PRE-TRIAL

APPEARANCE OF PARTIES AND COUNSELS IN THE PRE

TRIAL (Sec 4, Rule 18)

Case: UNITED COCONUT PLANTERS BANK, vs.

MAGPAYO,
G.R. No. 149908 (May 27, 2004)
 FACTS
Respondent herein filed a complaint against petitioner for reimbursement of a sum
of money and consequent damages. After petitioners answer was filed, pre-trial
was set on September 26, 1997 at 1:30 p.m. When the case was called, only the
respondents (as complainant in that case) counsel was present. Asked if he had a
special power of attorney, counsel replied that he had, but he left it in the office.

Hence, the petitioner (as defendant in that case) moved to declare the respondent
non-suited, pursuant to Rule 18, Sec. 5 of the 1997 Rules of Civil Procedure.
Accordingly, the trial court issued an Order of Dismissal for failure to prosecute.
Respondent filed an omnibus motion, stating therein that he arrived at
the court at around 2:00 p.m. and that he did not intend to be late for
the pre-trial, but the traffic at the South Superhighway was heavy due
to construction work. He attached copies of two powers of attorney
which were dated May 20, 1997 and September 24, 1997 respectively
as proof that there indeed was a special power of attorney executed
but that respondents counsel forgot to bring it to the pre-trial.
Respondent added that he and his counsels omissions were excusable; that

he has a valid cause of action against petitioner; and the ends of justice

would be served if the trial courts order be reconsidered. The trial court found

respondents plea unmeritorious and affirmed its order of dismissal.

Respondent’s appealed to CA, and the court found merit in the appeal.

Hence the order of dismissal by the trial court was reversed.

 MAIN ISSUE

Whether or not the dismissal of the case because of plaintiff’s

(respondents herein) failure to appear during pre-trial and his
counsels failure to produce a special power [of] attorney is
proper and in accordance with the law
RULING
The respondent is a resident of Paranaque and conducts his business in
Calamba, Laguna. It may be easily assumed that he had prior
knowledge of recurrent traffic buildup at the South Superhighway, as
he most surely would have been frequently traversing the same. As
such, respondents omission is one that falls short of being either due to
excusable negligence or a valid cause.
That respondents counsel was equipped with a special power of
attorney, which he allegedly forgot to bring at the pre-trial, deserves
hardly any consideration. Section 4, Rule 18, of the Rules of Civil
Procedure is clear and unambiguous that the plaintiff’s counsel, as
representative, must have appeared in plaintiffs (respondents herein)
behalf fully authorized in writing.
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, nor can the courts assume that all the powers specified in
Section 4 of Rule 18 are granted by the party to his representative.

WHEREFORE, the decision of the Court of Appeals REVERSED and SET

ASIDE. The decision of the RTC is REINSTATED.
 PRE-TRIAL ORDER
(Sec 7, Rule 18)

Case: TIU VS MIDDLETON, G.R. No. 134998

(July 19, 1999)
 FACTS
Private respondents filed a complaint for recovery of
possession of real property, accounting and damages against
petitioner before the Regional Trial Court of Oroquieta
City. Before trial, the court a quo sent a notice of Pre-trial
Conference stating in part: The parties are warned that
witnesses whose names and addresses are not submitted at
the pre-trial may not be allowed to testify at the trial x x x.

In his Pre-Trial Brief, petitioner averred that he would be

presenting six witnesses, but he did not name them.
Trial ensued, and herein respondents, as plaintiff in the case at
bar, presented their witnesses in due course. When his turn
came, petitioner called a certain Antonia Tiu as his first
witness. Citing Section 6, Rule 18 of the 1997 Rules of Court,
respondents objected, arguing that the witness could not be
allowed to testify because petitioner had failed to name her in
his pre-trial brief.
Sustaining respondent’s objection, the lower court then
issued the assailed order that reads:
Considering the written arguments of both parties herein, the
Court finds that the witness of defendant Silvestre Tiu, Ms.
Antonia Tiu, who is the aunt of the defendant, whose name
was not disclosed in the pre-trial brief is ordered excluded
pursuant to the provisions of the 1997 Rules of Civil
Procedure wherein it is required that all names of witnesses
must be stated in the Pre-Trial Brief.

Hence, the present recourse.

