Atty. Fonacier, Jr, et al vs Taggat Industries, Inc, et al : 148525 : January 28, 2002 : Atty. Soriano : 1st Div.

[G.R. No. 148525. January 28, 2002]

ATTY. FONACIER, JR., et al. vs. TAGGAT INDUSTRIES, INC., et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated 28 JAN 2002.

G.R. No. 148525 (Atty. Manuel S. Fonacier, Jr., et al. vs. Taggat Industries, Inc., et al.)

Before the Court is a Petition for Certiorari under Rule 65, seeking the review of two decisions promulgated by the Court of Appeals, as follows: (1) the decision dated December 13, 2000 that affirmed the lower court’s decision in dismissing the original complaint for collection of a sum of money filed by the petitioners against the private respondent; and (2) the resolution dated June 22, 2001, denying the Motion for Reconsideration filed by the petitioners.

The original case filed by petitioners Atty. Fonacier and spouses Eduardo Flores & Pamela De Rivera was for the collection of a sum of money in the amount of six million three hundred twenty thousand two hundred twenty-eight and 24/100 (PhP 6,320,228.24) for hauling and trucking services rendered by them to herein private respondent, Taggat Industries, Inc., until 1989. They also sued for damages in the sum equivalent to 5% of said amount plus PhP 30,000.00, PhP 1,000 per court appearance as attorney’s fees and costs of suit. The complaint was filed in the Regional Trial Court of Manila and included a prayer for the issuance of a writ of preliminary attachment, considering that the assets of the private respondent were allegedly either under government sequestration or were dissipated or disposed to the prejudice of creditors. After due hearing, the writ of preliminary attachment was granted by the court upon the filing of the appropriate bond.

On July 7, 1997, summons was served on the private respondent. Various other pleadings were filed at the court and served on the parties within the appropriate periods as required by law. In the private respondent’s Answer with Counterclaim that was filed with the Court on August 25, 1997, it alleged its basic defenses:

(1) that the complaint does not show any iota of evidence that would prove the existence of an alleged contract between plaintiffs[1] and defendant;[2] in fact, defendant corporation was sequestered by the Presidential Commission on Good Government (PCGG) sometime in 1986 and has since then suspended its operations;

(2) the alleged agreement, granting that it exists, is unenforceable under the Statute of Frauds, the same not being supported by any written document;

(3) no formal demand was made by plaintiffs upon defendant; and

(4) as the hauling services was allegedly rendered sometime in 1989, plaintiffs’ action has clearly prescribed, pursuant to Art. 1145 of the Civil Code which provides that an action upon an oral contract must be commenced within six (6) years. Defendant thus prayed for the dismissal of the complaint, denial of the application for a writ of preliminary attachment and order for plaintiffs to pay the defendant the sum of PhP 100,000.00 as attorney’s fees, plus PhP 1,000.00 for every court appearance, and costs of suit.[3]

In an Order dated October 17, 1997, the trial court set the case for pre-trial conference on November 26, 1997, and required the parties and their counsel to attend and to bring with them their respective pre-trial briefs. In the order, the trial court reiterated the requirement that:

Pre-trial briefs shall be filed with the court and served on the adverse party, in such a manner as shall ensure their receipt thereof at least three (3) days before the date of pre-trial. Failure to appear at the pre-trial conference and/or to file pre-trial brief shall be cause for dismissal of the action with prejudice, or shall be cause to allow the plaintiff to present his evidence ex-parte and the court to render judgment on the basis thereof, as the case may be.[4]

On November 7, 1997, private respondent filed its pre-trial brief with the trial court, attaching thereto the proof of service of such brief on the petitioners. The problem is that during the pre-trial that took place on November 26, 1997, it was discovered that the petitioners’ pre-trial brief was never filed with the court. Private respondent’s counsel also claimed that he never received a copy of the petitioners’ pre-trial brief within the mandatory 3-day period before such conference. To add insult to injury, petitioners’ counsel also failed to bring with him a copy of such brief at the pre-trial itself. Considering such pre-trial brief as not filed and pursuant to Section 5 and 6, Rule 18 of the Rules of Civil Procedure, the case was ordered dismissed with prejudice by the trial court.

On December 2, 1997, petitioners filed a “Motion for Reconsideration with Motion to Admit Attached Belated Pre-trial Brief” explaining the reasons for their non-compliance with the pre-trial requirements. They first explained that they only recently discovered that such pre-trial brief had been misfiled at the Metropolitan Trial Court of Pasay City (in lieu of the RTC of Manila) by a new and inexperienced employee of the firm. They also explained that during the scheduled pre-trial conference on November 26, 1997, petitioners and their counsel were present but failed to bring with them the case folder “for the reason that counsel failed to return to his office in Cubao, Quezon City the previous day.”[5] As per the failure of the private respondent to receive a copy of the pre-trial brief, petitioners explained that such brief had been mistakenly included in the same envelope containing the “Reply and Answer with Motion to Set Pre-trial Conference” that was sent to the private respondent. There is no contention that such “Reply and Answer with Motion to Set Pre-trial Conference” was duly received by them in September 1997.

