HEIRS OF ANTONIO BERNARDES, NAMELY: CONSTANCIO S. BERNARDES, DIANA BERNARDES-CHAWDHURY, MARILOU BERNARDES-LUCENTE, ANTONIO V. BERNARDES, JR., JEVON V. BERNARDES, THOMAS LEO V. B…

Heirs of Antonio Bernardes versus Co

The Case

This is an appeal brought by the Heirs of Antonio Bernardes against Edita Co, the sheriff Ludenilo Ador, and Romulo Bernardes, seeking to reverse the trial court's order that dismissed their petition for annulment of an execution sale. The heirs owned two agricultural parcels in Naval, Biliran, still undivided and held in common. A writ of execution from a separate support case against one heir, Romulo Bernardes, was levied on those parcels and the share of Romulo was sold at public auction. The heirs sued to annul the sale. The trial court threw the case out on three grounds: the non-appearance of their counsel at a hearing, an alleged loss of jurisdiction because the writ had already been implemented, and an alleged wrong choice of action. The case matters because the Supreme Court uses it to restate the strict test for dismissal for failure to prosecute, and to affirm the right of a third-party claimant to bring a separate action even after the writ has been enforced.

Procedural History

The heirs filed a second amended petition for annulment of the execution sale before the Regional Trial Court, Branch 16, Naval, Biliran. After pre-trial, one of the heirs, Marilou Bernardes-Lucente, testified on direct examination. A continuance was granted and the hearing was reset. On the reset date, the trial court issued an order dismissing the petition because neither the plaintiffs nor their counsel appeared. The heirs moved for reconsideration, explaining the absence. The trial court denied the motion, adding that the petitioners really had a different cause of action, which should be recovery of ownership and not annulment of the execution sale. The heirs then appealed to the Supreme Court under Rule 41 of the Rules of Court.

Facts

During his lifetime, Antonio Bernardes owned and possessed two agricultural parcels in Atipolo, Naval, Biliran, both still registered under the name of his heirs and still owned in common, undivided. In a separate case for recognition and support filed by Edita Co for her minor child against Romulo Bernardes, a writ of execution issued. On September 19, 2000, the sheriff, Ludenilo Ador, issued a notice of attachment upon realty covering the two parcels. He later issued a notice of sale on execution of the share of Romulo Bernardes.

Two of the heirs, Diana Bernardes Chawdhury and Thomas Leo Bernardes, filed an affidavit claiming ownership, saying that Romulo had already sold his share. The sheriff required the heirs to submit supporting documents, and they complied with conveyances over the levied portions. Despite the claim, the sheriff proceeded with the auction sale on December 19, 2001. A certificate of sale was approved by the trial court, and a writ of possession issued over the levied share of Romulo.

On September 2, 2005, the heirs filed their second amended petition for annulment of the execution sale against Edita Co, Sheriff Ador, and Romulo Bernardes. Marilou Bernardes-Lucente testified on direct examination, and a continuance was granted. Five days before the next setting, she informed her counsel that she could not appear because her mother-in-law was confined in the intensive care unit of a hospital in Tacloban City. The hearing was reset. On that reset date, the trial court dismissed the petition on the ground of counsel's failure to appear.

Issues

• Whether or not the trial court erred in dismissing the case outright for the non-appearance of counsel, thereby denying the heirs their right to due process on a mere technicality.
• Whether or not the trial court erred in dismissing the case for lack of jurisdiction on the ground that the writ of execution had already been implemented.
• Whether or not the trial court erred in holding that the heirs had a different cause of action, namely recovery of ownership rather than annulment of the execution sale.

Applicable Provisions

Section 3, Rule 17 of the Rules of Court provides:

Section 3. Dismissal due to fault of plaintiff. If, for no justifiable reason, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to move for dismissal on the ground that the plaintiff has no cause of action.

This is the provision the trial court invoked, and the Court measures the dismissal against its four grounds.

Section 16, Rule 39 of the Rules of Court provides:

Section 16. Proceedings where property claimed by third person. If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim.

This provision preserves the third-party claimant's right to vindicate the claim in a separate action, which answers the argument that the implemented writ foreclosed the suit.

Ruling

On the first issue, the Court ruled for the heirs. The fundamental test for non prosequitur, meaning failure to prosecute, is whether the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude, and there must be unwillingness to prosecute. The surrounding circumstances did not satisfy the standards set in law. The heirs had a justifiable reason for missing the hearings, namely the confinement of the mother-in-law in the intensive care unit. The defendants' counsel had themselves filed an urgent motion for postponement of one setting. And the heirs had already begun presenting their evidence in chief at the first hearing. The Court held that a litigation is not a game of technicalities, and that there should be no vested rights in technicalities.

On the second issue, the Court held that the implementation of the writ is of no moment. Section 16, Rule 39 expressly allows the third-party claimant to vindicate the claim in a separate action. The heirs were not parties to the support case in which the writ was being enforced, so they had every right to institute a separate action.

On the third issue, the Court found that these matters are best determined in the trial proper, and left them for the trial court to resolve on the merits.

Doctrine

A bar candidate should retain these rules. First, dismissal for failure to prosecute under Section 3, Rule 17 requires unwillingness to prosecute and a want of due diligence; isolated absences with justifiable cause, especially where the plaintiff has already begun presenting evidence, do not meet the test. Second, the real test is whether the plaintiff is chargeable with want of fitting assiduousness in not acting with reasonable promptitude, and lesser sanctions should be considered unless the conduct is so indifferent, irresponsible, contumacious, or slothful as to provide substantial grounds for dismissal. Third, technicalities deserve scant consideration when they hinder rather than aid justice. Fourth, under Section 16, Rule 39, a third-party claimant may vindicate the claim in a separate action even after the writ of execution has been implemented, and the implementation of the writ does not deprive the court of jurisdiction over that separate suit.

Disposition

The appeal was granted, the assailed order was set aside, and the case was remanded to the trial court for further proceedings to be decided with dispatch, with no costs.

Remember This

Memorize this line: the fundamental test for non prosequitur is whether the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude, and there must be unwillingness to prosecute. Examiners use this case on the dismissal of actions for failure to prosecute and on the third-party claimant's separate action after an execution sale.