ALFONSO A. CHAN, PETITIONER, VS. THE HON. JUDGE OTILLO G. ABAYA, AS PRESIDING JUDGE OF BRANCH II, COURT OF FIRST INSTANCE OF SURIGAO DEL SUR, AND SOFRONIA AGAO, RESPONDENTS.

Petition for certiorari to annul and set aside the orders of the
respondent judge, dated August 13 and November 3, 1975, in Civil Case No. L-154
of the Court of First Instance of Surigao del Sur, entitled, “Alfonso A. Chan, plaintiff, versus
Sofronia Agao,
defendant”, requiring the petitioner and/or his counsel to pay damages
suffered by the private respondent and her counsel in the amount of P100.00,
“the same to be paid not later than the next hearing of this case,”
for the failure of the petitioner and his counsel to appear at the pre-trial
confer­ence of the case.

The record shows that on January 27, 1975, the petitioner,
Alfonso A. Chan, filed a complaint against the herein private respondent, Sofronia Agao, with the Court of
First Instance of Surigao del Sur,
for indemnification, under Articles 20 and 21 of the Civil Code of the
Philippines, in relation to Articles 2199, 2208 (par. 3), 2219 (par. 8) and
2229 thereof, for the damages suffered by him and his family as a result of the
wilful and malicious prosecution of the petitioner by
the private respondent.^[1]

The private respondent filed her answer thereto on February 19, 1975, denying the
material allegations in the complaint, and interposed a counterclaim for
damages, attorney’s fees, and costs, as well as the payment of back rentals on
a building which the petitioner failed to pay despite demands.^[2]

Instead of filing a responsive pleading, the petitioner filed a
motion for a bill of particulars, asking for a more definite statement on the
alleged lease contract, setting his motion for resolution by the court on March
14, 1975, or on any other date as may be convenient for the court, without
further argument by counsel.^[3]

The respondent judge, however, did not take action on the motion
for a bill of particulars and set the pre-trial conference of the case on
August 13 and 14, 1975.  On August 11, 1975, counsel for the
petitioner sent a telegraphic motion to the court, followed later by a formal
written motion, asking that the pre-trial conference be reset to another date
until his motion for a bill of particulars shall have been resolved.^[4]
But, the case was called for a pre-trial conference on August 13, 1975, as
scheduled.  Noting the absence of the
petitioner and his counsel, the attorney for the private respondent asked the
court that the petitioner be ordered to pay the private respondent her expenses
in coming to court.  The respondent judge
granted the motion and issued an order directing the petitioner and/or his
counsel to pay damages suffered by the private respondent and her counsel in
the amount of P200.00, the same to be paid not later than the next hearing of
the case.  The pre-trial conference was
re-set to September 23 and 24, 1975.^[5]

The petitioner filed a motion for the reconsideration of said
order,^[6]
and, as a result, the amount was reduced to P100.00.^[7]
Whereupon, the petitioner initiated the present recourse, to annul and set
aside the orders of the respondent judge dated August 13 and November 3, 1975.

The petitioner claims that the payment of damages to the private
respondent is unjustified because the petitioner was not properly notified of
the holding of the pre-trial conference on August 13, 1975, and that the
calling of a pre-trial conference on August 13, 1975 was premature since the
respondent judge had not yet resolved the petitioner’s motion for a bill of particulars.

The private respondent, upon the other hand, maintains that there
was substantial compliance with the rules as to notice because the petitioner’s
counsel was notified of the pre-trial hearing by telegram on August 6, 1975,
and the said attorney, in turn, notified the petitioner of such pre-trial
hearing by telegram.

The petition is meritorious. 
To begin with, the calling of a pre-trial conference on August 13, 1975
was untimely.  Section 1, Rule 20 of the
Revised Rules of Court provides:

“Section 1.  Pre-trial mandatory.-
In any action, after the last pleading has been filed, the court shall direct
the parties and their attorneys to appear before it for a conference to
consider:

“(a) the
possibility of an amicable settlement or of a submission to arbitration;

“(b) the simplification of the issues;

“(c) the necessity or desirability of amendments to the pleadings;

“(d) the possibility of obtaining stipulations or admissions of
fact and of documents to avoid unnecessary proof;

“(e) the limitation of the number of witnesses;

“(f) the advisability of a preliminary reference of issues to a
commissioner;

“(g) such other matters as may aid in the prompt disposition of
the action.”

