Republic of the Philippines

COURT OF APPEALS
Cebu City
LINDA LISTON and EVANGELINE SANCHEZ, Plaintiffs-Appellees, - Versus JOSE ARRANGUEZ, SPOUSES JUNIE LEE and TERESITA LEE, and MICHAEL LEE, Defendants-Appellees, ADELNA ARRANGUEZ, Defendant-Appellant. X------------/ CA G.R. CEB-CV No. 02969

MOTION FOR RECONSIDERATION

DEFENDANT-APPELLANT, by counsel, most respectfully moves for reconsideration of the Decision, promulgated on May 12 2011 and received by the undersigned counsel on 25 May 2011, and in support thereof, states: THAT THE HONORABLE COURT OF APPEALS ERRED IN APPLYING SECTIONS 416 and 417 OF R.A. 71601 IN THE INSTANT CASE. THAT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE MATTER OF
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The New Local Government Act of 1991

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MISJOINDER OF PARTIES IS A NON-ISSUE ON APPEAL. 1. At the outset it must be recalled that defendant-appellant

raised the following assignments of error in her Appeal Brief, to wit: THE LOWER COURT ERRED IN GIVING CREDENCE TO THE SIMULATED AMICABLE SETTLEMENT AND IN UPHOLDING THE FICTITIOUS CLAIM OF PLAINTIFF LINDA LISTON AGAINST DEFENDANT-APPELLANT ADELNA ARRANGUEZ. THE LOWER COURT ERRED IN DISREGARDING THE RULE ON PERMISSIVE JOINDER OF PARTIES IN SO FAR AS THE CLAIMS OF PLAINTIFF-APPELLEE EVANGELINE SANCHEZ IS CONCERNED. 2. The Honorable Court of Appeals resolved the first assigned

error by affirming the findings of the Trial Court and citing Sections 416 and 417 of R.A. 71602, in relation to Article 20373, as legal basis of Its ruling. After a careful examination of the parties respective stand, We hold that pursuant to Sections 416 and 417 of RA 7160 (The New Local Government Code of 1991), in relation to Article 2037 of the Civil Code, plaintiffs-appellees had sufficiently established, with preponderance of evidence, their claim that defendant-appellant Adelna is liable on her obligation stated in the amicable settlement.4

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The Local Government Code of 1991 The New Civil Code of the Philippines CA-G.R. CV. No. 02969, Decision, page 9

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With all due respect, we take exception to both factual and legal basis cited by this Honorable Court. Firstly, because the said provisions of law does not squarely apply to the instant case. Sections 416 and 417 of R.A. 7160 provides for the mechanism of enforcing a settlement of the parties before the Lupon. It provides for a two-tiered mode of enforcement of an

amicable settlement executed by the parties before the Lupon, namely, (a) by execution of the Punong Barangay which is quasijudicial and summary in nature on mere motion of the party entitled thereto; and (b) by an action in regular form, which remedy is judicial. Under the first remedy, the proceedings are covered by the Local Government Code and the Katarungang Pambarangay Implementing Rules and Regulations. While under the second remedy, the proceedings are governed by the Rules of Court, as amended. The cause of action is the amicable

settlement itself, which, by operation of law, has the force and effect of a final judgment. Thus, the Supreme Court En Banc, in MA. TERESA VIDAL, ET AL., -versus- MA. TERESA O. ESCUETA,REPRESENTED BY HERMAN O. ESCUETA, [G.R. No. 156228. December 10, 2003], explained that - - -

