Rules 16-18 Cases 294-298, 316.docx

RULE 16: MOTION TO DISMISS No motion to dismiss allowed G.R. No. 192951 November 14, 2012 ALDERSGATE COLLEGE, INC., et.al, Petitioners, vs. JUNIFEN F. GAUUAN, et.al, Respondents, -andALDERSGATE COLLEGE, INC., DR. WILLIE A. DAMASCO, et.al, RespondentsIntervenors. Petition: This petition for review assails the Resolution and Order of the RTC which granted the Motion to Withdraw and/or to Dismiss Case filed by the respondents-intervenors Facts: Petitioners Aldersgate College, Inc., et.al, filed a case against the respondents before the Securities and Exchange Commission (SEC). When the SEC was reorganized, the case was transferred to the RTC of Nueva Vizcaya for further proceedings. Pre-trial thereafter ensued and a Pre-Trial Order was issued enumerating the following issues, among others: (a) whether respondents Gauuan, Villaluz, Arreola and the banks, are jointly and severally liable to indemnify the school for all sums of money withdrawn, disbursed, paid, diverted and unaccounted for without the approval and counter-signature of the chairman; (b)whether respondents are liable for damages. In a motion , respondents sought the dismissal of the complaint or the issuance of a summary judgment dismissing the case. The RTC denied the motion on the ground that there are several issues raised which would still need the presentation of evidence to determine the rights of the parties. A few years later, respondents-intervenors filed a Motion to Withdraw and/or to Dismiss Case, alleging that the case was instituted without any board resolution authorizing its filing and that the incumbent members of the Board of Trustees of petitioner Aldersgate College, Inc. had recently passed a resolution which sought the dismissal and/or withdrawal of the case. The RTC granted the motion and dismissed the case on the basis of the Resolution passed by the members of the Board of Trustees of petitioner Aldersgate College recommending the dismissal of the case. Petitioners' motion for reconsideration was denied by the RTC. Hence the instant petition. Issue: whether or not the RTC erred in dismissing the case. Ruling: Yes.

In an ordinary civil action, a motion to dismiss must generally be filed "within the time for but before filing the answer to the complaint" and on the grounds enumerated in Section 1, Rule 16 of the Rules of Court. The rule is, however, different with respect to intra-corporate controversies. Under Section 8, Rule 1 of the Interim Rules of Procedure for Intra-Corporate Controversies, a motion to dismiss is a prohibited pleading. As this case involves an intra-corporate dispute, the motion to dismiss is undeniably a prohibited pleading. Moreover, the Court finds no justification for the dismissal of the case based on the mere issuance of a board resolution by the incumbent members of the Board of Trustees of petitioner corporation recommending its dismissal, especially considering the various issues raised by the parties before the court a quo. Hence, the RTC should not have entertained, let alone have granted the subject motion to dismiss. WHEREFORE, the petition is GRANTED. The assailed March 30, 2010 Resolution and June 29, 2010 Order of the Regional Trial Court, Branch 28, Nueva Vizcaya in SEC Case No. 3972 are REVERSED and SET ASIDE. The RTC is DIRECTED to proceed with the trial and to decide the case with dispatch. SO ORDERED. RULE 17: DISMISSAL OF ACTIONS G.R. No. 210252 June 16, 2014 VILMA QUINTOS, FLORENCIA I. DANCEL and CATALINO L. IBARRA, Petitioners, vs. PELAGIA I. NICOLAS, NOLI L. IBARRA, et.al, Respondents. Petition: Petition for Review on Certiorari filed under Rule 45 Facts: Petitioners Vilma Quintos, Florencia Dancel, and Catalino Ibarra, and respondents Pelagia Nicolas, Noli Ibarra, Santiago Ibarra, Pedro Ibarra, David Ibarra, Gilberto Ibarra, and the late Augusto Ibarra are siblings. Their parents were the owners of the subject property covered by TCT No. 318717. Their parents had already passed away, leaving to their 10 children ownership over the subject property. Subsequently, respondent siblings brought an action for partition against petitioners before the RTC of Camiling, Tarlac. However, the trial court dismissed the case for failure of the parties to appear despite due notice. The ruling of the trial court became final. Having failed to secure a favorable decision for partition, respondent siblings instead resorted to executing a Deed of Adjudication to transfer the property in favor of the ten 10 siblings. As a result, TCT No. 318717 was cancelled and in

