AGILENT TECHNOLOGIES SINGAPORE (PTE) LTD.

, petitioner, raw materials to Integrated Silicon; transport machinery to the plant

vs. INTEGRATED SILICON TECHNOLOGY PHILIPPINES of Integrated Silicon; and pay Integrated Silicon the purchase price of
CORPORATION, TEOH KIANG HONG, TEOH KIANG SENG, the finished products.[5] The VAASA had a five-year term, beginning
ANTHONY CHOO, JOANNE KATE M. DELA CRUZ, JEAN on April 2, 1996, with a provision for annual renewal by mutual
KAY M. DELA CRUZ and ROLANDO T. written consent.[6] On September 19, 1999, with the consent of
NACILLA, respondents. Integrated Silicon,[7] HP-Singapore assigned all its rights and
obligations in the VAASA to Agilent.[8]
DECISION
On May 25, 2001, Integrated Silicon filed a complaint for Specific
YNARES-SANTIAGO, J.: Performance and Damages against Agilent and its officers
Tan Bian Ee, Lim Chin Hong, Tey Boon Teck and Francis Khor,
This petition for review assails the Decision dated August 12, docketed as Civil Case No. 3110-01-C. It alleged
2002 of the Court of Appeals in CA-G.R. SP No. 66574, which that Agilent breached the parties oral agreement to extend
dismissed Civil Case No. 3123-2001-C and annulled and set aside the the VAASA. Integrated Silicon thus prayed that defendant be ordered
Order dated September 4, 2001 issued by the Regional Trial Court to execute a written extension of the VAASA for a period of five years
of Calamba, Laguna, Branch 92. as earlier assured and promised; to comply with the extended VAASA;
and to pay actual, moral, exemplary damages and attorneys fees. [9]
Petitioner Agilent Technologies Singapore (Pte.), Ltd. (Agilent) is a
foreign corporation, which, by its own admission, is not licensed to do On June 1, 2001, summons and a copy of the complaint were
business in the Philippines.[1] Respondent Integrated Silicon served on Atty. Ramon Quisumbing, who returned these processes on
Technology Philippines Corporation (Integrated Silicon) is a private the claim that he was not the registered agent of Agilent. Later, he
domestic corporation, 100% foreign owned, which is engaged in the entered a special appearance to assail the courts jurisdiction over the
business of manufacturing and assembling electronics components. person of Agilent.
[2]
 Respondents Teoh Kiang Hong, Teoh Kiang Seng and On July 2, 2001, Agilent filed a separate complaint against
Anthony Choo, Malaysian nationals, are current members of Integrated Silicon, Teoh Kang Seng, Teoh Kiang Gong, Anthony Choo,
Integrated Silicons board of directors, while Joanne Kate Joanne Kate M. dela Cruz, Jean Kay M. dela Cruz and Rolando
M. dela Cruz, Jean Kay M. dela Cruz, and Rolando T. Nacilla are its T. Nacilla,[10] for Specific Performance, Recovery of Possession, and
former members.[3] Sum of Money with Replevin, Preliminary Mandatory Injunction, and
The juridical relation among the various parties in this case can Damages, before the Regional Trial Court, Calamba, Laguna, Branch
be traced to a 5-year Value Added Assembly Services Agreement 92, docketed as Civil Case No. 3123-2001-C. Agilent prayed that a
(VAASA), entered into on April 2, 1996 between Integrated Silicon and writ of replevin or, in the alternative, a writ of preliminary mandatory
the Hewlett-Packard Singapore (Pte.) Ltd., SingaporeComponents injunction, be issued ordering defendants to immediately return and
Operation (HP-Singapore).[4] Under the terms of the VAASA, Integrated deliver to plaintiff its equipment, machineries and the materials to be
Silicon was to locally manufacture and assemble fiber optics for used for fiber-optic components which were left in the plant of
export to HP-Singapore. HP-Singapore, for its part, was to consign Integrated Silicon. It further prayed that defendants be ordered to pay
actual and exemplary damages and attorneys fees. [11]
 Respondents filed a Motion to Dismiss in Civil Case No. 3123- CIVIL CASE NO. 3123-2001-C BELOW ON THE GROUND OF LITIS
2001-C,[12] on the grounds of lack of Agilents legal capacity to sue; PENDENTIA, ON ACCOUNT OF THE PENDENCY OF CIVIL CASE NO.
