66. ULTRA MAR AQUA RESOURCE VS.

FERMIDA CONSTRUCTION SERVICES

DOCTRINE:
Ultra Mar's counsel repeatedly moved for the postponement of the pre-trial conference, and yet still failed
to appear. Litigants and counsels are reminded time and again that a motion for postponement is a privilege
and not a right. The grant or denial of a motion for postponement is a matter that is addressed to the sound
discretion of the trial court. As the Court consistently affirms, an order declaring a party to have waived the
right to present evidence for performing dilatory actions upholds the trial court's duty to ensure that trial
proceeds despite the deliberate delay and refusal to proceed on the part of one party

FACTS:

 On December 8, 2003, Fermida entered into a Contract Agreement with Ultra Mar for the
construction of a warehouse in Wawandue, Subic, Zambales (Project) with a contract price of
PhP1,734,740. In the course of construction, variations as to roof coverage, drainage canal, painting and
electrical work were made by Fermida upon Ultra Mar's request and instructions.

 After completing the Project on January 17, 2004, Fermida sent to Ultra Mar a Billing Statement
exclusive of the cost of variation orders and extra work orders made. Pursuant to the parties' agreement,
Fermida secured a Surety Bond to satisfy the 10 percent retention to cover any defect in materials and
workmanship. A Contractor's Affidavit stating that all claims and obligations for labor services, materials
supplied, equipment and tools have been fully settled was likewise executed

 Fermida received a letter from Ultra Mar expressing discontentment on some of the former's work.
Resultantly, Fermida undertook repairs and another Billing Statement was thereafter sent to Ultra Mar.

 Just the same, Ultra Mar refused to pay because of Fermida's alleged failure to submit the FDT
Report and Building Permits, and substandard work and delay in the completion of the Project.

 Because of Ultra Mar's failure to comply with its obligations, Fermida demanded payment not only
of the contract price but for the cost of the variation orders as well. In response, Ultra Mar stated that it did
not ask for variations on the Project but only rectifications as the work done by Fermida was below standard

 However, the scheduled pre-trial conference on August 9, 2004 was postponed upon motion of
Ultra Mar's counsel and was then re-scheduled to August 17, 2004. This was again reset to September 7,
2004. Despite several resettings, counsel for Ultra Mar failed to attend the pre-trial conference and failed
to file the required pre-trial brief. As a result, the RTC declared Ultra Mar in default and allowed Fermida
to present its evidence ex parte

 On September 8, 2004, Ultra Mar,through counsel, filed an Omnibus Motion to Lift Order of
Default, Admit Attached Pre-Trial Brief and Set the Case for Pre-Trial Conference (Omnibus Motion)
alleging that his failure to file the Pre-Trial Brief was due to the intermittent nausea he was experiencing as
a result of a sudden drop in his blood sugar level. Affording leniency, the RTC required a supporting
Medical Certificate upon submission of which Ultra Mar's Omnibus Motion shall be resolved.

 Ultra Mar's counsel failed to comply with the said Order thus the RTC denied Ultra Mar's Omnibus
Motion and, on October 7, 2004, issued a Decision in favor of Fermida

 Ultra Mar partially moved for reconsideration essentially arguing that it was denied the right to
present evidence due to the gross negligence of its former counsel

 ISSUE: WON THE PETITIONERS SHOULD HAVE BEEN ALLOWED TO PRESENT ITS
EVIDENCE BECAUSE ITS NON APPEARANCE AT THE PRE TRIAL CONFERENCE AND
FAILURE TO SUBMIT PRE TRIAL BRIEF WERE ATTRIBUTABLE TO ITS COUNSEL GROSS
NEGLIGENCE.

 HELD:

NO.
Section 4, Rule 18 requires the parties and their counsel to appear at the pre-trial conference. The effect of
their failure to appear is spelled under Section 5 of the same rule, as follows:

Section 4. Appearance of parties. – It shall be the duty of the parties and their counsel to appear at the pre-
trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a
representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to
submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and
of documents.