lieu thereof, TCT No. 390484 was issued in its place in the names of the ten 10 heirs of the Ibarra spouses. Subsequently, respondent siblings sold their 7/10 undivided share over the property in favor of their co-respondents, the spouses Recto and Rosemarie Candelario. TCT No. 434304 was issued in the name of the Candelarios, covering the 7/10portion. Petitioners filed a complaint for Quieting of Title and Damages against respondents denying any participation in the execution of the aforementioned Deed of Adjudication and the Agreement of Subdivision. Respondents countered that petitioners’ cause of action was already barred by estoppel when petitioners offered to buy the 7/10 undivided share of the respondent siblings. They point out that this is an admission on the part of petitioners that the property is not entirely theirs. Respondents also sought, by way of counterclaim, the partition of the property. The quieting of title case was eventually raffled to the same trial court that dismissed respondent’s action for partition. During pre-trial, respondents, admitted that petitioners did not participate in the Deed of Adjudication and that the Agreement of Subdivision was falsified. Despite the admissions of respondents, however, the RTC dismissed petitioners’ complaint. Finding that respondent siblings were entitled to their respective shares in the property as co-heirs of petitioners, the subsequent transfer of their interest in favor of respondent spouses Candelario was then upheld by the trial court. Aggrieved, petitioners appealed the trial court’s Decision to the CA, pleading that the partition should no longer be allowed since it is already barred by res judicata, respondent siblings having already filed a case for partition that was dismissed with finality. The CA denied the appeal. Petitioners’ Motion for Reconsideration was denied. Hence, the instant petition. Issue: whether the CA erred when it neglected to rule on petitioners’ contention that the counterclaim for partition is also barred by prior judgment, which, if properly considered, would justify the dismissal of the counterclaim. Ruling: No. The counterclaim for partition is not barred by prior judgment This brings us to the issue of partition as raised by respondents in their counterclaim. In their answer to the counterclaim, petitioners countered that the action for partition has already been barred by res judicata. There is res judicata when the following requisites are present: (1) the formal judgment or order must be final; (2) it must be a judgment or order on the merits, that is, it was rendered after a consideration of the evidence or stipulations submitted by the parties at the trial of the case; (3) it must have

been rendered by a court having jurisdiction over the subject matter and the parties; and (4) there must be, between the first and second actions, identity of parties, of subject matter and of cause of action. In the case at bar, respondent siblings admit that they filed an action for partition docketed as Civil Case No. 02-52, which the RTC dismissed through an Order dated March 22, 2004 for the failure of the parties to attend the scheduled hearings. Respondents likewise admitted that since they no longer appealed the dismissal, the ruling attained finality. Moreover, it cannot be disputed that the subject property in Civil Case No. 02-52 and in the present controversy are one and the same, and that in both cases, respondents raise the same action for partition. And lastly, although respondent spouses Candelario were not party-litigants in the earlier case for partition, there is identity of parties not only when the parties in the case are the same, but also between those in privity with them, such as between their successors-in-interest. With all the other elements present, what is left to be determined now is whether or not the dismissal of Civil case No. 02-52 operated as a dismissal on the merits that would complete the requirements of res judicata. In advancing their claim, petitioners cite Rule 17, Sec. 3 of the Rules of Court, to wit: Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, 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 prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. The afore-quoted provision enumerates the instances when a complaint may be dismissed due to the plaintiff's fault: (1) if he fails to appear on the date for the presentation of his evidence in chief on the complaint; (2) if he fails to prosecute his action for an unreasonable length of time; or (3) if he fails to comply with the Rules or any order of the court. The dismissal of a case for failure to prosecute has the effect of adjudication on the merits, and is necessarily understood to be with prejudice to the filing of another action, unless otherwise provided in the order of dismissal. Stated differently, the general rule is that dismissal of a case for failure to prosecute is to be regarded as an adjudication on the merits and with prejudice to the filing of another action, and the only exception is when the order of dismissal expressly contains a qualification that the dismissal is without prejudice. In the case at bar, petitioners claim that the

