Republic of the Philippines

National Capital Judicial Region
REGIONAL TRIAL COURT
Branch 39, Quezon City

LAKISA LAYAW,
Plaintiff,
Civil Case No. 97-31312
- versus -

LAKISA HIRAP,
Defendant.
x ------------------------- x

EX PARTE MOTION TO SET CASE FOR PRE-TRIAL

PLAINTIFF, by counsel, respectfully states that:

[1] 1. On 1 June 2006, defendant submitted her Answer to the Complaint,
thereby causing the issues to be joined.

[2] 2. This case is, thus, ripe for pre-trial. Complying with Rule 18, Section
1 of the 1997 Rules on Civil Procedure, plaintiff respectfully asks that this case
be set for pre-trial.

[3] WHEREFORE, plaintiff respectfully prays that this case be set for pre-
trial on a date convenient to this Honorable Court.

Quezon City; 13 April 2007.

(Sgd.) ATTICUS FINCH
Counsel for the Plaintiff
[Address]

[4] REQUEST AND NOTICE

THE BRANCH CLERK OF COURT
Regional Trial Court
Branch 39, Quezon City

Please submit the foregoing to the Court for its approval immediately upon
receipt hereof.

Copy furnished:

MITCH MCDEERE, ESQ.
2 The Firm
Laguna Street, Quezon City

Please take notice that counsel has requested for the approval of the
foregoing motion immediately upon receipt.

(Sgd.) ATTICUS FINCH
Counsel for the Plaintiff

PLUS: [5] Proof of Service

as follows: I. 2. Quezon City JOHNNY GALECKI. II.versus - JIM PARSONS. a schedule of payments. [1 & 2] 1. defendant is open to the possibility of amicably settling this dispute. Plaintiff seeks principally to recover the amount of Twenty Two Million Eight Hundred Eighteen Thousand Nine Hundred Forty Eight Pesos and Thirty Centavos (PHP22.x PRE-TRIAL BRIEF DEFENDANT. Subject to a concrete proposal that is fair and reasonable and a reciprocal manifestation of openness from plaintiff. 12-34567 . Plaintiff. first. respectfully submits her Pre-Trial Brief.1. WILLINGNESS TO ENTER INTO AN AMICABLE SETTLEMENT AND POSSIBLE TERMS OF ANY SUCH SETTLEMENT 1.30) with interest at twelve percent (12%) arising allegedly from unpaid orders delivered to defendant variously in 1989.818.2.1. by counsel. Pursuant to Rule 18 of the 1997 Rules of Civil Procedure. Defendant. BRIEF STATEMENT OF CLAIMS AND DEFENSES 2. x ------------------------------------. Republic of the Philippines National Capital Judicial Region REGIONAL TRIAL COURT Branch 20. Defendant resists plaintiff’s claims based on a failure to state a cause of action because of: .948. defendant respectfully submits that the desired terms of any amicable settlement would involve. Civil Case No. a clarification of the actual extent of any obligation due and owing to plaintiff inasmuch as there is nothing to indicate defendant’s obligations to plaintiff and. second.2.

2.1. therefore.2. Plaintiff’s personality to seek legal relief. Defendant also interposed a compulsory counterclaim for Two Million Pesos (PHP2.2. Defendant’s entitlement to the claims made in her Compulsory Counterclaim as a result of plaintiff’s bad faith.. 2. 3. Defendant submits that the following issues she put forward are subject to proof: 4. not being the real party in interest under Rule 3. 1997 and her reply to the demand letter.3.1.2.2.1. EVIDENCE [6] 5.2. who will testify on the true circumstances leading to the filing of this suit against her. 4.00) as attorney’s fees. section 2 of the 1997 Rules of Civil Procedure.000. 2. 4.1. . FACTS AND OTHER MATTERS ADMITTED BY THE PARTIES [3] 3.000.000.000. 2.1. Defendant admits only those facts stated in her Answer. III. Defendant submits that the following issues put forward by plaintiff are subject to proof: 4. Defendant herself.1.2.2. Defendant intends to present the following witnesses: 5.2. Plaintiff’s entitlement to the amount claimed. Subject to a concrete proposal for stipulation of additional facts from plaintiff during pre-trial or even thereafter. defendant admits no other facts stated in the Complaint.00) for moral damages and Two Million Pesos (PHP2. i. Plaintiff’s lack of personality to sue and. Extinguishment of the alleged claim made by the entity Regency Furniture.1. 4. receipt of the demand letter dated January 5.00) for exemplary damages and One Hundred Thousand Pesos (PHP100. V. ISSUES TO BE TRIED [4] 4.e. her personal circumstances. IV.1.1.000.1. Plaintiff’s bad faith in filing this suit.

however. Defendant reserves the right to present any and all documentary evidence which shall become relevant to rebut plaintiff’s claims in the course of trial as well as any other witnesses whose testimony will become relevant to belie plaintiff’s witnesses. to a concrete and reasonable request for discovery from plaintiff.1. RESORT TO DISCOVERY [7] 6. [5] 5.1. An employee of The Big Bang Theory Enterprises with personal knowledge as to the true circumstances behind the alleged obligations due and owing in favor of plaintiff. 25 February 2017. RESPECTFULLY SUBMITTED. Quezon City.2. MELISSA RAUCH Counsel for Plaintiff .) MAYIM BIALIK Counsel for Defendant [Address] Copy furnished: Atty. defendant does not intend to avail of discovery at this time.2. Considering the relatively simple issues presented.2. 5. if necessary. (Sgd. 6. VI. defendant reserves the right to resort to discovery before trial. Subject.

