[ G.R. No. 141289. March 1, 2000]

AMADEO E. BALON, JR., vs. TEODORO T. MARAYAG

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 1 2000.

G.R. No. 141289 (Amadeo E. Balon, Jr., vs. Teodoro T. Marayag.)

Petitioner assails the decision rendered by the Court of Appeals dated October 28, 1999 as well as the resolution denying reconsideration dated December 20, 1999. The assailed decision affirmed in toto the decision rendered by Branch 153 of the Regional Trial Court of Pasig City in its Civil Case No. 65795, the dispositive part of which reads:

WHEREFORE, foregoing premises considered and it appearing that plaintiff has proven its claim by preponderance of evidence, judgment is hereby rendered in favor of the plaintiff and against defendant Amadeo Balon, Jr. ordering the latter:

1. To return to plaintiff the original owner's duplicate copy of the property's title, the deed of absolute sale and related paper;

2. To pay the following:

a. P85,000.00 with legal interest from the time of filing of this case until fully paid

b. P10,000.00 as moral damages

c. P10,000.00 as exemplary damages

d. P15,000.00 as attorney's fees������

e. Cost of suit.

SO ORDERED.

The present petition sprung from an action for specific performance and damages filed by private respondent Teodoro T. Marayag against herein petitioner Amadeo Balon, Jr.

Private respondent purchased a lot at San Andres Bukid valued at P1.4 million. Thereafter, the services of herein petitioner were engaged so as to facilitate the transfer of the title from the seller's to the buyer's name. For this purpose, a total amount of P85,000.00 was received by petitioner which was delivered in two installments. The amount of P10,000.00 was given on March 6, 1996 while P75,000.00 was delivered on March 12, 1996. The owner's copy of the duplicate original of TCT No. 191522 and an accomplished deed of sale were also delivered to petitioner. Two months later, complaining that petitioner had been avoiding him and apparently for petitioner's failure to answer letters of demand for information on what petitioner had accomplished and for failure to account for the money he has received, private respondent filed a case for specific performance and damages.

After issues were joined, a pre-trial conference was schedule on December 2, 1996 but on November 29, 1996, petitioner filed a motion for postponement. The motion was granted and conference was reset to January 27, 1997. Petitioner again failed to appear on such given dated and upon motion of private respondents, petitioner was declared as in default; the court a quo set the reception of evidence ex parte on February 27, 1997. Then, on February 19, 1997, herein petitioner filed a motion for reconsideration and cancellation of the schedule ex-parte reception of private respondent's evidence which was set to February 27, 1997 at 2 p.m., setting the said motion for hearing also on February 27 at 8:30 a.m., with a manifestation that petitioner is expressly waiving his personal appearance and further oral argument. The trial court, in an order dated March 4, 1997 denied petitioner's motion for reconsideration based on two grounds, namely: (a) non-appearance by petitioner (then defendant) on the hearing of the said motion which was scheduled on February 27 8:30 a.m.; and (b) because the said motion has already become moot and academic in view of the reception of evidence ex parte which was scheduled at 2 p.m. of the same date. On March 12, 1997 the trial court rendered judgment against petitioner. An appeal was seasonably filed and denied. The motion for reconsideration also proved unavailing.

Hence, the instant petition.

In sum, petitioner reiterates that the Court of Appeals erred when it held that petitioner failed to justify his right to exercise his retaining lien over the monies and documents under his custody. He also asseverates that the appellate court also erred when it denied his motion for reconsideration on the grounds of his failure to appear and for being moot and academic.

A perusal of the records readily reveals that petitioner's argument have no legal and factual basis.

The Court of Appeals was correct when it held that the claim of a retaining lien is being raised for the first time on appeal. A look at the answer filed discloses that such matter was never alleged as an affirmative and special defense.

As to the denial of his motion for reconsideration, suffice it to state that the trial court erred not when it denied the motion for being moot and academic. As amply explained below, although said motion was set for hearing on February 27, 1997 8:30 a.m., the copy of the motion which was sent by mail on February 19, 1997 was actually received only at 2:50 a.m. of the same date. Hence, the schedule ex-parte reception of evidence was already conducted as scheduled (at 2:00 p.m.). The fact that it was mailed on February 19, 1997 was of no moment because by the time the trial court received the motion, the event sought to be avoided had already occurred. Moreover, petitioner's contention that he should not be made to suffer the inefficient postal services is untenable. The Court notes that the Office of petitioner is located only in Paco, Manila and yet he preferred to send it by registered mail arguing that under the rules, it is the prerogative of the petitioner to select the mode of service and filing of pleadings. As a practitioner, petitioner should know better than this. The new Rules on Civil Procedure clearly provide that service and filing of any pleading, motion and similar papers should be personal whenever practicable. In fact, the said Rules mandate that in case there is resort to other modes of service, a written explanation why such was not being done personally should be attached to the pleading being filed. A violation of this rule may be a cause to consider the paper as not filed.

Wherefore, premises considered, the petition is hereby denied due course.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court


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