[13]
 litis pendentia;[14] forum shopping;[15] and failure to state a cause of 3110-2001-C.
action.[16]
III.
On September 4, 2001, the trial court denied the Motion to
Dismiss and granted petitioner Agilents application for a writ
of replevin.[17] THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
ANNULLING AND SETTING ASIDE THE TRIAL COURTS ORDER
Without filing a motion for reconsideration, respondents filed a DATED 4 SEPTEMBER 2001 AND ORDERING THE DISMISSAL OF
petition for certiorari with the Court of Appeals.[18] CIVIL CASE NO. 3123-2001-C BELOW ON THE GROUND OF FORUM
SHOPPING, ON ACCOUNT OF THE PENDENCY OF CIVIL CASE NO.
In the meantime, upon motion filed by respondents, Judge
3110-2001-C.
Antonio S. Pozas of Branch 92 voluntarily inhibited himself in Civil
Case No. 3123-2001-C. The case was re-raffled and assigned to
Branch 35, the same branch where Civil Case No. 3110-2001-C is IV.
pending.
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
On August 12, 2002, the Court of Appeals granted respondents ORDERING THE DISMISSAL OF CIVIL CASE NO. 323-2001-C
petition for certiorari, set aside the assailed Order of the trial court BELOW INSTEAD OF ORDERING IT CONSOLIDATED WITH CIVIL
dated September 4, 2001, and ordered the dismissal of Civil Case No. CASE NO. 3110-2001-C.[19]
3123-2001-C.
Hence, the instant petition raising the following errors: The two primary issues raised in this petition: (1) whether or not
the Court of Appeals committed reversible error in giving due course
I. to respondents petition, notwithstanding the failure to file a Motion
for Reconsideration of the September 4, 2001 Order; and (2) whether
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT or not the Court of Appeals committed reversible error in dismissing
DISMISSING RESPONDENTS PETITION FOR CERTIORARI FOR Civil Case No. 3123-2001-C.
RESPONDENTS FAILURE TO FILE A MOTION FOR
We find merit in the petition.
RECONSIDERATION BEFORE RESORTING TO THE REMEDY OF
CERTIORARI. The Court of Appeals, citing the case
of Malayang Manggagawa sa ESSO v. ESSO Standard Eastern, Inc.,
II. [20]
 held that the lower court had no jurisdiction over Civil Case No.
3123-2001-C because of the pendency of Civil Case No. 3110-2001-C
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN and, therefore, a motion for reconsideration was not necessary before
ANNULLING AND SETTING ASIDE THE TRIAL COURTS ORDER resort to a petition for certiorari. This was error.
DATED 4 SEPTEMBER 2001 AND ORDERING THE DISMISSAL OF
 Jurisdiction is fixed by law. Batas Pambansa Blg. 129 vests fact the records plainly disclosed; and in National Electrification
jurisdiction over the subject matter of Civil Case No. 3123-2001-C in Administration v. Court of Appeals,[26] the questioned orders were void
the RTC.[21] for vagueness. No such patent nullity is evident in the Order issued
by the trial court in this case. Finally, while urgency may be a ground
The Court of Appeals ruling that the assailed Order issued by the
for dispensing with a Motion for Reconsideration, in the case of Vivo
RTC of Calamba, Branch 92, was a nullity for lack of jurisdiction due
v. Cloribel,[27] cited by respondents, the slow progress of the case
to litis pendentia and forum shopping, has no legal
would have rendered the issues moot had a motion for
basis. The pendency of another action does not strip a court of the
reconsideration been availed of. We find no such urgent circumstance
jurisdiction granted by law.
in the case at bar.
