RIC SITOSTA, PLAINTIFF-APPELLEE, VS. ALFREDO TAN LUSTERIO, DEFENDANT-APPELLANT.
LOPEZ, J.:
The facts are culled from the records.
On December 7, 2011, Sitosta filed an Amended Complaint for Sum of Money and Damages against Lusterio, alleging that Lusterio obtained a loan of P1,682,852.00 evidenced by sixteen RCBC Checks.[1] When the checks were deposited, they were dishonored by the drawee bank for reason of “Account Closed”. Sitosta sent a demand letter but Lusterio refused to pay.[2]
In his Answer with Affirmative Defenses and Counterclaim, Lusterio alleged that he was only given P1,200,000.00. The money was not a loan but a financial assistance. He was forced to issue the RCBC Checks and informed Sitosta before the account was closed. Lusterio told Sitosta that he would replace the checks and to refrain from depositing them, but Sitosta violated the agreement. He cannot remember receiving a demand letter. Also, he already made the following payments: (1) RCBC Check No. 1352022 for P50,000.00 dated April 8, 2008; (2) RCBC Check No. 1352021 for P50,000.00 dated April 9, 2008; (3) RCBC Check No. 1352020 for P100,000.00 dated March 5, 2008; (4) RCBC Check No. 936852 for P25,000.00 dated October 1, 2007; and (5) RCBC Check No. 936853 for P25,000.00 dated October 15, 2007.
Pre-trial was set on May 3, 2013 but was canceled due to the failure of defendant Lusterio’s counsel to appear and to file his entry of appearance.[3] The second pre-trial conference was likewise canceled for failure of defendant’s counsel to appear.[4] Pre-trial was reset for the third time on August 22, 2013 but both the defendant and his counsel were absent, prompting the trial court to allow plaintiff Sitosta to present his evidence ex-parte.[5]
Subsequently, Lusterio filed an “Ex-Parte Motion/Manifestation” stating that he was unable to attend the pre-trial because he saw on television that government offices were closed due to the flood in Metro Manila. He then moved to be allowed to cross-examine plaintiff’s witness and to present his evidence.[6] The trial court denied Lusterio’s motion for being filed in violation of Sections 4 and 5, Rule 15 of the Rules of Court.[7]
On September 30, 2013, Sitosta presented his evidence, before the Branch Clerk of Court as Commissioner, consisting of his Judicial Affidavit[8], the Demand Letter[9], and the sixteen RCBC Checks with annotations “Account Closed”[10]. Lusterio asked to cross-examine Sitosta but he was reminded that it was an ex-parte presentation of evidence.[11] Subsequently, Sitosta’s evidence were admitted and the case was submitted for decision.[12] Incidentally, Lusterio filed motions for reconsideration of the Order allowing Sitosta to present evidence ex-parte and submitting the case for Decision.[13] The motions were denied.[14]
On February 7, 2014, the trial court rendered the Decision finding Lusterio liable, as follows:
Here, the defendant never denied issuing the subject checks for value. Thus, the checks, the entries of which are in his own handwriting, simply proves the existence of the loan transaction between the plaintiff and the defendant. And, the plaintiff’s possession of the subject checks is enough proof that defendant’s indebtedness has not been discharged by any payment. It is well to remember that a check may constitute as evidence of indebtedness. xxx
xxx
This Court also finds it proper to award attorney’s fees in favor of the plaintiff in consonance with Article 2208(2) of the Civil Code. However, the amount of P30,000.00 is more appropriate in line with the policy that the award of attorney’s fees must always be reasonable.
WHEREFORE, judgment is hereby rendered in favor of plaintiff Ric Sitosta and against defendant Alfredo Tan Lusterio as follows:
(1) Ordering defendant to pay his monetary obligation in the sum of One Million Six Hundred Eighty Two Thousand Eight Hundred Fifty Two Pesos (P1,682,852.00) plus six percent (6%) per annum interest reckoned from the date of filing of this case until the finality of the judgment. If the adjudged amount remain unpaid thereafter, an interest rate shall be imposed at six percent (6%) per annum computed from the time the judgment becomes final and executory until the same is fully satisfied;
(2) Ordering defendant to pay attorney’s fees and litigation expenses fixed on the reasonable sum of P30,000.00; and
(3) Ordering defendant to pay the costs of the suit.
SO ORDERED.[15]
Lusterio moved for reconsideration but it was denied.[16] Hence, this appeal claiming that his right to due process was violated when the trial court continually refused to let him present his evidence. The Branch Clerk of Court abused her authority when she refused to let him cross-examine plaintiff’s witness. Furthermore, the February 7, 2014 Decision resulted in unjust enrichment on Sitosta’s part since the loan was only for P1,200,000.00 in addition to the payments already made.[17]
The appeal lacks merit.
