JULIAN B. DACANAY, PETITIONER, VS. HON. CARMELINO G. ALVENDIA, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA AND CONSOLIDATED MINES, INC., RESPONDENTS.

We are asked, by virtue of the present original action for mandamus, to order the respondent Judge Carmelino G. Alvendia* to give due course to the proposed appeal of the
petitioner Julian B. Dacanay, as plaintiff in civil
case 33872 of the Court of First Instance of Manila.

The antecedent facts and events leading to the present petition,
as gleaned mainly from a single-spaced typewritten record on appeal of 93
pages, with appendices A to T and accompanying annexes, are not complicated.

On September 28, 1957 Julian B. Dacanay
lodged a complaint with the Court of First Instance of Manila, Branch XVI, presided
by the respondent judge, against the Consolidated Mines, Inc. (hereinafter
referred to as the respondent corporation), praying that the latter be condemned
to pay to him an alleged contingent fee due him in connection with auditing
services supposedly rendered by him in the gathering of evidence for the
prosecution of civil case 18938 of the Court of First Instance of Manila,
entitled “Consolidated Mines, Inc. vs. Benguet
Consolidated Mining Co.”

On October 17, 1957
the respondent corporation moved to dismiss the complaint on the grounds that Dacanay had no legal capacity to sue and that his claim had
already been released.  Hearings were had
on this motion to dismiss, whereat considerable evidence was introduced, after
which memoranda were submitted. 
Thereafter, by order dated March
27, 1958, the respondent judge deferred action on the said motion “until
final decision on the merits is rendered after due trial,” because the
grounds alleged in the motion “are not indubitable.”

On April 21, 1958
the respondent corporation filed its answer containing admissions and denials,
and, on the strength of specific defenses stated therein, prayed for the dismissal
of the complaint; by way of counterclaim, it asked for damages consisting of
attorney’s fees and expenses of litigation. 
On November 14, 1960
it filed an amended answer, with an additional counterclaim of P50,000 for
actual and exemplary damages.

On January 30, 1961
Dacanay answered the respondent cor­poration’s
counterclaim, with a counterclaim (to the counterclaim) for damages in such
amount as may be assessed by the court.

The respondent court then set the case for pre-trial on February 1, 1962.  On this date the parties expressly agreed and
conceded that the sole issue is whether the respondent corpora­tion had
actually recovered and received from the Benguet
Conso­lidated Mines Co. any amount or amounts on account of items 2, 3 and 4 as
specified in the letter dated February 8, 1954 of Ollada,
Dacanay & Associates, namely, shortages in chrome
ore inventories, anomalies in the payment of salaries and wages, and fictitious
hauling of ore, respectively.

At the hearing had on August
30, 1962 documents were produced in court by the counsel of the
respondent corporation in compliance with a subpoena duces
tecum issued by the court at the behest of the
petitioner.  On September 6, 1962 the
respondent judge, the petitioner and the latter’s counsel examined all the do­cuments,
and all these three agreed that “said documents …  have absolutely no relevancy to the issues in
this case.”

On February 4, 1963
Dacanay filed a motion to admit a first amended
complaint; this amended complaint was admitted by the court per its order
of May 8, 1963.

On May 21, 1963 the respondent corporation filed an omnibus
motion praying for the dismissal of the first amended com­plaint, or for a
reconsideration of the order of May 8, 1963, “so as to bar any amendatory
allegations that are contradictory to and inconsistent with the admissions and
agreements made by the parties at the pre-trial hearing on February 1,
1962.”

The court, by order dated July 15, 1963, (a) dismissed the
alternative cause of action (quantum meruit)
alleged in the peti­tioner’s first amended complaint on the ground that
“it varies the theory of the plaintiff;” (b) required the latter
“to amend the same” (first cause of action of the first amended
complaint) by alleging ultimate and principal facts which would support his
claim that the respondent corporation had recovered from the Benguet Consolidated Company for shortages in chrome ore
inventories, wages, and fictitious hauling of ore, within ten days from receipt
of the said order; and (c) warned the petitioner that “after the lapse of
said period if plaintiff has not filed his second amended complaint, the case
shall be dismissed.”