 MAIN ISSUE

Whether or not a judge can exclude a witness

whose name and synopsis of testimony were not
included in the pre-trial
RULING
Pre-trial is an answer to the clarion call for the speedy disposition of
cases. In light of these objectives, the parties are also required to submit a
pre-trial brief, which must contain the following:
(a) A statement of their willingness to enter into amicable settlement or alternative modes of
dispute resolution, indicating the desired terms thereof;

(b) A summary of admitted facts and proposed stipulation of facts;

(c) The issues to be tried or resolved;

(d) The documents or exhibits to be presented, stating the purpose thereof;

(e) A manifestation of their having availed or their intention to avail themselves of discovery
procedures or referral to commissioners; and

(f) The number and names of the witnesses, and the substance of their respective testimonies.
In light of the objectives of a pre-trial and the role of the trial
court therein, it is evident that judges have the discretion to
exclude witnesses and other pieces of evidence not listed in the
pre-trial brief, provided the parties are given prior notice to this
effect.

In his Pre-trial Order, however, the trial judge did not exercise
his discretion to exclude the unlisted or unnamed witnesses.
Rather, it simply provided that the defendant will present six
witnesses. It made no mention at all that they would be barred
from testifying unless they were named.
Significantly, it also stated that plaintiffs will offer ten witnesses,
without however naming them. Since the Order allowed respondents
(as plaintiffs before the trial court) to present witnesses, it necessarily
follows that it should grant the same right to petitioner.

Indeed, the court and the parties must pay attention not only to the
pre-trial briefs, but also to the pre-trial order.
SEC. 7. Record of pre-trial. -- The proceedings in the pre-trial
shall be recorded. Upon the termination thereof, the court shall
issue an order which shall recite in detail the matters taken up
in the conference, the action taken thereon, the amendments
allowed to the pleadings, and the agreements or admissions
made by the parties as to any of the matters considered.
Should the action proceed to trial, the order shall explicitly
define and limit the issues to be tried. The contents of the
order shall control the subsequent course of action, unless
modified before trial to prevent manifest injustice.
Hence, the provision in the Pre-trial Order allowing petitioner to present six

witnesses shall control the subsequent course of action. The court a quo

proceeded with the trial without modifying the Order. In the same vein,

respondents did not challenge it before the trial.

WHEREFORE, in view of the foregoing, the Petition is hereby GRANTED. the trial

court is ORDERED to proceed with the hearing and to allow petitioner to present

his six witnesses.

Bar Questions and Answers
 2001 BAR QUESTION

Lilio filed a complaint in the Municipal Trial Court of Lanuza

for the recovery of a sum against Juan. The latter filed his
answer to the complaint serving a copy thereof on Lilio. After
the filing of the answer of Juan, whose duty is it to have the
case set for pre-trial? Why? (5%)
 SUGGESTED ANSWER

After the filing of the answer of Juan, the PLAINTIFF has the
duty to promptly move ex parte that the case be set for pre-
trial. (Sec. 1, Rule 18). The reason is that it is the plaintiff
who knows when the last pleading has been filed and it is
the plaintiff who has the duty to prosecute.
 2009 BAR QUESTION
Q: Upon termination of the pre-trial, the judge dictated the pre-trial order in the
presence of the parties and their counsel, reciting what had transpired and
defining three (3) issues to be tried.

Suppose trial had already commenced and after the plaintiff’s second witness
had testified, the defendant’s counsel moves for the amendment of the pre-trial
order to include a fifth (5th) triable issue vital to his client’s defense. Should the
motion be granted over the objection of plaintiff’s counsel? Reasons.
 SUGGESTED ANSWER
The motion may be denied since trial had already commenced and two witnesses for the
plaintiff had already testified. Courts are required to issue pre-trial order after the pre-trial
conference has been terminated and before trial begins, precisely because the reason for
such order is to define the course of the action during the trial. Where trial had already
commenced, more so the adverse party had already presented witnesses, to allow an
amendment would be unfair to the party who had already presented his witnesses. The
amendment would simply render nugatory the reason for or purpose for the pre-trial
order. Sec. 7, Rule 18 on pre-trial in civil action is explicit in allowing a modification of the
pre-trial order “before” trial begins to prevent manifest injustice.