BENJAMIN VALLANGCA, RODOLFO VALLANGCA and ALFREDO VALLANGCA, petitioners vs. HON.

COURT OF APPEALS and NAZARIO RABANES, respondents FACTS: Since Ana Billena and her three (3) sons were in possession and actual cultivation of the land in question, Rabanes filed against them on 7 July 1971 an injunction suit. On 11 September 1972, another complaint entitled "Recovery of Possession" was lodged by Rabanes before the same court against the same defendants in the action for injunction. Two (2) days later, or on 13 September 1972, the action for injunction was ordered dismissed by the trial court. After trial in the second action involving recovery of possession, the Court of First Instance of Cagayan, on 24 September 1976, rendered judgment declaring Rabanes as the rightful owner of the land and ordered petitioners to vacate the same. On 18 September 1980, the appellate court rendered judgment, affirming in toto the trial court's judgment.

This is a petition to declare respondents Richard J. Gordon, Anacleto M. Diaz, and Orlando E. Mendiola in contempt of court. FACTS: The case was filed in the SC because of respondent Gordon's apprehension that he would be removed and replaced as chairman of the Subic Bay Metropolitan Authority (SBMA) upon the change of administration. The petition was for prohibition to prevent Gordon's ouster as chairman of the SBMA on the ground that he had a fixed term of office of six years which would not expire until February 10, 2004. o President Erap issued Administrative Order No. 1, canceling the appointment of Richard J. Gordon as Chairman of the Subic Bay Metropolitan Authority for a term of 6 years. Instead of a temporary restraining order, respondent Gordon fried (yes, FRIED ang nakalagay sa original case, LOL!) a "Notice of Withdrawal of his Petition. o On that same day, he filed a petition for certiorari and prohibition in the RTC of Olongapo City. The filing of the case in Olongapo gave rise to the present petition to declare respondents in contempt of court filed by Executive Secretary Ronaldo Zamora and Arturo C. Lomibao. o The petition is filed against respondents because having filed the case in the RTC after filing a notice of withdraw the case pending in the SC. Petitioners charge that "the act of respondents in filing 2 petitions involving the same issues before the SC and the RTC, both pending, constitutes forum-shopping and contempt of court." Citing Rule 7, Sec. 5 of the RoC. The SC granted respondents' prayer for leave to withdraw their petition. Respondents deny the charge against them. They contend that they complied with Rule 7, Sec 5 by disclosing in the certification of non-forum shopping attached to their petition for certiorari and prohibition before the RTC, the existence and subsequent withdrawal of their petition for prohibition before this Court.

ISSUE: Whether the first suit, although styled as for "Injunction", had for its actual primary purpose the recovery of the land in dispute and, therefore, after its dismissal, no other action for recovery of possession of the same land and against the same parties could be pursued by the same complainant

HELD: The defense of res judicata was unavailing to the petitioners, because the prior injunction suit against them, which was dismissed, was merely an ancillary and not a main action. Under Sections 1 & 3, Rule 58 of the Rules of Court, it can be clearly deduced that a writ of injunction presupposes the pendency of a principal or main action. There being no main action when the 7 July 1971 suit for injunction was filed, the latter was correctly dismissed. Accordingly, there could be no prior judgment on the merits to speak of that resulted in res judicata from such dismissal of the injunction suit on 13 September 1972.

ISSUE: Whether the dismissal order of 13 September 1972, in the injunction suit, not having been made without prejudice, bars the second action for recovery of possession HELD: Under Sec. 2, Rule 17 of the Rules of Court, when the court issues, upon the plaintiff's instance, a dismissal order that is silent as to whether it is with or without prejudice, such as in the case at bar, the presumption is, that it is without prejudice. THE EXECUTIVE SECRETARY and ARTURO C. LOMIBAO, petitioners, vs. RICHARD J. GORDON, ANACLETO M. DIAS, and ORLANDO E. MENDIOLA, respondents.

ISSUE: Whether the respondents are guilty of forum shopping? RULING: We find for respondents. Forum-shopping consists of filing multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment.