On August 6, 1963
the petitioner moved to reconsider the order of July 15, 1963, posing the issue of “whether or not a
court . .  . may allow a party to amend
his complaint to allege additional facts and/or litigate on more issues than
that determined at a pre­-trial hearing.” The respondent corporation
opposed and prayed for the denial of this motion, contending inter alia that in the said motion the “plaintiff
merely reiterates his previous contentions x x x which
had been fully considered and rejected by this Honor­able Court in its Order of
July 15, 1963.”

On August 29, 1963
the court issued an order denying both the petitioner’s motion for
reconsideration and the respondent cor­poration’s motion to dismiss, and
ordered the former to comply with its order of July 15, 1963, within five days from receipt of the said
order, under pain of having his complaint dismissed.

Accordingly, on September
10, 1963, the petitioner filed a second amended complaint.  The respondent corporation, on Sep­tember 16,
1963, moved to strike out and/or dismiss the second amended complaint on the
grounds (1) that it absolutely failed to comply with the order of July 15, 1963;
(2) that it was but a reiteration of identical allegations contained in the
first amended com­plaint already held “to be baseless and totally
unsubstantiated;” and (3) that it was “undisputably
established that plaintiff’s claim has been absolutely released by him.”
The petitioner filed an opposition to the said motion of the respondent
corporation.

On October 23, 1963
the court issued an order the pertinent portions of which read as follows:

“After considering the allegations in the aforesaid motion
together with the arguments of the plaintiff contained in his opposition to the
motion, the Court rules that the second amended complaint filed by the
plaintiff dated September 9, 1963
failed to comply with the orders of this Court dated July 15, and August 29, 1963.

“In view of the foregoing considerations, the Court hereby
dismisses the second amended complaint with costs against the plaintiff.”

The petitioner received a copy of the order of October 23, 1963 on October 28, 1963.  On November
21, 1963, he filed a mo­tion for reconsideration thereof,
praying the court to set aside its order of October 23, 1963 and to enter another directing the res­pondent
corporation to answer the second amended complaint.  The respondent corporation opposed this
motion.

On December 14, 1963
the court issued an order denying for lack of merit the petitioner’s motion for
reconsideration.

On January 2, 1964
the petitioner filed a notice of appeal from the court’s orders of October 23, 1963 and December 14, 1963, manifesting
therein that he had already filed the necessary appeal bond.  On January
10, 1964 the court issued an order stat­ing that “there being
no objection to the record on appeal filed by the plaintiff-appellant, said
record on appeal is hereby approved.”

On January 20, 1964, or 18 days from its receipt of the
petitioner’s record on appeal, the respondent corporation filed its opposition
thereto.

Thereafter, by order of January
23, 1964, the court dismissed the appeal, stating that

“… the filing of the notice of appeal and the record on appeal was
out of time as they were filed way be­yond the 30-day period within which
plaintiff should have filed said notice of appeal.  As pointed out by counsel for the defendant,
the motion for reconsideration filed by the plaintiff was but a pro forma
motion.  It did not suspend the running
of the period within which to appeal.  It
appearing that copy of the order dismiss­ing the complaint was served on the
plaintiff thru his counsel on October
28, 1963, the period within which the plaintiff should interpose
his appeal expired on November 27,
1963.  The notice of appeal
filed on January 2, 1964 is,
therefore, filed out of time.

“Another ground for the opposition to the record on appeal
which the Court also finds well-founded is that the pleadings had before this
Court were not entirely reproduced by the appellant contrary to the Rules of
Court.”

The petitioner’s motion for reconsideration of the above-quoted
order was denied by the court on March
13, 1964.

Hence, the present recourse – an original petition for mandamus.

The focal issue presented for resolution is whether or not the
petitioner’s motion for reconsideration dated November 21, 1963 was pro forma.

For
the reasons hereinbelow set forth, we rule that
the said motion was pro forma and consequently uphold the
dismissal by the lower court of the petitioner’s proposed appeal.

