RULE 18 PRE-TRIAL G.R. No.

149749 July 25, 2006

AGAPITA DIAZ, petitioner, vs. COURT OF APPEALS; HEIRS OF SHERLY MONEO,1 namely: MAMERTA C. MONEO, JASPHIN M. VILLAMIL, WHELHELMIA M. DECARO, EDDIE MONEO, GININA M. DAQUIPIL, FERNAN C. MONEO, ARLENE C. MONEO, RICHARD C. MONEO and NIKKI C. MONEO, represented by EDDIE C. MONEO; TEODORO LANTORIA and ROGELIO FRANCISCO, respondents.

NATURE: This is a petition for certiorari under Rule 65 of the Rules of Court which imputes grave abuse of discretion to the Court of Appeals in its decision.

FACTS: Petitioner Agapita Diaz operated a common carrier, a Tamaraw FX taxi plying the route of Cagayan de Oro City to any point in Region 10. One day, petitioners taxi, driven by one Arman Retes, was moving at an excessive speed when it rammed into the rear portion of a Hino cargo truck owned by private respondent Teodoro Lantoria and driven by private respondent Rogelio Francisco. As a result, nine passengers of the taxi died including Sherly Moneo. The heirs of Sherly Moneo filed with the RTC of Malaybalay City, an action for breach of contract of carriage and damages against petitioner and her driver, Arman Retes. On motion, petitioner filed a third-party complaint against private respondents Teodorio Lantoria and Rogelio Francisco. The pre-trial conference was initially set but was reset for petitioner and her counsels failure to appear despite due notice. Registry receipt number showed that notice had been sent to petitioners counsel, Atty. Cipriano Lupeba. On scheduled date, petitioner and her counsel again failed to appear, prompting the court to allow private respondents to present evidence ex parte. More than 7 months after the conclusion of private respondents ex parte presentation of evidence, petitioner filed a motion for leave to present evidence on her defense and third-party complaint. The trial court denied this. Later, the trial court rendered a decision holding petitioner and Arman Retes jointly and severally liable to pay private respondent heirs of Sherly Moneo P50,000 for her death, P50,000 as moral damages,P20,000 as exemplary damages and P20,000 as attorneys fees. On appeal, the trial courts decision was affirmed by the Court of Appeals. The motion for reconsideration was also denied. Hence, this recourse.

ISSUE: Whether or not there was an error for the trial court to allow private respondents to present their evidence ex parte when petitioner and her counsel failed to appear for the scheduled pre-trial conference.

RULE 18 PRE-TRIAL HELD: It was no error for the trial court to allow private respondents to present their evidence ex partewhen petitioner and her counsel failed to appear for the scheduled pre-trial conference. Section 3, Rule 18 of the Rules of Court states that: The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. Petitioner was represented by Atty. Cipriano Lupeba to whom the notice was sent. 18 It was incumbent on the latter to advise petitioner accordingly. His failure to do so constituted negligence which bound petitioner. Further, Sections 4 and 5 of Rule 18 read: 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 the party may be excused only if a valid cause is shown therefore 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. 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 the dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on 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. Therefore, in the case, petitioner, as common carrier, failed to establish sufficient evidence to rebut the presumption of negligence.