G.R. No. 88396. July 04, 1990
MANILA ELECTRIC COMPANY, PETITIONER, VS. HON. COURT OF APPEALS, HON. TERESITA DIZON-CAPULONG, AS PRESIDING JUDGE, REGIONAL TRIAL COURT, VALENZUELA, METRO MANILA, BRANCH 172, AND…
REGALADO, J.:
This petition for review
on certiorari impugns the decision of respondent court in CA-G.R. SP No.
15452, dated May 19, 1989,[1] dismissing herein petitioner’s original
action for certiorari which sought the nullification of the judgment by
default and the orders of the Regional Trial Court of Valenzuela, Bulacan in its Civil Case No. 2769-V-88.
The generative facts of
the case, as correctly reported in the decision of respondent court, are as
follows:
“On February 15, 1988,
a petition for preliminary injunction was filed before the public respondent to
enjoin the petitioner MERALCO from disconnecting electrical service to the
private respondent Polystyrene Manufacturing Co., Inc.
“On February 17, 1988,
the public respondent Judge issued a Temporary Restraining Order, commanding
the defendant Meralco to maintain the status quo
and not to disconnect electric service to Polystyrene at the same time, setting
the hearing on the prayer for preliminary injunction.
“At the hearing on February
23, 1988 on the prayer for the writ of preliminary injunction,
respondent Polystyrene presented evidence in support of its prayer. Petitioner MERALCO’S counsel appeared and
manifested that he would not be presenting any documentary evidence and instead
requested that he be given until February
29, 1988 within which to file his written opposition to the
petition. This was granted by the
respondent Judge.
“On March 7, 1988, the respondent Judge granted the prayer for
the issuance of a writ of preliminary injunction, the dispositive
portion of her order reads, as follows:
‘WHEREFORE, let the Writ of Preliminary Injunction prayed for to be
(sic) issued whereby defendant or any person acting in its behalf is hereby
enjoined from disconnecting the electrical service to plaintiff provided
plaintiff posts an injunction bond in the amount of P500,000.00
conditioned that plaintiff will pay all damages which defendant may suffer by
virtue of the issuance of the same writ.
SO ORDERED.’
“On March 23, 1988,
petitioner MERALCO filed its Answer with affirmative defenses and
counter-claims.
“On March 21, 1988, the respondent Judge issued an Order
setting the pre-trial conference for April 28, 1988 at 8:30 a.m. with notice to
both parties’ counsels, to wit:
x x x x x x x x x
‘Enclosed herewith is a copy of the notice
of the same reference to your client which you are required to serve upon
him. You are also directed to inform
your client of the purposes of such conference.’
“Notices to plaintiff and defendant were also sent.
“On the date set i.e. April
28, 1988, for the pre-trial, petitioner MERALCO’s
counsel failed to appear. Upon verbal
motion of Polystyrene, MERALCO was declared as in default and Polystyrene was
allowed to present its evidence ex-parte on April 29, 1988 before a commissioner.
“On April 29, 1988, and on the evidence presented ex-parte, the respondent Judge rendered a judgment in default,
the dispositive portion of which reads, as follows:
‘WHEREFORE, finding the evidence presented by the plaintiff
sufficient to support their (sic) petition, judgment is hereby rendered in
favor of the plaintiff and against the defendant:
1. Ordering the defendant to cease and desist permanently from
disconnecting its electrical services to plaintiff;
2. Ordering the defendant to pay plaintiff exemplary damages in the
amount of P50,000.00;
3. Ordering the defendant to pay attorney’s fees in the sum of P50,000.00;
4. Ordering the defendant to pay the cost of suit.
SO ORDERED.’
“A copy of the Decision was received by MERALCO’s
counsel on May 18, 1988.
“On June 1, 1988,
or on the 14th day, after receipt of the Decision, MERALCO filed a Motion for
Reconsideration to Lift Order of Default and to Vacate Judgment by Default.
“The main reason given for the failure of MERALCO’s
counsel to appear in the pre-trial conference was that he was incapacitated by
influenza. A medical certificate was
submitted to support this allegation.
