Martinez vs. Ongsiako

A party's failure to attend a scheduled cross-examination cannot be deemed an implied waiver of the right to cross-examine where the party was not properly notified of the hearing schedule through no fault of his own or his counsel's. Implied waiver of the right to cross-examination requires 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.

Respondent Jose Maria V. Ongsiako, diagnosed with end-stage renal disease secondary to chronic glomerulonephritis, sought to perpetuate his testimony under Rule 24 of the Rules of Civil Procedure in anticipation of future suits involving properties in which he had an interest. He named as expected adverse parties petitioner Renato S. Martinez, the administrator of the estate of Nori V. Ongsiako; Juan Miguel V. Ongsiako, respondent's brother; and the Bank of the Philippine Islands (BPI), a mortgagee of a property over which respondent claimed an interest. Petitioner opposed the petition, contending that estate proceedings over the same properties were already pending before Branch 58 of the RTC Makati and that filing a separate action for perpetuation of testimony constituted forum shopping.

On 17 May 2010, respondent Jose Maria V. Ongsiako filed a Petition before the RTC of Makati, Branch 61, seeking permission to perpetuate his testimony under Rule 24 of the Rules of Civil Procedure. He alleged that he expected to be a party to certain actions involving properties in which he had an interest, that he had been diagnosed with end-stage renal disease secondary to chronic glomerulonephritis, that his health continued to deteriorate, and that he needed to preserve his testimony on material facts in anticipation of future suits. He identified the expected adverse parties as petitioner Renato S. Martinez, as administrator of the estate of Nori V. Ongsiako; Juan Miguel V. Ongsiako, respondent's brother; and the Bank of the Philippine Islands (BPI), a mortgagee of a property over which respondent claimed an interest. The areas covered by his proposed testimony included the circumstances surrounding the execution of a Special Power of Attorney in favor of Juan Miguel, the execution of Mrs. Ongsiako's Last Will and Testament and the probate proceedings, the constitution of real estate mortgages over certain properties, the sale of shares of stock in Industrial Realties, Inc., and the transfer of some of Mrs. Ongsiako's properties to Juan Miguel.

On 17 June 2010, petitioner filed a Comment/Opposition, objecting to the proceedings on the ground that estate proceedings over the properties mentioned were then pending before Branch 58 of the RTC Makati. He argued that it was more appropriate to perpetuate respondent's testimony in those proceedings, since respondent was an active participant in that case and the intended testimony would inevitably be used there. Petitioner likewise asserted that the filing of a separate action for perpetuation of testimony was tantamount to forum shopping. In a Resolution dated 21 June 2010, the RTC granted the Petition, finding that all requirements under Rule 24 had been satisfied, and ordered respondent's deposition taken on 23 June 2010. Petitioner and the other expected adverse parties sought reconsideration; after oral argument, the RTC denied the motions in open court. The parties agreed that respondent's direct testimony would be taken through a judicial affidavit, with cross-examination scheduled for 7 July 2010, later reset to 13 July 2010.

On 13 July 2010, the hearing proceeded despite the absence of petitioner and his counsel, and the direct examination of respondent was concluded. The RTC scheduled cross-examination on 21 July, 4 August, and 11 August 2010. The 21 July hearing did not proceed because the RTC conducted confidence-building activities between respondent and his brother to allow settlement negotiations; the 4 August hearing likewise did not push through. When the parties failed to settle, the RTC continued proceedings on 11 August 2010, but the hearing was impeded by the withdrawal of appearance by the law firm representing Juan Miguel. The trial court cancelled the cross-examination and reset the hearing to 18 August 2010, announcing the directive in open court to all parties present and directing that copies of the written order be served on absent parties, including petitioner and his counsel. On 16 August 2010, the RTC received a copy of a Petition for Certiorari filed by petitioner with the CA questioning the Resolution dated 21 June 2010, as affirmed by the Order dated 23 June 2010.

