Republic of the Philippines

REGIONAL TRIAL COURT

10th Judicial Region
Branch 2
Hall of Justice, Butuan City

AQUASTEEL CORPORATION,
As represented by Daisy Escala- Civil Case No. 5704
Asunto,
Plaintiff,

- versus - FOR:
Specific Performance, Damages
and Attorney’s Fees

SPOUSES FELOMINA C.
MORALES & ERNESTO
MORALES,
Defendants.

X ---------------------------------------/

PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION

(TO PLAINTIFF’S “MOTION FOR LEAVE TO AMEND FORMAL OFFER OF EXHIBITS”)

COMES NOW Plaintiff, by counsel, to the Honorable Court respectfully state –

In an ORDER dated January 28, 2014, the court gave defendants time to submit their

opposition to plaintiff’s motion, and gave plaintiff until February 26, 2014 within which to

submit a response. Thereafter, the said motion is deemed submitted for resolution.

Plaintiff’s counsel received defendants’ Opposition and submits this pleading in court to

consolidate all issues for the court’s resolution of the current motion.

ARGUMENTS

I. Plaintiff’s Motion Is Not Violative of Defendants’ Right to Due Process.

1. Defendants’ vehemently oppose plaintiff’s motion as “violative of their right to

due process, both substantial and procedural, not to mention offensive to the rule

on fair play.” Plaintiff disagrees. What could be more in tune with fair play than

laying all your cards on the table? The granting of plaintiff’s motion will not

prejudice defendants’ rights because (a) all admitted documentary or testimonial

evidence will be made available to them for inspection and objection; (b) a grant

of leave to recall witnesses does not mean defendants lose their right to cross-

examination; and (c) the case and its issues can be disposed based on merits

rather than technicalities if the court is afforded the opportunity to examine all

evidence relevant to the case. If the court sees it fit, new evidence to be

presented may be examined even under conditional admissibility. Plaintiff fails

to see how her motion would be offensive to defendants’ clearly safeguarded

rights. On the other hand, a denial of plaintiff’s motion would greatly prejudice

her case because a procedural technicality would prevent a substantial amount

of evidence from ever seeing light. Again, the disposal of the case would be

primarily by technicalities rather than merit. “The operation was a success, but

the patient died.” What such a procedure is to medicine, the case’s disposal

would be to litigation. To put it more accurately, the case would end (after more

than seven years) but justice was not administered.

1.1. A peculiar objection in defendants’ Opposition is the alleged plaintiff’s

quoting and heavy reliance on defendants’ Judicial Affidavit (November 24,

2013) and statements in defendants’ Objections/Comments to Formal Offer

of Exhibits (August 27, 2013). Defendants assail the motion because “the

new counsel for the plaintiff subconsciously took advantage of the contents of
 the legal documents of the opposing party/defendants that were in her

possession.” Plaintiff’s counsel assures defendants that the use by quoting

and reference of statements in some of their legal documents (Pre-trial

Briefs, Answer, Judicial Affidavit, Comments) was undertaken consciously.

This ‘advantage’ which plaintiff undertook apparently to defendants’

consternation is made possible because (1) Judicial Affidavits, under A.M. No.

12-8-8 SC a.k.a. The Judicial Affidavit Rule (extended until December 2014),

are submitted in lieu of direct testimonies. The statements therein are

treated as the party’s direct testimony and are all court-made statements.

These are, as a matter of course, submitted to court and opposing party is

required to be served with copies of it, which is why they are in plaintiff’s

possession, as well as the court’s and yes, even defendants. That is also why

there can be no objection if plaintiff’s counsel humbly “quotes” and “relies”

on defendants’ statements in court (except if defendants’ mean to argue that

they are not bound by their own statements in court).