In the case at bar, although respondent Dick Gordon filed a petition for prohibition before the SC and, after two days, filed the same petition before the RTC, the fact remains that (1) before filing his petition in the RTC he first filed a notice of withdrawal of his petition which the SC granted and (2) he withdrew his petition for the following reason: Due, however, to the present policy of the Court requiring parties and their counsel to adhere strictly to the hierarchy of courts and in order to obviate any technical objection on this ground, petitioner has deemed it fit to withdraw, as he hereby withdraws, the instant petition so that it may be filed in the proper court where it can be ventilated on its merits. It is clear from respondents' actions and explanation that they had no intention of disregarding court processes. They in fact complied with R7 S5 of the Rules. To reiterate, respondent Gordon filed a notice of withdrawal of his petition before the SC prior to the filing of his petition in the RTC as the appropriate forum. While it is true he and his counsels did not wait for the Court to act on the "Notice of Withdrawal of Petition" filed by them before filing substantially the same petition in the RTC. To be sure, respondents could have apologized at the very least for the time of the Supreme Court which they had taken and made an effort to explain why they have to refile their case without awaiting the Court's resolution on their notice of withdrawal of the petition. Because those people from the SC are narcissistic douchebags. G.R. No. L-27187 July 22, 1971 ANTONIO MONTEJO and CONSOLACION BIBERA, plaintiffsappellants, vs. VICENTA UROTIA, as heir of JUANA BIBERA, ET AL., defendants-appellees. These are appeals from orders of dismissal for failure to prosecute. Inasmuch as the issues therein are substantially the same, these nine (9) cases are herein decided jointly. (9 cases sya pro yong Kay montejo lng nilagay ko) CASE 1- CFI Antonio Montejo and Consolacion Bibera seek: a) to prevent the foreclosure of a mortgage on several parcels of land they claim to own in common with the defendants, as well as on several personal properties allegedly belonging exclusively to plaintiff Antonio Montejo; b) to have said parcels of land partitioned among its co-owners; c) the release, from the aforementioned mortgage, of the said personal properties and of plaintiffs' shares in said land; and d) the collection of certain sums of money allegedly due from the defendants to plaintiff Antonio Montejo. -There were 24 defendants under the original complaint, which was amended to include 20 additional defendants. 17 defendants had not been summoned a -CFI issued an order directing the plaintiffs to exert efforts to cause said defendants to be summoned. -Over two years later the court dismissed the case for failure of the plaintiffs to comply with said order.

RULING:

Section

of

Rule

17

of

the

present

Rules

of

Court

Failure to prosecute. If plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court's own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by court. Construing this provision, it was held in Smith Bell & Co. v. American President Lines, Ltd., 5 and this view was reiterated in subsequent cases, 6 that "... (t)he dismissal of an action pursuant to this rule rests upon the sound discretion of the court ... ." . As to what constitutes an "unreasonable length of time," within the purview of the above-quoted provision, We have ruled that it "depends upon the circumstances of each particular case"; that "the sound discretion of the court" in the determination of said question "will not be disturbed, in the absence of patent abuse"; and that "the burden of showing abuse of judicial discretion is upon appellant since every presumption is in favor of the correctness of the court's action." 7

CASE 1: MONTEJO assails the order of dismissal appealed from upon the ff. grounds: FIRST GROUND:a) that the duty to serve summons upon the defendants devolves upon the clerk of court, not upon the plaintiffs; a The appellants contend that under sections 1, 2, and 3, of Rule 31, Rules of Court, it is the duty of the clerk of court and not of the plaintiff to include a case in the trial calendar after the issues are joined and that it is also the duty of the clerk of court and not the plaintiff to fix the date for trial and to cause a notice to be served upon the parties. SUPREME COURT SAID: But the duty imposed upon the clerk in these sections of the Rules does not relieve the plaintiff of his own duty to prosecute the case diligently, for the non-performance of that duty by plaintiff is by section 3 of Rule 30 made an express ground for dismissing the action. If the clerk, therefore, in the present cases had been negligent, it was plaintiff's duty to call the court's attention to that fact so that the administration of justice would not suffer delay. SECOND GROUND: that service of summons by publication is not feasible in this case. The second ground did not justify plaintiffs' inaction for three (3) years. If there was no means of summoning any of the defendant's, plaintiffs should have so informed the court and moved for their exclusion from the complaint, within a reasonable period of time, so that the case could be disposed on one way or another instead of being left pending indefinitely, the contributing to the clogging of our court dockets. Besides, plaintiffs could have asked that the defendants be summoned by publication, pursuant to sections 16 and 17 of Rule 41 of the Rules of Court, the action being one for partition of real properties in the Philippines. CASe 2: Appellant in L-29098 alleges that the failure of his counsel to appear at the pre-trial, on January 4, 1968, was due to the fact that he then had to attend the trial of another case; that he had filed, on December 27, 1967, a motion for postponement of said pre-trial upon such ground; and that, although the motion was denied on December 29, 1967, notice of the order to this effect was not received by him until January 12, 1968, or eight (8) days after the scheduled pre-trial. These reasons are insufficient to warrant a reversal of the order appealed from. Appellant was represented by the

