated is a duly registered corporation. The
email correspondence was offered in evidence to determine the existence and legality of the
corporation. Patricia’s counsel objected on the ground that the print out email was not
authenticated pursuant to Rule 5 Section 2 of the Rules of Electronic Evidence, which provides
that a private electronic document may be authenticated by “evidence that it had been digitally
signed by the person purported to have signed the same”. According to the defendant, there was
no signature or certification from the SEC, hence, the document is inadmissible. Dr. Dy
presented his phone where the email was stored to show that the print out copy was a faithful
reproduction of the original. Judge Baybay did not rule on the objection, instead, he required the
petitioner to submit a certification from the SEC to be presented in court in the next hearing.
Patricia’s counsel offered a continuing objection with regard to this document. Unfortunately, I
was not able to see whether this document was marked by the parties. This made me realized the
importance of catching small details when documents are being presented to be able to object
once they are offered. In this situation, the first thing that Patricia’s counsel noticed was the lack
of signature. This made me realized how important technicalities play in litigation. A party, even
with a weak claim or defense, can still win a case.

Since a collection suit is a civil case, the degree of evidence required is preponderance of
evidence. Rule 133 Section 1 provides that; “In civil cases, the party having burden of proof
must establish his case by a preponderance of evidence. In determining where the preponderance
or superior weight of evidence on the issues involved lies, the court may consider all the facts
KRISHA B. SANTOS 16-172 ATTY. CARLOS ROBERTO Z. LOPEZ
MEMORANDUM| EVIDENCE JUNE 20, 2019
and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means
and opportunity of knowing the facts to which there are testifying, the nature of the facts to
which they testify, the probability or improbability of their testimony, their interest or want of
interest, and also their personal credibility so far as the same may legitimately appear upon the
trial. The court may also consider the number of witnesses, though the preponderance is not
necessarily with the greater number.”

The counsel of Dr. Dy started with the introduction of Dr. Dy as the claimant and a
medical doctor in Medical City. For me, stating the profession of the witness before a judge is
way of boosting his credibility. This is because judges also have their own notions and biases
that may essentially affect their decisions. Furthermore, the counsel of Dr. Dy also mentioned the
relationship of his client with the adverse party (ninong sa kasal), which basically gives
impression to the judge that the existence of debt is highly possible considering the close
relationship of the parties. Also, Dr. Dy was able to mention in court the number of checks,
amount for each check, and the number of transactions that he had with Patricia with regard to
the latter’s business. For me, this makes Dr. Dy’s testimony more credible since he was very
straightforward in his answers. This was further corroborated by the documentary evidence such
as the deposit slips issued by the bank. Without considering any other things that may be raised
in the subsequent hearings, I can conclude that Dr. Dy was able to establish that he disbursed an
amount of P2,000,000 in favor of Patricia. However, whether the said amounts were in the form
of investment or loan remains to be seen.

With the limited information presented, I would probably rule that the first check (P1M)
issued by Dr. Dy was an investment. In his testimony, he said that he lent the money as an
investor to start up the business. In such case, an investor bears the losses if the business is not
making any profits. This follows that he is also entitled to a share in the earnings. Patricia should
raise this in her defense to partially exonerate her liability. With regard to the three checks (a
total of P1M) subsequently issued Dr. Dy, I would rule that these were debts. Dr. Dy specifically
mentioned that such amount was disbursed as a loan given to her “inaanak”. This amount was
used for the continuous operations of the dwindling restaurant to recover the losses. It seemed to
me that Dr. Dy used the words “investment” and “loan” interchangeably. If I were his counsel, I
KRISHA B. SANTOS 16-172 ATTY. CARLOS ROBERTO Z. LOPEZ
MEMORANDUM| EVIDENCE JUNE 20, 2019
would suggest that he refrained from using the word “investment” since this would prejudice his
claim as his verbal statements were put on record.

One surprising thing about the parties is that, even if there was a pending case filed by
one against the other, the mother of Patricia invited Dr. Dy to Patricia’s child’s birthday party
while they were on the elevator right after the hearing.