1.2. Defendant further seeks the disallowance of plaintiff’s motion

because allegedly, “Plaintiff’s reliance on the provisions of Sec. 5 of Rule 10 is

TOTALLY MISPLACED because what the rule allows is an amendment of a

‘pleading’ x x x and a “Formal Offer of Exhibits” is not a pleading.” Plaintiff

disagrees with this far too narrow and restrictive interpretation of the

discretion given to the courts by Rule 10. The power to grant leave to amend

pleadings are provided expressly by said Rule thus it states in part “… the

court may allow the pleadings to be amended and shall do so with liberality if

the presentation of the merits of the action and the ends of substantial justice
 will be subserved thereby. The court may grant a continuance to enable the

amendment to be made.” [see Rule 10 Sec. 5 last paragraph] [emphasis

supplied] Clearly all petitions, motions, and other pleas addressed to the

court’s discretion are covered by the term ‘pleading’. A Supplemental Offer

of Exhibits, for example, can be allowed by the court to be submitted if only

for the presentation of the merits and to serve substantial justice. It is an

established rule that pleadings should be construed liberally in order that the

litigants may have ample opportunity to prove their respective claims and

that a possible denial of substantial justice due to legal technicalities may be

avoided (Philippine Veterans Bank v. Court of Appeals, G.R. 81957, May 23,

1989, 173 SCRA 544). It would be ironic that a strict technical meaning be

given to a Rule that is based on liberality; a rule the purpose of which states

that “… so that actual merits of the controversy may speedily be determined,

without regard to technicalities, and in the most expeditious and inexpensive

manner.” [Rule 10, Sec. 1 Emphasis Supplied]

1.3. Defendants then assail the motion saying it “must be DENIED FOR

FAILURE TO INDICATE BY APPROPRIATE MARKS THE AMENDMENTS SOUGHT

TO BE ADMITTED x x x and that the Additional Exhibits includes documents

that have never been marked and identified [3.3 and 3.4 in defendants’

Opposition]”.

The Plaintiff is persuaded, therefore, that defendants’ argument is

virtually correct. Since it is not, however, actually correct, Plaintiff must

respectfully, and indeed diffidently, disagree.

 Plaintiff reiterates that these pieces of evidence (the purported new

additional exhibits) were made available, even before trial proper, to

opposing party. These documents are not new to the opposing party and

were identified as early as during the submission of the complaint and were

made to be available to a proposed Panel of Commissioners. All those were

laid on the table or incorporated in the records of the case even before the

trial started.

Further, Section 34 of Rule 132 (the court shall consider no evidence

which has not been formally offered.) IS NOT ABSOLUTE, AND IN FACT HAS

RECOGNIZED EXCEPTIONS. The exceptions to the general rule are the

following:

(a) Under the Rule on Summary Procedure, where no full-blown trial

is held in the interest of speedy administration of justice;

(b) In summary judgments under Rule 35 where the judge based his

decisions on the pleadings, depositions, admissions, affidavits and

documents filed with the court;

(c) Documents whose contents are taken judicial notice of by the

court; [Nota Bene: i.e. The MOA between Defendants and 3 rd

Party SUDECOR is a perfect example of a document that can be

taken judicial notice of by the court because both parties admits

its existence and genuineness.]

(d) Documents whose contents are judicially admitted; [NB: same as

above]
 (e) Object evidence which could not be formally offered because they

have disappeared or have become lost after they have been

marked, identified and testified on and described in the record

and became subject of cross-examination of the witness who

testified on them during the trial and;

(f) Marked exhibits not formally offered may be admitted provided

it complies with the following requisites:

[a] must be duly identified by testimony duly recorded ;[LALAB

PLEASE CHECK THE JUDICIAL AFFIDAVITS OF MAMA AND ATE EMY

IF NA-MENTION NILA ANG UBAN DOCUMENTS e.g.

ledgers/receipts, etc.]

[b] must have been incorporated in the records of the case.

(Ramos v. Dizon, G.R. No. 137247, August 6, 2006)

1.4 Further still, defendants conveniently forgets to address in its Opposition

the argument in plaintiff’s Motion about judicial admissions. The rule is that

judicial admissions do not need to be formally offered in evidence. Extra-

judicial admissions need to be offered formally to be admitted. That

Defendants entered into a MOA with SUDECOR is an ADMITTED FACT. (See

par. 1 of Defendant’s Pretrial Brief). Admissions in the pretrial briefs are

judicial admissions and well-settled is the rule that an admission made by a

party during the course of the proceeding does not require proof. There is

therefore, no need for Plaintiff to even present the MOA of defendant and

SUDECOR. The summary of admitted facts under the Pretrial briefs under
 Sec. 6(b) of Rule 18 binds the party making the statements. (Republic v.