"Achacoso, Ocampo and Simbulan" Law Firm, on behalf of which Atty. Sabino P. Palomares, Jr. had appeared. If Atty. Palomares had another case set for trial on January 4, 1968, any of the three (3) members of the law firm could have and should have appeared at the pre-trial of the case at bar. Moreover, in the absence of an order granting said motion for postponement, appellant's counsel was not justified in assuming that the motion would be granted. The fact that the plaintiffs had filed a motion for continuance ... does not entitle the plaintiffs to presume that their motion for continuance would be granted. Motions for postponement are left to the sound discretion of the trial court and unless there be an abuse of such discretion this Court will not interfere with the exercise of that discretion. ... 14 CASE 3: As regards L-29373, having been rendered pursuant to a compromise between plaintiff Bolivar and defendant Bandayrel, who has not assailed the validity of said compromise, the judgment of the City Court was not appealable. Regardless of whether or not Bandayrel had failed to exercise reasonable diligence in the prosecution of his appeal, the same was, therefore, dismissed properly. CASE4: with respect to L-29454, that from March 24, 1961, when the case was set for trial, to December 8, 1966, when it was dismissed, over five (5) years and eight (8) months had elapsed, during which plaintiff had done nothing to prosecute the case, and that, in its order of March 17, 1964, the lower court had already warned the parties "that no further postponement shall be granted," it is clear that the order of dismissal therein appealed from was fully justified. CASE 5: in L-29542 it does not show that there was a patent abuse of discretion in dismissing the case for failure on his part, as plaintiff therein, to prosecute it for over eleven (11) months considering that the subject matter of the litigation was a small sum of money 16 and that appellant's claim therefor had been found by the city court to be groundless. 17 CASE 6: In L-30711, both parties were notified, on August, 8, 1966, that the record of the appeal taken by the plaintiff therein from the judgment of dismissal rendered by the municipal court of General Santos had been received by the Court of First Instance of Cotabato. Yet, up to January 30, 1969, when the case was ordered dismissed, or for about two (2) years and a half, plaintiff-appellant had taken no step whatsoever to prosecute its claim. The excuse given by counsel for the plaintiff is that he was waiting for the clerk of the court of first instance to issue the proper notice of pre-trial, without which the case would not be ready for trial. This excuse is untenable. In the language of the Smith Bell case: ... (T)he duty imposed upon the clerk ... does not relieve the plaintiff of his own duty to prosecute the case diligently, for the non-performance of that duty by plaintiff is by section 3 of Rule 30 made an express ground for dismissing the action. If the clerk, therefore, in the present cases had been negligent, it was plaintiff's duty to call the court's attention to that fact so that the administration of justice would not suffer delay. CASE 7: the order of dismissal for the inaction of plaintiff in L-30744, from August 14, 1967 when she filed her reply, with an answer to the defendant's counterclaim to January 23, 1969 or for over seventeen (17) months when said order was issued was, likewise, justified. Appellant's argument to the effect that the case was not ready for trial, no pre-trial having as yet been held, is for the reasons adverted to in relation to L-30711 devoid of merit.

CASE 8: in L-30933, more than five (5) years having elapsed from the submission of appellants' record on appeal on April 14, 1962, to August 11, 1967, when the appeal was dismissed. Appellants maintain that their duty to see to it that the record on appeal was transmitted and certified to the appellate court starts only from its approval. It is their duty as appellants to exercise diligence in the prosecution of their appeal. Obviously this duty includes that of securing the approval of the record on appeal and its transmittal to the appellate court. CASE 9: the mistake allegedly committed by the office secretary of appellant's counsel, in L-31072, in making the entry for the hearing of the case, on February 6, 1969, in the space for February 11, 1969, in his new pocket calendar, is too flimsy to warrant a reversal of the order of dismissal complained of, apart from being difficult to believe. At any rate, the sworn statement of appellant Olilang, attached, by way of affidavit of merit, to his motion for relief, does not satisfy the requirements therefor, it being no more than a general, abstract assertion of a conclusion that he has "a valid and meritorious cause of action against the respondents" therein, without any fact in support thereof. WHEREFORE, the orders appealed from in each one of these nine (9) cases are hereby affirmed, with costs against the respective appellants, except appellant in L-30711, which is the Government. It is so ordered. G.R. No. 166356 February 2, 2010

