[G.R. No. 149745. October 15, 2001]
GERARDI-SCHMID vs. SPOUSES BORJA et al.
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