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[ G.R. No. 139003. September 27, 1999]

ROQUETA R. DIMSON vs. HON CA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this court dated SEPT 27 1999.

G.R. No. 139003 (Roqueta R. Dimson vs. Honorable Court of Appeals, Michale Manotoc. Ignacio Manotoc, Jr., Maria Milagros Manotoc, Feliza Manotoc, and Mary Anne Manotoc.)

Petitioner assails the Decision of the Court of Appeals dated January 18, 1999, affirming the decision of the Regional Trial Court of Manila, Branch 5 declaring petitioner non-suited for failure to appear in the schedule pre-trial conference and its Resolution dated June 8, 1998, denying petitioner's motion for reconsideration of said decision of January 18, 1998.

Originally, the pre-trial conference was set for July 22, 1998 but due to a conflict of schedule on the part of the counsel for petitioner, the latter filed an Urgent Ex-Parte Motion for Postponement praying that the scheduled pre-trial conference be cancelled and suggested that it be set on August 19, 1998. This was granted by the trial court with the specific injunction that failure by the parties and counsel to appear will be ground of either plaintiff to be declared non-suited or defendants as in default pursuant to Section 5, Rule 18 of the Rules of Civil Procedure.1 [Rollo, p. 25.]

On August 19, 1998, however, both petitioner and her counsel failed to appear during the pre-trial conference, thus, petitioner was declared non-suited and the complaint was dismissed. A motion for reconsideration was filed by counsel for petitioner alleging that although he suggested August 19, 1998 as the date of the pre-trial conference, he was waiting for the order from the trial court giving due course to the suggestion. No order was received by counsel for petitioner up to August 19, 1998 confirming said suggestion of counsel. The order confirming said suggestion was only received by counsel for petitioner after August 19, 1998, hence, according to him, it was impossible for counsel and petitioner to appear on the suggested dated of the pre-trial conference.2 [Id., at 12-13.]

The trial court denied the motion for reconsideration, thus, petitioner went to the Court of Appeals which rendered the questioned decision dismissing the petition for lack of merit.3 [Id., at 24-27.] A motion for reconsideration was filed but this was, likewise, denies.4 [Id., at 34.] Hence, this petition.

We find no merit in the petition.

Counsel for petitioner himself admitted that he was the one who suggested August 19, 1998 as the new dated for the pre-trial conference in lieu of the original date of the pre-trial conference on July 22, 1998. Since it was counsel for petitioner who, in the first place, filed the motion to cancel the original date of the pre-trial conference in order to accommodate his conflicting schedules, he should at least have exerted an effort to inquire from the trial court if said motion was granted or on before the suggested date came, especially, considering the fact that his motion was ex-parte. As counsel, he is aware that under the 1997 New Rules of Civil Procedure, the failure of the plaintiff to appear when so required shall be a cause for the dismissal of the action and such action is with prejudice unless otherwise ordered by the court.5 [Section 5, Rule 18 of the 1997 New Rules of Civil Procedure.] We agree with the Court of Appeals when it ruled:

xxx We are not convinced as the reason of petitioner and his counsel for the failure to appear during the pre-trial is flawed.

In Putulin vs. Barias, Jr., 232 SCRA 472, it was held:

"xxx When she set the motion for the issuance of the alias writ of execution for hearing on December 11, 1992, she should have appeared thereat on the said motion. For so important a motion, complainant should no have assumed that it would be placed in the motion calendar and be granted as a matter of course. If she could not appear on the schedule dated of the hearing of the motion for one reason or another, she should have made inquiries at the first opportunity as to the action taken by the Court on her motion. If she had done so, she could have found out that the said motion, while received by the mailing section of the Regional Trial Court, had not been sent to and received by Branch 38.

Petitioner also questions the denial of her motion for reconsideration on the ground that she was deprived of due process since she was not given a chance to be heard on the motion for reconsideration. Petitioner claims that it was agreed that the motion for reconsideration was set for hearing on October 9, 1998 but when they appeared before the trial court on the said date, they were informed that the motion for reconsideration was heard on October 8, 1998. Thus, she was not able to prove the allegations in the motion for reconsideration.

We disagree.

Petitioner was not denied due process of the law as in fact she was heard through her motion for reconsideration. To be heard does not only mean verbal arguments in court. One may also be heard through pleadings.6 [Zaldivar vs. Sandiganbayan, 166 SCRA 316 [1988]; Valladolid vs. Inciong, 121 SCRA 205.] In this case, the trial court heard the motion for reconsideration on October 8, 1998 but found the reason alleged therein to be unmeritorious. Thus, petitioner could not claim that she was denied the right to be heard on her motion for reconsideration.

IN VIEW OF THE FOREGOING, the petition is hereby DENIED for lack of merit.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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