BENEDICTA M. SAMSON and MARCIAL M. SAMSON, Petitioners, vs. HON. JUDGE GERALDINE C. FIEL-MACARAIG, BANK OF THE PHILIPPINE ISLANDS, FAR EAST BANK AND TRUST CO., ATTY. JULIA CECILY COCHING-SOSITO, and THE REGISTER OF DEEDS FOR MARIKINA CITY,Respondents. Facts: Petitioners obtained a loan amounting toP10,000,000 from FEBTC. The loan was secured by a real estate mortgage. When petitioners failed to comply with the terms of the loan agreement, FEBTC extrajudicially foreclosed the mortgaged properties. On 8 June 2000, only one bidder, FEBTC, submitted its bid, thereby causing the sheriff to postpone the public auction sale to 29 June 2000, in accordance with SC AM No. 99-10-05-0 and the Notice of Sheriff's Sale which states, inter alia: In the event that there are less than two (2) participating bidders in the original date of auction sale as afore-stated, the same shall be postponed to June 29, 2000 at the same time and place without need of republication and reposting [of] this notice. On 29 June 2000, the mortgaged real properties were sold at public auction to FEBTC as the highest bidder, and a Certificate of Sale was issued in favor of the bank.

Almost two years later, petitioners, together with Pepito, Zenaida, Julieta, Edgardo, Rolando, Rempson, and Rocky, all surnamed Samson, filed a case for "Annulment of Extra-judicial Foreclosure and/or Nullification of Sale and the Certificates of Title, plus Damages and with Prayer for a Temporary Restraining Order [TRO] and/or Writ of Preliminary Injunction." They questioned the validity of the 29 June 2000 auction sale for alleged lack of posting and publication requirements. RTC - denied plaintiffs application for TRO and/or Writ of Preliminary Injunction. On 20 June 2003, RTC dismissed the complaint for failure to prosecute for an unreasonable length of time. MR denied on 22 December 2003. CA dismissed Petition for Certiorari under Rule 65. MR denied. ISUUE: WON CA erred in dismissing the petition for certiorari for plaintiffs failure to prosecute despite the fact that one of the defendants, Ex-Officio Sheriff Julia Cecily Coching-Sosito, had not yet submitted her responsive pleading hence, the issues were not yet joined and it was still premature for petitioners to move for a pre-trial of the case. HELD: NO. RTC dismissed the case with prejudice for failure to prosecute for an unreasonable length of time, pursuant to Section 3, Rule 17 of the Rules of Court which states, thus: 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 courts 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. The RTC Order dated 20 June 2003 was a final judgment which disposed of the case on the merits. This was even clarified in the subsequent RTC Order of 22 December 2003 (which denied petitioners motion for reconsideration) wherein the lower court stated that: "Therefore, the dismissal was with prejudice or a dismissal that had the effect of adjudication upon the merits in accordance with Section 3, Rule 17 of the Rules of Court." The failure of the Ex-Officio Sheriff to file her Answer should not have prevented petitioners from performing their duty under Section 1 of Rule 18 of the Revised Rules of Civil Procedure which provides: 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.

Petitioners could have availed of other remedies, such as the filing of a motion to declare Ex-Officio Sheriff in default, to avoid unnecessary delay in court proceedings. ELOISA MERCHANDISING, INC. and TREBEL INTERNATIONAL, INC., petitioners, vs. BANCO DE ORO UNIVERSAL BANK and ENGRACIO M. ESCASINAS, JR., in his capacity as Ex-Officio Sheriff of the RTC of Makati City, respondents.