. J....R......... CARPIO MORALES. QUISUMBING.. Department of Present: Environment and Natural Resources... Petitioner. 156606 represented by the Regional Executive Director. . and VELASCO. Promulgated: Respondent. REPUBLIC OF THE PHILIPPINES... .. The 30 July 2002 Decision set aside the 24 July 2001 and 6 September 2001 Orders of the Regional Trial Court........ Branch 80.. OLETA.versus . CARPIO. JR.. Chairperson.. August 17.: The Case This is a petition for review on certiorari[1] of the Decision[2] dated 30 July 2002 and the Resolution[3]dated 3 January 2003 of the Court of Appeals in CA-G.. 66714. JJ.TINGA... The failure of a party to file a pre-trial brief or to appear at a pre-trial conference shall be cause to allow the other party to present evidence ex parte. The 3 January 2003 Resolution denied petitioners motion for reconsideration.. Regional Office IV..... No. Morong. respectively... SP No... ILDEFONSO T..R. J... G.. 2007 x ...... Rizal(trial court) which reinstated the complaint filed by petitioner Republic of the Philippines (petitioner) and denied respondent Ildefonso Oletas (respondent) motion for reconsideration..-x DECISION CARPIO..

m.m. Thereafter. Petitioners counsel explained that he arrived at the pre-trial conference at 9:55 a. On 17 April 2000. Records also showed that petitioner failed to file a pre-trial brief. the trial court dismissed the complaint for failure to prosecute. and reversion against respondent and the Register of Deeds of Rizal. the time requested in the motion for postponement. Petitioner also explained that the pre-trial brief was filed on 8 June 2001 by registered mail and that it was unfortunate that neither the trial court nor respondent received it on time. . The trial court warned petitioner that failure to appear at the scheduled pre-trial would constrain the trial court to act accordingly. On the 14 June 2001 pre-trial. On 11 January 2001. The trial court granted petitioners motion and reset the pre-trial to 14 June 2001 at 8:30 a. petitioner and petitioners counsel failed to appear. In an Order[6] dated the same day.Petitioner asked the trial court to reconsider its 14 June 2001 Order and reset the pre-trial to 2 August 2001. petitioner moved that the pre-trial be reset to 14 June 2001 at 10:00 a. However. on 8 May 2001. original certificate of title. the trial court reinstated the complaint on 15 March 2001. Upon petitioners motion and over respondents opposition. because he expected the pre-trial to start at 10:00 a. petitioner filed a complaint for cancellation of free patent.. The Facts On 29 December 1999.m. the trial court issued an Order[4] dismissing the complaint without prejudice because of petitioners failure to set the case for pre-trial.[5] Pre-trial was set for 17 May 2001. respondent filed his answer. Petitioner filed a motion for reconsideration. the trial court issued an Order dated 4 July 2000 directing petitioner to take the legal steps so that the case can be expedited.m.

Petitioner filed a motion for reconsideration which the Court of Appeals denied in its 3 January 2003Resolution.[8] the trial court denied respondents motion. Respondent alleged that the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the 24 July 2001 and 6 September 2001 Orders because the trial court disregarded the rules on pre-trial. In its 30 July 2002 Decision. The Court of Appeals ruled that the trial court abused its discretion when it reinstated the complaint even if petitioners counsel had no special authority to represent plaintiff at pre-trial.In its 24 July 2001 Order. this petition. Respondent filed an Urgent Motion for Reconsideration. granted petitioners motion and reinstated the complaint. the Court of Appeals granted the petition and set aside the 24 July 2001 and 6 September 2001 Orders of the trial court. respondent filed a petition [9] for certiorari with prayer for preliminary injunction or temporary restraining order with the Court of Appeals. The Court of Appeals added that the trial court had no discretion on the matter of petitioners failure to file its pre-trial brief on time. On Failure to File Pre-trial Brief . Hence. The Issue Petitioner raises the sole issue of whether the Court of Appeals erred in setting aside the 24 July 2001 and 6 September 2001 Orders of the trial court. On 18 September 2001. In its 6 September 2001 Order.[7] the trial court. The Ruling of the Court The petition is meritorious. in the interest of substantial justice.

plaintiffs failure to file the pre-trial brief shall be cause for dismissal of the action. [15] Section 4.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. Rule 18[10] of the Rules of Court (Rules) mandates that parties shall file with the court and serve on the adverse party their pre-trial briefs at least three days before the scheduled pre-trial.Section 6. If the trial court has discretion to dismiss the case because of plaintiffs failure to appear at pre-trial. On the Absence of a Special Power of Attorney Petitioners counsel admits that he was not equipped with a special power of attorney when he appeared at the 14 June 2001 pre-trial. Therefore. ― It shall be the duty of the parties and their counsels to appear at the pre-trial. whether an order of dismissal should be maintained under the circumstances of a particular case or whether it should be set aside depends on the sound discretion of the trial court. [13] then the trial court also has discretion to dismiss the case because of plaintiffs failure to file the pre-trial brief. to submit to alternative modes of . the trial court had discretion to lift the order of dismissal after giving credence to petitioners explanation.[14] In this case. petitioner sufficiently explained that the pre-trial brief was sent by registered mail to the trial court and respondent on 8 June 2001. Rule 18 of the Rules provides: SEC. Appearance of parties. The Rules also provide that failure to file the pre- trial brief shall have the same effect as failure to appear at the pre-trial. That the trial court and respondent did not receive the pre-trial brief at least three days prior to the pre- trial was already beyond petitioners control. petitioners counsel claims that the special authority need not be in writing and may be established by competent evidence or subsequently ratified by the party concerned. However.[12] The Court of Appeals erred in ruling that the trial court had no discretion on the matter of a partys failure to file a pre-trial brief. 4. Moreover. [11] Therefore.

