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[G.R. No. 149745. October 15, 2001]

GERARDI-SCHMID vs. SPOUSES BORJA et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated OCT 15 2001.

G.R. No. 149745(Mary Victoria J. Gerardi-Schmid vs. Spouses Renato and Marieta Borja, et al.)

Petitioner's motion for extension of thirty (30) days within which to file petition for review on certiorari is GRANTED PROVIDED THAT THIS BE THE LAST EXTENSION, counted from the expiration of the reglementary period and conditioned upon the timeliness of the motion and movant's compliance with the requisites for its filing.

This a petition for review of the decision of the Court of Appeals, dated May 29, 2001, and its resolution, dated August 15, 2001, denying petitioner's motion for reconsideration. It appears that on October 17, 1996, petitioner filed a complaint before the Regional Trial Court, Branch 276, Muntinlupa City, for annulment of the sale and title with damages against the herein respondents on the ground that the deed of sale, purporting to have been executed by her and her former husband Nicanor R Arnado II on May 8, 1992, was spurious, their signatures having been forged.

It further appears that on October 29, 1997 at 2:00 o'clock in the afternoon, petitioner and her counsel failed to appear at the scheduled pre-trial. Petitioner also failed to file a pre-trial brief. Accordingly, on motion of the respondents, the trial court declared the petitioner non-suited and dismissed the case. Petitioner moved for reconsideration, alleging that her counsel whom she authorized to represent her failed to appear at the pre-trial because he had to rush to the hospital to check on the condition of his mother-in-law, and when counsel proceeded to the court to attend the pre-trial, he was caught up in heavy traffic.

On January 22, 1998, the trial court denied petitioner's motion for lack of merit. She then filed a petition for certiorari before the Court of Appeals, contending that her counsel's failure to attend the pre-trial conference before the RTC was due to accident or excusable negligence and, therefore, the RTC should have reconsidered its order declaring her non-suited.

The Court of Appeals dismissed petitioner's petition stating that appeal, not certiorari, was the proper remedy. As regards the failure of petitioner and her counsel to attend the pre-trial, the appeals court held that while petitioner might be excused for her counsel's failure to attend the pre-trial, she had no excuse for her failure to file her pre-trial brief. Hence, this petition has no merit.

Rule 18, 6 the 1997 Rules of Civil Procedure, in relation to Circular No. 1-89, provides that the failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. Sec. 5 of the same rule provides that failure of the plaintiff to appear during the pre-trial despite notice shall be cause for dismissal of the action. Hence, we find no cogent reason to reverse the findings of the Court of Appeals.

Petitioner contends that, applying Rule 41, 1 (a), after the denial of her motion for reconsideration by the trial court, the proper remedy was for her to file a special civil action of certiorari before the Court of Appeals. This contention has no merit as the aforementioned rule does not apply. In Mondonedo v. Court of Appeals (252 SCRA 28 (1996)), we held that for non-appearance at the pre-trial (and for failure to file a pre-trial brief), a plaintiff may be declared non-suited and a dismissal of the complaint for failure to prosecute has the effect of an adjudication on the merits, unless otherwise stated in the order of the trial court. Accordingly, the remedy of a plaintiff declared non-suited was to appeal from the order of dismissal, the same being a final resolution of the case.

WHEREFORE, the petition is DENIED for lack of showing that the Court of Appeals committed any reversible error.

Very truly yours,

(Sgd.) TOMASITA M. DRIS
Clerk of Court


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