DECISION

VILLARAMA, JR., J p: Assailed in this petition for review on certiorari under Rule 45 are the Decision 1 dated March 30, 2010 and Resolution 2dated June 15, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 89779. The CA affirmed the trial court's dismissal of petitioners' complaint on the ground of failure to prosecute. On November 11, 1993, petitioner Eloisa Merchandising, Inc. (EMI) executed in favor of respondent Banco de Oro Universal Bank (BDO) a real estate mortgage (REM) over its properties located at No. 129 Neptune St., Bel-Air Village II, Makati City, Metro Manila and covered by Transfer Certificate of Title Nos. 157092, and 157093. The REM was further amended on May 16, 1996, December 23, 1996, September 16, 1998 and July 2, 1999 to secure the principal obligation totalling Twenty-Nine Million Nine Hundred Thousand Pesos (P29,900,000.00) drawn from the Credit Line Agreement of EMI and Term Loan Agreement of Trebel International, Inc. (Trebel). EMI likewise executed a Continuing Suretyship in favor of BDO to secure the credit accommodation extended by BDO to petitioner's affiliate, Trebel. 3 On January 10, 2002, BDO initiated foreclosure proceedings by filing an application for extrajudicial foreclosure before the Office of the Ex-Officio Sheriff of the Regional Trial Court (RTC) of Makati City. 4 Accordingly, respondent Engracio M. Escasinas, Jr. issued a notice setting the auction sale of the mortgaged property on March 7, 2002. On March 1, 2002, petitioners filed a Complaint 5 for "Annulment of Real Estate Mortgage, Injunction & Damages With Prayer for Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order," docketed as Civil Case No. 02-245 of the RTC of Makati City, Branch 59. Petitioners alleged the following as grounds for nullity of the REM: (1) the contract is in the nature of a third-party mortgage to secure the loans of Trebel despite the fact that EMI is not in the suretyship business; (2) after maturity of the loans, BDO granted Trebel extensions of time to pay without notice to EMI, thus extinguishing the corporate guaranty or suretyship and REM, pursuant to Art. 2079 of the Civil Code; (3) under the promissory notes, BDO unilaterally fixed an adjustable, "floating" interest rate on each interest period as may be favorable to it, a potestative condition which is null and void under Art. 1308 of the Civil Code; and (4) the penalty of 3% per month or 36% per annum is exorbitant and excessive. Petitioners further claimed that BDO acted with malice and evident bad faith in initiating the extrajudicial foreclosure proceedings. HCacDE

BDO filed a motion to dismiss 6 on the ground of lack of cause of action which can be determined from the facts alleged in the complaint and considering all annexes, motions and evidence on record. On May 7, 2002, petitioners filed an amended complaint 7 which impleaded the Register of Deeds and alleged that the mortgaged property was sold at a public auction on March 7, 2002. On July 18, 2002, petitioners filed a "Motion for Leave to File and to Admit Second Amended Complaint," 8 which averred that the Register of Deeds of Makati City has consolidated the titles over the foreclosed properties and issued new titles in the name of BDO. On November 28, 2002, the trial court issued an order 9 granting the motion to admit second amended complaint and denying the motion to dismiss. BDO was directed to file a responsive pleading. On January 17, 2003, BDO filed its Answer 10 traversing the allegations of the complaint and asserting that: (1) there was only forbearance on BDO's part before filing the extrajudicial foreclosure due to insistent request of petitioners who repeatedly promised to settle their obligations, and for humanitarian reasons; (2) the loan documents clearly stated that no prior demand is necessary before the entire obligation becomes due and demandable; (3) on June 22, 1999, Trebel obtained a "Term Loan Agreement" in addition to the previously granted P5,000,000.00 Credit/Trust Receipts Line granted by BDO, from which Trebel availed of P19,900,000.00, part of which was used to pay off EMI's loans; in consideration thereof, EMI executed a Continuing Suretyship and the Fourth Amended REM to the extent of P29,900,000.00 in favor of BDO; (4) Trebel subsequently made several drawings from its own credit lines in the total amount of P29,880,000.00 under Promissory Notes (PNs) executed on various dates; (5) because Trebel failed to satisfy its loan obligations under the aforesaid PNs, BDO was compelled to file an application for extrajudicial foreclosure of the REM on January 10, 2002, and BDO won as the highest bidder during the public auction sale; (6) EMI was not a third-party mortgagor considering that it secured its own obligations and Trebel has assumed its obligations in full; the veil of corporate fiction maybe pierced in this case, and EMI is already estopped from raising the issue of ultra vires act after Trebel had defaulted on its obligations; (7) with the execution of the Continuing Suretyship, EMI bound itself solidarily with the principal debtor, Trebel, and the right of BDO to proceed against EMI as surety exists independently of its right to proceed against Trebel; EMI as surety is not even entitled to a notice of the principal's default; (8) the Conforme Letter dated June 14, 1999 sent by BDO to EMI showed the consent of Mr. Roberto L. Del Rosario (President) and Ms. Emma M. Del Rosario (Finance Manager) who both signed the said letter which provides for a floating interest rate based on the 364-day Treasury Bill Rates plus 4% or the BDO Reference Rate plus 7.5%; T-Bill Rates are one of the most objective and generally used standard for interest rates; and (9) the liquidated penalty was part of the parties' agreement, which will not accrue until Trebel defaults on its obligations with BDO. In the Notice of Pre-Trial 11 dated January 22, 2003, the trial court set the pre-trial conference on February 27, 2003. In compliance with the trial court's directive, the parties submitted their respective pre-trial briefs. On March 13, 2003, petitioners filed a "Motion to Admit Supplemental Complaint" which further alleged that BDO's petition for issuance of a writ of possession was granted by the RTC of Makati City, Branch 143 in a Decision dated February 18, 2003. EMI reiterated that its rights as surety-mortgagor were