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The amicable settlement which is not repudiated within the period therefor may be enforced by execution by the Lupon through the Punong Barangay within a time line of six months, and if the settlement is not so enforced by the Lupon after the lapse of the said period, it may be enforced only by an action in the proper city or municipal court as provided for in Section 417 of the Local Government Code of 1991, as amended, which reads:chan robles virtual law library Sec. 417. Execution.The amicable settlement or arbitration award may be enforced by execution by the Lupon within six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the proper city or municipal court. chan robles virtual law library By express provision of Section 417 of the LGC, an action for the enforcement of the settlement should be instituted in the proper municipal or city court. This is regardless of the nature of the complaint before the Lupon, and the relief prayed for therein. (Emphasis supplied.) It must be noted that the kind of action filed by plaintiffs in the trial court below is not the kind of remedy mandated in Section 417 of R.A. 7160 which must be filed only in the proper city or municipal court. Instead, plaintiffs opted for an ordinary civil action for the recovery of sum of money before the Regional Trial Court. Having done so, the cause of action herein is no

longer the Amicable Settlement, but the sum of money which is collectible from defendant-appellant. Therefore, this being an

ordinary civil action, Sections 416 and 417 of R.A. 7160 does not apply anymore.

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Secondly, because plaintiffs-appellees failed to prove the alleged indebtedness of defendant-appellant Adelna Arranguez. As earlier explained, proof of the alleged indebtedness becomes necessary in the instant case because this is not one for execution of the barangay amicable settlement, but an ordinary civil action for recovery of sum of money. Therefore, as a matter of burden of evidence, plaintiffs-appellees must prove the alleged indebtedness that gave rise to the recoverable amount. In fact, plaintiff-appellee Linda Liston failed to explain why most of the Purchase Order Cards (P.O. Cards) were not in the name of Adelna Arranguez. The said P.O. Cards were in the name of other persons. In other words, plaintiff is charging defendant for another mans account. But regrettably, plaintiff failed to explain why the same should be charged against defendant Adelna Arranguez. Thirdly. exception to With all due deference maintained, we take the conclusion that plaintiffs-appellees had

sufficiently established, with preponderance of evidence, their claim that defendant-appellant Adelna Arranguez is liable on her obligation stated in the amicable settlement. As previously argued, plaintiffs-appellees failed to prove the authenticity and due execution of the Amicable Settlement
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against the assertion of defendant-appellant that it was a simulated document. Proof of authenticity and due execution becomes necessary under the given circumstances that the said amicable settlement was not enforced in accordance with Section 417 of R.A. 7160. As a matter of fact, right from the very inception, defendantappellant already denied specifically each and every material allegations of the complaint on top of her affirmative allegations and affirmative defenses. Hence, as a consequence of such

specific denials, affirmative allegations, and affirmative defenses, it was incumbent upon the plaintiffs to prove the material allegation of fact stated in its complaint. But having failed to do so, plaintiff should be deemed unable to discharge the requisite quantum of evidence. Well-settled is the rule that allegations can never be considered as repositories of truth, and hence, cannot serve as foundations for decisions resolving rights of litigants. [Salva vs. Court of Appeals, et al., 304 SCRA 632, 645 (1999)]. Thus, in civil cases, the burden of proof rests on the party who would be defeated if no evidence is given on either side. Plaintiff must

therefore establish his case by a preponderance of evidence, i.e., evidence as a whole which is superior to that of the defendant. In other words, the party who alleges a fact has the burden of
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proving it. X x x x x . . . . [Pacific Banking Corporation Employees Organization vs. Court of Appeals, et al., 288 SCRA 197, 206 (1998) citing Summa Insurance Corporation vs. Court of Appeals, et al., 253 SCRA 641 (1996); and, Trans-Pacific Supplies, Inc. vs. Court of Appeals, et al., 235 SCRA 494 (1994)]. In sum, plaintiffs-appellees failed to prove their case by preponderance of evidence. And FINALLY, the Honorable Court of appeals erred in holding that the matter of misjoinder of plaintiff-appellee Misjoinder of a

Evangeline Sanchez is a non-issue on appeal.

party boils down to the jurisdiction of the Court. Hence, being a jurisdictional issue, it can be raised anytime, even for the first time on appeal.

