Republic of the Philippines

COURT OF APPEALS
Manila

COMPANY A FOR ADORABLE,

Defendant-Petitioner,

-versus- CIVIL CASE NO. XX-XXXXXX

For: Collection of Sum of Money

COMPANY B FOR BEAUTIFUL,

Plaintiff-Respondent.
x---------------------------------------------x

MEMORANDUM

PLAINTIFF-RESPONDENT, COMPANY B FOR BEAUTIFUL,

through the undersigned counsel, most respectfully states that:

PREFATORY STATEMENT

This case started as an action for Collection of Sum of Money initiated by

the Respondents against the Petitioners for failure to deliver agreed upon contract.
Instead of responding to the demands of the Respondent company, the Defendant
company coursed to elevate the matter to this Honorable Court in order to further
delay returning due payment for breach of contract.

It is the position of the Respondents that based on the attendant facts and
circumstances of this case, that the Petition for Certiorari must be dismissed for
lack of merit.

THE PARTIES

Plaintiff-Respondent COMPANY B FOR BEAUTIFUL, is a company duly

registered under the Department of Trade and Industry, engaged in the leasing of
buildings, with business address at 88 Xavier St., Sampaloc, Pasay City, where
they may be served with legal processes and notices issued by this Honorable
Court;

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 Defendant-Petitioner COMPANY A FOR ADORABLE, is a company duly
registered under the Securities and Exchange Commission, engaged in the
installation and importation of elevator and escalator systems, with business
address at 14th Floor, Two E-Com Tower B, Bayshore Avenue, Mall of Asia
Complex, Pasay City, and may be served with legal processes and notices thereto;

I. STATEMENT OF FACTS

1. On January 18, 2015, herein Plaintiff-Respondent entered into

contract with Defendant-Petitioner for the purchase and installation of two (2) units
of elevators in the amount of Two Million Pesos (Php 2,000,000.00);

2. On February 18, 2015, Plaintiff-Respondent deposited fifty-percent

(50%) of the agreed amount and set the date of installation of said elevators with
the Defendant-Petitioner;

3. On March 18, 2015, the agreed date of installation, Defendant-

Petitioner failed deliver and install said elevators;

4. On March 25, 2015, Plaintiff-Respondent wrote a demand letter to

Defendant-Petitioner, but which no response from the latter was received;

II. STATEMENT OF THE CASE

5. On April 18, 2015, Plaintiff-Respondent instituted an action for

Collection of Sum of Money with Damages amounting to Five Million Pesos (Php
5,000,000.00) against Defendant-Petitioner Company including its key officers,
before the Regional Trial Court of Pasay City;

6. Subsequently, on April 20, 2015, the Presiding Judge issued summons

against the defendants but was served by the Sheriff to the Human Resources(HR)
head instead of the named officers;

7. On April 25, 2015, Defendant-Respondent filed a Motion Dismiss for

Lack of Jurisdiction over the Person of Defendant Company. In response, Plaintiff-
Respondent moved to declare the Defendant-Respondent in default;

8. The RTC Judge denied both motions. Both parties filed their Motion
for Reconsiderations. On May 18, 2015, both counsel of the parties failed to attend
the scheduled hearing for the MRs. The RTC judge then denied the Motion for
Reconsiderations and set the case for pre-trial;

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 9. Defendant-Petitioner, while pre-trial date is to be set, filed a Petition
for Certiorari to this Honorable Court with a Prayer for Temporary Restraining
Order;

10. Accordingly, this Honorable Court ordered the parties to submit their
respective Memoranda fifteen(15) days from notice, otherwise, regardless whether
or not the Memoranda were filed, the petition shall be submitted for decision;

Hence, this Memorandum.

II. ISSUES

A. WHETHER OR NOT THE TRIAL COURT COMMITTED

GRAVE ABUSE OF DISCRETION TO MERIT PETITONER-
DEFENDANTS PETITION FOR CERTIORARI.

B. WHETHER OR NOT THE DEFECT IN THE SERVICE OF

SUMMONS CAN BE GROUNDS FOR DISMISSAL DUE TO LACK OF
JURISDICTION OVER THE PERSON.

C. WHETHER OR NOT THE PETITIONERS ARE THE

PETITIONER-DEFENDANT IS ENTITLED TO A TEMPORARY
RESTRAINING ORDER.