violated in the railroaded ex parteproceedings implementing the writ of possession even as EMI's pending motion for reconsideration was still unresolved by Branch 143. 12 In its Order 13 dated June 19, 2003, the trial court denied the motion to admit supplemental complaint on the ground that the matters raised in the supplemental complaint were improper as they pertain to issuances by another branch in a separate petition for writ of possession. SAHEIc At the scheduled pre-trial conference on June 26, 2003, on motion of petitioners, they were allowed to present evidenceex parte in view of the absence of BDO which was non-suited. In its motion for reconsideration, BDO's counsel cited extraordinary and non-moving traffic as reason for his failure to arrive on time for the pre-trial conference. The trial court, in an Order dated August 27, 2003, granted the said motion, reinstated the case and set the case again for pre-trial conference on September 26, 2003, later moved to November 10, 2003, and finally rescheduled to January 12, 2004 by agreement of the parties. 14 On July 16, 2003, petitioners filed a motion for reconsideration of the June 19, 2003 Order denying their motion to admit supplemental complaint; BDO filed its opposition to the said motion. For failure of the petitioners to appear despite due notice at the scheduled pre-trial conference on January 12, 2004, the case was ordered dismissed. 15 In their motion for reconsideration, petitioners' counsel claimed that his failure to attend was due to his accidental falling on the stairs of his house in the morning of January 12, 2004, due to which he had to be attended by a "hilot". In an Order dated May 7, 2004, the trial court reconsidered the dismissal and scheduled anew the pre-trial conference on June 29, 2004, which date was subsequently reset to August 3, 2004 for lack of proof of service upon petitioners' counsel. 16 Since petitioners again failed to appear on the re-scheduled pre-trial conference on August 3, 2004, the trial court issued the following Order: When this case was called for pre-trial conference, only counsel for the defendants appeared. There was no appearance on the part of the plaintiffs, despite the fact that as early as June 29, 2004, they were notified for today's hearing. The Court, however, is in receipt of a Motion to Reset filed by counsel for the plaintiff, alleging among others, that he is to appear at the MTC of San Jose, Batangas, which was set earlier than the hearing of this case. The Court finds the ground not meritorious

because counsel of plaintiffs in open Court on June 29, 2004 signed the notification for the hearing of this case. Counsel could have objected to the chosen date if

indeed he was not available. Likewise, the records will show that on January 12, 2004, this case was also dismissed for failure of the plaintiffs to appear for pre-trial conference. This should have served as a warning to herein plaintiffs. In view hereof, upon motion of the herein defendants, the above-entitled case is hereby ordered dismissed pursuant to Section 5, Rule 18 of the Rules of Court. SO ORDERED. 17 (Italics supplied.)

Petitioners moved to reconsider the above order, their counsel alleging that he had misplaced or lost his calendar book and could not have ascertained the availability of his schedule. Stressing that he had no intention to ignore the hearing as in fact he filed a motion to reset the same six days prior to the scheduled hearing, petitioners' counsel pleaded for the kind indulgence of the court. AHaDSI On December 29, 2004, the trial court issued an Order 18 granting petitioners' motion for reconsideration "in the interest of justice" and reinstating the case. The trial court, however directed petitioners to be "more circumspect in attending to this case." In its Order 19 dated September 20, 2005, the trial court dismissed the case for failure of petitioners to prosecute their case. Citing the two previous dismissals on account of petitioners' non-appearance at the pre-trial conference, the trial court said that "[f]rom the date of its second reconsideration of the order of dismissal on December 29, 2004 until today, plaintiffs did not do anything to prosecute the instant case." Petitioners filed a motion for reconsideration in which they averred that: 1.After the reconsideration of the Order of dismissal on December 29, 2004, the plaintiffs counsel, Atty. Anselmo A. Marqueda, on several occasion, passed by the court and diligently followed-up the hearing of this case. He was assured by an officer of the court to just wait for the notice of hearing that they will issue in the instant case. 2.While waiting for the notice of hearing from this court, the respective counsels of the parties negotiated in earnest for an amicable settlement of the case. During the last telephone conversation with Atty. Roy P.R. Talao, the defendant's bank counsel, and the undersigned agree on some proposals for settlement which are however subject to final confirmation of their respective clients. The plaintiff believe that the parties are very close to agree and enter into an amicable settlement of this case. 3.Apart from the reliance of the undersigned counsel on the statement of the court officer to just wait for the notice of hearing, the undersigned counsel suffered a handicap in making a personal follow-up of this case because of his numerous travels and lengthy sojourn in the province due to family conflict and death of a member of the family. xxx xxx xxx 20 In its Order 21 dated April 10, 2006, the trial court denied petitioners' motion for reconsideration, as follows: . . . Records show that this case has been dismissed thrice (January 12, 2004; August 3, 2004 and September 20, 2005). The first two dismissals were due to the failure of the plaintiffs to appear during the pre-trial conference despite notice. In both cases plaintiffs were admonished to be more circumspect in attending to this