The Court of Appeals further ruled that a Motion for
Respondents, therefore, availed of a premature remedy when they
Reconsideration was not necessary in view of the urgent necessity in
immediately raised the matter to the Court of Appeals on certiorari;
this case. We are not convinced. In the case of Bache and Co. (Phils.),
and the appellate court committed reversible error when it took
Inc. v. Ruiz,[22] relied on by the Court of Appeals, it was held that time
cognizance of respondents petition instead of dismissing the same
is of the essence in view of the tax assessments sought to be enforced
outright.
by respondent officers of the Bureau of Internal Revenue against
petitioner corporation, on account of which immediate and more We come now to the substantive issues of the petition.
direct action becomes necessary. Tax assessments in that case were
Litis pendentia is a Latin term which literally means a pending
based on documents seized by virtue of an illegal search, and the
suit. It is variously referred to in some decisions
deprivation of the right to due process tainted the entire proceedings
as lis pendens and auter action pendant. While it is normally
with illegality. Hence, the urgent necessity of preventing the
connected with the control which the court has on a property involved
enforcement of the tax assessments was patent. Respondents, on the
in a suit during the continuance proceedings, it is more interposed as
other hand, cite the case of Geronimo v. Commission on Elections,
[23] a ground for the dismissal of a civil action pending in court.
 where the urgent necessity of resolving a disqualification case for
a position in local government warranted the expeditious resort to Litis pendentia as a ground for the dismissal of a civil action
certiorari. In the case at bar, there is no analogously urgent refers to that situation wherein another action is pending between the
circumstance which would necessitate the relaxation of the rule on a same parties for the same cause of action, such that the second
Motion for Reconsideration. action becomes unnecessary and vexatious. For litis pendentia to be
invoked, the concurrence of the following requisites is necessary:
Indeed, none of the exceptions for dispensing with a Motion for
Reconsideration is present here. None of the following cases cited by (a) identity of parties or at least such as represent the same
respondents serves as adequate basis for their procedural lapse. interest in both actions;
In Vigan Electric Light Co., Inc. v. Public Service Commission, (b) identity of rights asserted and reliefs prayed for,
[24]
 the questioned order was null and void for failure of respondent the reliefs being founded on the same facts; and
tribunal to comply with due process requirements;
[25]
in Matanguihan v. Tengco,  the questioned order was a patent (c) the identity in the two cases should be such that the
nullity for failure to acquire jurisdiction over the defendants, which judgment that may be rendered in one would, regardless of
 which party is successful, amount to res judicata in the the VAASA. Hence, the replevin suit can validly be tried even while
other.[28] the prior suit is being litigated in the Regional Trial Court.
The Court of Appeals correctly appreciated the identity of parties Possession of the subject properties is not an issue in Civil Case
in Civil Cases No. 3123-2001-C and 3110-2001-C. Well-settled is the No. 3110-2001-C. The reliefs sought by respondent Integrated Silicon
rule that lis pendens requires only substantial, and not absolute, therein are as follows: (1) execution of a written extension or renewal
identity of parties.[29] There is substantial identity of parties when of the VAASA; (2) compliance with the extended VAASA; and (3)
there is a community of interest between a party in the first case and payment of overdue accounts, damages, and attorneys
a party in the second case, even if the latter was not impleaded in the fees. The reliefs sought by petitioner Agilent in Civil Case No. 3123-
first case.[30] The parties in these cases are vying over the interests of 2001-C, on the other hand, are as follows: (1) issuance of a Writ
the two opposing corporations; the individuals are only of Replevin or Writ of Preliminary Mandatory Injunction; (2) recovery
incidentally impleaded, being the natural persons purportedly of possession of the subject properties; (3) damages and attorneys
accused of violating these corporations rights. fees.
Likewise, the fact that the positions of the parties are Concededly, some items or pieces of evidence may be admissible
reversed, i.e., the plaintiffs in the first case are the defendants in the in both actions. It cannot be said, however, that exactly the same
second case or vice versa, does not negate the identity of parties for evidence will support the decisions in both, since the legally
purposes of determining whether the case is dismissible on the significant and controlling facts in each case are entirely different.
ground of litis pendentia.[31] Although the VAASA figures prominently in both suits, Civil Case No.
3110-2001-C is premised on a purported breach of an oral obligation
The identity of parties notwithstanding, litis pendentia does not
to extend the VAASA, and damages arising out of Agilents alleged
obtain in this case because of the absence of the second and third
failure to comply with such purported extension. Civil Case No. 3123-
requisites. The rights asserted in each of the cases involved are
2001-C, on the other hand, is premised on a breach of
separate and distinct; there are two subjects of controversy presented
the VAASA itself, and damages arising to Agilent out of that
for adjudication; and two causes of action are clearly involved. The
purported breach.
fact that respondents instituted a prior action for Specific
Performance and Damages is not a ground for defeating the It necessarily follows that the third requisite for litis pendentia is
petitioners action for Specific Performance, Recovery of Possession, also absent. The following are the elements of res judicata:
and Sum of Money with Replevin, Preliminary Mandatory Injunction,
(a) The former judgment must be final;
and Damages.