Sarabia 468 SCRA 142) Admissions of parties during pre-trial embodied in the

pre-trial order of the court are conclusive on them unless there is a clear

showing that the admission was entered through palpable mistake. (Heirs

of Conahap v. Heirs of Regana, 458 SCRA 741)

The ANSWER WITH COUNTERCLAIM of Defendants also admits existence of

the questioned MOA. (See par. 3 of Answer)

Defendants recognize that plaintiff has their own records and even suggested

that plaintiff and defendants’ records be referred to, as in fact they were

initially referred to, court-appointed commissioners.

As seen clearly in paragraphs 4, 5, 6, and 7 of Defendants’ Pretrial

brief, they admit that Plaintiff kept their own records of their

transaction. Plaintiff has summarized or accounted for the total

deliveries (par. 5), and plaintiff faithfully recorded in its

accounting journals and books of accounts; and these accounting

transactions are reflected in its financial statements submitted to

the BIR (par 6).

Under item 4.6 of the Opposition, defendants give an impression that plaintiff’s new

counsel and previous counsel had differing opinions about the MOA between SUDECOR and
defendant Fe Morales. Plaintiff disagrees with this view and maintains that such MOA was

not intended either by previous counsel and current counsel for plaintiff to be part of its

Formal Offer of Exhibits. A different MOA (there are 2 of such document in the original

complaint) was attached. Under item 4.6a defendant states as reproduced below:

“If at all, the admission of the defendants was limited to the fact that there

exists in the possession of the plaintiff a document purporting to be a MOA between

Plaintiff and Defendants. THERE WAS NO ADMISSION BY THE DEFENDANTS AS

REGARDS THE LEGALITY OF THE TERMS AND CONDITIONS OF THE OSTENSIBLE

MOA.”

This should not impress. The said MOA “purporting to be an agreement

between the two parties” takes the form of a notarized legal document and needs a

specific denial under oath, otherwise its authenticity, genuineness, and due

execution are deemed admitted. In this instance, defendants’ are saying that they

admit there exists a MOA “purporting” to be an agreement between plaintiff and

defendants, but THEY RESERVE AN ADMISSION AS TO THE LEGALITY THEREOF.

Surely this is not so, for defendants need to deny under oath the legality of the

terms and conditions of such MOA.

1.5 ON THE ISSUE OF THE MOA. The Opposition needlessly discusses their objection to

the WRONG MOA attached. Plaintiff agrees and grants that those objections are

correct; however, that document is not at issue as that MOA is not the one that

was supposed to be attached as evidence. Defendants argue under item 4.3 of the

Opposition that there are no facts and circumstances that would logically validate

plaintiff’s conclusion that there was an error in attaching the MOA. A question

may be asked: For the purpose as stated “To prove that plaintiff and defendant
 entered into a MOA relative to the exclusive delivery and sale of scrap metals

taken by defendant from SUDECOR in favor of plaintiff.”, WOULD COUNSEL

DELIBERATELY ATTACH A DOCUMENT NOT IN ISSUE AND EXCLUDE THE VERY

DOCUMENT WHICH SATISFIES THE PURPOSE OF THE OFFERED EVIDENCE?

Plaintiff thinks not. There cannot be a more logical conclusion to be reached. For

clarity and reference, the document marked as EXHIBIT C in the complaint is

reproduced as follows: [LALAB, PLEASE AWATA IYA GIBUHAT sa no. 4 sa iya

PLEADING. I-REPRODUCE ANG MOA unya i-bold and PLAINTIFF ug DEFENDANT]