Magpayo. We SET ASIDE the 30 July 2002 Decision and 3 January 2003Resolution of the Court of Appeals in CA-G.There is also no indication that petitioner had manifested lack of interest to prosecute or acted deliberately with the intention to delay the proceedings. irresponsible. there is also no showing that petitioner willfully and flagrantly disregarded the trial courts authority. or dilatory as to provide substantial grounds for dismissal for non-appearance. Therefore. Court of Appeals. Under the old rules. In this case. the trial court acted accordingly when it set aside the order of dismissal and ordered the reinstatement of petitioners complaint. exigencies and situations might occasionally demand flexibility in their application.[19] the Court ruled that unless a partys conduct is so negligent.R. and to enter into stipulations or admissions of facts and of documents. As held in United Coconut Planters Bank v. .[18] In this case. However. However. We are not saying that adherence to the Rules could be dispensed with. a representative was allowed to establish the authority needed by showing either a written special power of attorney or competent evidence other than the self-serving assertions of the representative. and it must be shown that the discretion was exercised arbitrarily and despotically. dispute resolution. Moreover. WHEREFORE. The abuse must be grave and patent.[20] In this instance. the new rules require nothing less than the authority be in writing. The Court of Appeals ruled that the trial court abused its discretion when it reinstated the complaint despite the fact that petitioners counsel had no special authority to represent petitioner at pre-trial. nor can the courts assume that all the powers specified in Section 4 of Rule 18 are granted by the party to his representative. abuse of discretion is not sufficient by itself to justify the issuance of a writ of certiorari. there is no showing that the trial court gravely abused its discretion in reinstating petitioners complaint. the courts should consider lesser sanctions which would still amount into achieving the desired end. we GRANT the petition. substantial justice can be best served if both parties are given the full opportunity to litigate their claims in a full-blown trial. contumacious. in Calalang v.[16] However.[17] the rules now require the special power of attorney be in writing because the courts can neither second-guess the specific powers given to the representative.

Rizal which was foreclosed by the Farmers Savings and Loan Bank. Salvador issued a manager’s check in favor of Benavidez in the amount of One Million Pesos (P1.00) in cash. Branch 80. Anti polo City (RTC- 3 Antipolo) in Civil Case No.000. Benavidez filed a motion to dismiss on the ground of litis pendentia. Florence B. No.00) and released Five Hundred Thousand Pesos (P500. Benavidez executed a promissory note. All the postdated checks which she had issued to pay for the interests were dishonored. The Facts: Sometime in February 1998. failed to deliver the required SPA. J. the demand fell on deaf ears which constrained Salvador to file a complaint for sum of money with damages with prayer for issuance of preliminary attachment. For the loan obtained. 2005 Decision and the June 8. dated January 11. To secure the loan. Rizal. dated March 11. Respondent. 1998. 73487. (Farmers Savings). Branch 80. vs. 2000. and Cris Marcelino. Nepthalie Segarra. Unfortunately. We REINSTATE the 24 July 2001 and 6 September 2001 Orders of the Regional Trial Court. Morong. CV No. 2001 Decision of the Regional Trial Court. his counsel. NESTOR SALVADOR. which affirmed 2 and modified the June 1. 00-5660. in CA-G.R. 2000. 173331 December 11. SO ORDERED. Baning would authorize her mother to obtain a loan and to constitute the said property as security of her indebtedness to Salvador. whom she named as the vendee in the deed of absolute sale of the repurchased property. Baning (Baning). a promissory note and a deed of sale. Pursuant to the agreement. 66714. G. before the Regional Trial Court. This development prompted Salvador to send a demand letter with a corresponding statement of account. Salvador agreed to lend the money subject to certain conditions. 2013 FLORPINA BENAVIDEZ. Branch 74. Morong. After inspecting the said property. Petitioner. Almar Danguilan.SP No.: This is a petition for review on certiorari assailing the November 22. She was also required to submit a special power of attorney (SPA) executed and signed by Benavidez’s daughter. DECISION MENDOZA. she had filed a Complaint for Collection for Sum of Money. In the SPA. Benavidez. pet1t1oner Florpina Benavidez (Benavidez) approached and asked respondent Nestor Salvador (Salvador) for a loan that she would use to repurchase her property in Tanay.000. On May 4.R. Annulment of Contract and Checks with Prayer for Preliminary Injunction and Temporary Restraining Order against Salvador. Inc. Benavidez was required to execute a real estate mortgage.000. however. Rizal (RTC- . She also defaulted in her obligation under the promissory note. Atty. She averred that prior to the filing of the case before the RTC-Antipolo. 1 2006 Amended Decision of the Court of Appeals (CA).

