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[G.R. No. 133346. June 7, 2000]

SUSAN SUAREZ DI FILIPPO et al. vs. CA et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 7 2000.

G.R. No. 133346 (Susan Suarez Di Filippo, Felix K. Suarez, Jesus K. Suarez, Rupert K. Suarez, Robert K. Suarez, and Albert K. Suarez vs. Court Of Appeals and Pacific Plans, Inc.)

This is a petition for review of the Decision rendered by the Court of Appeals in CA-G.R. SP No. 39232, which annulled and set aside the orders of the Regional Trial Court of Silay City, in Civil Case No. 1409, dated February 21, 1995 and October 10, 1995, which denied private respondent's motion to dismiss on the ground of failure to prosecute for an unreasonable length of time.

On September 20, 1999, this Court gave due course to the petition and required the parties to submit their respective memoranda within thirty (30) days from notice.

On November 26, 1999, the private respondent filed its Memorandum. To date, petitioners have not filed their Memorandum as required by this Court.

The instant petition for review should be dismissed.

From the start, petitioners have shown lack of interest to pursue their case. On the day the pre-trial conference was set for the first time, none of the petitioners appeared despite notice. From the filing of their complaint on October 15, 1990, up to December 4, 1995 or for five years, petitioners have failed to advance and proceed with the pre-trial conference. Even after the trial court warned the petitioners to observe faithfully the rules of procedure, the latter still caused the postponement of the pre-trial conference two (2) more times. As correctly stated by the Court of Appeals,

"On the scheduled pre-trial conference on March 18, 1992, none of the private respondents (petitioners herein) appeared despite notice. Only their counsel appeared but without 'special authority' to compromise the case. They likewise failed to file any pre-trial brief. Petitioners could have been declared non-suited on the spot, however, respondent Judge required the filing of a formal written motion to that effect.

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"The Rules of Court provide that the holding of a pre-trial conference is mandatory in any civil action. Its main objective is to simplify, abbreviate and expedite trial as well as provide the parties an opportunity to arrive at a compromise settlement. Consistent with its mandatory character, the Rules oblige not only the lawyers but the parties as well to appear for this purpose before the Court and when a party fails to appear at a pre-trial conference he may be non-suited or declared as in default. (Philippine Pryce Assurance Corp. v. Court of Appeals, 230 SCRA 164, 170 (1994); Development Bank of the Philippines v. Court of Appeals, 169 SCRA 409, 413 [1989]).

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"The failure of the private respondents to present the proper 'special authority' after the lapse of two (2) years is tantamount to inordinate neglect in complying with the requirements of the Rules of Court on pre-trial. While courts should be cautious in declaring parties in default, compliance with the mandatory provisions of the Rules of Court cannot be left to the whims of the parties. The exercise of liberality must be tempered with the need to instill in the parties the proper respect for the provisions of the Rules of Court." ¹ Court of Appeals Decision, pp. 4-6; Rollo, pp. 76-78.

Before this Court, petitioners also failed to submit their Memorandum as required in this Court's Resolution of September 20, 1999. Section 3, Rule 17 provides:

"Section 3. Dismissal due to fault of plaintiff. - If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court." (emphasis ours)

Thus, a case may be dismissed for failure to comply with any order of the court. In a case appealed to this Court, the petitioner stands in the same position as the plaintiff in a case originally filed in the lower court, hence the provisions of Sec. 3, Rule 17 also apply to said petitioner. It is the duty of the petitioner to prosecute his petition with due diligence and to comply with any order of the court. Failure to do so warrants the dismissal of the appeal or petition.

In Philippine Banking Corporation vs. Casimina , G.R. No. 138345, May 10, 2000, this Court denied the petition for failure of the petitioner to comply with the Resolution requiring it to file its Reply.

WHEREFORE, for failure to comply with the Resolution of this Court dated September 20, 1999, the instant petition is hereby DISMISSED.

SO ORDERED.

The copies of the resolutions of 15 December 1999 and 16 February 2000 both addressed to Chavez Laureta and Associates, counsel for petitioners, at the Penthouse, Heart Tower, 108 Valero St., 1227 Salcedo Village, Makati City, which were returned to this Court unserved with notations "RTS Moved," are deemed SERVED on said counsel by substituted service pursuant to Section 8, Rule 13 of the 1997 Rules of Civil Procedure, as amended.

Very truly yours,

(Sgd.) TOMASITA B. MAGAY-DRIS

Clerk of Court�

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