1.6 Another notable argument in defendants Opposition is that the citation by plaintiff

of the case of Armed Forces of the Philippines Mutual Benefit Association v. CA is

characterized by defendants as “very disturbing” since the same does not involve a

motion to amend a party’s Formal Offer of Exhibits. Perhaps focussing too much

on details, defendants failed to see the forest for the trees. A careful perusal of

plaintiff’s Motion reveals that such case, in fact just a one-paragraph quote from

the same, was never offered to be a parallel to the current case. A discussion of

the case was not presented, but a quote was given in context to plaintiff’s

discussion of seeking the court’s liberality in the beginning of the Motion. The

whole quote, as reproduced below, does not even hint at being a case authority

parallel to this case’s facts and issues:

“The general aim of procedural law is to facilitate the application of justice

to the rival claims of contending parties, bearing always in mind that procedural
rules are created not to hinder or delay but to facilitate and promote the
administration of justice. It is far better to dispose of the case on the merits which is
a primordial end rather than on a technicality, if it be the case, that may result in
injustice.” (Armed Forces of the Philippines Mutual Benefit Association, Inc. v. Court
of Appeals, G.R. No. 126745, July 26, 1999)
 The opposing counsel’s diligence in reading the cases cited in plaintiff’s motion is

commendable, yet a declaration that plaintiff’s citation of a case quote described

as “very disturbing” gives the impression that plaintiff’s counsel is trying to mislead

the court with a case cited as an authority that turns out not to be the case.

1.6. Plaintiff agrees with defendant’s take on the case of Maunlad Savings v. CA,

that the facts of the case are different from the present controversy apart from the

relief sought and given. Suffice it to say that such case was given as a reference

that indeed a party’s Formal Offer of Exhibits can be amended and evidence

previously identified in testimony can be admitted even though inadvertently

excluded from the Formal Offer of Exhibits.

1.7 Defendants insist that plaintiff’s new counsel need to assert that her client was

deprived of its day in court by reason of “gross, palpable, pervasive, reckless and

inexcusable negligence” of former counsel. Plaintiff’s current counsel humbly refuses. Her

Motion is not one for New Trial under Rule 37. She realizes that an emphasis on the

adversarial part of litigation is thrust upon a lawyer’s practice yet she finds both plaintiff’s

previous counsels and defendants’ counsel/opposing counsel to be extremely likable

lawyers.

1.8 Defendants argue that plaintiff’s new counsel is effectively asking for a New Trial

under Rule 37 and then proceeds to extensively discuss the rule, its grounds, and even lists

former counsels’ alleged negligence and asks plaintiff’s new counsel to prove negligence of

former counsel, short of telling plaintiff to ask for new trial under Rule 37. The Opposition

then cites an authority in the form of the case of Padilla-Rumbaua v. Rumbaua (596 SCRA

157) which is a case where a remand and new trial is sought. The case of course, does not

fall square with the facts and circumstances of this case. Here, plaintiff is not asking for New
Trial or a remand[DISCUSS GUD ABOUT NEW TRIAL LALAB, I-SEARCH RA SA MGA REVIEWERS

NIMO THERE PARA MADUGANG DIRI], there is also no judgment yet, no appeal period to

speak of; WE ARE NOT YET PAST THE POINT-OF-NO-RETURN here. Plaintiff is asking the

court to exercise its discretion to grant leave for further reception of evidence WHILE IT IS

STILL PROCEDURALLY PERMISSIBLE to do so.

[ LALAB ADDING TO THIS BUOK. EXAMPLE: The relief sought is not one of new trial but

more akin to re-opening of cases. While MNT is filed after judgment is rendered but before

finality thereof, a motion to re-open a case is made by the court before judgment is

rendered and always in the exercise of sound discretion.]

Verily, the motion under consideration is impressed with merit and warrants the court’s

liberality.

PRAYER

WHEREFORE, in view of the foregoing, Plaintiff respectfully prays that

its “Motion For Leave To Amend Formal Offer of Exhibits With Motion for

Continuance” be GRANTED.

Other reliefs just and equitable are likewise prayed for.

Butuan City, Philippines, February 24, 2014.

ASUNTO LAW OFFICE

Atty. DAISY RAY ASUNTO, CPA

Counsel for Plaintiff

CC:
ATTY. CLEMENTINO CALO RABOR CPA