Resultantly. She claimed that prior to the filing of the said complaint against her. upon motion. 2000.21. 6 Frustrated. 1998 to January 11. Also.Morong). that early on. Cost of suit. She added that the absence of her counsel on the scheduled pre-trial conference caused her substantial prejudice. The motion to dismiss. 2001. On June 1. in view of the foregoing premises. she had already filed a complaint for the annulment of the promissory note evidencing her obligation against Salvador. According to her. 5 Benavidez filed a motion for reconsideration but unfortunately for her.00. however. 2001 Order. 2000. Thus. the trial court pointed out that the evidence had shown that as of January 11. She argued. 7 Benavidez also argued that RTC-Antipolo erred in refusing to re-open the case for pre-trial conference and disallowing her to present evidence. . and. She added that Salvador never informed RTC-Antipolo about the pending case before RTC-Morong. 3. Though she was not unmindful of the general rule that a client was bound by the mistake or negligence of her counsel. Benavidez’s obligation had already reached the total amount of P4. 2. there was substantial identity in the causes of action and any result of her complaint for annulment would necessarily affect the complaint for collection of sum of money filed against her. 2001 Order of RTC- Antipolo to the CA. 2000. Benavidez filed her answer with counterclaim. in chief.810. 2001 but she and her counsel failed to appear despite due notice.000. exclusive of interest and penalty charges until the said amount is fully paid. 2000. Salvador was allowed by the trial court to present evidence ex parte.000. covering the period from June 11.00 as exemplary damages. rendering his certification on forum shopping erroneous. RTC-Antipolo decided the subject case for Salvador. was denied by RTC-Antipolo on July 31.21. the litigation should have been reopened to give her the opportunity to present her case. she insisted that since the incompetence or ignorance of her counsel was so great and the error committed was so serious as it prejudiced her and denied her day in court.500. she had failed to settle her obligation despite having received oral and written demands from Salvador. The sum of 25% of the total obligation as and by way of attorney’s fees. The amount of P4. The amount of P50. SO ORDERED. 4. in its August 10. the fallo of the said decision reads: 4 WHEREFORE. Benavidez appealed the June 1. A pre-trial conference was scheduled on May 2. the trial court should have dismissed the complaint for collection of sum of money filed by Salvador on grounds of litis pendentia and erroneous certification against forum shopping. denied her motion for lack of merit.703. On September 15.703. defendant is hereby directed to pay plaintiff the following: 1. It found that indeed Benavidez obtained a loan from Salvador in the amount of P1. RTC-Antipolo.810. 8 The CA was not moved. 2001 Decision and the August 10. It also noted that up to the time of the rendition of the judgment.

the CA issued the Amended Decision. The Decision dated November 22.The CA reasoned out that RTC-Antipolo did not err in allowing Salvador to present his evidence ex- parte in accordance with Section 5. holding that the motion was partly meritorious. Benavidez and her counsel 9 failed to show a valid reason for their non-appearance at the pre-trial and so their absence was not excusable. Thus. Rule 37 of the Rules of Civil Procedure. The CA emphasized that well-entrenched was the rule that negligence of counsel bound his client. Accordingly. 10 With regards to the grounds of litis pendentia and forum shopping cited by Benavidez. Benavidez’s position that the trial court should have reopened the case was untenable. Thus. the CA affirmed in toto the decision of RTC- 11 Antipolo. 2006. the motion for reconsideration is PARTIALLY GRANTED. Whether or not the present case is barred by Civil Case No. Benavidez filed a motion for reconsideration on the ground that the same was contrary to law and jurisprudence. On June 08. She was bound by the action of his counsel in the conduct of the trial. There could be identity of the parties. the decretal portion of the Amended Decision reads: WHEREFORE. One case was for the annulment of the promissory note while the other one was a complaint for sum of money. Her counsel’s negligence.12 Feeling aggrieved by the affirmance. Thus. 2005 is MODIFIED by DELETING the award of exemplary damages and attorney’s fees. 3. The appellate court also took note that she herself was guilty of negligence because she was also absent during the pre-trial despite due notice. SO ORDERED. and. that her absence during the pre-trial was justified. 4. as Benavidez cited. was not among the grounds for new trial or reconsideration as required under Section 1. the CA wrote that there was no identity of the rights asserted in the cases filed before RTC-Morong and RTC- Antipolo. 2. Rizal. 13 Still unsatisfied. The reliefs prayed for in those cases were different. raising the following issues: 14 1. that litis pendentia existed which resultantly made his certification on non-forum shopping untruthful. legal and equitable justification. it modified its earlier decision by deleting the award of exemplary damages and attorney’s fees because the award thereof was not supported by any factual. Whether or not the case is dismissible because the certification against forum shopping was defective. Benavidez comes before the Court via a petition for review under Rule 45 of the Rules of Court. but all the other requisites to warrant the dismissal of the case on the ground of litis pendentia were wanting. on November 22. Whether or not the CA erred in holding that the order allowing respondent to present evidence ex-parte and submitting the case for decision is valid despite the fact that default judgment is looked upon with disfavor by this Court. Whether or not the executed promissory note is void for being unconscionable and shocking to the conscience. . 00-05660 which is pending before the RTC-Morong. Rule 18 of the 1997 Rules of Court. 2005.

