RUFINO TAROMA AND CAYETANA GASIDAN, PETITIONERS, VS. HON. MARCELINO N. SAYO, IN HIS CAPACITY AS PRESIDING JUDGE OF BRANCH IV (BATAC) OF THE COURT OF FIRST INSTANCE OF ILOCOS NOR…

Taroma versus Sayo

The Case

This is a special civil action for certiorari and prohibition brought by Rufino Taroma and Cayetana Gasidan against Judge Marcelino N. Sayo, in his capacity as presiding judge of the Court of First Instance of Ilocos Norte, and against the private respondent Inocencio Crisostomo. The petitioners had won a default judgment quieting title to land in their favor, and they now ask the Supreme Court to annul the trial judge's order reopening the case. The action matters because it settles a question every litigator must know: whether a notice of pre-trial served on counsel alone binds the client. The Court answers no, and in doing so lays down a uniform, practical method for serving pre-trial notices that the bench and bar are directed to follow.

Procedural History

The petitioners, as plaintiffs, filed an action in the Court of First Instance of Ilocos Norte to quiet title to land and to recover the same with damages against Inocencio Crisostomo. When the defendant and his counsel failed to appear at the pre-trial, the trial court, then presided by Judge Jose A. Madarang, declared the defendant in default, received the petitioners' evidence ex parte, and later rendered judgment granting the suit as prayed for. The defendant, through new counsel, moved to set aside the default order and the decision, claiming he had never been notified of the pre-trial. The motion was heard by Judge Marcelino N. Sayo, who had since taken over the sala, and he issued an order setting aside the default order and the ex parte decision, principally on the ground that the defendant was not duly notified of the pre-trial, and reset the case for a new pre-trial. Reconsideration was denied. The petitioners then came to the Supreme Court by certiorari and prohibition, challenging that order and asking the Court to resolve the issue of whether notice of pre-trial must be served on the parties as well as on their counsel of record.

Facts

The petitioners sued to quiet title to a parcel of land and to recover it with damages. A pre-trial conference was set for March 2, 1972. Notice of that setting was sent by registered mail to the defendant's counsel of record, Attorney Venancio Albano, but no notice was served on the defendant himself, whether directly or through his counsel.

Because neither the defendant nor his counsel appeared at the pre-trial, the trial court declared the defendant in default, received the petitioners' evidence ex parte, and about a year later rendered a decision granting the petitioners' suit as prayed for. Four days after service of the decision on Attorney Albano, the defendant, through new counsel, Attorney Castor Raval, filed a motion to set aside the default order and the decision, with an affidavit of merit. He asserted that he had been denied due process and his day in court, since he had not been notified of the pre-trial, and his former counsel disclaimed having received the notice.

After hearing the parties, the respondent judge set aside the default order and the ex parte decision on the principal ground that the defendant was not duly notified of the pre-trial, and reset the case for a new pre-trial. The Court also noted that the record contained the clerk's and postmaster's certifications attesting that Attorney Albano did in fact receive the pre-trial notice, contrary to his disclaimer, although this did not affect the outcome.

Issues

• Whether or not notice of pre-trial must be served separately upon the party litigant and upon his counsel of record, such that service on counsel alone is insufficient.
• Whether or not the respondent judge properly set aside the default order and the ex parte decision and reset the case for a new pre-trial.
• Whether or not the private respondent, as the real party in interest, was bound to appear and defend the challenged order on behalf of the respondent judge, a mere formal party.

Applicable Provisions

Section 1 of Rule 20 makes pre-trial mandatory and provides:

After the last pleading has been filed, the court shall direct the parties and their attorneys to appear before it.

This provision requires that the direction to appear be addressed to the parties themselves, not to their attorneys alone.

Section 2 of Rule 20 fixes the consequence of non-appearance and provides:

A party who fails to appear at a pre-trial conference may be non-suited or considered as in default.

Because the penalty falls on the party, the Court holds that the party must first be shown to have been duly served with notice.

Section 2 of Rule 13 states the general rule on service of papers:

Every order required by its terms to be served, every pleading subsequent to the complaint, shall be filed with the court, and served upon the parties affected thereby. If any of such parties has appeared by an attorney or attorneys, service upon him shall be made upon his attorneys or one of them, unless service upon the party himself is ordered by the court.

This general rule that notice to counsel is notice to the party is held insufficient and inadequate for purposes of pre-trial.

Ruling

On the first issue, the Court ruled against the petitioners and reaffirmed its recent holdings that notice of pre-trial must be served separately upon the party affected and his counsel of record, stating therein the purpose, time and place of the pre-trial conference and requiring both to appear. The Court reasoned that the general rule of notice to counsel constituting notice to the party cannot supply what Rule 20 demands, because the sanction of non-suit or default falls on the party. As the Court put it:

Before the party is non-suited or considered in default, it must be shown that the party and his counsel were duly served with notice of such pre-trial conference.

Recognizing that Rule 20 does not prescribe the method of sending these notices, and mindful of the practical burden of serving many parties at addresses not of record, the Court restated for the guidance of the bench and bar that trial courts should uniformly serve the notice to the party through or care of his counsel at counsel's address, expressly imposing on counsel the obligation of notifying the party of the date, time and place of the pre-trial and assuring that the party either appear or deliver a written authority to represent him with power to compromise, with the warning that a party who fails to do so may be non-suited or declared in default. Counsel who fails in this duty is subject to disciplinary action and grave administrative liability.

On the second issue, the Court held that the petition must fail, since the respondent had not been served with notice of the pre-trial, whether directly or through his then counsel. The respondent judge therefore properly set aside the default order and the ex parte decision and reset the case for pre-trial, giving both parties every chance to fight their case fairly and in the open, without resort to technicality.

On the third issue, the Court noted that the private respondent, after filing his comment, did nothing further and left it to the respondent judge to file a memorandum on his own behalf, contrary to Section 5 of Rule 65, under which the private respondent is charged with the duty to appear and defend both in his own behalf and in behalf of the respondent judge, who is a mere formal party. The Court enjoined judges and lawyers to comply, reminding them that judges made respondents are not to be distracted from their main function of trying and adjudicating cases.

Doctrine

Notice of pre-trial must be served separately upon the party affected and upon his counsel of record, stating the purpose, time and place of the pre-trial conference and requiring both to appear. Service on counsel alone, under the general rule of Rule 13, is insufficient and inadequate for purposes of pre-trial, because the sanction of non-suit or default under Rule 20 falls on the party. Before a party may be non-suited or considered in default, it must be shown that the party and his counsel were duly served with notice. For uniformity, trial courts should serve the notice to the party through or care of his counsel at counsel's address, with the express warning that the party who fails to appear or to deliver a written authority to represent him with power to compromise may be non-suited or declared in default; counsel bears this duty as an officer of the Court, and failure to discharge it subjects him to disciplinary action. Finally, in petitions against a lower court or judge, the private respondent is obligated under Section 5 of Rule 65 to appear and defend the court or judge, who is a mere nominal party.

Disposition

The petition was dismissed and the restraining order lifted, so the respondent judge's order setting aside the default and resetting the case for pre-trial stood, with the presiding judge directed to investigate the alleged misrepresentation of the former counsel and report his findings to the Court.

Remember This

Memorize this line: before a party is non-suited or declared in default for failing to appear at pre-trial, it must be shown that the party and his counsel were each duly served with notice. Examiners use this case on the mandatory pre-trial rules, on the effect of notice to counsel, and on the duty of the private respondent to defend a respondent judge under Rule 65.