1.  If the petitioner (as
plaintiff) could not and did not al­lege ultimate and principal facts which
would support his claim that the respondent corporation had recovered any
amount from the Benguet Consolidated Mining Company
on account of three spe­cific items (namely, shortages in chrome ore
inventories, anomalies in the payment of salaries and wages, and fictitious
haul­ing of ore), his complaint
would fail to state a cause of action and his claim must consequently be
considered as having been released by virtue of a voucher signed by him on May
2, 1957 (exh. 3), wherein he acknowledged receipt
from the respondent corporation of the sum of P2,000 as “payment of bonus
and in full payment for all services claimed by (plaintiff) to have been
rendered to the company and its lawyers in connection with the company’s termi­nated
cases against Benguet Consolidated Mining Co.,” the
release being conditioned, as stated in his letter (exh.
4) of the same date, on the respondent corporation not having recovered any
amount for any of the said three specific items.

Worthy of note in this connection is the affidavit (appendix G)
dated October 15, 1957, of Felipe Ollada (who took in
the peti­tioner as a partner in his firm), unequivocally stating that “all
stipulated fees of fixed amounts due to him and his firm from Con­solidated
Mines, Inc., under the special engagements undertaken by him for said
corporation as well as all retainer fees and reim­bursement for travelling, hotel and other expenses which were for the
account of said corporation have been all fully and timely paid by said
corporation and he and his firm have no outstanding claims whatsoever against
said Consolidated Mines, Inc.” and that “upon the withdrawal of
(petitioner) from the partnership with him (on January 16, 1956) there was no
official liquidation of their partnership as there was nothing due to
(petitioner) and the dissolved partnership … had no properties or collectible
assets.” Ollada also testified, on December 7, 1957, that the three
specific items already adverted to were not included in the suit of the
respondent corporation against the Benguet
Consolidated Mining Co. and, therefore, there could be no basis for the present
claim of the pe­titioner Dacanay.  The stipulated fixed fee for the special
engage­ment as to these items in the amount of P12, 500 and the concomi­tant travelling and hotel expenses in the total sum of P25,
417.76 had all been duly paid by the respondent corporation.

2.  What then clearly emerges
from a painstaking and per­ceptive reading of the prolix record of this case is
that from Feb­ruary 4, 1963 – when the petitioner tried to file his first
amended complaint (after the respondent judge had crystallized the issues at
the pre-trial hearing of February 1, 1962 with the agreement of the parties) –
he made repeated futile attempts to have the court recognize (what he continues
to aver) as the sufficiency of his first amended complaint.  After the court issued its basic order of
July 15, 1963 rejecting the first amended complaint and giving the petitioner
10 days within which to file a second amended com­plaint that would allege
“facts which support the claim of plaintiff that defendant recovered from Benguet Consolidated Mining Com­pany” on three
specific items – to which the issue had been “pegged,” in
petitioner’s own language – the petitioner filed his motion for reconsideration
of August 6, 1963 wherein
he “reite­rated” his contentions as to the sufficiency of his
first amended complaint, thus:

“In other words, we respectfully reiterate before this
Honorable Court that it view plaintiff’s case with more allowance and
understanding; that the issue be construed to mean that defendant did seek to
recover these items, for which defendant agreed to pay plaintiff a contingent
fee in the event defendant actually recovers and receives from said items such
that if there has been no
recovery from these items upon seeking them, then there is release, and, in the
alternative, if defendant did not really seek from Benguet
these items and hence did not recover from them, then plaintiff should be
entitled to payment of services rendered by him on the basis of Quantum Meruit.”

As early as August
21, 1963, the respondent corporation had already assailed the
petitioner’s insistence (expressed in his motion for reconsideration) on the
sufficiency of his first amend­ed complaint as being a repetition or
reiteration of contentions already rejected by the court.  The respondent corporation repro­duced the
transcript of the hearing on the motion, where the pe­titioner admitted that he
was trying to change the theory of his complaint after the documents produced
by subpoena duces tecum
issued at his behest failed to show anything in support of his claim.