“After the Opposition and Reply and Rejoinder were filed, the
respondent Judge denied the motion for reconsideration. The pertinent portion of her assailed
Resolution of July 6, 1988
reads:
x x x x x x x x x
“Defendant’s counsel is referred to the ruling in the case of
Jose Carandang vs. Hon. Jose R. Cabatuando
etc., et al G.R. No. L-25384, October 26, 1973. In following the ruling of this case, the
Court is guided by the fact that due to the unexcusable
negligence of defendant’s counsel, nothing can be gained by lifting the Order
of Default and setting aside the judgment, except delay in the disposition of
the case and tacit subservience by the Court to the explicit indifference of
counsel appearing before it.
‘Motion for Reconsideration is DENIED.’
“On July 20, 1988,
MERALCO’s counsel, Atty. Romeo M. Flores, filed his
withdrawal of appearance and simultaneously, the latter’s new counsel entered
their appearance on July 22, 1988. The new counsel for MERALCO filed a Petition
for Relief from Judgment praying that the Decision dated April 29, 1988 be set aside and a new trial be
held on the merits.
“On July 25, 1988,
private respondent, Polystyrene was ordered to answer. After trial, the respondent Judge issued an
order dated August 19, 1988
dismissing the petition for relief from judgment and, considering that the
decision had become final and executory, issued a
writ of execution.
“On August 26, 1988,
MERALCO filed a Notice of Appeal from the Order dated August 19, 1988, to this Court of Appeals. On September
8, 1988, respondent Polystyrene filed its Opposition to MERALCO’s Notice of Appeal.
“Earlier, on September 6, 1988, respondent Polystyrene in this instant action (CA-G.R. No.
SP-15452) filed a Special Appearance with Manifestation, calling our attention
to the fact that before petitioner Meralco filed the
instant Petition for Certiorari on August 27, 1988, it
had already filed a Notice of Appeal before the court a quo
on August 26, 1988.”[2]
As earlier stated, respondent court dismissed
the said petition for certiorari therein for lack of merit. Hence, the instant petition with the
following submissions which allegedly warrant our review of the assailed
decision, viz.:
1. The Court of Appeals
erred when it ruled that the petition for certiorari filed with it was
not the proper remedy to assail the questioned orders and judgment by default
rendered by the respondent judge;
2. The Court of Appeals
erred when it found that certiorari was availed of by petitioner MERALCO
only after its right to appeal had lapsed into finality; and
3. The Court of Appeals
not only departed from the usual course of proceeding, but also decided
questions of substance contrary to law and the applicable decisions of this
Honorable Court, when it refused to issue the equitable writ of certiorari
to correct the palpable grave abuse of discretion committed by the respondent
judge in issuing the questioned orders and judgment by default.[3]
After a careful consideration of the issues raised,
which we shall rule upon conjointly, we find the petition devoid of merit.
While the special civil action of certiorari may be
availed of in the alternative situation where an appeal would not constitute a
plain, speedy and adequate remedy, this is on the theoretical assumption that
the right to appeal is still available in the case. If, however, the remedy by appeal had already
been lost and the loss was occasioned by petitioner’s own neglect or error in
the choice of remedies, certiorari cannot lie as a substitute or a tool to
shield the petitioner from the adverse consequences of such neglect or
error. The two remedies are mutually
exclusive and not alternative or successive.[4]
Applying this fundamental principle to the case at bar, it is
readily evident that petitioner had ample opportunities to appeal the default
judgment rendered against it by the court a quo, to wit, after
the default judgment itself was rendered and, later, after its motion to lift
the order of default and to vacate the default judgment was denied by the trial
court. It nevertheless deliberately
allowed the period for appeal to pass without interposing one. Worse, despite the then availability of the
remaining period for appeal from the denial of its motion to lift the order of
default and to vacate the default judgment, it opted to wait and subsequently
file a petition for relief from the judgment[5]
which by then was final and executory, with the added
misfortune that said petition could not claim any procedural validity both
technically and on the merits.