(b) The court which rendered judgment must have jurisdiction
In Civil Case No. 3110-2001-C filed by respondents, the issue is
over the parties and the subject matter;
whether or not there was a breach of an oral promise to renew of
the VAASA. The issue in Civil Case No. 3123-2001-C, filed by (c) It must be a judgment on the merits; and
petitioner, is whether petitioner has the right to take possession of the
subject properties. Petitioners right of possession is founded on the (d) There must be between the first and second actions
ownership of the subject goods, which ownership is not disputed and identity of parties, subject matter, and cause of action. [32]
is not contingent on the extension or non-extension of
 In this case, any judgment rendered in one of the actions will not Respondents argue that since Agilent is an unlicensed foreign
amount to res judicata in the other action. There being different corporation doing business in the Philippines, it lacks the legal
causes of action, the decision in one case will not capacity to file suit.[35] The assailed acts of petitioner Agilent,
constitute res judicata as to the other. purportedly in the nature of doing business in the Philippines, are the
following: (1) mere entering into the VAASA, which is a service
Of course, a decision in one case may, to a certain extent, affect
contract;[36] (2) appointment of a full-time representative in Integrated
the other case. This, however, is not the test to determine the identity
Silicon, to oversee and supervise the production of Agilents products;
of the causes of action. Whatever difficulties or inconvenience may be [37]
 (3) the appointment by Agilent of six full-time staff members, who
entailed if both causes of action are pursued on separate remedies,
were permanently stationed at Integrated Silicons facilities in order to
the proper solution is not the dismissal order of the Court of Appeals.
inspect the finished goods for Agilent;[38] and (4) Agilents participation
The possible consolidation of said cases, as well as stipulations and
in the management, supervision and control of Integrated Silicon,
appropriate modes of discovery, may well be considered by the court [39]
 including instructing Integrated Silicon to hire more employees to
below to subserve not only procedural expedience but, more
meet Agilents increasing production needs,[40] regularly performing
important, the ends of justice.[33]
quality audit, evaluation and supervision of Integrated Silicons
We now proceed to the issue of forum shopping. employees,[41] regularly performing inventory audit of raw materials to
be used by Integrated Silicon, which was also required to provide
The test for determining whether a party violated the rule against weekly inventory updates to Agilent,[42] and providing and dictating
forum-shopping was laid down in the case of Buan v. Lopez. Integrated Silicon on the daily production schedule, volume and
[34]
 Forum shopping exists where the elements of litis pendentia are models of the products to manufacture and ship for Agilent.[43]
present, or where a final judgment in one case will amount
to resjudicata in the final other. There being no litis pendentia in this A foreign corporation without a license is not ipso
case, a judgment in the said case will not amount to res judicata in facto incapacitated from bringing an action in Philippine courts. A
Civil Case No. 3110-2001-C, and respondents contention on forum license is necessary only if a foreign corporation is transacting or
shopping must likewise fail. doing business in the country. The Corporation Code provides:
We are not unmindful of the afflictive consequences that may be Sec. 133. Doing business without a license. No foreign corporation
suffered by both petitioner and respondents if replevin is granted by transacting business in the Philippines without a license, or its
the trial court in Civil Case No. 3123-2001-C. If respondent successors or assigns, shall be permitted to maintain or intervene in
Integrated Silicon eventually wins Civil Case No. 3110-2001-C, and any action, suit or proceeding in any court or administrative agency
the VAASAs terms are extended, petitioner corporation will have to of the Philippines; but such corporation may be sued or proceeded
comply with its obligations thereunder, which would include the against before Philippine courts or administrative tribunals on any
consignment of properties similar to those it may recover by way valid cause of action recognized under Philippine laws.
of replevin in Civil Case No. 3123-2001-C. However, petitioner will
also suffer an injustice if denied the remedy of replevin, resort to
The aforementioned provision prevents an unlicensed foreign
which is not only allowed but encouraged by law.
corporation doing business in the Philippines from accessing our
courts.