Order does not in any language say that the dismissal is without prejudice and, thus, the requirement that the dismissal be on the merits is present.

Branch 68 in Camiling, Tarlac for purposes of partitioning the subject property in accordance with Rule 69 of the Rules of Court.

Truly, We have had the occasion to rule that dismissal with prejudice under the above-cited rule amply satisfies one of the elements of res judicata. It is, thus, understandable why petitioners would allege res judicata to bolster their claim. However, dismissal with prejudice under Rule 17, Sec. 3 of the Rules of Court cannot defeat the right of a co-owner to ask for partition at any time, provided that there is no actual adjudication of ownership of shares yet. Pertinent hereto is Article 494 of the Civil Code, which reads:

SO ORDERED.

Article 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned.

Facts:

Between dismissal with prejudice under Rule 17, Sec. 3 and the right granted to co-owners under Art. 494 of the Civil Code, the latter must prevail. To construe otherwise would diminish the substantive right of a co-owner through the promulgation of procedural rules. Such a construction is not sanctioned by the principle, which is too well settled to require citation, that a substantive law cannot be amended by a procedural rule.28 This further finds support in Art. 496 of the New Civil Code, viz: Article 496.Partition may be made by agreement between the parties or by judicial proceedings.1âwphi1 Partition shall be governed by the Rules of Court insofar as they are consistent with this Code. Thus, for the Rules to be consistent with statutory provisions, We hold that Art. 494, as cited, is an exception to Rule 17, Sec. 3 of the Rules of Court to the effect that even if the order of dismissal for failure to prosecute is silent on whether or not it is with prejudice, it shall be deemed to be without prejudice. This is not to say, however, that the action for partition will never be barred by res judicata. There can still be res judicata in partition cases concerning the same parties and the same subject matter once the respective shares of the coowners have been determined with finality by a competent court with jurisdiction or if the court determines that partition is improper for coownership does not or no longer exists. WHEREFORE, premises considered, the petition is hereby PARTLY GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 98919 dated July 8, 2013 and November 22, 2013, respectively, are hereby AFFIRMED with MODIFICATION. The case is hereby REMANDED to the RTC,

G.R. No. L-58986 April 17, 1989 DANTE Y. GO, petitioner, vs. HON. FERNANDO CRUZ, Judge, etc., CITY SHERIFF OF CALOOCAN CITY, and CALIFORNIA MANUFACTURING CO., INC., respondents.

On October 26, 1981, California Manufacturing Co., Inc. brought an action in the Court of First Instance of Manila against Dante Go, accusing him of unfair competition. The gravamen of California's complaint was that Dante Go, was selling his products in the open market under the brand name, "Great Italian," in packages which were in colourable and deceitful limitation of California's containers bearing its own brand, "Royal." Its complaint contained an application for preliminary injunction commanding Dante Go to immediately cease and desist from the further manufacture, sale and distribution of said products, and to retrieve those already being offered for sale. About two weeks later, however, California filed a notice of dismissal with the Court. Four days afterwards, or on November 16, 1981, California received by registered mail a copy of Dante Go's answer with counterclaim dated November 6, 1981, which had been filed with the Court on November 9, 1981. A fire broke out at the Manila City Hall destroying the records of cases therein kept, including that filed by California against Dante Go. California filed another complaint asserting the same cause of action against Dante Go, this time with the CFI at Caloocan City presided over by Judge Fernando A. Cruz. Judge Cruz issued an ex parte restraining order against Dante Go. On the following day, Dante Go filed the present petition for certiorari, etc. with this Court praying for its nullification and perpetual inhibition alleging that the case filed against him by California in the Manila Court remained pending despite California's notice of dismissal. According to him, since he had already filed his answer to the complaint before California sought dismissal of the action three (3) days afterwards, such dismissal was no longer a matter of right and could no longer be effected by mere notice in accordance with Section 1, Rule 17 of the Rules of Court, but only on plaintiff s motion, and by order of the Court; hence, the Caloocan Court acted without jurisdiction over the second action based on the same cause.