case. This time the instant case was dismissed due to inaction of herein plaintiffs for unreasonable length of time. SIHCDA The Court has been lenient for quite sometime however, plaintiffs seemed inclined to abuse the Court's leniency. Finding no compelling reason to reconsider the assailed order, motion is hereby DENIED. SO ORDERED. Aggrieved, petitioners appealed to the CA arguing that the trial court erred in dismissing the case for failure to prosecute considering that (1) the trial court has not yet resolved petitioners' motion for reconsideration of the order denying their motion to admit supplemental complaint; (2) petitioners are very much interested to prosecute this case to protect their rights in the premises; (3) petitioners have valid and meritorious causes of action; (4) petitioners may not be deprived of their day in court by the negligence of their counsel; and (5) non-suit or default judgment is not encouraged as it violates due process. 22 By Decision dated March 30, 2010, the CA affirmed the trial court's dismissal of the case. The CA said that petitioners cannot justify their prolonged inaction by belatedly raising as issue the pending motion for reconsideration from the trial court's denial of their motion to admit the supplemental complaint, when all along they were aware that the case was at the pre-trial stage as in fact the case was twice dismissed for their failure to attend the pre-trial conference. Under the circumstances stated in its September 20, 2005 Order, the CA held that the trial court cannot be faulted for dismissing the case on the ground of petitioners' failure to prosecute their action, citing this Court's ruling in Olave v. Mistas. 23 The CA also denied the motion for reconsideration filed by the petitioners. Petitioners contend that the only reason for the trial court's dismissal of the case was the failure of their counsel to move to set the case for pre-trial. However, Section 1, Rule 18 of the 1997 Rules of Civil Procedure, as amended, imposing upon the plaintiff the duty to promptly move to set the case for pretrial, had been repealed and amended by A.M. No. 03-1-09-SC which took effect on August 16, 2004. This amendment to the rule on pre-trial now imposes on the clerk of court the duty to issue a notice of pre-trial if the plaintiff fails to file a motion to set the case for pre-trial conference. Petitioners point out that the case was not yet ripe for pre-trial because of the unresolved pending motion for reconsideration of the trial court's denial of the motion to admit supplemental complaint. In any event, petitioners assert that they are very much interested to prosecute the case as they have presented evidence in their application for the issuance of TRO and writ of preliminary injunction, amended the complaint several times, their representatives have always been attending as notified by their lawyers, and their counsel was following up the case but the Clerk of Court could not set the case for pre-trial because of the pending motion. As to the prior dismissals of the case, these should not be taken as badges of failure to prosecute because these had been set aside on meritorious grounds. The circumstances that respondent BDO itself had been declared in default for failure to appear at the pretrial on June 26, 2003 and has asked repeatedly for extensions of time from the court, the ongoing negotiations with BDO for amicable settlement even at the appeal stage, and petitioners' meritorious

causes of action, justify a liberal application of the rules so that petitioners will be given their day in court. ISHCcT Respondent BDO, on the other hand, asserts that the failure of petitioners to move for the setting of the case for pre-trial conference, coupled with their repeated violations of the Rules which prompted the trial court to dismiss their complaint twice, are sufficient grounds for the trial court to finally dismiss the complaint. A.M. No. 03-1-09-SC did not remove plaintiff's obligation to set the case for pre-trial. Petitioners' claim that they relied on a supposed assurance by a court personnel to set the case for pretrial is doubtful, aside from being contradictory to the admission of petitioners' counsel that he "suffered a handicap in making a personal follow-up of this case because of [his] numerous travels and lengthy sojourn in the province due to family conflict and death of a member of the family." As to the alleged negotiations for an amicable settlement, respondent admitted there were talks during court hearings and telephone calls but these were casual and at best, exploratory. No serious offer was made by petitioners, much less concretized. At any rate, even if true, such talks is not a ground to tarry and delay the prosecution of the case which had been pending with the trial court for more than three years and had not even left the pre-trial stage. If indeed petitioners were sincere in their desire to settle, they should have promptly moved for the setting of pre-trial so that the case can be referred for mandatory mediation proceedings. The petition has no merit. Under Section 3, 24 Rule 17 of the 1997 Rules of Civil Procedure, as amended, the failure on the part of the plaintiff, without any justifiable cause, to comply with any order of the court or the Rules, or to prosecute his action for an unreasonable length of time, may result in the dismissal of the complaint either motu proprio or on motion by the defendant. The failure of a plaintiff to prosecute the action without any justifiable cause within a reasonable period of time will give rise to the presumption that he is no longer interested to obtain from the court the relief prayed for in his complaint; hence, the court is authorized to order the dismissal of the complaint on its own motion or on motion of the defendants. The presumption is not, by any means, conclusive because the plaintiff, on a motion for reconsideration of the order of dismissal, may allege and establish a justifiable cause for such failure. 25 The burden to show that there are compelling reasons that would make a dismissal of the case unjustified is on the petitioners. 26 Under Section 1, Rule 18 of the 1997 Rules of Civil Procedure, as amended, it is the duty of the plaintiff, after the last pleading has been served and filed, to promptly move ex parte that the case be set for pre-trial. On August 16, 2004, A.M. No. 03-1-09-SC (Re: Proposed Rule on Guidelines to be