The private respondent, however, denies having received such pre-trial brief. There is likewise no proof that such pre-trial brief was duly sent to and was received by the same. In their opposition to the motion for reconsideration, private respondent pointed out that:

xxx if it is true indeed as alleged by plaintiffs, that their pre-trial brief was only misfiled, then at the very least, defendant should have received a copy thereof and yet, during the pre-trial conference on November 26, 1997, defendant’s handling lawyer manifested that defendant did not receive a copy of plaintiffs’ brief; worse, plaintiffs’ counsel offered no substantial explanation for their failure to file a pre-trial brief nor even show his retained copy, thus leading to the conclusion that plaintiffs had indeed failed to file a pre-trial brief. xxx[6]

Petitioners filed a comment to the opposition. In order to better assess the veracity of the petitioners’ explanations, the trial court required the petitioners to submit various supporting documents and affidavits, which requirement they duly complied with on February 11, 1998. After considering all the evidence however, the trial court issued an Order dated June 26, 1998, denying the motion for reconsideration of the petitioners, as follows:

This resolves the motion for reconsideration filed by plaintiffs, thru Counsel, on 02 December, 1997, the opposition/comment of 07 January 1998 thereto filed by defendant, plaintiffs’ reply thereto dated January 14, 1998, defendant’s comment dated 12 March 1998, and plaintiffs’ rejoinder of 24 March, 1998.

Considering that:

1. Plaintiffs’ allegation that they filed/served their pre-trial brief more than a month prior to the order of this court (dated October 17, 1997) setting the case for pre-trial conference and requiring the parties to file their respective pre-trial briefs is contrary to the natural order of things, and therefore, unworthy of belief;

2. Their allegation that their Pre-trial Brief was enclosed and included in the envelope containing their Reply and Answer with Motion to Set Pre-Trial Conference which was sent by registered mail per registry receipt no. 6205 is equally hard to believe considering that, but for plaintiffs’ bare allegation, there is no evidence and nothing to indicate that it was actually so;

3. The alleged combination of errors and lapses committed by the messenger-clerk of plaintiffs’ counsel, assuming them to be true for the sake of argument, and plaintiffs’ counsel’s own serious lapses, to wit:

(a) his unexplained failure to carefully read the Pre-Trial Brief for plaintiffs before affixing his signature thereon to assure himself of its accuracy and correctness;

(b) his coming to court for the pre-trial conference last 26 November 1997, inadequately if not totally, unprepared, so much so that he did not even have with him the case folder and was at that time, quite surprisingly, still unaware of the errors and lapses above-mentioned; and

together constitute gross and inexcusable negligence which do not justify the reconsideration and setting aside of the order in question.

4. Moreover, a lawyer cannot point to the mistakes of his office staff nor to the alleged transfer of his office to another floor of the building in order to justify his own serious lapses and shortcomings; and

5. Finally, what appears clear from the record is that plaintiffs unjustifiably failed to file the required pre-trial brief which, pursuant to Sec. 6, in relation to Sec. 5 of the 1997 Rules of Civil Procedure, shall be cause for dismissal of the action.

WHEREFORE, premises considered, the motion at bench is hereby DENIED.

SO ORDERED.[7]

On appeal to the Court of Appeals, the court affirmed the lower court’s decision for the following reasons:

1. The provisions in the 1997 Rules of Civil Procedure (which appear stricter than the 1964 Rules of Court), under Section 5 & 6, Rule 18 provides that the failure of the plaintiff to appear at the pre-trial conference or to file the pre-trial brief shall be cause for dismissal of the action, which shall be with prejudice, unless otherwise ordered by the court.

2. The Court also stated: “Even granting arguendo that courts may, in the exercise of sound judicial discretion, prevent the harsh consequences of this sanction against the party who failed to file the pre-trial brief as required by the trial court and pursuant to the Rules, the circumstances of this case showing serious lapses on the part of plaintiffs’ counsel and his staff, do not provide any sufficient and meritorious reasons justifying such relaxation of the strict policy on this matter”[8]

The motion for reconsideration filed by petitioners was likewise denied in a Court of Appeals Resolution dated June 22, 2001.

Petitioners are now before this Court with the following assignment of errors:

1. The Court of Appeals gravely erred and committed grave abuse of discretion when it acted in a manner not in accord with law and applicable jurisprudence by sanctioning a trial court’s dismissal of the complaint with prejudice notwithstanding substantial evidence on record sufficient to sustain and maintain a judgment on the merits;

2. The Court of Appeals gravely erred and abused its discretion in punishing petitioners and counsel with a dismissal of the complaint with prejudice and finding counsel guilty of serious inexcusable negligence.

The petition is dismissed.

