SECOND DIVISION
[G.R. No. 186617. April 23, 2014.]
SPOUSES JUNIOR PEREZ and EUGENIA PEREZ, petitioners, vs. JOHN TAN, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated 23 April 2014which reads as follows: HITEaS
G.R. No. 186617: SPOUSES JUNIOR PEREZ and EUGENIA PEREZ petitioners v. JOHN TAN, respondent.
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the September 26, 2008 decision 1 and February 12, 2009 Resolution 2 of the Court of Appeals (CA) in CA G.R. SP No. 98147. These rulings affirmed in toto the decision of the Regional Trial Court (RTC), Branch 170, Malabon City, which, in turn, affirmed the decision of the Metropolitan Trial Court (MeTC) in an action for collection of sum of money filed by John Tan against the spouses Enrico Jr. (Junior) and Eugenia Perez (petitioners).
The Facts
The facts of the case, as gathered from the records, are summarized below:
John Tan filed an action for collection of sum of money, with application for the issuance of a writ of preliminary attachment, against the petitioners-spouses Perez before the MeTC, Branch 55, Malabon City. The case, docketed as Civil Case No. JL00-595, was set for pre-trial conference on January 23, 2006 3 and later re-set to May 4, 2006, 4 June 8, 2006 5 and August 10, 2006, 6 because of the unavailability of the petitioners' counsel due to health reasons.
At the August 10, 2006 pre-trial conference, only Junior Perez, without counsel, appeared for the defendants. 7 Seeking another postponement, Junior handed to the court a medical certificate and manifested that their lawyer, Atty. Federico T. Venzon, suffered a stroke sometime in May 2006 and could not attend the pre-trial conference because he had been advised by his doctor to take another two-month rest. Due to the several postponements of the pre-trial in the subject civil case and upon motion of the plaintiff's counsel, the MeTC issued an order 8 allowing the plaintiff to present his evidence ex parte at any time after the defendants (referring to the petitioners) and their counsel have received a copy of the order.
In a hearing scheduled on September 5, 2006, John Tan, through his counsel, presented his evidence ex-parte. On the basis of the presented evidence, the MeTC 9 issued its decision and found the petitioners liable to pay John Tan (a) the sum of three hundred seventy-six thousand six hundred sixty pesos (P376,660.00) plus fourteen percent (14%) interest per annum, starting from the date of default of payment in April 2001 until full payment, (b) attorney's fees amounting to twenty-five percent (25%) of the total obligation due, and (c) the costs of suit. 10DEAaIS
The MeTC's decision was affirmed in toto on appeal to the RTC. 11
The petitioners then appealed their case to the CA, raising the sole issue of whether the RTC committed an error of law when it affirmed the decision of the MeTC based on the plaintiff's ex-parte evidence.
In its assailed decision, the CA affirmed the judgment of the RTC and ruled that there was no error of law committed in allowing the plaintiff's ex-parte evidence due to the absence of the petitioners' counsel at pre-trial. The CA found the lone appearance of Junior Perez for the defendants at the August 10, 2006 pre-trial conference to be insufficient considering that "a pre-trial proceeding is a technical matter that ought to be attended by the parties and their respective counsel," and "in all cases where a party-litigant is represented by counsel, the latter is the only person inside the courtroom that is allowed to address, plead or converse with the judge on any legal issue for determination." 12
The petitioners moved to reconsider the CA's decision but the appellate court denied their motion; hence, the filing of the present petition for review on certiorari with this Court.
The Issue
The petitioners maintain and allege that the CA committed an error of law when it affirmed the decision of the RTC affirming the decision of the MeTC in Civil Case No. JL00-595 based on ex-parte evidence. They continue to allege that this evidence should not have been allowed by the MeTC because of the presence of petitioner Junior Perez during the August 10, 2006 pre-trial conference.
OUR RULING
The petitioner's contention lacks merit.
We deny the present petition outright because the petitioners availed of wrong remedy when they appealed their case before this Court. The proper remedy should have been a petition for certiorari filed under Rule 65 of the Rules of Court because the petitioners actually assail an interlocutory order and not the judgment of the CA affirming the decision of the RTC. A reading of their petition reveals that the petitioners particularly assail the August 10, 2006 order of the MeTC that allowed John Tan, the named respondent, to present his evidence ex parte in the subject action for collection of sum of money. aETASc
There are settled distinctions between a petition for review as a mode of appeal under Rule 45 and a special civil action for certiorari under Rule 65, to wit:
1) In appeal by certiorari, the petition is based on questions of law which the appellant desires the appellate court to resolve. In certiorari as an original action, the petition raises the issue as to whether the lower court acted without or in excess of jurisdiction or with grave abuse of discretion.
