PROGRAMAS DE PREVENCIÓN Y PROMOCIÓN DE LA SALUD EN EL ÁMBITO

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RULE 18

PRE-TRIAL

SECTION 1 - When conducted .—After the last pleading has been

served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. (5a, R20)

The rules on pre-trial have been supplemented by AM No. 03-1-0-SC – Approving the Proposed Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Trial and Use of Deposition – Discovery Measures (August 16, 2004)

The guidelines under AM No. 03-1-09-SC was for the further implementation of the pre-trial guidelines laid down in Admin Circ. No. 3-99 dated Jan. 15, 1999 and except as otherwise specifically provided for in other special rules.

Separate Rules on Pre-trial in particular cases were provided for under:

1. Interim Rules of Procedure Governing Intra-Corporate Controversies (April 1, 2001)

2. Rule on Declaration of Absolute Nullity of Void Marriages and Voidable Marriages (AM No. 02-11-SC; Mar 15, 2003) 3. Rule on Legal Separation (AM No. 02-11-11-SC; Mar 15,

2003)

4. The Rules on pre-trial under Rule 18 are applicable in preliminary conference in Forcible Entry and Unlawful Detainer cases (Sec. 8, Rule 70)

Pre-Trial is a mandatory conference and personal confrontation before the judge between the parties and their respective counsel. Concept of Pre-Trial

- A procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal settlement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition in the case, such as:  Number of witnesses

 Tenor or character of their testimonies

 Documentary evidence; nature and purpose of each  Number of trial dates

- One objective is to take trial out of the realm of surprise and maneuvering

- Also lays down the foundational and structural framework of the continuous trial system

When Pre-trial is Conducted

- After the last pleading has been served and filed

- It shall be the duty of the plaintiff to promptly move ex- parte that the case be set for pre-trial

Note the following SC issuances:

1. Specifically, the motion is to be filed within 5 days after the last pleading joining the issues has been served and filed (Admin Circ. No. 3-99, Jan 15, 1999) 2. Within 5 days from date of filing of the reply, plaintiff

must promptly move ex-parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the branch clerk shall issue a Notice of Pre-Trial (AM No. 03-109-SC, July 13, 2004)

 Note that under Sec. 3, Rule 17, failure of plaintiff to comply with the rules is a ground for dismissal

Pre-Trial is MANDATORY

- The present rules make a pre-trial mandatory

- Pre-trial conferences bring the parties together, making possible an amicable settlement or doing away with at least the non-essentials of the case

- Vital objective: the simplification, abbreviation, and expedition of the trial, if not indeed its dispensation - Mandatory nature is addressed to both court and parties:

 Court must set the case for pre-trial and notify the parties as well as counsel to appear

 Parties with their counsel are obliged to obey the order of the court to that effect

- Under the present rule, the court is no longer tasked with sending a separate notice to the party

 Notice of pre-trial shall be served on counsel, who is charged with the duty of notifying the client

Note: The “Last Pleading” need not be literally construed as the actual filing of the last pleading. For purpose of pre-trial, the expiration of the period for filing the last pleading is sufficient (Sarmiento v. Juan)

- The answer ordinarily is the last pleading - When defendant’s answer contains:

 A counterclaim – plaintiff’s answer is the last pleading  A cross-claim – answer of cross-defendant is the last

pleading

- Where plaintiff’s answer to a counterclaim contains a counterclaim against the opposing party or a cross-claim against a co-defendant, answer of opposing party to counterclaim or answer of co-defendant to cross-claim is last pleading

- Where plaintiff files a reply alleging facts in denial or avoidance of new matter, such reply is last pleading - The last pleading is the last pleading joining the issues Reason for Last Pleading

- Requirement is intended to fully appraise the court and the parties of all issues in the case before pre-trial is conducted

- Remember: the issues may only be ascertained from the allegations contained in the pleadings filed by parties - Last permissible pleading that a party may file would be

the reply to the answer to the last pleading of a claim that had been filed in a case

 This may either be a complaint, a cross-claim, a counterclaim, or third-party complaint

PART ONE: ANTECEDENTS OF A PRE-TRIAL

From AM No. 03-1-0-SC

A. Within one day from receipt of the complaint 1. Summons

a. Summons shall be prepared

b. And shall contain a reminder to defendant to observe restraint in filing a motion to dismiss and instead allege the grounds thereof as defenses in the Answer, in conformity with IBP- OCA Memorandum on Policy Guidelines dated March 12, 2002

c. Copy of summons attached 2. Court order

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(1) To avail of interrogatories to parties under Rule 25

(2) Request for admission by adverse party under Rule 26

(3) Or at their discretion make use of dispositions under Rule 23

(4) Or other measures under Rule 27 and 28 b. Order shall be complied with within 5 days from

filing of the answer

c. Copy of the order shall be served upon the defendant together with summons and upon plaintiff

SECTION 2 - Nature and purpose.—The pre-trial is mandatory.