PRAYER W H E R E F O R E,
it is most respectfully prayed

that the Honorable Court reconsiders Its Decision of May 12 2011, and in lieu thereof, a new one be rendered DISMISSING the complaint in the Trial Court below for failure to prove plaintiffs cause of action. Other just and equitable reliefs under the

circumstances are also prayed for. RESPECTFULLY SUBMITTED. Mandaue City [for Cebu City], Philippines.
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08 June 2011

NILO G. AHAT
Counsel for Defendant-Appellant Attorney's Roll No. 42349 MCLE Compliance No. III-0004165 * July 13, 2009 PTR No. 0187958 * Mandaue City * Jan. 05, 2011 IBP No. 799537 * Bohol Chapter * Dec. 28, 2010 #8 Osmena Village, M. L. Quezon Avenue Maguikay, 6014 Mandaue City Email: attyahat@yahoo.com Tel No: 354-8338

REPUBLIC OF THE PHILIPPINES) CITY OF MANDAUE ) S.S. VERIFICATION I, ADELNA ARRANGUEZ, of legal age, Filipino, resident of Camputhaw, Cebu City, subscribing under oath, depose and say: That --1. I am the defendant-appellant in the above-captioned case. As such, I have caused the preparation of the foregoing Motion For Reconsideration, the contents of which I have read and understood, and are true and correct of my own knowledge and based on authentic records. 2. That I hereby certify that I have not commenced any other action or proceeding involving the same or similar issues, in the Supreme Court, the Court of Appeals, or in any other court, tribunals or agency; and to the best of my knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or in any other court, tribunal or agency; and if I should learn hereafter that a similar action or proceeding is pending or has been filed in the Supreme Court, the Court of Appeals, or any other court, tribunal or agency, I hereby undertake to report that fact to this Honorable Court wherein this sworn certification have been filed. IN WITNESS WHEREOF, I have hereunto affixed my signature on this _____ day of JUNE 2011, at Mandaue City, Philippines. ADELNA ARRANGUEZ
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I.D. No. _______________________ SUBSCRIBED AND SWORN TO BEFORE ME this ____th of JUNE 2011 in Mandaue City, Philippines. Doc. No. _______; Page No. _______; Book No. _______; Series of 2 0 1 1

Copy furnished:

Atty. BONIFACIO L. BY PERSONAL SERVICE: VALENCIA Counsel for PlaintiffsAppellees Room 308, Cherry Court, Gen. Maxilom Avenue 6000 Cebu City

Atty. DEOLITO L. ALVAREZ BY PERSONAL SERVICE: Counsel for DefendantsAppellees 9th Floor, Cebu Holdings Center Cebu Business Park 6000 Cebu City

BY PERSONAL SERVICE: Hon. PRESIDING JUDGE RTC Branch 57 C.J. Fernan Palace of Justice
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Capitol, 6000 Cebu City

REPUBLIC OF THE PHILIPPINES ) IN THE CITY OF MANDAUE ) S.S. JUSTIFICATION/AFFIDAVIT OF SERVICE I, ROEL O. OMOLON, of legal age, under oath, depose and state: That in order to comply with the requirements of the Rules Of Court, specifically on the service of pleadings, I served a copy of the MOTION FOR RECONSIDERATION, in the above-captioned case, to each of the following parties, in the following mode, to wit: Atty. BONIFACIO L. VALENCIA Counsel for Plaintiffs-Appellees Room 308, Cherry Court, Gen. Maxilom Avenue 6000 Cebu City BY PERSONAL SERVICE:

Atty. DEOLITO L. ALVAREZ BY PERSONAL SERVICE: Counsel for DefendantsAppellees 9th Floor, Cebu Holdings Center Cebu Business Park 6000 Cebu City BY PERSONAL SERVICE: Hon. PRESIDING JUDGE RTC Branch 57 C.J. Fernan Palace of Justice Capitol, 6000 Cebu City

IN WITNESS WHEREOF, I have hereunto affixed my signature on this 9th day of June 2011 in Mandaue City, Philippines.

ROEL O. OMOLON Affiant SUBSCRIBED AND SWORN TO BEFORE ME this ____TH 2011 in Mandaue City, Philippines.
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