Section 5. Effect of failure to appear. – The failure of the plaintiff to appear when so required pursuant to
the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice,
unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow
the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.
Further, Section 6 of the same rule provides:

Section 6. Pre-trial brief. – The parties shall file with the court and serve on the adverse party, in such
manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their
respective pre-trial briefs which shall contain, among others:
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.
By way of exception, the non-appearance of a party and counsel may be excused if (1) a valid cause is
shown; or (2) there is an appearance of a representative on behalf of a party fully authorized in writing to
enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into
stipulations or admissions of facts and of documents. What constitutes a valid cause is subject to the court's
sound discretion and the exercise of such discretion shall not be disturbed except in cases of clear and
manifest abuse
Clearly then, the justifications advanced by Ultra Mar's counsel for its repeated failure to comply with the
RTC's Order to appear at the Pre-Trial Conference, to submit the Pre-Trial Brief and to present the
supporting Medical Certificate do not constitute a valid cause to excuse such non-compliance.
Ultra Mar would nevertheless point an accusing finger at its counsel for the latter's gross negligence.
However, nothing is more settled than the rule that the negligence and mistakes of a counsel are binding on
the client.

67. PERMANENT CONCRETE PRODUCTS VS. DONATO TEODORO, GR NO. L-29766

DOCTRINE: One of the objectives of pre-trial procedure is to take trial of cases out of the realm of surprise
and maneuvering."2 Pre-trial is primarily intended to make certain that all issues necessary to the disposition
of a cause are properly raised.3 Thus, to obviate the element of surprise, parties are expected to disclose at
a pre-trial conference all issues of law and fact which they intend to raise at the trial, except such as may
involve privilege or impeaching matter.4

FACTS:

 The defendant Clementina Vda. de Guison hired the defendant contractor, Teodoro & Associates, to
construct a building for her for a lump sum of P44,000, the contractor explicitly agreeing in the written
contract with Guison that "all of said labor and materials shall be supplied by me."

 During the construction, the contractor ordered and received from the plaintiff Permanent Concrete
Products, Inc. hollow blocks, of an aggregate value of P759.88, which were used in the construction of
the building. The contractor refused to pay the said amount, despite demands made upon it, on the ground
that payment thereof is properly the obligation of Guison.

 On May 18, 1964 the plaintiff filed suit in the city court of Manila against Donato Teodoro and Guison
for the collection of the sum of P759.88, with interest thereon, plus attorney's fees and costs of suit. It
amended its complaint on July 6, 1964 to include Teodoro & Associates as co-defendant and/or
alternative defendant.

 On June 7, 1966 at the pre-trial conference held before the Court of First Instance, only three issues were
agreed upon by the parties, which were incorporated in an order of the said court of the same date, to wit,
(1) whether the defendant Guison, the owner of the building, can be held liable for materials ordered by
the contractor without her signing for them; (2) whether the contractor can collect from Guison for an
additional construction, the contract for which was entered into verbally between the contractor and the
tenant of Guison with her consent; and (3) whether the contractor can be made responsible for the
purchase of electrical goods which were substituted with imported ones, although the contract does not
so specify.

 No evidence was presented. The parties filed their respective memoranda, after which the case was
considered submitted for decision.

 RTC DECISION: Ruled in fqavor of the plaintiff and against the defendant

  CA’s DECISION: Upheld the Decision of the Lower Court

 ISSUE: WON THE DEFENDANT CAN BE LIABLE FOR THE COST OF HOLLOW BLOCKS PLUS
INTERESTS AND THE COST OF SUIT WHEN THERE IS NO EVIDENCE PRESENTED OR
SHOWING THAT HE HAD ANY CONNECTION IN THE TRANSACTIONS INVOLVED IN THIS
CASE


 HELD: YES, HE IS LIABLE

At the said pre-trial conference, the appellant failed to put in issue his alleged non-participation, in spite of
the clear allegation in the amended complaint that "defendant Donato Teodoro and/or Teodoro and
Associates was the contractor." Clearly, the question now sought to be argued and discussed by the
appellant was waived by him. For indeed, the delimitation of issues at a pre-trial conference bars the
consideration of other questions on appeal.1
The appellant waited until the case was decided against him in the court a quo before he raised — on appeal
the issue of his non-participation in the transactions which gave rise to this case. His failure to disclose this
defense is contrary to the purpose and spirit of pre-trial procedure as established and conducted in our
courts. It effectively prevented the plaintiff and the defendant Guison from being accorded an opportunity
to meet this defense. Both as a weapon of attack and defense, surprise should not be tolerated under our
Rules of Court. The appellant is bound by the delimitation of the issues contained in the trial court's order
issued on the very day the pre-trial conference was held. Such an order controls the subsequent course of
the action, unless modified before trial to prevent manifest injustice. In the case at bar, modification of the
pre-trial order was never sought at the instance of any party.