On reglementary technical grounds, it
is a firmly established doctrine that the relief provided for by Rule 38 of the
Rules of Court is of equitable character and is allowed only in exceptional cases, that is, where there is no other available
or adequate remedy. A petition for
relief is not regarded with favor and judgment will not be disturbed where the
party complaining has, or by exercising proper diligence would have had, an adequate remedy at law,[6] as in the present case where petitioner
could have proceeded by appeal to vacate or modify the default judgment.
It is no creditable
argument that petitioner supposedly preferred respondent judge to correct her
own alleged errors. Being a special
remedy, a petition for relief is available only under exceptional circumstances,[7]
in which equity and justice will prompt
the court to give the petitioner a last chance to defend his right or to
protect his interest. Even so, the
relief will not be granted to a party, like the petitioner, when the loss of
remedy at law was due to his own negligence or a mistaken mode of procedure,
otherwise, the petition for relief will be tantamount to reviving
the right of appeal which had already been lost.[8]
On the merits of the
petition for relief, we likewise do not find excusable the failure of
petitioner’s counsel to attend the pre-trial hearing as to justify the grant of
relief. It is of record that petitioner
was represented in the case below by a number of readily available lawyers
belonging to its own legal department who could have easily been sent to attend
the pre-trial conference or, at the very least, to move for its postponement if
they were not prepared for such hearing.
Petitioner, however, utterly failed to comply with the rules to protect
its interests. Certainly, the patent
lack of coordination among or the cavalier response of the members of its own
legal staff, despite due notice of the pre-trial conference, cannot exculpate
petitioner from the adverse consequences of the default judgment.
As aptly revealed by
private respondent in its comment to the basic petition:
“In the instant case, petitioner is represented by a battery
of lawyers headed by Attys. Gerardo R. Gonzales, Amador B. Factura,
Vicente M. Montero and Romeo M. Flores.
These lawyers appear as counsel on record for petitioner as shown no
less in page 21 of the Answer (Annex ‘M’ of Annex ‘D’, Petition) and page 12 of
the Opposition to Injunction (Annex ‘K’ of Annex ‘D’, Petition).
“If indeed Atty. Romeo M. Flores was sick of influenza, one of
the lawyers aforementioned should have had the decency to appear at the
pre-trial even just to reset the same if such be
their pleasure, but certainly not to snub the Honorable Court, for such an
actuation would further aggravate the seeming disrespect that some lawyers have
for court orders.
“Petitioner and counsel were notified of the pre-trial
setting. They knew that they did not
attend the same. Good judgment and due
diligence would have dictated that petitioner’s counsel (a battery of them)
should have called up or visited the Court to inquire as to what transpired
during the pre-trial, which move they did not do through sheer gross negligence
and apathy. ‘The standard of care required of a defendant is that which an ordinary prudent man bestows upon
his important business.’ (Gaylord vs. Berry,
169 N.C. 733, 86 SE 623)
x x x
“x x x. Moreover,
Annex ‘2‘ of petitioner’s motion
to lift (Annex ‘P’ of Annex ‘D’, Petition) which is the medical consultation
slip issued by Dr. Rogelio Sanchez of the J. F. Cotton Hospital (the hospital
of Meralco located at the back of their main building
in the same company compound), reveals that as early as April 27, 1988, Atty.
Romeo Flores already knew that he was to be confined at home for
such was the advice of the company doctor:
‘Advice: for house confinement and to report back to J. F. Cotton
Hospital.’ Diligence, reason, prudence and practice dictates that Atty. Flores,
(one of petitioner’s counsel) should have gone back to his office which
is in the same compound or called
up his office from the doctor’s office by intercom (local
station) and advised the legal staff or his secretary of his situation so that
the legal office could have sent the other lawyers (as appearing in the
pleadings) to attend and postpone the pre-trial to be held the next day, April
28. For petitioner’s Atty. Flores to
claim now that he did not have the means to communicate with his legal staff is
purely an afterthought designed merely as a subterfuge to escape the
consequences of his negligence as was his feigned illness. As aforestated, the
hospital (J. F. Cotton) where Atty. Flores had his check-up is a company
hospital and in the same compound as the Meralco Building,
where he holds office.”[9]
(Underscoring in the original).