He did not assist her either in filing a motion for reconsideration. Rogelio Jakosalem (Jakosalem). He concludes that the requisites of litis pendentia were indeed present: first. before RTC-Morong. the core issue is whether or not the present case should have been dismissed on the ground of litis pendentia. she failed to appear because she was then suffering from illness. both Benavidez and Salvador were parties to both complaints. there is no hard and fast rule in determining which of the two actions should be abated Litis pendentia is a Latin term. If RTC-Morong would rule that the promissory note was null and void.In fine. Benavidez explains that Atty. so that one of them becomes unnecessary and vexatious. 15 Benavidez further claims that the case should have been dismissed because the certification on forum shopping which accompanied Salvador’s complaint was defective. where the annulment of the promissory note was sought. As a ground for the dismissal of a civil action. second. 20 . 19 Litis pendentia exists when the following requisites are present: identity of the parties in the two actions. which literally means "a pending suit" and is variously referred to in some decisions as lis pendens and auter action pendant. would have been determinative of the subject case before RTC- Antipolo where the enforcement of the promissory note was sought. she should have been exempted from the rule that the negligence of counsel binds the client. Contrary to the finding of the CA. regardless of which party is successful. This fact could not be denied because summons in the case before RTC- Morong was served on him and he even filed his answer to the said complaint. Jakosalem did not appear on the scheduled pre-trial conference because he got mad at her when she refused to heed his advice to settle when the trial court granted Salvador’s motion for issuance of preliminary attachment. He declared therein that he was not aware of any pending case before any court similar to the one he was filing. His counsel was negligent in his duties when he did not bother to file the necessary pre-trial brief and did not even appear at the pre-trial conference. substantial identity in the causes of action and in the reliefs sought by the parties. Benavidez argues that the outcome of the case. 16 Benavidez also pushes the argument that RTC-Antipolo committed an error of law when it allowed Salvador to present evidence ex-parte and eventually decided the case without waiting to hear her side. would amount to res judicata in the other. her medical certificate was not belatedly submitted. 17 For her part. If there was any one to be blamed for her predicament. and third. it refers to the situation where two actions are pending between the same parties for the same cause of action. there was one. Atty. She submitted it within a reasonable period after she received the order allowing Salvador to present evidence ex-parte and considering the case for resolution thereafter. The trial court should have been more lenient. it should have been his counsel. then the case with RTC-Antipolo would have no more leg to stand on. Under the circumstances. and the identity between the two actions should be such that any judgment that may be rendered in one case. the judgment in either of the said complaints would have been determinative of the other.18 The Court’s Ruling In litis pendentia. both complaints were concerned with the promissory note. It is based on the policy against multiplicity of suits. when in truth and in fact.

the Court is of the view that litis pendentia exists. an action." Without expressly saying so in litis pendentia terms. the more appropriate case is preferred and survives. Thus. The complaint of the owners of the cargo truck prevailed and the complaint of the owners of the bus had to yield. the first and prevailing case was far advanced in development. the Supreme Court has endeavored to lay down certain criteria to guide lower courts faced with this legal dilemma. shall not be dismissed if it is the more appropriate vehicle for litigating the issues between the parties. it would seem that Civil Case No. In Pampanga Bus Company. Another exception to the priority in time rule is the criterion of the more appropriate action. It included its analysis of Abines. preference is given to the first action filed to be retained. The Court held that "parties who base their contention upon the same rights as the litigants in a previous suit are bound by the judgment in the latter case. we applied the principle of Qui prior est tempore. more appropriately. the Court had the occasion to 24 extensively discuss the various rules and consideration in determining which case to dismiss in such situations. both Benavidez and Salvador are parties in both cases. . BPI. Notably. All the elements are present: first. although filed later. 00-5660 or the complaint filed with RTC-Antipolo should have been dismissed applying the "priority-in-time rule. as a result of an adverse decision in one forum. With the foregoing. and the first case can be abated if it is merely an anticipatory action or. As a rule. There are. both complaints are concerned with the same promissory note. This is in accordance with the maxim Qui prior est tempore. potior est jure. the bona fides or good faith of the parties is a crucial element. a party seeks a favorable opinion in another forum through means other than appeal or certiorari. however. the Court gave priority to the suit filed earlier. he who is before in time is better in right) in dismissing a case on the ground of litis pendentia. second. potior est jure (literally. Thus: Early on. complaints for damages arising from a collision of a cargo truck and a bus were separately filed by the owners of the colliding vehicles.21 There is forum shopping when the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in another. forum shopping exists when. Hence. A crucial consideration is the good faith of the parties. limitations to this rule. This was exemplified in the relatively early case of Del Rosario v. The rule is not applied if the first case was filed merely to pre-empt the later action or to anticipate its filing and lay the basis for its dismissal. A later case shall not be abated if not brought to harass or vex. and third. Ocfemia. Inc. [Underscoring supplied] In the relatively recent case of Dotmatrix Trading v. it was written: 23 There is no hard and fast rule in determining which of the actions should be abated on the ground of litis pendentia. however. the first action may be abated if it was filed merely to pre- empt the later action or to anticipate its filing and lay the basis for its dismissal. thus fully joining the issues. is not ironclad. an anticipatory defense against an expected suit – a clever move to steal the march from the aggrieved party. Jacinto where two complaints for reconveyance and/or recovery of the same parcel of land were filed by substantially the same parties. In recent rulings. as the cargo truck owners first filed their complaint. with an answer with counterclaim and an answer to the counterclaim having been already filed. Thus. 22 In the present controversy. Legaspi. with the second case only impleading more party-plaintiffs.On the other hand. but through time." This rule. v. which case then should be dismissed? At first glance. the judgment in either case would be determinative of the other. or in anticipation thereof. In Spouses Abines v.