 In a number of cases, however, we have held that an unlicensed Jurisprudence has it, however, that the term implies a continuity
foreign corporation doing business in the Philippines may bring suit of commercial dealings and arrangements, and contemplates, to that
in Philippine courts against a Philippine citizen or entity who had extent, the performance of acts or works or the exercise of some of the
contracted with and benefited from said corporation. [44] Such a suit is functions normally incident to or in progressive prosecution of the
premised on the doctrine of estoppel. A party is estopped from purpose and subject of its organization.[51]
challenging the personality of a corporation after having
In Mentholatum,[52] this Court discoursed on the two general tests
acknowledged the same by entering into a contract with it. This
to determine whether or not a foreign corporation can be considered
doctrine of estoppel to deny corporate existence and capacity applies
as doing business in the Philippines. The first of these is
to foreign as well as domestic corporations. [45] The application of this
the substance test, thus:[53]
principle prevents a person contracting with a foreign corporation
from later taking advantage of its noncompliance with the statutes
chiefly in cases where such person has received the benefits of the The true test [for doing business], however, seems to be whether the
contract.[46] foreign corporation is continuing the body of the business or
enterprise for which it was organized or whether it has substantially
The principles regarding the right of a foreign corporation to bring retired from it and turned it over to another.
suit in Philippine courts may thus be condensed in four statements:
(1) if a foreign corporation does business in the Philippines without a The second test is the continuity test, expressed thus:[54]
license, it cannot sue before the Philippine courts;[47] (2) if a foreign
corporation is not doing business in the Philippines, it needs no The term [doing business] implies a continuity of commercial dealings
license to sue before Philippine courts on an isolated transaction or and arrangements, and contemplates, to that extent, the performance
on a cause of action entirely independent of any business of acts or works or the exercise of some of the functions normally
transaction[48]; (3) if a foreign corporation does business in the incident to, and in the progressive prosecution of, the purpose and
Philippines without a license, a Philippine citizen or entity which has object of its organization.
contracted with said corporation may be estopped from challenging
the foreign corporations corporate personality in a suit brought before Although each case must be judged in light of its attendant
Philippine courts;[49] and (4) if a foreign corporation does business in circumstances, jurisprudence has evolved several guiding principles
the Philippines with the required license, it can sue before Philippine for the application of these tests. For instance, considering that it
courts on any transaction. transacted with its Philippine counterpart for seven years, engaging in
The challenge to Agilents legal capacity to file suit hinges on futures contracts, this Court concluded that the foreign corporation
whether or not it is doing business in the Philippines. However, there in Merrill Lynch Futures, Inc. v. Court of Appeals and Spouses Lara,
[55]
is no definitive rule on what constitutes doing, engaging in, or  was doing business in the Philippines. In Commissioner of Internal
transacting business in the Philippines, as this Court observed in the Revenue v. Japan Airlines (JAL),[56] the Court held that JAL was doing
case of Mentholatum v. Mangaliman.[50] The Corporation Code itself business in the Philippines, i.e., its commercial dealings in the
is silent as to what acts constitute doing or transacting business in country were continuous despite the fact that no JAL aircraft landed
the Philippines. in the country as it sold tickets in the Philippines through a general
sales agent, and opened a promotions office here as well.
 In General Corp. of the Phils. v. Union Insurance Society of Canton or more; participating in the management, supervision or control of
and Firemans Fund Insurance,[57] a foreign insurance corporation was any domestic business, firm, entity, or corporation in the Philippines;
held to be doing business in the Philippines, as it appointed a settling and any other act or acts that imply a continuity of commercial
agent here, and issued 12 marine insurance policies.We held that dealings or arrangements, and contemplate to that extent the
these transactions were not isolated or casual, but manifested the performance of acts or works, or the exercise of some of the functions
continuity of the foreign corporations conduct and its intent to normally incident to, and in the progressive prosecution of,
establish a continuous business in the country. In Eriks PTE Ltd. v. commercial gain or of the purpose and object of the business
Court of Appeals and Enriquez,[58] the foreign corporation sold its organization.
products to a Filipino buyer who ordered the goods 16 times within
an eight-month period. Accordingly, this Court ruled that the An analysis of the relevant case law, in conjunction with Section
corporation was doing business in the Philippines, as there was a 1 of the Implementing Rules and Regulations of the FIA (as amended
clear intention on its part to continue the body of its business here, by Republic Act No. 8179), would demonstrate that the acts
despite the relatively short span of time involved. Communication enumerated in the VAASA do not constitute doing business in the
Materials and Design, Inc., et al. v. Court of Appeals, ITEC, et al. Philippines.