On 18 August 2010, the cross-examination of respondent proceeded. Juan Miguel's new counsel requested a continuance but was denied; BPI's counsel cross-examined respondent, while Juan Miguel's counsel refused to participate. Petitioner and his counsel were again absent. Petitioner had filed a Motion to Suspend Proceedings right before the start of the hearing, requesting suspension pending resolution of his Petition for Certiorari before the CA. Towards the end of the proceedings, the RTC issued an Order declaring that petitioner and Juan Miguel had waived their right to cross-examine respondent, perpetuated respondent's testimony, and closed and terminated the petition. The RTC found that petitioner and his counsel had been properly notified, although the notice sent to counsel was returned unserved because the law firm had moved to a new address without notifying the court. Petitioner filed a Motion for Reconsideration, asserting that neither he nor his counsel had received notice of the 18 August 2010 hearing. The RTC denied the motion on 8 November 2010, ruling that petitioner was legally presumed to have been validly notified and that the negligence of his counsel in failing to inform the court of the change of address bound the client.

Petitioner appealed to the CA, claiming he was deprived of the right to cross-examine respondent in violation of due process. He pointed out that the records showed the copy intended for his counsel had been sent to the wrong address and reiterated that the RTC erred in allowing perpetuation in a separate proceeding. The CA denied the appeal on 14 May 2013, applying a broad and liberal treatment to deposition-discovery rules and affirming the RTC's finding of waiver. Petitioner's motion for reconsideration was likewise denied on 10 September 2013.

• Due Process Violation: Petitioner asserted that the RTC had deprived him of the right to cross-examine respondent in violation of fundamental principles of due process, emphasizing that neither he nor his counsel had received adequate notice of the 18 August 2010 hearing.
• Improper Notice: Petitioner pointed out that the records clearly showed the copy of the notice intended for his counsel had been sent to the wrong address, and that the notice sent to him personally was received only on 14 September 2010—well after the scheduled hearing.
• Forum Shopping: Petitioner insisted that it was a grave error for the RTC to allow the perpetuation of respondent's testimony in a separate proceeding despite the pendency of a related estate case, thereby allowing respondent to commit forum shopping.
• Excusable Absence: Petitioner argued that under the circumstances, their absence from the 18 August 2010 hearing should not have been taken as a waiver of his right to cross-examine respondent, and that it was imperative for the trial court to allow all expected adverse parties to cross-examine respondent in the interest of justice.

• No New Issues: Respondent sought dismissal of the petition on the ground that petitioner failed to raise new issues for the consideration of the Supreme Court.
• No Reversible Error: Respondent maintained that there was no proof that the CA committed a reversible error in affirming the RTC ruling.
• Justified Waiver: Respondent argued that the negligence exhibited by petitioner and his counsel in their failure to attend hearings before the RTC justified the Order depriving petitioner of the right to cross-examination.
• No Forum Shopping: Respondent contended there was no proof that he committed forum shopping.

• Waiver of Cross-Examination: Whether the CA correctly affirmed the RTC ruling that declared petitioner to have waived his right to cross-examine respondent, given the circumstances surrounding the notice of the 18 August 2010 hearing.

• Waiver of Cross-Examination: No. The CA committed reversible error in sustaining the RTC's declaration of waiver, because petitioner and his counsel had not been properly notified of the hearing on 18 August 2010 through no fault of their own. The notice to petitioner was received only on 14 September 2010, and the notice to counsel was sent to an incorrect address attributable to the trial court's own oversight. Absence under such circumstances is excusable and cannot constitute an implied waiver of the right to cross-examine.

• Waiver of Cross-Examination: The right to cross-examine opposing witnesses is a fundamental element of due process in both civil and criminal proceedings, and is even more vital in proceedings for the perpetuation of testimony, because depositions previously taken are admissible in evidence against an adverse party only if that party had the opportunity to cross-examine the witness. Since depositions are an exception to the hearsay rule, cross-examination serves as an essential safeguard against false statements. While the right to cross-examination may be waived—expressly or impliedly by conduct amounting to a renunciation—implied waiver requires 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, the RTC's declaration of waiver was premised on petitioner's failure to attend the 18 August 2010 hearing. However, the records revealed that neither petitioner nor his counsel was adequately informed of the new schedule. The registry receipt showed the notice to petitioner was received only on 14 September 2010, for unclear reasons. The notice to counsel was sent to an incorrect address—"Ortigas Building, Ortigas Avenue, Pasig City"—when counsel's address on file was "Second Floor, Number 134 Sedeño Street, Salcedo Village, Makati." Contrary to the RTC's finding, counsel had not changed its address; the error was solely due to the trial court's oversight. Because the absence was not attributable to petitioner or his counsel, it could not be construed as an implied waiver. The Court found the situation analogous to Solaria vs. De la Cruz, where failure to attend trial for lack of advance notice constituted an "accident" justifying relief, and to Cailas vs. Castigador, where the court held it unfair to fault a party for failure to receive processes sent to an imprecise and incomplete address. Accordingly, the case was remanded to the RTC to allow petitioner to conduct his cross-examination of respondent.