III. ARGUMENTS/DISCUSSIONS

The Petition for Certiorari should be

dismissed for lack of merit.

The extraordinary remedy of Certiorari under Rule 65 of the Rules of Court

issues for the correction of errors of jurisdiction only or for grave abuse of
discretion amounting to lack or excess of jurisdiction. A party may only avail of the
special remedy of certiorari under the following circumstances:

SECTION 1. Petition for Certiorari. – When any

tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or
his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is
no appeal, nor any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be

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 rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.

In the instant case, the orders that denied the Motion to Dismiss for Lack of
Jurisdiction over the Person and the Motion to Declare Defendant in Default were
interlocutory orders which neither terminate nor finally dispose of a case as it
leaves something to be done by the court before the case is finally decided on the
merits. The general rule, therefore, is that the denial of Petitioner-Defendant’s
motion to dismiss, cannot be questioned in a special civil action
for Certiorari which is a remedy designed to correct errors of jurisdiction and not
errors of judgment, unless it is tainted with grave abuse of discretion.

By grave abuse of discretion is meant:

[S]uch capricious and whimsical exercise of

judgment that is equivalent to lack of jurisdiction. The
abuse of discretion must be grave as where the power is
exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and must be so patent and
gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined by or to act
all in contemplation of law.1

The Certiorari availed in this case does not adequately qualify as the
appropriate remedy in accordance with the Rules of Civil Procedure. The pre-trial
to be set by the lower court cannot be contemplated as an act of grave abuse of
discretion being that it allows equal opportunity to both parties to present their case
at equal footing.

The defect in the service of summons

should not be used as grounds to dismiss
the case against Defendant-Petitioner for
lack of jurisdiction.

It is well settled in law that a valid service of summons is a vital and

indispensable ingredient of due process. As a rule, if defendants have not been
validly summoned, the court acquires no jurisdiction over their person, and a
judgment rendered against them is null and void.2 However, the Petitioner-
Defendant should not avail of such remedy in order to evade a lawful action due to
them to the prejudice of Plaintiff-Respondents.

1
Global Business Holdings, Inc. v. Surecomp Software, B.V., G.R. No. 173463, October 13, 2010, 633 SCRA 94.
2
B.D. Long Span Builders, Inc. v. R.S. Ampeloquio Realty Development, Inc., G.R. No. 169919, September 11,
2009, 599 SCRA 468.

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 In the case at bench, the irregular or defective service of summons by the
trial court Sheriff should not be used to immediately dismiss the case. In B.D. Long
Span Builders, Inc. v. R.S. Ampeloquio Realty Development, Inc.,3 it was said that:

xxx

In the interest of fairness, the process server's

neglect or inadvertence in the service of summons should
not, thus, unduly prejudice plaintiff-appellee's right to
speedy justice.

xxx

The motion to dismiss the case for lack of jurisdiction over the defendant
was deviously sought by the Petitioner-Defendant to avoid pecuniary obligations
due to the Plaintiff-Respondent. Article 20 of the Civil Code clearly provides:

Art. 20. Every person who, contrary to law, wilfully

or negligently causes damage to another, shall indemnify
the latter for the same.

Petitioner-Defendant’s failure to deliver upon agreed contract caused

valuable profit loss to the Plaintiff-Respondent, whom the former knows first-hand
to be in the business of leasing buildings. The Petitioner-Defendant knowingly and
wilfully neglected to deliver their end of the agreement thus, the buildings in which
the contracted elevators were supposed to be installed, had been out of
commission, greatly injuring the business of the Plaintiff-Respondent. Aside from
the fifty percent(50%) down payment already deposited into the Petitioner-
Defendant’s account, the time and legal expenses that were incurred during the
delay had only but added to the burden of the Plaintiff-Respondent.

The outright motion to dismiss the case at bar would be prejudicial and
contrary to law. Hence, it would be more appropriate to remand this case back to
the trial court and order for a valid service of summons. The Collection of Sum of
Money suit must be given its due course regardless of the technical defects that
occurred on the onset of the case.

The prayer for Temporary Restraining

Order should not be granted for lack of
any irreparable injury prejudicial to the
Petitioner-Defendant.

The prayer for Temporary Restraining Order under Section 5, Rule 58 of the
Rules of Court, may be issued only if it appears from the facts shown by affidavits
3
Supra.

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or by the verified application that great or irreparable injury would be inflicted on
the applicant before the writ of preliminary injunction could be heard.