[59]
 and Top-Weld Manufacturing v. ECED, IRTI, et al.[60] both involved
the License and Technical Agreement and Distributor Agreement of Section 1 of the Implementing Rules and Regulations of the FIA
foreign corporations with their respective local counterparts that were (as amended by Republic Act No. 8179) provides that the following
the primary bases for the Courts ruling that the foreign corporations shall not be deemed doing business:
were doing business in the Philippines. [61] In particular, the Court (1) Mere investment as a shareholder by a foreign entity in
cited the highly restrictive nature of certain provisions in the domestic corporations duly registered to do business,
agreements involved, such that, as stated in Communication and/or the exercise of rights as such investor;
Materials, the Philippine entity is reduced to a mere extension or
instrument of the foreign corporation. For example, in Communication (2) Having a nominee director or officer to represent its
Materials, the Court deemed the No Competing Product provision of interest in such corporation;
the Representative Agreement therein restrictive. [62] (3) Appointing a representative or distributor domiciled in
The case law definition has evolved into a statutory definition, the Philippines which transacts business in the
having been adopted with some qualifications in various pieces of representatives or distributors own name and account;
legislation. The Foreign Investments Act of 1991 (the FIA; Republic (4) The publication of a general advertisement through any
Act No. 7042, as amended), defines doing business as follows: print or broadcast media;

Sec. 3, par. (d). The phrase doing business shall include soliciting (5) Maintaining a stock of goods in the Philippines solely for
orders, service contracts, opening offices, whether called liaison the purpose of having the same processed by another
offices or branches; appointing representatives or distributors entity in the Philippines;
domiciled in the Philippines or who in any calendar year stay in the
country for a period or periods totaling one hundred eighty (180) days
 (6) Consignment by a foreign entity of equipment with a local WHEREFORE, PREMISES CONSIDERED, the petition is
company to be used in the processing of products for GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No.
export; 66574 dated August 12, 2002, which dismissed Civil Case No. 3123-
2001-C, is REVERSED and SET ASIDE. The Order dated September
(7) Collecting information in the Philippines; and
4, 2001 issued by the Regional Trial Court of Calamba, Laguna,
(8) Performing services auxiliary to an existing isolated Branch 92, in Civil Case No. 3123-2001-C, is
contract of sale which are not on a continuing basis, such REINSTATED. Agilents application for a Writ of Replevin is
as installing in the Philippines machinery it has GRANTED.
manufactured or exported to the Philippines, servicing the
No pronouncement as to costs.
same, training domestic workers to operate it, and similar
incidental services. SO ORDERED.
By and large, to constitute doing business, the activity to be
undertaken in the Philippines is one that is for profit-making.[63]
By the clear terms of the VAASA, Agilents activities in the
Philippines were confined to (1) maintaining a stock of goods in the
Philippines solely for the purpose of having the same processed by
Integrated Silicon; and (2) consignment of equipment with Integrated
Silicon to be used in the processing of products for export. As such,
we hold that, based on the evidence presented thus
far, Agilent cannot be deemed to be doing business in
the Philippines. Respondents contention that Agilent lacks the legal
capacity to file suit is therefore devoid of merit. As a foreign
corporation not doing business in the Philippines, it needed no
license before it can sue before our courts.
Finally, as to Agilents purported failure to state a cause of action
against the individual respondents, we likewise rule in favor of
petitioner. A Motion to Dismiss hypothetically admits all the
allegations in the Complaint, which plainly alleges that these
individual respondents had committed or permitted the commission
of acts prejudicial to Agilent. Whether or not these individuals had
divested themselves of their interests in Integrated Silicon, or are no
longer members of Integrated Silicons Board of Directors, is a matter
of defense best threshed out during trial.