• Implied Waiver of the Right to Cross-Examination — The right to cross-examine is a personal right which may be waived expressly or impliedly by conduct amounting to a renunciation. Implied waiver requires 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. Where a party's absence from a scheduled cross-examination is due to lack of proper notice through no fault of the party or counsel, the absence is excusable and cannot constitute a waiver.
• Right to Cross-Examination in Perpetuation of Testimony — The right to cross-examine a deponent is an even more vital part of proceedings for the perpetuation of testimony than in ordinary trials, because depositions are admissible in evidence against an adverse party only if that party had the opportunity to cross-examine the witness. As depositions are an exception to the hearsay rule, cross-examination serves as an essential safeguard against falsehoods and frauds.
• Negligence of Counsel Binds the Client — While generally the negligence of counsel binds the client, this principle does not apply where the alleged negligence—such as failure to update an address—did not in fact occur, and the error in service was instead attributable to the trial court's own oversight.

• "The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a fundamental right which is part of due process. However, the right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination." — This passage, quoted from Savory Luncheonette vs. Lakas ng Manggagawang Pilipino, articulates the canonical formulation of the doctrine on implied waiver of cross-examination and underpins the Court's analysis of when absence constitutes waiver.
• "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." — This passage defines the controlling test for implied waiver: the failure must be attributable to the party himself, a condition not met where the party was not properly notified through no fault of his own.
• "Taking all factors into account, it would be unfair and unjust to consider the failure of petitioner to attend the hearing on 18 August 2010 as signifying his intention to waive the right to cross-examine respondent." — This is the Court's concluding statement on the waiver issue, synthesizing the factual findings on defective notice into the legal conclusion that no waiver occurred.

• Republic vs. Sandiganbayan, 678 Phil. 358 (2011) — Cited for the principle that the function of cross-examination is to test the truthfulness of a witness's statements on direct examination, and that the opportunity for cross-examination is an essential safeguard against falsehoods and frauds, particularly in the context of depositions as exceptions to the hearsay rule.
• Savory Luncheonette vs. Lakas ng Manggagawang Pilipino, 159 Phil. 310 (1975) — Cited as the controlling authority on implied waiver of the right to cross-examination, establishing that waiver requires the party to have been given the opportunity to cross-examine but to have failed to take advantage of it for reasons attributable to himself alone.
• Solaria vs. De la Cruz, 122 Phil. 1218 (1966) — Cited for the proposition that failure to attend a hearing for lack of advance notice constitutes an "accident" that justifies the grant of a new trial, analogous to petitioner's situation where notice was not received in time.
• Cailas vs. Castigador, 401 Phil. 613 (2000) — Cited for the principle that it is unfair to fault a party for failure to receive court processes sent to an imprecise and incomplete address, directly applicable where the RTC sent the notice to counsel at an incorrect address attributable to the court's own oversight.
• Ayala Land Inc. vs. Tagle, 504 Phil. 94 (2005) — Cited for the proposition that the right to cross-examination may be waived by conduct amounting to a renunciation of the right, including the failure of a party to avail itself of the opportunity to cross-examine a deponent.

• Rule 24, Rules of Civil Procedure — Governs the perpetuation of testimony before suit. The RTC found all requirements satisfied in granting respondent's petition. The Supreme Court noted that a prior Petition for Certiorari questioning the propriety of perpetuation in a separate proceeding was pending before the CA, rendering it improper for the Supreme Court to rule on that question.
• Rule 130, Section 47, Rules of Court (Revised Rules on Evidence) — Provides that the testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. The Court relied on this provision to emphasize the critical importance of the opportunity to cross-examine in perpetuation proceedings.
• Rule 130(C)(6), Rules of Court — Referenced for the list of exceptions to the hearsay rule, under which depositions are classified, underscoring why cross-examination is an essential safeguard in deposition proceedings.

Maria Lourdes P.A. Sereno (C.J., Chairperson), Mariano C. Del Castillo, Estella M. Perlas-Bernabe, Alfredo Benjamin S. Caguioa.