In filing his second amended complaint of September 10, 1963, which in sum and substance is
not materially different from his first amended complaint, the petitioner in effect
persisted in urging the court to accept the fact of sufficiency of his rejected
first amended complaint.  In his
opposition of September 19, 1963 to the respondent corporation’s motion to
strike it out and to dis­miss the case, the petitioner again insisted that
“our Second Amended Complaint is a faithful compliance of this Honorable
Court’s Order of July 15, 1963,” notwithstanding that the court had
already ruled to the contrary, with a warning of dismissal, in its order of
August 29, 1963, and likewise had ruled twice (in both its said order
and the earlier basic order of July 15, 1963) that the self-same allegations
were insufficient to make out a cause of action against the respondent
corporation.

In its order of October
23, 1963, the
court ruled once more, that is, for the second time, that the
petitioner’s allega­tions in his second amended complaint “failed to
comply with the orders of the Court dated July 15, and August 29, 1963,” and ordered the dismissal
of the same, with costs against the peti­tioner.  In point of fact, the court was then ruling for
the third time that the petitioner’s allegations were insufficient.

In yet filing on November 21, 1963 his motion for reconsideration
of the third order of October 23, 1963, again insisting on the sufficiency of
his second amended complaint notwithstanding the court’s three previous
adverse rulings, the petitioner was completely aware of the court’s precise
position.  As expressly stated by him in
his said motion for reconsideration, “(T)he position then of the
Honorable Court at this stage of the case – without any trial had, as yet,
– is that our Amended Complaint and our Second Amended Complaint (and
we hasten to add – even our Original Complaint) do not allege
facts sufficient enough [sic] for the Honorable Court to
establish a cause of action against defendant.” (emphasis supplied) He
then again reiterated his persistent assertion – thrice rejected by the
court – that “(w)hat more facts the Hon.
Court desires, we cannot conceive,
for on the strength of the authorities hereunder quoted, our
Complaints state clearly succinctly, sufficiently, our cause of
action against defendant.” (emphasis supplied)

The court summarily rejected this position of the petitioner – for
the fourth time – in its order of December
14, 1963.

Upon the foregoing facts and sequence of events, we cannot
sustain the petitioner’s contention that the court was in error in ruling, in
its order of January 23, 1964, that “the motion for
reconsideration filed by the plaintiff was but a pro forma
motion” and therefore did not suspend the running of the period within
which to appeal, and that the petitioner’s appeal was filed “out of
time” (by 36 days) since the reglementary 30-day
period expired on November 27, 1963, whereas he posted his appeal only on
January 2, 1964.

3.  The court’s ruling is in
accord with the prevailing doctrine on pro forma motions
enunciated in Samudio vs. Mun. of Gainza Cam. Sur,^[1]
where we held that “although on November 29, 1962 the defendant filed his
so-called motion for new trial, based exactly on the very ground alleged
in its first motion for reconsideration dated October 17, 1952, said motion for
new trial did not suspend the thirty (30) days granted by law for perfecting an
appeal, because it is mere repetition of the motion for recon­sideration of
October 17, 1952.”

The court a quo was quite liberal in affording the
petitioner opportunity to make out a case, and in “not closing any
avenue” for him to do so, notwithstanding that as early as the first hearing
on the incident held on June 27, 1963, before it issued its ba­sic order of
July 15, 1963, it had already unmistakably stressed to the petitioner that
“(w)e have clarified the issue and the Court believes that we cannot go
beyond the issue.”

In Estrada vs. Sto Domingo,^[2]
recently decided by this Court, we once again
called the attention of the bar and litigants to the “principle
already forged by this Court … that a motion for reconsideration which has no
other purpose than to gain time is pro forma and does not stop
the period of appeal from slipping away.” Mr. Justice Dizon
pointed out in his concurring opinion that “The motion aforesaid is pro
forma on yet another ground:  in
substance it was but a reiteration of reasons and arguments previously
set forth in respondent Sto. Domingo’s memorandum
submitted to the trial court and which the latter had already considered,
weighed and resolved adversely to him when it rendered its decision on the
merits.^[3]
“And earlier in Lonaria vs. De Guzman,^[4]
we held that “(T)he filing of the second motion on Jan­uary 22, 1963 did not suspend the running of
the period, first, because it was pro forma based on grounds
already existing at the time of the first motion.”