First, on the issue of due process, Section 5, Rule 18 of the Rules of Court provides:
Sec. 5. Effect of failure to appear. – The failure of the plaintiff to appear when so required pursuant to the next proceeding action shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of 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. [Emphasis Ours.]
It is clear from the Rules that if the defendant is absent during the pre-trial, the court may allow the plaintiff to present his evidence before the Branch Clerk of Court ex parte.[18] In this case, We recall that pre-trial was postponed twice due to the absence of defendant Lusterio’s counsel. During the third setting, both Lusterio and his counsel failed to appear. The trial court thus correctly issued the Order allowing plaintiff Sitosta to present evidence ex parte.
Although Lusterio tried to lift the Order through his “Ex-Parte Motion/Manifestation”, it did not contain a notice of hearing. Sections 4 and 5, Rule 15 of the Rules of Court reads:
Sec. 4. Hearing of motion. – Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice.
Sec. 5. Notice of hearing. – The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion.
The rule is explicit, all written motions shall be set for hearing except those which are non-litigable that may be acted upon by the court without prejudicing the rights of the adverse party.[19] A motion that does not meet the requirements of Sections 4 and 5 of Rule 15 of the rules of court is a mere scrap of paper, which the clerk of court has no right to receive and the trial court has no authority to act upon.[20] Lusterio’s motion does not fall within the exception, since it would affect the right of plaintiff to present his evidence ex parte. Hence, the trial court properly denied the motion.
We take emphasis that the Order allowing Sitosta to present evidence ex parte became final. Consequently, Lusterio cannot claim that the Branch Clerk of Court abused her authority by disallowing him to cross-examine Sitosta. To reiterate, by the absence of the defendant during pre-trial, he waives, not only his right to cross-examine the plaintiff and his witnesses, but also to adduce evidence in his behalf.[21]
Neither can Lusterio claim that due process was denied. He was given ample opportunity to be heard when he filed his “Ex-Parte Motion/Manifestation”, as well as the motions for reconsideration of the Order for ex parte presentation of evidence and of the Order submitting the case for decision. What the fundamental law prohibits is total absence of opportunity to be heard. When a party has been afforded opportunity to present his side, he cannot feign denial of due process.[22]
Next, on the substantive issue. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence, or evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.[23] When the existence of a debt is fully established by the evidence contained in the record, the burden of proving that it has been extinguished by payment devolves upon the debtor who offers such a defense to the claim of the creditor.[24]
Here, Sitosta has fully established that Lusterio was indebted to him by P1,682,852.00 when the sixteen RCBC Checks were admitted in evidence. Notably, Lusterio did not deny the genuineness of these checks. A check constitutes an evidence of indebtedness and is a veritable proof of an obligation.[25] Besides, Sitosta’s possession of the sixteen RCBC Checks with annotations “Account Closed” proves his claim that the obligation has not been extinguished. The creditor’s possession of the evidence of debt is proof that the debt has not been discharged by payment.[26]
FOR THESE REASONS, the appeal is DENIED. The February 7, 2014 Decision and April 3, 2014 Order of Regional Trial Court of Manila, Branch 41, are AFFIRMED.
SO ORDERED.
Tijam, Chairperson and Garcia-Fernandez, JJ., concur.
[1] RCBC Check No. 1374599 dated March 06, 2009 for P400,000.00 marked as Exhibit A.
RCBC Check No. 1374600 dated March 06, 2008 for P520,000.00 marked as Exhibit A-1.
RCBC Check No. 1374598 dated March 06, 2009 for P400,000.00 marked as Exhibit A-2.
RCBC Check No. 0936862 dated November 28, 2009 for P15,000.00 marked as Exhibit A-3.
RCBC Check No. 0936861 dated March 06, 2009 for P25,000.00 marked as Exhibit A-4.
RCBC Check No. 1386834 dated March 06, 2009 for P44,000.00 marked as Exhibit A-5.
RCBC Check No. 1386835 dated March 06, 2009 for P44,000.00 marked as Exhibit A-6.
RCBC Check No. 0936863 dated November 28, 2008 for P15,852.00 marked as Exhibit A-7.
RCBC Check No. 0936857 dated March 06, 2009 for P25,000.00 marked as Exhibit A-8.
RCBC Check No. 0936858 dated March 06, 2009 for P25,000.00 marked as Exhibit A-9.
RCBC Check No. 0936859 dated March 06, 2009 for P25,000.00 marked as Exhibit A-10.
RCBC Check No. 0936860 dated March 06, 2009 for P25,000.00 marked as Exhibit A-11.
RCBC Check No. 1386833 dated February 25, 2009 for P44,000 marked as Exhibit A-12.
RCBC Check No. 0936854 dated March 06, 2009 for P25,000.00 marked as Exhibit A-13.