Issue: Whether that the case filed against Dante Go by California in the Manila Court remained pending despite California's notice of dismissal Ruling: No. The petitioner is in error. What marks the loss by a plaintiff of the right to cause dismissal of the action by mere notice is not the filing of the defendant's answer with the Court (either personally or by mail) but the service on the plaintiff of said answer or of a motion for summary judgment. This is the plain and explicit message of the Rules. "The filing of pleadings, appearances, motions, notices, orders and other papers with the court," according to Section 1, Rule 13 of the Rules of Court, means the delivery thereof to the clerk of the court either personally or by registered mail. Service, on the other hand, signifies delivery of the pleading or other paper to the parties affected thereby through their counsel of record, unless delivery to the party himself is ordered by the court, by any of the modes set forth in the Rules, i.e., by personal service, service by mail, or substituted service. Here, California filed its notice of dismissal of its action in the Manila Court after the filing of Dante Go's answer but before service thereof. Thus having acted well within the letter and contemplation of the afore-quoted Section 1 of Rule 17 of the Rules of Court, its notice ipso facto brought about the dismissal of the action then pending in the Manila Court, without need of any order or other action by the Presiding Judge. The dismissal was effected without regard to whatever reasons or motives California might have had for bringing it about, and was, as the same Section 1, Rule 17 points out, "without prejudice," the contrary not being otherwise "stated in the notice" and it being the first time the action was being so dismissed. There was therefore no legal obstacle to the institution of the second action in the Caloocan Court of First Instance based on the same claim. The filing of the complaint invested it with jurisdiction of the subject matter or nature of the action. WHEREFORE, the petition is DISMISSED, with costs against petitioner. The temporary restraining order of December 11, 1981, and the amendatory Resolution of April 14, 1982 are SET ASIDE. G.R. No. 55336 May 4, 1989 BENJAMIN VALLANGCA, RODOLFO VALLANGCA and ALFREDO VALLANGCA, petitioners vs. HON. COURT OF APPEALS and NAZARIO RABANES, respondents. Petition: Petition for Review on Certiorari

Facts: The agricultural land in dispute is the property of Ana Bilena, then married to Fortunato Vallangca with whom she had three (3) children, namely, Benjamin, Rodolfo and Alfredo, all surnamed Vallangca who are the petitioners herein. Upon Fortunato Vallangca's death, his widow Ana Billena, together with her eldest son Benjamin, mortgaged the land in dispute to her cousin Nazario Rabanes (private respondent herein). The agreement was not reduced to writing. At the time of said mortgage of the land to Nazario Rabanes, the land was already mortgaged to the Philippine National Bank. Nazario Rabanes made Bilena sign a document which Rabanes represented as a mortgage contract. Billena, being an illiterate and trusting in her cousin Rabanes affixed her signature on the document. In that same year, Billena was informed by a cousin of Rabanes that the alleged mortgage contract which she had signed was actually a deed of absolute sale. Ana Billena and her son Benjamin, went to Rabanes' place for the purpose of redeeming the land and actually tendered to him the loan amount. However, Rabanes told them that the land could no longer be redeemed. Since Ana Billena and her three (3) sons were in possession and actual cultivation of the land in question, Rabanes filed against them an injunction suit before the CFI of Cagayan. At the pretrial of said injunction suit, plaintiff Rabanes was advised by the trial court that injunction was not the proper cause of action, because injunction was merely an ancillary or provisional remedy to a main action. Another complaint entitled "Recovery of Possession" was lodged by Rabanes before the same court against the same defendants in the action for injunction. Two days later, the action for injunction was ordered dismissed by the trial court. Respondent Nazario Rabanes (later substituted by his heirs) had another version of the events. According to him, Ana Billena knowingly signed a deed of absolute sale in his favor and from then on, his tenants cultivated the land, until they were driven out by the three sons of Ana Billena. CFI of Cagayan, rendered judgment declaring Rabanes as the rightful owner of the land and ordered the petitioners to vacate the same. The defendants appealed to the Court of Appeals. The appellate court rendered judgment, affirming in toto the trial court's judgment. Hence this petition. Issue: Whether the dismissal of the suit for injunction filed by Rabanes was made without prejudice Ruling: Yes.