Here, where the court had already thrice previously re­jected
the petitioner’s self-same contentions and assertions, the motion for
reconsideration reiterating the same contentions and assertions for the
fourth time was unquestionably pro forma.

4.  We are not at all
impressed by the petitioner’s main argument in his present petition that his
last motion for reconsi­deration insisting on the sufficiency of his amended
complaints – in the face of three previous contrary rulings of the court
– “specifically pointed out to respondent judge for the first time
that the Second Amended Complaint complied faithfully with his orders of July
15 and August 29, 1963 because it alleged facts … (which) constitute
sufficient cause of action against respondent corpora­tion in the light of
these elementary rules of pleading theretofore not brought to the
attention of respondent judge.” The fact is that in his first motion for
reconsideration (of August 6, 1963) of the court’s basic order of July 15,
1963, he had already cited and placed reliance on pertinent provisions of the
Rules of Court and other authorities in urging “flexibility and
liberality” in the matter of allowing amendments.  Mere citation and/ or amplification of
authorities not previously brought to the court’s attention on the same
argument does not remove the pleading from the ambit of the pro forma
doctrine.

The Rules of Court, looking with disfavor on piecemeal
argumentation, have provided the omnibus motion rule, where under
“(A) motion attacking a pleading or proceeding shall include all objections
then available, and all objections not so included shall be deemed waived.”^[5]
The salutary purpose of the rule is to obviate multiplicity of motions as well
as discourage dilatory pleadings.  As we
said in Medran vs. Court of Appeals,^[6]
“litigants should not be allowed to reiterate identical motions, speculating
on the possible change of opinion of the Court or of the judges thereof.” The mere citation of
additional authorities by the petitioner in his last motion for reconsideration
reiterating his thrice-rejected identical arguments as to the sufficiency of
his amended complaints did not salvage the said motion from the pro­per
application thereto of the pro forma doctrine.

5.  Upon the foregoing
disquisition, it will serve no useful purpose for us to dwell at length on the
court’s other ground for re­jecting the petitioner’s appeal – “that the
pleadings had before this Court were not entirely reproduced by the appellant
contrary to the Rules of Court.” Suffice it to state that section 7 of
Rule 41 of the Rules of Court prescribes a ten-day period within which a party
should correct and redraft a deficient record on appeal, where no time is fixed
by the court – and compliance by the petitioner with this rule has not been
shown.

The conclusion is thus
irresistible that the petitioner has not demonstrated a ministerial duty on the
part of the respondent court to give due course to his appeal.^[7]

ACCORDINGLY, the present petition for mandamus is denied, at petitioner’s
cost.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Fernando, and
Barredo, JJ., concur.

Teehankee, J., did not take part.

* Now an Associate Justice of the
Court of Appeals.

^[1]
100 Phil. 1013, 1018 (Feb. 28, 1957).

^[2]
L-30570, July 29, 1969, 28
SCRA 891, 914 (per Sanchez, J.)

^[3]
At 28 SCRA, p. 925; vide Arnaldo vs. Bernabe, 87 Phil. 379; Federal Films, Inc. vs. Judge
of First Instance, 78 Phil. 472; Medran vs.
Court of Appeals, 83 Phil. 164; Marquez vs. Panganiban,
L-15842, Oct. 31, 1960; Mallare vs. Panahon, 98 Phil. 154.

^[4]
L-20940, Sept. 29, 1967, 21
SCRA 349, 354.

^[5]
Rule 15, section 8.

^[6]
83 Phil. 164.

^[7] Villamor, et al. vs.
Lacson, et al., L-15845, Nov. 28, 1964; Llanto vs.
Dimaporo, L-21905, March 31, 1966.