RCBC Check No. 0936855 dated March 06, 2009 for P25,000.00 marked as Exhibit A-14.
RCBC Check No. 0936856 dated March 06, 2009 for P25,000.00 marked as Exhibit A-15.
[Records, pp. 272-287.]
[2] Id., pp. 31-35.
[3] Id., p. 194. May 3, 2013 Order.
[4] Id., p. 204. June 14, 2013 Order.
[5] Id., p. 254. August 22, 2013 Order.
[6] Id., p. 258.
[7] Id., p. 290. September 26, 2013 Order.
Rules of Court, Rule 15. Section 4. Hearing of Motion. – Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice.
Section 5. Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion.
[8] Id., pp. 176-181. Judicial Affidavit of Ric Sitosta, wherein he narrated that in December 2008, Lusterio approached him about a business venture involving the flipping of 10 units of second-hand container, that would earn a profit of 10% in two-weeks’ time. Sitosta gave Lusterio P1,200,000.00; in return, Lusterio gave him 3 checks for P1,320,000.00 representing the capital and profits; after two weeks, Sitosta asked about the business venture but Lusterio told him not to deposit the checks yet.
On January 1, 2009, Sitosta discovered that Lusterio used the money to open his own company, “Mr. Computer Solutions”. As compromise, Lusterio told Sitosta that he will pay P25,000.00 as monthly interest and issued 8 checks. Sitosta asked Lusterio to write a Promissory Note but the latter kept assuring him that he will pay, but later disappeared. In desperation, Sitosta deposited the checks but discovered that the account was already closed. It took Sitosta years to find Lusterio and his address through friends to enable him to file this case.
[9] Id., p. 288. Demand Letter dated January 29, 2011, Exhibit B.
[10] Supra at note 1.
[11] TSN, September 30, 2013, pp. 2-3, quoted as follows:
Atty. Agoncillo: Your Honor, for the defendant. May we make it of record that the defendant and counsel are present and we received the Order dated 26 September 2013 at 2:25, 30 September 2013.
Branch Clerk: Noted. Attorney, please proceed.
Atty. Agoncillo: And we will be asking if we will be allowed to cross-examine the witness.
Atty. Dela Rosa: Certainly not, Your Honor.
Branch Clerk: Certainly not, Attorney.
Atty. Agoncillo: I would like to place on record, yun lang naman ang gusto ko e.
Branch Clerk: Well, Attorney, this is an ex-parte presentation of evidence.
Atty. Agoncillo: But what I asked in the manifestation is that you may proceed with the ex-parte presentaion but we may be allowed to cross-examine the witness, that is what we are asking for.
Atty. Dela Rosa: The motion has been denied.
Branch Clerk: I do not have the power to rule on any motion but I have to submit it to the Presiding Judge.
[12] Records, p. 298. October 4, 2013 Order.
[13] Id., pp. 301 and 315.
[14] Id., p. 349. December 18, 2013 Omnibus Order.
[15] Id., pp. 360-361. Annotations omitted.
[16] Id., pp. 387-388. April 3, 2014 Order.
[17] Rollo,pp. 74-79.
[18] See Pangasinan Five Star Bus Co., Inc. v. Spouses Leon & Luisa Barredo, G.R. No. 152714, August 10, 2006 citing Santiago v. Conde, 105 Phil. 298, 303 (1959).
[19] Regalado, Florenz D., Remedial Law Compendium, Volume I, Eight Revised Edition, p. 241.
[20] Vette Industrial Sales Co., Inc. v. Cheng, G.R. Nos. 170232-170301, December 5, 2006, as cited in Riano, Willard B., Civil Procedure (A Restatement for the Bar), 2007, p. 66.
[21] Supra at note 18.
[22] Spouses Rodelio and Alicia Poltan v. BPI Family Savings Bank, Inc., G.R. No. 164307, March 5, 2007 citing Development Bank of the Philippines v. Court of Appeals, 362 Phil. 1, 13-14 (1999), cited in Dayrit v. Philippine Bank of Communications, 435 Phil. 120, 126 (2002).
[23] Bank of the Philippine Islands v. Spouses Reynaldo and Victoria Royeca, G.R. No. 176664, July 21, 2008 citing Encinas v. National Bookstore, Inc., G.R. No. 162704, November 19, 2004, 443 SCRA 293, 302.
[24] Id., citing Jimenez v. NLRC, 26 Phil. 89 (1996).
[25] Ting Ting Pua v. Spouses Benito Lo Bun Tiong and Caroline Siok Ching Teng, G.R. No. 198660, October 23, 2013 citing Pacheco v. Court of Appeals, 377 Phil. 627 (1999).
[26] Bank of the Philippine Islands v. Spouses Reynaldo and Victoria Royeca, supra, citing Redmond v. Hughes, 135 N.Y.S. 843, 151 App. Div. 99 (1912).