Bitanga vs Pyramid Construction

Petition for Review under Rule 45

FACTS:

 Respondent filed with the RTC a Complaint for specific performance and damages with
application for the issuance of a writ of preliminary attachment against the petitioner and
Marilyn
 Respondent alleged that they entered into an agreement with Macrogen Realty, of which
petitioner is the President, to construct for the latter the Shoppers Gold Building
 However, Macrogen Realty failed to settle respondent’s progress billings. Petitioner, through his
representatives and agents, assured respondent that the outstanding account
of Macrogen Realty would be paid, and requested respondent to continue working on the
construction project. Relying on the assurances made by petitioner, who was no less than the
President of Macrogen Realty, respondent continued the construction project.
 Respondent suspended the work for the conditions made by the same were not complied
 Before trial, respondent and Macrogen entered into a compromise agreement to which the
latter will pay the former in the amount of 6M in monthly installment and the failure to pay 2
successive installments will result to immediate execution without need of judgment or decree
from any court or tribunal
 Macrogen failed to pay all thus the Construction Industry Arbitration Commission (CIAC)
granted the execution
 Respondent made demands to petitioner and Marilyn for she owned 99% of Macrogen thus She
is aware of the obligations
 Marilyn filed an MTD since she is not a party to the compromise agreement; Court denied her
MTD
 Prior to the trial proper, respondent filed a Motion for Summary Judgment on account of
petitioner’s admission during the pre-trial of the genuineness and due execution of the Contract
of Guaranty and that Marilyn’s benefit of excussion is not a genuine issue.
 Petitioners opposed that the facts would require a trial of the case on the merits
 RTC rendered a partial decision through a summary judgment ordering Marilyn to pay; MR was
denied
 CA modified the decision declaring Marilyn not liable for she is not a party to the contract

ISSUE:

WON the summary judgment is proper

HELD:

YES. Rule 35 of the Revised Rules of Civil Procedure provides:

Section 1. Summary judgment for claimant. A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading
in answer thereto has been served, move with supporting affidavits, depositions or admissions
for a summary judgment in his favor upon all or any part thereof.
For a summary judgment to be proper, the movant must establish two requisites: (a) there must be no
genuine issue as to any material fact, except for the amount of damages; and (b) the party presenting
the motion for summary judgment must be entitled to a judgment as a matter of law. Where, on the
basis of the pleadings of a moving party, including documents appended thereto, no genuine issue as to
a material fact exists, the burden to produce a genuine issue shifts to the opposing party. If the
opposing party fails, the moving party is entitled to a summary judgment.

In a summary judgment, the crucial question is: are the issues raised by the opposing party not genuine
so as to justify a summary judgment?

First off, we rule that the issue regarding the propriety of the service of a copy of the demand letter on
the petitioner in his office is a sham issue. It is not a bar to the issuance of a summary judgment in
respondents favor.

A genuine issue is an issue of fact which requires the presentation of evidence as distinguished from
an issue which is a sham, fictitious, contrived or false claim. To forestall summary judgment, it is
essential for the non-moving party to confirm the existence of genuine issues, as to which he has
substantial, plausible and fairly arguable defense, i.e., issues of fact calling for the presentation of
evidence upon which reasonable findings of fact could return a verdict for the non-moving party,
although a mere scintilla of evidence in support of the party opposing summary judgment will be
insufficient to preclude entry thereof.

Significantly, petitioner does not deny the receipt of the demand letter from the respondent. He merely
raises a howl on the impropriety of service thereof, stating that the address to which the said letter was
sent was not his residence but the office of Macrogen Realty, thus it cannot be considered as the correct
manner of conveying a letter of demand upon him in his personal capacity.

The affidavit of Mr. Robert O. Pagdilao, messenger of respondents counsel states he delivered the letter
addressed to Mr. Benjamin Bitanga pertaining to CIAC Case and gave it to Ms. Dette Ramos, a person of
sufficient age and discretion, who introduced herself as one of the employees of Mr. Bitanga

We emphasize that when petitioner signed the Contract of Guaranty and assumed obligation as
guarantor, his address in the said contract was the same address where the demand letter was served.
He does not deny that the said place of service, which is the office of Macrogen, was also the address
that he used when he signed as guarantor in the Contract of Guaranty. Nor does he deny that this is his
office address; instead, he merely insists that the person who received the letter and signed the
receiving copy is not an employee of his company

Moreover, under Section 6, Rule 13 of the Rules of Court, there is sufficiency of service when the papers,
or in this case, when the demand letter is personally delivered to the party or his counsel, or by leaving
it in his office with his clerk or with a person having charge thereof, such as what was done in this case.

We have consistently expostulated that in summary judgments, the trial court can determine a
genuine issue on the basis of the pleadings, admissions, documents, affidavits or counter affidavits
submitted by the parties. When the facts as pleaded appear uncontested or undisputed, then there is
no real or genuine issue or question as to any fact, and summary judgment is called for.

CA was correct in holding that:

the issue of non-receipt of the letter of demand is a sham or pretended issue, not a
genuine and substantial issue. Petitioner merely offered a bare denial. But bare denials,
 unsubstantiated by facts, which would be admissible in evidence at a hearing, are not
sufficient to raise a genuine issue of fact sufficient to defeat a motion for summary
judgment.

We further affirm the findings of both the RTC and the Court of Appeals that, given the settled facts of
this case, petitioner cannot avail himself of the benefit of excussion.
It must be stressed that despite having been served a demand letter at his office, petitioner still failed to
point out to the respondent properties of Macrogen Realty sufficient to cover its debt as required under
Article 2060 of the Civil Code. Such failure on petitioners part forecloses his right to set up the defense
of excussion.

IN ALL, we fail to point out any impropriety in the rendition of a summary judgment in favor of the
respondent; WHEREFORE, The Decisions of the CA are AFFIRMED.