The court shall consider:

(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; (b) The simplification of the issues;

(c) The necessity or desirability of amendments to the pleadings;

(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (e) The limitation of the number of witnesses;

(f) The advisability of a preliminary reference of issues to a commissioner;

(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (h) The advisability or necessity of suspending the

proceedings; and

(i) Such other matters as may aid in the prompt disposition of the action. (1a, R20)

The purposes of a pre-trial under the old Rule have been reproduced with 2 substantial amendments:

1. The court shall consider submission to alternative modes of dispute resolution including conciliation and mediation and not only arbitration

 With regard to submission to arbitration, see RA 876 and Art. 2028 and 2041 on compromises and arbitration

 See also RA 9285 which institutionalized the use of an alternative dispute resolution system and provided for a broader scope of alternative modes for dispute resolution

2. It shall also consider the advisability of judgment on the pleadings, summary judgment or dismissal of the action on the bases of proceedings at pre-trial conference

Note: Under AM No. 03-1-09-SC, the trial judge can now set as many pre-trial conferences as may be necessary

Effect of Failure to Calendar for Pre-Trial

- The pre-trial calendar should be separate from the trial calendar (Fuentes v. Macandog)

 It is preferred that the pre-trial first be set and to schedule the trial and other incidents at a different date

Jurisprudence

1. The process of securing admissions, whether of facts or evidence, is essentially voluntary. When the parties are unable to arrive at a stipulation of agreed facts, the court mist close the pre-trial and proceed with the trial of the case (FilOil Marketing Corp. v. Dy Pac & Co.)

2. Unless there is a showing of substantial prejudice caused to a party, the trial court’s inadvertent failure to calendar

the case for pre-trial or a preliminary conference cannot render the proceedings illegal or void ab initio

 A party’s failure to object to the absence of a pre-trial is deemed a waiver of his right thereto (Martinez v.

De la Merced)

3. When the pleadings tendered genuine issues resolvable only in a trial on the merits but instead of setting the case for pre-trial the court granted plaintiff’s motion for summary judgment, it was held that petitioner was substantially prejudiced and denied of his right to due process of law which is tantamount to an abuse of discretion or lack of jurisdiction (Paz v. CA)

 Certiorari and not appeal is the proper remedy 4. Where defendant asked the Court to give time to pay –

there is no need of resetting pre-trial. The proper procedure is not declaration of default but summary judgment (Jarantilla, Jr. v. Adil)

SECTION 3 - Notice of pre-trial.—The notice of pre-trial shall be

served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. (n)

Notice of Pre-Trial – under this section, the notice of pre-trial shall be served on counsel and service shall be made on the party only if he has no counsel

- However, the duty of counsel served with such notice is to duly notify his client thereof

- The notice must be such as to give them and their counsel, time to comply with the notice, given the circumstances of time and place of hearing

Jurisprudence

1. The omission to specify in the notice of hearing that it was notice of pre-trial is not an irregularity (Ravelo v. CA) 2. The knowledge of petitioner of the existence of pre-trial

order is an exception to the literal application of the rule that notice to the parties of the pre-trial order is indispensable (Western Agro Industries Corp. v. CA) 3. Absence of notice of third pre-trial is justified where after

proper notice for first 2 pre-trials, defendants filed third- party complaint which he completely abandoned (Fabar v.

Rodelas)

4. The sufficiency of the written notice of pre-trial is irrelevant where evidence shows that counsel and the parties actually knew of the pre-trial (Bembo v. CA)

SECTION 4 - Appearance of parties.—It shall be the duty of the

parties and their counsel to appear at the pre-trial. The non- appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. (n)

Note: BOTH parties and counsel must appear at pre-trial - Client and counsel must appear; this is mandatory - Failure of client to appear is a ground for dismissal - The appearance of plaintiff and defendant is also

mandatory their failure to do so without justification is not a ground for new trial (American Ins. v. Republic) Substitution of Appearance of Parties

- A party may not himself be present at the pre-trial and another person may substitute for him, or his lawyer may

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undertake to appear not only as an attorney but in substitution of his client’s person

- It is imperative that the representative or lawyer have a special authority to make substantive agreements; this special authority must be in writing

When Non-Appearance of a Party may be Excused: 1. If a valid cause is shown therefor; and

2. If a representative shall appear in his behalf fully authorized in writing to:

a. Enter into an amicable settlement;

b. Submit to alternative modes of dispute resolution; and

c. Enter into stipulations or admissions of facts and of documents

Note:

1. The written authority must be in form of an SPA (Sec. 23, Rule 38). If the party is a corporation, the SPA must be supported by a board resolution.