It is not arguable that
negligence of counsel is binding on the client, just as the latter is bound by
the mistakes of his lawyer.[10] This is especially true in petitioner’s case
where its lawyers are its own house attorneys who should have been more
circumspect and vigilant in protecting the interests of their client which is
also their employer.
With regard to petitioner’s contention that the order declaring
it in default is a nullity due to its lack of notice of the pre-trial hearing,
the findings of fact both of the trial court and the respondent court, which
are conclusive upon us there being absent any showing of grave abuse of
discretion in the appreciation of such facts, belie such contention. Says the trial court on this issue:
“Defendant assails the decision as a nullity because notice of
pre-trial to defendant Manila Electric Company was just enclosed in the notice
of pre-trial to Atty. Romeo Flores.
Suffice it to say that there were two different notices sent for the
pre-trial of April 28, 1988,
one for defendant Manila Electric Company and another to Atty. Flores. The enclosure
of said notice in one envelope was necessary because both of them are in
one and the same building and address –
that of 5th Floor Lopez Building, Ortigas Avenue, Pasig, Metro Manila. There was no problem regarding the procedure
because both notices were received by both the said defendant and its counsel prior to the pre-trial
date.”[11]
Indeed, even if the address of a party be different from that of
the counsel, it is best that the trial courts uniformly serve such notice to
the party through or care of his counsel at counsel’s address, with the express
imposition upon counsel of the obligation of notifying the party of the date,
time and place of the pre-trial conference and assuring that the party either
appear thereat or deliver to counsel a written authority to represent the party
with power to compromise the case, with the warning that a party who fails to
do so may be non-suited or declared (as) in default.[12]
Premises considered, we find no
reversible error in the dismissal by respondent court of petitioner’s special
civil action for certiorari. It
may not be amiss to stress at this juncture that while defaults are frowned
upon and courts are encouraged as much as possible to hear cases and determine
them on the merits; and that the rules of procedure ought not to be applied in
a very rigid, technical sense but should be used to help secure and not to
override substantial justice, this does not mean that a party may, by any
remedy it chooses to pursue and at any time it decides to do so, expect to
obtain a desired favorable result, in this case the nullification of the
default order or the setting aside of the default judgment. Needless to say, a proper and timely
challenge is a requisite provided by the rules and compliance therewith is
essential for the orderly and expedient administration of justice for which
said rules, in the first place, were primarily framed and prescribed.
WHEREFORE, the petition is DENIED and the decision
appealed from is hereby AFFIRMED. The
temporary restraining order of September
13, 1989 is hereby lifted.
SO ORDERED.
Melencio-Herrera, (Chairman), Paras, Padilla, and Sarmiento, JJ., concur.
* Impleaded per Resolution of June 19, 1989.
[1]
Penned by Justice Ricardo J. Francisco, with Justices Nicolas P. Lapeña, Jr. and Minerva Gonzaga-Reyes
concurring.
[2]
Rollo, 43-46.
[3]
Ibid., 13-14.
[4]
Limpot vs.
Court of Appeals, et al., 170 SCRA 367 (1989).
[5]
Rollo, 174-180.
[6]
Palomares,
et al. vs. Jimenez, et al., 90 Phil. 773 (1952); Arante,
etc. vs. Rosel, et al., 93 Phil. 18 (1953); Fajardo vs. Bayona, etc.,
et al., 98 Phil. 659 (1956).
[7]
Gordulan vs.
Gordulan, 3 SCRA 205 (1961).
[8]
Espinosa vs. Yatco, etc., et
al., 7 SCRA 78 (1963).
[9]
Rollo, 253-255.
[10]
Vivero vs.
Santos, et al., 98 Phil. 500 (1956).
[11]
Rollo, 98.
[12]
Service Specialists, Inc. vs. Sheriff of Manila, et al., 145 SCRA 139
(1986), citing Taroma, et al. vs. Sayo, etc., et al., 67 SCRA 508 (1975).