We note that when the above guidelines took effect, the case was already at the pre-trial stage and it was the failure of petitioners to set the case anew for pre-trial conference which prompted the trial court to dismiss their complaint. In Olave v. Mistas, 27 this Court said that even if the plaintiff fails to promptly move for pre-trial without any justifiable cause for such delay, the extreme sanction of dismissal of the complaint might not be warranted if no substantial prejudice would be caused to the defendant, and there are special and compelling reasons which would make the strict application of the rule clearly unjustified. In the more recent case of Espiritu v. Lazaro, 28 this Court affirmed the dismissal of a case for failure to prosecute, the plaintiff having failed to take the initiative to set the case for pre-trial for almost one year from their receipt of the Answer. Although said case was decided prior to the effectivity of A.M. No. 03-1-09-SC, the Court considered the circumstances showing petitioners' and their counsel's lack of interest and laxity in prosecuting their case. In this case, while there was no substantial prejudice caused to herein respondent, who has already consolidated the ownership of petitioners' properties, secured new titles in its name and successfully implemented a writ of possession issued by another branch, there was neither patent abuse in the trial court's dismissal of the complaint for the thirdtime, the earlier two dismissals having been precipitated by petitioners' non-appearance at the pre-trial conference. Contrary to petitioners' assertion, the trial court did not find their offered excuses as meritorious or justifiable; the trial court in the exercise of discretion simply reinstated the case "in the interest of justice" but explicitly warned petitioners to be more circumspect in attending to the case. However, despite the trial court's leniency and admonition, petitioners continued to exhibit laxity and inattention in attending to their case. Assuming domestic problems had beset petitioners' counsel in the interregnum, with greater reason should he make proper coordination with the trial court to ensure his availability on the date to be chosen by the trial court for the long-delayed conduct of a pre-trial conference. Petitioners themselves did nothing to get the case moving for nine months and set the case anew for pre-trial even as BDO was already seeking their judicial ejectment with the implementation of the writ of possession issued by Branch 143. Such circumstance also belies their pretense that the parties were then still negotiating for a settlement. We have held that a party cannot blame his counsel when he himself was guilty of neglect; and that the laws aid the vigilant, not those who slumber on their rights. Vigilantibus sed non dormientibus jura subveniunt. 29 We also agree with the CA that petitioners are belatedly raising as issue the unresolved motion for reconsideration of the denial of petitioners' motion to admit supplemental complaint. Petitioners did not even file a motion to resolve the said pending incident which, in any event, could have been brought to the trial court's attention had petitioners acted promptly to have the case set anew for pre-trial conference soon after or within a reasonable time from the reinstatement of the case on December 29, 2004. IDCcEa While under the present Rules, it is now the duty of the clerk of court to set the case for pre-trial if the plaintiff fails to do so within the prescribed period, this does not relieve the plaintiff of his own duty to prosecute the case diligently. This case had been at the pre-trial stage for more than two years and petitioners have not shown special circumstances or compelling reasons to convince us that the dismissal of their complaint for failure to prosecute was unjustified.

Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of DepositionDiscovery Measures) took effect, which provides that: STaCcA
Within five (5) days from date of filing of the reply, the 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 COC shall issue a notice of pretrial.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated March 30, 2010 and Resolution dated June 15, 2010 of the Court of Appeals in CA-G.R. CV No. 89779 are hereby AFFIRMED and UPHELD. Costs against the petitioners. EHSITc SO ORDERED.