Republic of the Philippines
REGIONAL TRIAL COURT
Branch 276
Muntinlupa City
BENFREI S. GERMO,
Plaintiff,
Civil Case No. 11-029
For: Collection of Sum of Money,
Etc.
- versus -
MACTAN ROCK INDUSTRIES INC.,
ANTONIO P. TOMPAR,
Defendants.
X--------------------------------------X
MOTION FOR RECONSIDERATION
DEFENDANTS, through the undersigned counsel, unto this Honorable
Court, most respectfully avers, THAT:
1. Today, 18 June 2012, the law office received a copy of an order from this
Honorable Court dated 24 May 2012 which declared the defendants in
default for failure to appear on May 24, 2012 pre-trial conference.
2. Although said copy of the order came from the client as the law office has
not yet received an official copy from this Honorable Court, the law office
deems it proper to immediately take appropriate action on the order of
default without waiting for the official copy to arrive; hence, this motion
for reconsideration.
3. With due respect, while it is true that the non-appearance of the
defendants and its counsel in the pre-trial warrants the presentation of
the plaintiff’s evidence ex parte; however, such rule is not without an
exception. Under the Rules of Court, particularly Sec. 4 of Rule 18, the
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non-appearance of a party in a pre-trial may be excused if a valid cause is
shown therefor.
4. In the case at hand, the undersigned had all the intention of attending the
pre-trial conference in the above-captioned case, scheduled on May 24,
2012 at 8:30 in the morning. In fact, a ticket had already been procured
for a flight scheduled to depart from Cebu bound for Manila on May 24,
2012 at 4:15 in the morning. A copy of the said ticket is hereto attached
as Annex “A”.
5. In the evening of May 23, 2012, the undersigned was still in Cebu ready,
willing and was waiting for my flight to Manila when at around 10:00 pm,
I was informed that my father passed away causing my mother to
breakdown, lost her consciousness and was also in critical condition. The
overwhelming emotion, stress, regret and pain caused me a mental
blackout. A copy of my father’s death certificate is hereto attached as
Annex “B”.
6. Under these considerations, I decided to leave and take the first available
trip to Bohol that made me missed my flight and the hearing. Foremost in
my mind at that time was not only the death of my father but also the
health condition of my mother which anybody (in my place) can not just
ignore.
7. But, it is important to note, and the records would bear us out, that in all
the times the pre-trial of this case was scheduled and postponed due to
the non-appearance of the plaintiff’s counsel, the undersigned promptly
and religiously attended all the hearings except the last one—May 24,
2012.
8. In fact, mindful of its obligations to this Honorable Court and to its client,
the law office exerted its best effort to contact this Honorable Court, at
least, to inform about the above-discussed predicament and to move for
postponement.
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9. The law office can’t also send another lawyer to attend the pre-trial
because of the distance between Cebu City and Manila and there was no
more time to book for a flight on the same day (May 24, 2012) especially
that the hearing was to be held at 8:30 clock in the morning. Time
constraint really made the sending of another lawyer extremely difficult, if
not impossible.
10. Moreover, the non-appearance of the defendants was also justified in view
of the Board resolution which designated Atty. Juanito C. Neumeran or
Atty. Niño Rey P. Comahig as attorneys-in-fact for purposes of pre-trial;
thus, it would be unreasonable that the client be prejudiced by the act or
omission of the law office. Please see attached hereto machine copy of
the Secretary’s Certificate as Annex “C”.
11. Furthermore, to make the records straight and to reflect the truth, it was
my father who died, not that of Atty. Juanito C. Neumeran, as his father
had already died sometime in 1989. Rene Neumeran, nephew of Atty.
Neumeran at the same time office secretary informed the court
stenographer and the interpreter about my father’s death. Please see
attached hereto machine copy of the affidavit of Rene T. Neumeran as
Annex “D”.
12. With all due respect to this Honorable Court, the most basic tenet of due
process is the right to be heard and the emerging trend now in rulings is
to afford every party litigant the amplest opportunity for the proper and
just determination of their causes, free from the constraints of
technicalities. Time and again, Courts have consistently held that rules
must not be applied rigidly so as not to override substantial justice.1 It is
already settled that the application of technical rules of procedure may be
relaxed to serve the demands of substantial justice.
13. We humbly beseech this Honorable Court to reconsider it previous order,
allow us to participate in the case and grant us the opportunity to present
our evidences. We feel that we have presented a good cause in our case
for its proper and just determination. The law and jurisprudence grant to
1Barnes v. Padilla, G.R. No. 160753, June 8, 2005.
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courts – in the exercise of their discretion along the lines laid down by this
Court – the prerogative to relax compliance with procedural rules of even
the most mandatory character, mindful of the duty to reconcile both the
need to put an end to litigation speedily and the parties’ right to an
opportunity to be heard.2
14. This motion is filed in good faith and is neither intended to delay the
proceedings of this case nor to willfully disobey the court's order, or to
disregard or despise its authority, but is only intended to promote and
safeguard the defendant’s rights.
WHEREFORE, premises considered, it is most respectfully prayed unto
this Honorable Court, that the order dated 24 May 2012 declaring the defendants
in default and allowing the plaintiff to present his evidence ex-parte be
reconsidered and the pre-trial of this case be scheduled consistent with the
calendar of this Honorable Court.
Other relief, just and equitable, under the premises are likewise prayed
for.
18 June 2012, Cebu City for Muntinlupa City, Philippines.
NEUMERAN JAYMA & ASSOCIATES
Counsel for the defendants
Suite 312-A, WDC Bldg., Osmeña Blvd., Cebu City
Tel. No.(032) 254-0440
By:
NIÑO REY P. COMAHIG
PTR No. 10150948, 1/24/12
IBP No. 10166 Cebu City
Roll No. 56125
Date Admitted to the Bar: April 29, 2009
MCLE Exempted
2 Sps. Heber & Charlita Edillo vs. Sps. Norberto & Desideria Dulpina, G.R. No.
188360, January 21, 2010.
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NOTICE OF HEARING
The Branch Clerk of Court
RTC Branch 276
Muntinlupa City
ATTY. Dante P. Mercado
Counsel for the Plaintiff
GREETINGS:
Please take notice that the foregoing motion shall be submitted for
consideration and approval by the Honorable Court on June 29, 2012 at 10:00
o’clock in the morning without further arguments and appearance of counsel.
NIÑO REY P. COMAHIG
Copy furnished:
The Branch Clerk of Court
RTC Branch 276
Muntinlupa City
Per Registry Receipt Number ______________ Issued by Cebu Central
Post office on June ____, 2012.
ATTY. DANTE P. MERCADO
Counsel for the Plaintiff
23 Banaba St., Phase 7-B
Gatchalian Subdivision
Las Piñas City
Per Registry Receipt Number ______________ Issued by Cebu Central
Post office on ____________, 2012.
Explanation: Filing of this motion with this Honorable as well as the copy
furnished to the counsel for the plaintiff was made through registered mail due
to distance between the cities of Cebu and Muntinlupa.
NIÑO REY P. COMAHIG
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