Petitioners, invoking the rule on "res judicata contend that the dismissal of the "Injunction" case filed against them, barred the filing by Rabanes against them of the second action for "Recovery of Possession." The heirs of private respondent Rabanes in turn aver, among others, that the Court of Appeals was correct in finding petitioners' reliance on res judicata as untenable. We sustain the Rabanes heirs on this point.

of the defendant or upon the court's own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by court.

When the issue of res judicata is raised, at least two (2) actions before a competent court are necessarily involved; one, still pending and the other, already decided with finality. It is the final judgment that ends the controversy and precludes a relitigation of the same causes of action.

(However, it was found out that the sale between Bilena and Rabens is a sale with pacto de retro wherein title of the vendees Rabanes to the property was to become absolute and irrevocable only upon the failure of Bilena or her heirs to repurchase the same within 5 years. As earlier stated, Billena exercised her right to repurchase the land and her heirs are up to the present time in actual and physical possession of the land. With these as premises, it can be said that Rabanes' title to the property remains to this date revocable and unconsolidated.)

The ruling of the Court of Appeals is correct when it held that the defense of res judicata was unavailing to the petitioners, because the prior injunction suit against them, which was dismissed, was merely an ancillary and not a main action. Petitioners would also like to impress that the dismissal order in the injunction suit, not having been made without prejudice, bars the second action for recovery of possession. Under Sec. 2, Rule 17 of the Rules of Court which provides:

Dismissals of actions (under Section 3) which do not expressly state whether they are with or without prejudice are held to be with prejudice or on the merits.

WHEREFORE, the appealed decision of the Court of Appeals in CA-G.R. No. 61133-R is REVERSED and SET ASIDE. Petitioners may redeem the property covered by TCT No. 1005 upon the return of the amount of Eight Hundred Pesos (P800.00) to private respondents, with interest at the rate of twelve percent (12%) per annum from 1 January 1962 until fully paid.

Sec. 2. Dismissal by order of the court.--Except as provided in the preceding section, an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice.

Petition: This is a petition to declare respondents in contempt of court.

A dismissal order is generally deemed to be without prejudice to the filing of another action. The only instance when dismissal of an action is with prejudice is, when the order itself so states. Stated differently, when the court issues, upon the plaintiff's instance, a dismissal order that is silent as to whether it is with or without prejudice, such as in the case at bar, the presumption is, that it is without prejudice. The cases cited by petitioners to support their contention cannot be made to apply here as they deal with dismissal orders issued as a result of plaintiff's failure to prosecute, and are covered by Section 3, and not Section 2, Rule 17 which provides:

Facts: The case was filed before this Court because of respondent Gordon's apprehension that he would be removed and replaced as chairman of the Subic Bay Metropolitan Authority (SBMA) upon the change of administration from President Ramos to President Estrada. The petition was for prohibition to prevent Gordon's ouster as chairman of the SBMA on the ground that he had a fixed term of office of six years which would not expire until February 10, 2004. As respondent Gordon apprehended, President Joseph Ejercito Estrada cancelled the appointment of the former as Chairman of the SBMA.