The Petitioner-Defendant failed to present facts that would show neither that
great or irreparable injury would be inflicted upon them nor that there is a need to
protect their substantive rights or interests. In fact, it can be deduced from the facts
of the case that it was actually the Plaintiff-Respondent whose rights and interests
had been greatly injured by the refusal of the Petitioner-Defendant to execute
according to their contract.

The buildings that the Plaintiff-Respondent were not able to lease because of
the elevators that were not installed, has caused them to lose assertable income in
their business. Thus, it cannot be denied that the petition for Certiorari was
obviously availed by the Petitoner-Defendant to futher cause damage to the
prejudice of rights and interests of the Plaintiff-Respondent.

Hence, the prayer for TRO should be denied for lack of merit.

IV. PRAYER

WHEREFORE, premises considered, Respondents respectfully pray that this

Memorandum be ADMITTED as part of the records and that this Honorable Court
DISMISS the Petitioner's Petition for Certiorari and that the case be remanded back
to the lower courts for due proceedings.

Respondents also pray for such other relief as are just and equitable under
the premises.

Pasay City, Manila, 17 October 2016.

ABCDEFGHIJ and Associates

Attorneys for the Respondent
88 Xavier St., Sampaloc, Pasay City
Tel. No. 143-14-14
abcdefghij@yahoo.com

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By:

CLYDE LLOREN AQUINO WILSON J. EUGENIO

PTR No. A-1234/Pasay City/12-12-16 PTR No. A-1234/Pasay City/12-12-16
IBP Lifetime No. 1234/Manila/12-12-06 IBP Lifetime No. 1234/Manila/12-12-06
Roll No. 1234 Roll No. 1234
MCLE Comp. No. A-1234, Issued On 12 Dec 2016 MCLE Comp. No. A-1234, Issued On 12 Dec 2016

JILLIAN FATIMA G. ASDALA KIEZEL S. FERRANCULLO

PTR No. A-1234/Pasay City/12-12-16 PTR No. A-1234/Pasay City/12-12-16
IBP Lifetime No. 1234/Manila/12-12-06 IBP Lifetime No. 1234/Manila/12-12-06
Roll No. 1234 Roll No. 1234
MCLE Comp. No. A-1234, Issued On 12 Dec 2016 MCLE Comp. No. A-1234, Issued On 12 Dec 2016

GENE KENNETH O. BALANE MA. LINDA D. GONZALES

PTR No. A-1234/Pasay City/12-12-16 PTR No. A-1234/Pasay City/12-12-16
IBP Lifetime No. 1234/Manila/12-12-06 IBP Lifetime No. 1234/Manila/12-12-06
Roll No. 1234 Roll No. 1234
MCLE Comp. No. A-1234, Issued On 12 Dec 2016 MCLE Comp. No. A-1234, Issued On 12 Dec 2016

HONEY GRACE D. CASTILLO MA. LORRAINE VICTORIA D. MALENAB

PTR No. A-1234/Pasay City/12-12-16 PTR No. A-1234/Pasay City/12-12-16
IBP Lifetime No. 1234/Manila/12-12-06 IBP Lifetime No. 1234/Manila/12-12-06
Roll No. 1234 Roll No. 1234
MCLE Comp. No. A-1234, Issued On 12 Dec 2016 MCLE Comp. No. A-1234, Issued On 12 Dec 2016

JOAN P. CENECIRO SCHYLER E. OLIANO

PTR No. A-1234/Pasay City/12-12-16 PTR No. A-1234/Pasay City/12-12-16
IBP Lifetime No. 1234/Manila/12-12-06 IBP Lifetime No. 1234/Manila/12-12-06
Roll No. 1234 Roll No. 1234
MCLE Comp. No. A-1234, Issued On 12 Dec 2016 MCLE Comp. No. A-1234, Issued On 12 Dec 2016

JEREMY JORGENCIO B. DUCAY JEVALYN S. PRADO

PTR No. A-1234/Pasay City/12-12-16 PTR No. A-1234/Pasay City/12-12-16
IBP Lifetime No. 1234/Manila/12-12-06 IBP Lifetime No. 1234/Manila/12-12-06
Roll No. 1234 Roll No. 1234
MCLE Comp. No. A-1234, Issued On 12 Dec 2016 MCLE Comp. No. A-1234, Issued On 12 Dec 2016