As will be seen, the court is directed to
hold the pre-trial of the case after the last pleading has been filed.  Construing the term “last
pleading,” the Court held that “under the rules of pleading and
practice, the answer ordinarily is the last pleading, but when the defendant’s
answer contains a counterclaim, plaintiff’s answer to it is the last
pleading.”^[8]
Following the rule, the “last pleading” in the case would be the
answer of the plaintiff to the counterclaim of the defendant.  But, no answer to the counterclaim had been
filed because of the unresolved motion for a bill of particulars.  Obviously, the calling of a pre-trial
conference on August 13, 1975
was premature since there has yet to be filed the “last pleading.”

In the disputed order of August 13, 1975, the respondent judge
stated that he did not act on the motion for a bill of particulars and
considered it as “merely a scrap of paper which the court is not duty
bound to resolve” for the reasons that “x x
x the Clerk of Court informed the court that said
motion was received by his office in the afternoon of March 14, 1975 so that
although said motion was set for hearing on the said date, the same could not
be heard on the specified time it was set for hearing, which was in the morning
of March 14, 1975.  Moreover, plaintiff’s
counsel failed to appear on said date to prosecute his motion.  Said counsel did not even bother to verify
whether or not his motion reached the court on time, so that he would have
known the status of the same.” The failure of a movant
to appear on the day of the hearing of his motion, however, is not sufficient
reason to discard a motion and treat it as a mere scrap of paper.  The better rule is to deny such motion for
abandonment or for failure to prosecute.

Under the rules, pre-trial is mandatory and the Court has
uniformly held that the parties, as well as their counsel, who are required to
appear thereat, must be notified of the same, and the notice of pre-trial must
be served upon them separately.^[9]
While a copy of the notice of the pre-trial conference set for August 13 and
14, 1975^[10]
may have been sent to the petitioner Alfonso A. Chan separately,^[11]
by registered mail at his given address of record on August 8, 1975,^[12]
the petitioner received the notice only on August 18, 1975.^[13]
His inability to attend and be present at the pre-trial conference on August 13, 1975 is, therefore, justified.  The fact that his attorney had sent a
telegram to the petitioner informing him of the telegram of “Escribano” notifying them of the setting of the
pre-trial conference on August 13 and 14, 1975 should not militate against the
petitioner because the telegram, to him, was vague and ambiguous, prompting the
petitioner to send a telegram to his counsel that he “did not
received any court order regarding our
motion or defendants amended answer,”
and inquiring who “Escribano” is.^[14]

Moreover, We find that the award of damages in the amount of
P100.00 to the private respondent for her expenses in coming to court to attend
the pre-trial hearing set for August 13, 1975, the same to be paid not later
than the next hearing of the case, is unfounded and without basis.  Such an award cannot be justified under
Article 2208 of the Civil Code.

WHEREFORE, the petition is granted and the orders of the
respondent judge dated August 13 and November 3, 1975, in Civil Case No. L-154
of the Court of First Instance of Surigao del Sur, entitled, “Alfonso A. Chan, plaintiff, versus
Sofronia Agao,
defendant,” should be, as they are hereby, annulled and set aside.  Costs against the private
respondent, Sofronia Agao.

SO ORDERED.

Barredo, (Acting Chairman), Antonio, Aquino, and Santos, JJ., concur.

Abad Santos, J., did not take part.

^[1] Rollo, p. 26.

^[2] Id.,
p. 37.

^[3] Id.,
p. 24.

^[4] Id.,
p. 46.

^[5] Id.,
p. 14.

^[6] Id.,
p. 17.

^[7] Id.,
p. 16.

^[8]
Peggy vs. Tapucar, L-45270, February 28, 1979,
citing Francisco, The Revised Rules of Court, Vol. II, pp. 2-3 and Pioneer Insurance
& Surety Corp. vs. Hontañosas, L-35951,
August 31, 1977, 78 SCRA 447.

^[9] Taroma vs. Sayo, L-37296,
October 30, 1975, 67 SCRA 508 and cases cited
therein.

^[10] Rollo, p. 45.

^[11]
See reverse side of Rollo, p. 45.

^[12] Rollo, p. 44.

^[13] Id., p. 43, par. 3 of Affidavit.

^[14] Id.,
p. 42.