We also applied the "more appropriate action test" in Ramos v. while the second case was a complaint for sums of money arising from obligations under a promissory note and a chattel mortgage. In the 1956 case of Teodoro v. v. Peralta. et al. 619. the new owner of an apartment sent a demand letter to the lessee to vacate the leased apartment unit. The "priority-in-time rule. 617. In University Physician Services. but the new owner moved to dismiss the consignation case because of the quieting of title case he had also filed against the lessee. we noted that the first action." however. we deviated from the "priority-in-time rule" and applied the "more appropriate action test" and the "anticipatory test. In this case. Littlefield. the more appropriate action is the one where the real issues raised can be fully and completely settled. We noted that ejectment suit is the more appropriate action to resolve the issue of whether the lessee had the right to occupy the apartment unit. this was the subject matter of the second suit for unlawful detainer. we ordered the dismissal of the consignation case. 44 Phil. then the first suit should be dismissed. where the question of possession is likewise the primary issue for resolution. we applied both the "more appropriate action test" and "anticipatory test. v." In all these cases. the lessee filed an action for declaratory relief to fix the period of the lease. 182). Lagamon. and was also the main or principal purpose of the first suit for declaratory relief. but also to prevent confusion that might seriously hinder the administration of justice.In Lamis Ents. Ago Timber Corporation v. v. an issue that was effectively covered by the quieting of title case which raised the issue of the validity and effectivity of the same lease contract. We noted that the unlawful detainer suit was the more appropriate action to resolve the real issue between the parties . is not absolute. In Teodoro. we gave preference to the first action filed to be retained. We also noted . In Teodoro. (Cabigao. the new owner moved for the dismissal of the action for damages on account of the action for ejectment it had also filed." The "more appropriate action test" considers the real issue raised by the pleadings and the ultimate objective of the parties. Court of Appeals. 57 Tex. 79. Finding that the real issue between the parties involved the right to occupy/possess the subject property. "not only as a matter of comity with a coordinate and co-equal court (Laureta & Nolledo. Inc. Commentaries & Jurisprudence on Injunction.whether or not the lessee should be allowed to continue occupying the land under the terms of the lease contract. If the 1âwphi1 first suit is filed merely to preempt the later action or to anticipate its filing and lay the basis for its dismissal. In the "anticipatory test.. the first case was a complaint for specific performance of obligations under a Memorandum of Agreement. and damages. was filed by the lessee to anticipate the filing of the second action. 124 SW 212). Del Rosario. et al. We dismissed the second case because the claims for sums of money therein arose from the Memorandum of Agreement sued upon in the first case. A. the lessee filed an action for consignation of lease rentals against the new owner of the property. noting that the quieting of title case is the more appropriate vehicle for the ventilation of the issues between them. unlawful detainer. but the lessor moved for its dismissal because he had subsequently filed an action for ejectment against the lessee. considering the lessor's letter informing the lessee that the lease contract had expired. The Court ruled that the second action should be dismissed. Ruiz offered an insightful reason after both parties had each pleaded the pendency of another action between the same parties for the same cause. Div. declaratory relief. p." the bona fides or good faith of the parties is the critical element. the consignation case raised the issue of the right to possession of the lessee under the lease contract." In this case. citing Harrison v. When the lessee filed an action for damages and injunction against the new owner. Mirasol.

the petitioners acknowledged their indebtedness to the respondent. The primary issue – the physical possession of the gasoline station . Benavidez never denied that she contracted a loan with Salvador. Benavidez prayed. In the complaint that she filed with RTC. Segarra) who arranged the loan in the amount of P1. (2) whether the action sought to be dismissed was filed merely to preempt the later action or to anticipate its filing and lay the basis for its dismissal. the collection case. the Court believes that the case for collection of sum of money filed before RTC-Antipolo should be upheld as the more appropriate case because the judgment therein would eventually settle the issue in the controversy . that it was defendant Atty. we noted that the interpretation of a provision in the lease contract as to when the lease would expire is the key issue that would determine the lessee's right to possess the gasoline service station. We also applied the "more appropriate action test" in the 2003 case Panganiban v. the reformation case. that he paid Farmers Bank the amount of P1. that he was the one who received the amount for her on or about March 10. after her unjustified refusal to vacate the premises.000. A more recent case . Segarra be ordered to give her the balance of the amount loaned and that the promissory note that Salvador allegedly executed be declared null and void because she was just duped into signing the said document through machinations and that the stipulated interest therein was shocking to the conscience. the respondent filed a complaint for collection of sum of money against the petitioners to enforce its rights under the promissory notes and real estate mortgages.Abines v. that Atty.00 for her at his own initiative. with preference generally given to the first action filed to be retained. and not in any other case such as an action for declaratory relief. Pilipinas Shell Petroleum Corp. and that he made her sign a promissory note.12 leaving a balance of more than P450. the following considerations predominate in the ascending order of importance in determining which action should prevail: (1) the date of filing. On the question of which action should be dismissed. Under her second cause of action.whether or not Benavidez should be made accountable for the subject loan.. the lessee's filing of the complaint for damages and injunction was but a canny and preemptive maneuver intended to block the new owner's action for ejectment. on the other hand. while the lessor filed an unlawful detainer case against the lessee. that the petitioners' claims in the reformation case were in the nature of defenses to the collection case and should be asserted in this latter case." In this case.000. and (3) whether the action is the appropriate vehicle for litigating the issues between the parties.that the lessee. Salvador.is best settled in the ejectment suit that directly confronted the physical possession issue. We held that the first case. where the lessee filed a petition for declaratory relief on the issue of renewal of the lease of a gasoline service station. was aware that an ejectment case against her was forthcoming.00 in his possession. they merely contested the amounts of the principal. [Underscoring supplied] 25 In the complaint filed before RTC-Morong.049.266. Benavidez alleged. interest and the remaining balance. among others. she alleged: SECOND CAUSE OF ACTION . Nepthalie Segarra (Atty. Bank of the Philippine Islands in 2006 . filed the subject case for the collection of a sum of money before RTC-Antipolo to enforce his rights under the promissory note. We observed. We noted that in the second case.500.saw the application of both the "priority-in-time rule" and the "more appropriate action test. Under this established jurisprudence on litis pendentia. while the petitioners subsequently filed a complaint for reformation of the promissory notes and real estate mortgages. Considering the nature of the transaction between the parties. too. among others.Morong. should subsist because it is the first action filed and the more appropriate vehicle for litigating all the issues in the controversy. 1998 from defendant Salvador.