This Court has consistently held that the pre-trial, whose objective is to simplify, abbreviate and expedite trial, if not to fully dispense with it, is of mandatory character.[9] What is mandatory is not merely the appearance of the parties and counsel at the pre-trial conference. Of equal importance is that the parties and their counsels also file their respective pre-trial briefs within three (3) days before such conference, in accordance with law.[10]

The Rules expressly provides that the failure of the plaintiff to appear at the pre-trial, when so required, shall be cause for dismissal of the action with prejudice, unless otherwise ordered by the court.[11] The Rules also states that “Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.”[12] Unlike under the old Rules wherein which it was within the discretion of the trial court to declare a party non-suited for non-appearance at the pre-trial, provided that this discretion was not abused,[13] the 1997 Rules of Civil Procedure are stricter, failure to appear now being fatal to the case.

We agree with the Court of Appeals in holding that the trial court did not act with grave abuse of discretion. The order dismissing the case was not made with precipitous haste, but was only rendered after a careful perusal of additional evidence that the trial court required of the petitioners, four (4) months after their submission. Petitioners were required to submit registry receipts, registry return receipts or other verification from the Postmaster, and various affidavits,[14] in order to determine the veracity of their claims, and to ultimately determine whether or not there was excusable negligence on their part. In the case of Franco vs. Intermediate Appellate Court,[15] the Supreme Court upheld the trial court’s declaration that the petitioner was non-suited for failure to appear at the pre-trial, given that such failure was not due to fraud, accident, mistake or excusable negligence.

In the case at bar, the petitioners acted with inexcusable negligence. They not only failed to file the pre-trial brief at the proper court and serve such brief to the respondent within the mandatory 3-day period. At the pre-trial conference itself they also failed to provide a satisfactory explanation as to why they did not bring with them a copy of the pre-trial brief which they had allegedly earlier prepared and filed-the only problem being that it was sent to the wrong court. Petitioners also explain they served the pre-trial brief on the private respondent as early as September 1997, although it was included in the wrong envelope. Such date, however, is more than one (1) month before the order of the court that set the case for pre-trial conference and required the parties to file and serve their respective pre-trial briefs. We, therefore, agree with the Court of Appeals in finding the totality of petitioners’ explanations as improbable, dubious and unworthy of credence.

Even assuming however, that such pre-trial brief had indeed been misfiled by a new and inexperienced employee of petitioners’ counsel, this still would not excuse the petitioners’ omissions. In the case of Adaza vs. Barinaga,[16] this Court held:

Making the law office secretary, clerk or messenger the scapegoat or patsy for the delay in the filing of pleadings, motions and other papers and for the lawyer’s dereliction of duty is a common alibi of practising (sic) lawyers. Like the alibi of the accused in criminal cases, counsel’s shifting of the blame to his office employee is usually a concoction utilized to cover up his own negligence, incompetence, indolence and ineptitude.

This Court has held that it is indeed the time to emphasize that there should be much more than mere perfunctory treatment of the pre-trial procedure. Its observance must be taken seriously if it is to attain its objective, i.e., the speedy and inexpensive disposition of cases.[17]

As stated in the decision of the Court of Appeals:

xxx This strict policy is consistent with the mandatory character of pre-trial which also obliges not only the lawyers but the parties as well as to appear for this purpose before the Court – such obligation “to appear” denotes not simply the presentation of a party of one’s self, but connotes as importantly, preparedness to go into the different subjects assigned by law to a pre-trial. Plaintiffs-appellants’ counsel’s failure to bring his copy of the pre-trial brief demonstrated such unpreparedness to proceed with the pre-trial, and given the other party’s manifestation that it did not receive such copy of pre-trial brief, only caused unnecessary delay in the proceedings-the very thing the Rules aims to prevent. And what really militates against plaintiffs-appellants’ position is the stricter policy under the 1997 Rules of Civil Procedure, as amended, as to the submission of the pre-trial brief. Under the former Revised Rules of Court, failure to appear at pre-trial conference gives the court discretion to declare the party either non-suited or considered as in default (Sec. 2, Rule 20). Now, the intent is clear that such failure to appear at the pre-trial or file the pre-trial brief “shall be cause for dismissal of the action,” the discretion of the trial court in these cases effectively precluded.[18]

WHEREFORE, premises considered, the petition is dismissed. Costs against petitioners.

Very truly yours,

(Sgd. ) VIRGINIA ANCHETA-SORIANO

Clerk of Court

[9] Philippine Pryce Assurance Corp. vs. Court of Appeals, 230 SCRA 164 (1994).

[10] Section 6, par. 1, Rule 18, 1997 Rules of Civil Procedure.

[11] Section 5, Rule 18, 1997 Rules of Civil Procedure.

[12] Section 6, par. 2, Rule 18, 1997 Rules of Civil Procedure.

[13] Calalang vs. Court of Appeals, 217 SCRA 462 (1993).

[17] Aguilar vs. Court of Appeals, 227 SCRA 472 (1993).