MARTINEZ v. ONGSIAKO

RENATO S. MARTINEZ vs. JOSE MARIA V. ONGSIAKO

G.R. No. 209157

March 15, 2017

In this Petition for Review on Certiorari, petitioner seek to set aside the Decision and Resolution of the CA. He contends that the CA committed an egregious error when it denied his appeal from the order and the resolution of the RTC declaring that he had waived his right to cross examine respondent during the proceedings for the perpetuation of the latter’s testimony.

FACTS:

On May 17, 2010, Respondent filed a petition before the RTC of Makati seeking permission to perpetuate his testimony under Rule 24 of the Rules of Civil Procedure. He alleged that the taking of his deposition was necessary because of some personal circumstances. In his petition, he also named the expected adverse parties in the actions he anticipated would be filed.

On June 17, 2010, petitioner filed a Comment/Opposition to the Petition. He objected to the proceedings on the ground that estate proceedings over the properties mentioned by respondent in the latter’s petition were then pending, he also asserted that the filing of a separate action for the perpetuation of testimony was tantamount to forum shopping.

In a resolution dated June 21, 2010, the RTC granted the herein respondent’s Petition. The trial court ordered his deposition to be taken on June 23, 2010. Petitioner, along with other adverse parties, sought a reconsideration of the RTC Resolution, but the RTC denied the motions in open court. A hearing and cross-examination by adverse parties was then set on July 7-13, 2010.

On July 13, 2010, the hearing proceeded notwithstanding the absence of the petitioner and his counsel, and the direct examination of respondent was concluded. The RTC conducted confidence-building activities for respondent and his brother, Juan Miguel Ongsiako. The parties, however, failed to reach an agreement. The scheduled hearing on August 11, 2010 was impeded by the withdrawal of appearance by the law firm representing Juan Miguel. The trial court reset the hearing to August 18, 2010. This directive was announced to all parties present in the open court. For those who were absent during the hearing, such as the petitioner and his counsel, the RTC directed that copies of the written order be server upon them.

On August 16, 2010, the RTC received a copy of the Petition for Certiorari filed by petitioner with the CA. the Petition questioned the resolution dated June 21, 2010.

On August 18, 2010, the cross examination of respondent finally proceeded, but both petitioner and his counsel were again absent at the hearing. The RTC noted, however, that petitioner had filed a Motion to Suspend Proceedings right before the start of the hearing. In his motion, he requested that the proceedings for the perpetuation of testimony be suspended pending the final resolution of the Petition for Certiorari earlier filed with the CA. Towards the end of the proceedings on August 18, 2010, the RTC issued an Order declaring that petitioner, together with Juan Miguel, had waived their right to cross-examine respondent.

ISSUE:

Whether or not the CA correctly affirmed the RTC ruling that declared petitioner to have waived his right to cross-examination.

HELD:

The conduct of a party which may be construed as an implied waiver of the right to cross-examine may take various forms. But the common basic principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone.

In this case, we find that the conduct of the petitioner cannot be construed as a waiver of his right to cross-examine respondent. The ruling of the RTC declaring that petitioner waived his right to cross-examination was premised on his failure to attend the scheduled hearing on 18 August 2010. However, the records of the case reveal that neither he nor his counsel was adequately informed of the new schedule for the cross-examination of respondent. While the RTC ordered that Notices of Hearing be sent to both Petitioner and his counsel, they did not receive these processes in time for the hearing through no fault of their own.

With respect to the Notice of Hearing sent to petitioner himself, the registry receipt attached to the records of the RTC indicates that the letter was only received on 14 September 2010. On the other hand, the said Notice sent to petitioner’s counsel never reached the intended recipient because of the incorrect address indicated on the registered envelope containing the letter.

After due consideration of the above circumstances, SC conclude that the absence of petitioner and his counsel at the hearing was clearly not due to their own fault. Hence, the Petition for Review was granted.