Her insistence that the remaining balance of P450. Nepthalie Segarra arranged a loan in the amount of ONE MILLION AND FIVE HUNDRED THOUSAND (P1. there is admittedly an obligation. Whether or not it was Atty. it is clear that there was an amount of money borrowed from Salvador which was used in the repurchase of her foreclosed property. Defendant Atty. Defendant Atty. The effect of their failure to appear is provided by Section 5 of the same rule where it states: Sec. Nepthalie Segarra paid Farmers Bank the amount of P1.00 of the money loaned was never handed to her by Atty. The dismissal shall be with prejudice.500. Nepthalie Segarra received the P1. Defendant Atty. and that the trial court should have relaxed the application of the Rules of Court. Nepthalie Segarra made plaintiff sign a Promissory Note evidencing the loan of P1.000.The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action.500. This consequence will defeat the public policy reasons behind litis pendentia which.00) PESOS for plaintiff at his own initiative. Atty. reopened the case and allowed her to present evidence in her favor. At this point.000. A copy of the receipt evidencing payment is herewith attached as Annex "A" and made an integral part hereof. [Underscoring supplied] 26 From the foregoing. and to preclude one party from harassing the other party through the filing of an unnecessary or vexatious suit. Rule 18 of the Rules of Court provides that it is the duty of the parties and their counsel to appear at the pre-trial conference. Whether the promissory note was void or not could have been proven by her during the trial but she forfeited her right to do so when she and her lawyer failed to submit a pre-trial brief and to appear at the pre-trial as will be discussed hereafter. Benavidez basically contends that she should not be made to suffer the irresponsibility of her former counsel. unless otherwise ordered by the court.00 on or about March 10.00 in his possession. 13.000.27 The failure of a party to file a pre-trial brief or to appear at a pre-trial conference shall be cause to allow the other party to present evidence ex parte.000. to dismiss Civil Case No. aim to prevent the unnecessary burdening of our courts and undue taxing of the manpower and financial resources of the Judiciary.266. Segarra is a matter between the two of them. 11. 14. to avoid the situation where co-equal courts issue conflicting decisions over the same cause. Section 4.00. The Court is not moved. like the rule on forum shopping. Jakosalem. Segarra who arranged the loan is immaterial. A similar failure on the part of the defendant . Effect of failure to appear.000. Defendant Atty.500. A copy of said Promissory Note is herewith attached as Annex "B" and made an integral part hereof. The fact stands that she borrowed from Salvador and she benefited from it.. As far as she and Salvador are concerned.049.12 leaving a balance of more than P450. 1998 from defendant Nestor Salvador in behalf of and for delivery to plaintiff. 5. 00-5660 would only result in needless delay in the resolution of the parties' dispute and bring them back to square one. 12.