Sec. 3. Failure to prosecute. — If plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion

Instead of pressing his motion for a temporary restraining order, respondent Gordon filed a Notice of Withdrawal of his Petition. This was done at 9:21 in the morning. At 11:30 A.M. of that same day, he filed a petition for certiorari and prohibition in the RTC of Olongapo City.

G.R. No. 134171 November 18, 1998 THE EXECUTIVE SECRETARY and ARTURO C. LOMIBAO, petitioners, vs. RICHARD J. GORDON, ANACLETO M. DIAS, and ORLANDO E. MENDIOLA, respondents.

The filing of the case in the Olongapo court gave rise to the present petition to declare respondents in contempt of court filed by Executive Secretary Ronaldo Zamora and Arturo C. Lomibao. The petition is filed against respondents Richard Gordon and his counsel, the latter having filed the case in the Olongapo City RTC after filing a notice of withdraw the case pending in this Court. Petitioners charge that "the act of respondents in filing two (2) petitions involving the same issues before this Court and the Regional Trial Court at Olongapo City, both pending, constitutes forum-shopping and contempt of court." In its resolution, this Court granted respondents' prayer for leave to withdraw their petition, without prejudice to the disposition of the present petition for contempt. Respondents deny the charge against them. They contend that they in fact complied with the Rules of Court by disclosing in the certification of non-forum shopping attached to their petition for certiorari and prohibition before the RTC of Olongapo City, the existence and subsequent withdrawal of their petition for prohibition before this Court. Issue: Whether the act of respondents in filing two petitions involving the same issues before this Court and the RTC, both pending, constitutes forum-shopping and contempt of court Ruling: No. We find for respondents. Forum-shopping consists of filing multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. In the case at bar, although respondent Richard J. Gordon filed a petition for prohibition before this Court and, after two days, filed substantially the same petition before the Regional Trial Court of Olongapo City, the fact remains that (1) before filing his petition in the Olongapo court he first filed a notice of withdrawal of his petition which this Court later granted and (2) he withdrew his petition in this Court so that it may be filed in the proper court where it can be ventilated on its merits. No adverse decision had been rendered by this Court against respondent Gordon for which reason he thought it proper to institute the second action in the trial court. The situation he found himself in is similar to that in which a party, after filing a suit, realizes he made a mistake because the court in which he has brought the case has no jurisdiction. He, therefore, withdraws his action and refiles it in the proper forum. For, indeed, the policy of this Court respecting the hierarchy of courts and consequently prohibiting the filing of a petition in this Court in view of the concurrent jurisdiction with the lower courts has been

consistently observed in the absence of any compelling reason for departing from such policy. It is clear from respondents' actions and explanation that they had no intention of disregarding court processes WHEREFORE, the petition for contempt is DISMISSED. G.R. No. 202597 February 8, 2017 SPOUSES SERGIO C. PASCUAL and EMMA SERVILLION PASCUAL, Petitioners vs. FIRST CONSOLIDATED RURAL BANK (BOHOL), INC., ROBINSONS LAND CORPORATION and ATTY. ANTONIO P. ESPINOSA, Register of Deeds, Butuan City, Respondents DECISION Petition: Petition for review on certiorari Facts: The petitioners filed a petition for annulment of judgment in the CA in order to nullify and set aside the decision rendered in Special Proceedings Case No. 4577 by the RTC in Butuan City ordering the cancellation of their notice of lis pendens recorded in TCT No. RT-42190 of the Register of Deeds of Butuan City. After the responsive pleadings to the petition were filed, the CA scheduled the preliminary conference, and ordered the parties to file their respective pre-trial briefs. Instead of filing their pre-trial brief, the petitioners filed a Motion for Summary Judgment and a Motion to Hold Pre-Trial in Abeyance. At the scheduled preliminary conference, the petitioners and their counsel did not appear. The CA promulgated the first assailed resolution dismissing the petition for annulment of judgment stating that the filing of pre-trial brief is mandatory, whereby the failure to do the same would mean dismissal of the action with prejudice. CA also stated that it is only at the pre-trial that the rules allow the courts to render judgment on the pleadings and summary judgment. In addition, CA emphasized that it is not for the petitioners to arrogate whether or not pretrial may be suspended or dispensed with, or that their motions be resolved first, as the same are discretionary upon the court taking cognizance of the petition. Aggrieved, the petitioners filed their Motion for Reconsideration which the CA for being filed out of time. Hence, this appeal by petition for review on certiorari. Issue: Whether the petitioners can validly insist that the CA should have first resolved their Motion for Summary Judgment before holding the pre-trial