2) Certiorari, as a mode of appeal, involves the review of the judgment, award, or final order on the merits. The original action for certiorari may be directed against an interlocutory order of the court prior to appeal from the judgment or where there is no appeal or any other plain, speedy or adequate remedy.
3) Appeal by certiorari must be made within the reglementary period for appeal. An original action for certiorari may be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed.
4) Appeal by certiorari stays the judgment, award or order appealed from. An original action for certiorari, unless a writ of preliminary injunction or a temporary restraining order shall have been issued, does not stay the challenged proceeding.
5) In appeal by certiorari, the petitioner and respondent are the original parties to the action, and the lower court or quasi-judicial agency is not to be impleaded. In certiorari as an original action, the parties are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties, who thereby respectively become the petitioner and the respondents.
6) In certiorari for purposes of appeal, the prior filing of a motion for reconsideration is not required; while in certiorari as an original action, a motion for reconsideration is a condition precedent, subject to certain exceptions.
7) In appeal by certiorari, the appellate court is in the exercise of its appellate jurisdiction and power of review, while in certiorari as an original action, the higher court exercises original jurisdiction under its power of control and supervision over the proceedings of lower courts. 13(Emphases supplied)
The order of the MeTC allowing then plaintiff John Tan to present his evidence ex-parte due to the failure of the petitioners' counsel to appear at the scheduled pre-trial conference is merely an interlocutory order, i.e., an issuance by the court that does not dispose of the case completely but leaves something to be decided upon. 14AEDHST
Section 1 (c) of Rule 41 of the Rules of Court provides that no appeal may be taken from an interlocutory order. Instead, the proper remedy to assail such an order is to file a petition for certiorari under Rule 65. 15
Even if this Court treats the present petition as an original petition for certiorari under Rule 65, the petition still fails.
Sections 4 and 5 of Rule 18 of the Rules of Court 16 clearly provide that:
SEC. 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 alternative modes of dispute resolution, and to enter into stipulations or admission of facts and of documents.
xxx xxx xxx
SEC. 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.(Emphases supplied)
xxx xxx xxx
In the present case, we find no grave abuse of discretion committed by the MeTC in allowing John Tan to present his evidence ex-partein view of the absence of the petitioners' counsel at the August 10, 2006 pre-trial conference and the several postponements of the pre-trial conference previously secured by the petitioners. The MeTC, in issuing such an order, simply acted in accordance with the Rules of Court and in the interest of the speedy disposition of the case. ADEaHT
As the CA did, we agree that the presence of one of the petitioners, without their counsel, during the August 10, 2006 pre-trial conference was not sufficient appearance for the defendants. The petitioners were represented by counsel and it was the duty of their counsel to appear for and represent them in proceedings before the court. The lone presence of Junior Perez at the pre-trial conference could have sufficed if he had with him a written authority from his co-petitioner wife 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 in their behalf. 17 However, the present petition indicates that Junior Perez merely brought with him to the pre-trial conference, a medical certificate issued by his lawyer's physician. 18
In any event, the petitioners cannot argue that they were denied their day in court because, despite the order allowing the plaintiff to present his evidence ex-parte, they were not left without any legal recourse to assail the judgment of the MeTC.
WHEREFORE, premises considered, we DENY the present petition for review on certiorari for lack of merit.
SO ORDERED.
Very truly yours,
(SGD.) MA. LOURDES C. PERFECTODivision Clerk of Court
Footnotes
1. Rollo, pp. 15-23; Penned by Associate Justice Sesinando E. Villon, with Associate Justices (now Presiding Justice) Andres B. Reyes, Jr. and Jose Catral Mendoza (now a member of this Court) concurring.
2. Id. at 24-25.
3. Id. at 107.
4. Id. at 112.
5. Id. at 117.
6. Id. at 117.
7. Id. at 117.
8. Dated August 10, 2006; id. at 118.
9. In a decision dated September 11, 2006.
10. Rollo, pp. 16-17.
11. Id. at 17-18.
12. Id. at 20-21.
13. FLORENZ D. REGALADO, Remedial Law Compendium, 543-544 (6th Ed., 1997).
14. Denso (Phils.), Inc. v. Intermediate Appellate Court, 232 Phil. 256 (1987).
15. City of Naga v. Asuncion, G.R. No. 174042, 9 July 2008, 557 SCRA 528; Tambaoan v. Court of Appeals, 417 Phil. 683 (2001).
16. Effective July 1, 1997.
17. See Section 4 of Rule 18 of the Rules of Court.
18. Rollo, p. 6.