2. The mere presentation of such written authority is not sufficient, but must be complemented by a showing of valid cause for the non-appearance of the party himself.

Special Authority of Representative of Lawyer in Behalf of Client - Without special authority, lawyer or representative cannot

be deemed capacitated to appear in place of the party  It will be considered that the latter has failed to put

up an appearance at all

 And therefore, not suited or shall be cause to allow plaintiff to present evidence ex parte

- The scope, extent, and limits of the authority must likewise be shown (Barrera v. Militante)

 Note that under the present rule, the representative must be fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents

- The authority must be specific and not general

Note that under Sec. 4, Rule 18, the law is clear and unambiguous. Counsel, as representative, mist have appeared in party’s behalf fully authorized in writing

Jurisprudence

1. A certificate of the Secretary of a corporation couched in general terms authorizing a lawyer to appear in all cases filed against the corporation and on all matters that may be necessary is insufficient and warrants a declaration of default (Far Corporation v. IAC)

SECTION 5 - Effect of failure to appear.—The failure of the

plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. (2a, R20)

Effect of Failure to Appear

1. Effect of Non-appearance of Plaintiff

 Cause for the dismissal of the action (order of non- suit)

 This dismissal shall be without prejudice a. Except when the court orders otherwise

2. Effect of Non-appearance of Defendant

 Cause the plaintiff to present evidence ex parte  Cause for the court to render judgment on the basis

thereof

Note that the non-appearance of defendant in pre-trial is not a ground to declare him in default

A plaintiff who makes no valid appearance at pre-trial may not ask the defendant to be punished for the same shortcoming it was equally guilty of (Sarmiento v. Juan)

- The remedy for plaintiff’s failure to appear at the pre-trial is to declare him non-suited

 Not requiring the defendant to present his evidence Judgment Ex Parte is DIFFERENT from Judgment by Default

1. Judgment against a defendant based on evidence presented ex parte pursuant to a default order

 Sec. 5, Rule 18 provides that judgment against defendant should not exceed amount or be different in kind from that prayed for

 Trial may proceed ex parte

2. Judgment based on evidence presented ex parte and against a defendant who had filed an answer but who failed to appear at hearing

 Award may exceed amount from that prayed for  A defendant in default is not and should not be placed

in a situation more favorable than a defendant who answered but who fails to appear for trial despite notice (Gochangco v. CFI – Negros Occidental)  Trial may proceed ex parte

 It is not invalidated by the fact merely that reception of evidence had been undertaken by the clerk of court on the court’s instructions

Note: Semantical propriety: the word “default” is identified with the failure to file a required answer, not non-appearance

Note that under this rule, there can be no judgment by default - The sanction for failure of defendant to appear in the pre-

trial is not to consider him as in default

- But to authorize plaintiff to present evidence ex parte and the court to render judgment on the basis thereof - As such, limitations on the extent of a judgment by default

no longer applies when defendant fails to appear during pre-trial

The remedy of a plaintiff who has been non-suited is to file a motion to set aside the order of non-suit

- Affidavit of merit is not necessary in a simple motion for reconsideration of the order of non-suit

 Except as to show the cause of the failure to appear at the pre-trial (Jonathan Landoil International Inc. v.

Mangudadatu)

- The provisions of Rule 37 on New Trial do not govern all motions for reconsideration based on fraud, accident, excusable negligence, or mistake

 They are applicable only when a party adversely affected by a judgment, already rendered in a case, seeks to have it set aside and a new trial held, in the hope that it may be reversed or modified on account of the evidence that is to be produced

 If a new trial is granted, original decision shall be vacated and the action is to stand for trial de novo  The procedure contemplated in this rule involves a

reopening of the case for hearing, after it was already submitted for decision and judgment thereon was actually reached

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In document BOLETÍN OFICIAL DE LAS CORTES GENERALES (página 147-160)