Ruling: No. We deny the petition for review for its lack of merit. Although motions for summary judgment can be filed before the pre-trial, their non-resolution prior to the pre-trial should not prevent the holding of the pre-trial We consider it erroneous on the part of the CA to declare that "it is only at the pre-trial that the rules allow the courts to render judgment on the pleadings and summary judgment, as provided by Section 2(g) of Rule 18 of the Rules of Court." The filing of the motion for summary judgment may be done prior to the pre-trial. Section 1, Rule 3 5 of the Rules of Court permits a party seeking to recover upon a claim, counterclaim, or cross-claim or seeking declaratory relief to file the motion for a summary judgment upon all or any part thereof in his favor (and its supporting affidavits, depositions or admissions) "at any time after the pleading in answer thereto has been served;" while Section 2 of Rule 35 instructs that a party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may file the motion for summary judgment (and its supporting affidavits, depositions or admissions) upon all or any part thereof "at any time." As such, the petitioners properly filed their motion for summary judgment prior to the pre-trial (assuming that they thereby complied with the requirement of supporting affidavits, depositions or admissions). The CA could have misconceived the text of Section 2(g), Rule 18 of the Rules of Court, to wit: Section 2. Nature and purpose. - The pre-trial is mandatory. The court shall consider: x x xx (g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; x x xx To be clear, the rule only spells out that unless the motion for such judgment has earlier been filed the pre-trial may be the occasion in which the court considers the propriety of rendering judgment on the pleadings or summary judgment. If no such motion was earlier filed, the pre-trial judge may then indicate to the proper party to initiate the rendition of such judgment by filing the necessary motion. Indeed, such motion is required by either Rule 34 (Judgment on the Pleadings) or Rule 35 (Summary Judgment) of the Rules of Court. The pre-trial judge cannot motu proprio render the judgment on the

pleadings or summary judgment. In the case of the motion for summary judgment, the adverse party is entitled to counter the motion. Even so, the petitioners cannot validly insist that the CA should have first resolved their Motion for Summary Judgment before holding the pre-trial. They could not use the inaction on their motion to justify their nonappearance with their counsel at the pre-trial, as well as their inability to file their pre-trial brief. In that regard, their appearance at the pre-trial with their counsel was mandatory. The petitioners argue that their non-appearance was not mandatory, positing that Section 2(g), Rule 18 of the Rules of Court had been amended by Administrative Circular No. 3-99 and A.M. No. 03-1-09-SC issued on July 13, 2004 but effective on August 16, 2004. The petitioners' argument was unwarranted. A.M. No. 03-1-09-SC (Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures) similarly underscored the mandatory character of the pre-trial, and reiterated under its heading Pre-Trial in civil cases that, among others, the trial court could then determine "the propriety of rendering a summary judgment dismissing the case based on the disclosures made at the pre-trial or a judgment based on the pleadings, evidence identified and admissions made during pre-trial." As such, they could have urged the trial court to resolve their pending Motion for Summary Judgment during the pre-trial. WHEREFORE, the Court AFFIRMS the assailed resolutions of the Court of Appeals promulgated in CA-G.R. SP No. 04020-MIN; and ORDERS the petitioners to pay the costs of suit.