Also. then his case shall be dismissed. then the plaintiff is allowed to present his evidence ex parte and the court shall render judgment on the basis thereof. she should have sent a representative in court to inform the judge of her predicament. The rule explicitly provides that both parties and their counsel are mandated to appear thereat except for: (1) a valid excuse. Stipulated interest should be reduced for being iniquitous and unconscionable. Bermudez. Thus. the defendant having forfeited the opportunity to rebut or present its own evidence. Settled is the rule that the negligence of a counsel binds his clients. She was aware of the scheduled pre-trial conference. her failure to file the pre-trial brief warranted the same effect because the rules dictate that failure to file a pre-trial brief shall have the same effect as failure to appear at the pre-trial. but she compounded this by being negligent herself. 1983. and to enter into stipulations or admissions of facts and documents. and (2) appearance of a representative on behalf of a party who is fully authorized in writing to enter into an amicable settlement. From the foregoing. This Court is not unmindful of the fact that parties to a loan contract have wide latitude to stipulate on any interest rate in view of the Central Bank Circular No. Section 6 thereof provides: Sec. There is nothing in said circular which grants lenders carte blanche authority to raise interest rates to levels which will either enslave their borrowers or lead to a hemorrhaging of their assets. however. They did not file the required pre-trial brief despite receipt of the Order. It is. If she knew that her lawyer would not appear and could not because she was ill. the interest rate 31 32 . to submit to alternative modes of dispute resolution. 905 s. 6. their respective pre-trial briefs which shall contain. it is clear that the failure of a party to appear at the pre-trial has adverse consequences. 28 RTC-Antipolo then had the legal basis to allow Salvador to present evidence ex parte upon motion. but she did not make any move to prevent the prejudicial consequences of her absence or that of her counsel. If it is the defendant who fails to appear. Benavidez’s lawyer was 29 already negligent. worth stressing that interest rates whenever unconscionable may still be declared illegal. In this case. in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial. Benavidez and her counsel were not present at the scheduled pre-trial conference despite due notice. [Emphasis supplied] Furthermore.-The parties shall file with the court and serve on the adverse party. the likelihood being that the court will decide in favor of the plaintiff. In Menchavez v. the plaintiff is given the privilege to present his evidence without objection from 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. If the absent party is the plaintiff. among others: xxx Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. Pre-trial brief. Neither Benavidez nor her counsel can 30 now evade the effects of their misfeasance. 1982 which suspended the Usury Law ceiling on interest effective January I.

. and the law. the legal interest of 6% per annum must be 35 imposed in lieu of the excessive interest stipulated in the agreement. iniquitous. The November 22. 2005 Decision and the June 8. 2006 Amended Decision of the Court of Appeals are AFFIRMED with MODIFICATION. The debt is to be considered without the stipulation of the iniquitous and unconscionable interest rate. contrary to morals.of 5% per month. in this case. In line with the 34 ruling in the recent case of Nacar v. 33 Accordingly. WHEREFORE. Gallery Frames. which when summed up would reach 60% per annum. SO ORDERED. The interest rate of 5% per month which was the basis in computing Benavidez's obligation is reduced to 6% per annum. is null and void for being excessive. the Court considers the compounded interest rate of 5% per month as iniquitous and unconscionable and void and inexistent from the beginning. the petition is DENIED. unconscionable and exorbitant.

To agree on the simplification of the issues. and hereby ratifying and confirming all that its said attorney-in-fact shall do or cause to be done under and by virtue of these presents. To obtain stipulations or admission of facts and of documents to avoid unnecessary proof. Quezon City to be my true and lawful Attorney-in- Fact and in my name.) ANNA O’BYRNE Principal SIGNED IN THE PRESENCE OF: . place and stead. To do and agree on such other matters as may aid in the prompt disposition of the action. we have hereunto set our hand this 25 day of February 2017 in Quezon City. do perform the following specific act(s): 1. constitute and appoint ATTY. Quezon City do hereby name. SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: I. 2. Philippines. (Sgd. 4. and resident of #1 Melbourne Street. IN WITNESS WHEREOF. of legal age. ANNA O’BYRNE. 6. and resident of #1 Australia Street. 3. 5. To limit the number of witnesses. enter into and execute a compromise or amicable settlement of the case under such terms and conditions as my attorney- in-fact may deem just and reasonable. HEREBY GIVING AND GRANTING unto said attorney-in-fact full powers and authority to do and perform every acts and things of whatever requisite and necessary to be done in and about the premises. To amend the pleadings. To negotiate. of legal age. BEN LEWIS. conclude.

sealed with my notarial seal. and acknowledged to me that the same is their free act and deed. 123456780 February 27. 2016/Manila This instrument consists of two (2) pages. 123456782 August 19. 123456/ 01-04-17 ROLL No.) SHARON MILLERCHIP ACKNOWLEDGMENT REPUBLIC OF THE PHILIPPINES} } S. Philippines. 4567898 Valid until 2017 . 12345/ IBP No. including the page on which this acknowledgment is written and signed by the parties and the witnesses on each and every page. 2017 Series of 2017. NAME COMPETENT DATE/PLACE ISSUED EVIDENCE OF IDENTITY ANNA O’BYRNE Passport No. 0288-16 MCLE Compliance No. 2015/Manila BEN LEWIS Passport No.3 Until December 31. and known to me to be the same persons who executed the foregoing instrument. 2015/Manila SHARON MILLERCHIP Passport No.2 NOTARY PUBLIC BOOK NO. DOC. 123456781 September 2. 2016/Manila MARIA MERCEDES Passport No. (Sgd.S. 001 (Sgd) ATTY. IN WITNESS WHEREOF. PTR No. NO. personally appeared the above named persons. JACK LYALL PAGE NO. exhibiting to me their competent evidence of identities as hereunder indicated. BEFORE ME. 12345 APPT No. 123456789 January 25. I have hereunto set my hand and affixed my notarial seal this 25 day of February 2017 in Quezon City.) MARIA MERCEDES (Sgd. the undersigned Notary Public for and in Quezon City.

by all (or majority) members of the Board of Directions of KOBOSHI Corporation. Branch 39. 12345. BOARD RESOLUTION BE IT RESOLVED. that ATTY. ERIC DELA CRUZ be authorized. entitled . RTC of Quezon City. in connection with the pre-trial and trial of Civil Case No. as it is hereby resolved. as he is hereby authorized.