68. TINIO VS. MANZANO, GR. NO. 132102

DOCTRINE:
A pre-trial is meant to serve as a device to clarify and narrow down the basic issues between the parties, to
ascertain the facts relative to those issues and to enable the parties to obtain the fullest possible knowledge of
the issues and facts before civil trials and thus prevent that said trial are carried on in the dark. Pre-trial is
primarily intended to make certain that all issues necessary to the disposition of a case are properly
raised. Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference all
issues of law and fact which they intend to raise at the trial, except such as may involve privileged or
impeaching matters. The determination of issues at a pre-trial conference bars the consideration of other
questions on appeal

FACTS:
 Nellie Manzano is a co-owner, together with her siblings, of Lot No. 113 situated in Victory Norte,
Santiago, Isabela. In 1988, while Nellie was abroad, her siblings sold the said lot to Rolando Tinio.
 In a forged document of Waiver, Nellie was made to appear as having waived her rights over the said lot.
  Subsequently, Rolando obtained a Miscellaneous Sales Patent over a portion of the lot, denominated as Lot
No. 113-B, from the Bureau of Lands.
 The same was registered and an Original Certificate of Title in the name of Rolando was later issued.
However, upon Nellies return to the Philippines in 1994, she filed an action for legal redemption of the lot
under Arts. 1620 and 1621 of the New Civil Code. And the trial court rendered a decision in her favor,
affirmed in toto by the Court of Appeals. Hence, this appeal.
 Petition is denied for lack of merit. Petitioners alleged that the subject property is part of the public domain,
hence, under the exclusive authority of the Director of Lands.
 However, at the pre-trial of the case, petitioners admitted that Nellie is a co-owner in equal shares with her
siblings of the property in issue, who sold their share of the same in favor of Rolando.
 Then, petitioners alleged that Nellie has knowledge of the sale and there was already a lapse of the
prescriptive period to exercise the right of legal redemption. Thus, petitioners cannot now be allowed to
escape the adverse effects of their defense by belatedly raising a new theory that the land is part of the public
domain as this would be offensive to the fundamental tenets of fair play. What is involved here is the right
of legal redemption given to a co-owner of a parcel of land, not the jurisdiction of the Director of Bureau of
Lands.
ISSUE:
WON THE REPSPONDENT CAN EXERCISE HER RIGHT OF LEGAL REDEMPTION

HELD:
YES.
The argument that the land involved is land of the public domain is an issue being raised for the first
time. Section 18, Rule 46 of the Revised Rules of Court (Sec. 15, Rule 44 of the 1997 Rules of Civil
procedure) provides that the appellant may include in his assignment of errors any question of law or fact
that has been raised in the court below and which is within the issues framed by the parties.It is well-settled
that issues not raised and/or ventilated in the lower court cannot be raised for the first time on appeal
(Redodos v. WCC, 6 SCRA 7171, DBP v. CA, 116 SCRA 636, Galicia v. Polo, 179 SCRA 372). A look at
the issues agreed upon by the parties in the lower court (supra) readily shows that the character of the land,
whether of public domain or private ownership, is not among such issues.
We note that at the pre-trial of the case, the parties agreed among other matters that the plaintiff is co-owner
in equal shares with her brothers Ernesto Manzano and Roland Manzano and sisters Pamela Manzano and
Edna Manzano of the properties enumerated in paragraph 2 of the second amended complaint; and that the
co-owners of the plaintiff sold their share of the properties in favor of Rolando Tinio.
A pre-trial is meant to serve as a device to clarify and narrow down the basic issues between the parties, to
ascertain the facts relative to those issues and to enable the parties to obtain the fullest possible knowledge
of the issues and facts before civil trials and thus prevent that said trial are carried on in the dark. Pre-trial
is primarily intended to make certain that all issues necessary to the disposition of a case are properly
raised. Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference all
issues of law and fact which they intend to raise at the trial, except such as may involve privileged or
impeaching matters. The determination of issues at a pre-trial conference bars the consideration of other
questions on appeal