REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

7th JUDICIAL REGION
Branch 28
Mandaue City

IN RE :PETITION FOR ISSUANCE

OF NEW OWNER’S COPY OF TCT
NO. TP-20156 IN LIEU OF THE LOST
ONE”

TEODORO P. ALMARIO
Petitioner,

SP. PROC No. 3409-MAN

-versus- FOR:Petition for issuance
of new owner’s copy of TCT
No. TP-20156 in lieu of the
lost one.

REGISTER OF DEEDS IN THE

CITY OF MANDAUE, PROVINCE
OF CEBU
Respondent
x------------------------------------------------x

MOTION FOR RECONSIDERATION

(Of the Order Dated December 10, 2018)

COMES NOW, petitioner through undersigned counsel and unto this

Honorable Court respectfully states THAT:

PURPOSE

The subject matter of this Motion for Reconsideration is the Order of

this Honorable Court dated December 10, 2018, which reads:

“ WHEREFORE, in view of the foregoing considerations, the petition

is motu proprio DISMISSED, for failure of the petitioner and his
counsel to appear for the scheduled initial hearing thereof to establish
jurisdictional facts, despite due notice, and to comply with the
October 03, 2018 Order of this Court.”

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 MATERIAL DATES

The Order of this Honorable Court dated December 10, 2018 was
served at the law office through registered mail of the undersigned counsel
and received by the office secretary on January 09, 2019. The fifteenth (15th)
day or the last day within which petitioner can move for the reconsideration
of the said order is until January 24, 2019. Thu, this Motion for
Reconsideration is timely filed.

GROUNDS FOR RECONSIDERATION

Availing of his rights enshrined under Section 1, Rule 52, of the Rules
of Court, petitioner move for the reconsideration of the Order dated
December 10, 2018 based on the following grounds:

I.

THE ABSENCE OF THE PETITIONER AND THE

UNDERSIGNED COUNSEL DURING THE SCHEDULED HEARING
ON DECEMBER 10, 2018 WAS FOR A JUSTIFIABLE CAUSE AND
NOT A WILLFUL DISREGARD OF THE ORDERS OF THIS
HONORABLE COURT WHICH WILL JUSTIFY THE DISMISSAL OF
THE PETITION.
II.

PRIOR TO THE SCHEDULED HEARING ON DECEMBER 10,

2018, UNDERSIGNED COUNSEL OF THE PETITIONER FILED A
MOTION TO RESET HEARING AS HE WAS NOT AVAILABLE ON
SUCH DATE.
III.

THE ENDS OF JUSTICE AND FAIRNESS WOULD BE BEST

SERVED IF THE PETITIONER WILL BE GIVEN ANOTHER
OPPORTUNITY TO FULLY THRESH OUT THE ISSUES IN HIS
PETITION IN A FULL-BLOWN TRIAL.

DISCUSSION

I.
THE ABSENCE OF THE PETITIONER AND
THE UNDERSIGNED COUNSEL DURING
THE SCHEDULED HEARING ON
DECEMBER 10, 2018 FACTS WAS FOR A
JUSTIABLE CAUSE AND NOT A WILLFUL
DISREGARD OF THE ORDERS OF THIS
HONORABLE COURT WHICH WILL
JUSTIFY THE DISMISSAL OF THE
PETITION.
The dismissal
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of this instant petition in an order dated December 10, 2018, was based
solely on the petitioner and his undersigned counsel’s absence during the
scheduled hearing for the initial hearing to establish jurisdictional facts on
December 10, 2018 as it was construed by this Honorable Court as without
justifiable cause and their failure to comply with its order has the effect of
dismissal of action under Sec. 3, Rule 17 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.”

While it cannot be gainsaid that court can dismiss an action based on

the aforementioned rule, however, and without irreverence, the dismissal of
the action of the petitioner based on his absence and that of his counsel on
the first hearing of his petition to establish jurisdictional facts should not be
done with precipitate haste without giving the petitioner and his counsel the
opportunity to justify their absence in order to determine whether or not their
absence was, indeed, unjustifiable and is intended to disobey and disrespect
the order of this Honorable Court.

The pronouncement of the Supreme Court in the case of Calalang vs.

Court of Appeals G.R. No. 103185 January 22, 1993, applies strongly in
this case, viz:

“x x x though it is within the discretion of the trial court to declare a

party non-suited for non appearance in the pre-trial conference, such
discretion must not be abused. The precipitate haste of the lower court
in declaring the respondent bank non-suited was uncalled for and
deserved a second look.

xxxxxxxxx

Unless a partys conduct is so negligent, irresponsible, contumacious,

or dilatory as to provide substantial grounds for dismissal for non-
appearance, the courts should consider lesser sanctions which would
still amount into achieving the desired end. Inconsiderate dismissals,
even if without prejudice, do not constitute a panacea nor a solution
to the congestion of court dockets, while they lend a deceptive aura of
efficiency to records of the individual judges, they merely postpone
the ultimate reckoning between the parties. In the absence of clear
lack of merit or intention to delay, justice is better served by a brief
continuance, trial on the merits, and final disposition of the cases

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 before the court. (Ruiz vs. Estenzo, 186 SCRA 8 [1990] citing
Macasa vs. Herrera, 101 Phil. 44 [1957]). And there is authority that
an order dismissing a plaintiffs complaint without prejudice for
failure of his counsel to appear at a pre-trial conference must be
reversed as too severe a sanction to visit on a litigant where the
record is devoid of evidence reflecting the litigants willful or flagrant
disregard for the Courts authority.”

In this case, the petitioner and his counsel’s absence on the scheduled
initial hearing to establish jurisdictional facts was because the
undersigned counsel only learned of the date of the scheduled hearing
on the first week of December 2018 because he was not in office for a
couple of weeks as he has to attend to a more urgent matter which is
personal to him. The petitioner likewise has no personal knowledge of
the scheduled hearing as it was the office of the undersigned counsel
that received the order of this Honorable Court for the date of the
scheduled hearing. Although, the counsel had duly informed the
petitioner, however, because of the unavailability of the counsel on
that scheduled hearing, counsel then advised the petitioner not to
attend and filed a motion to reset hearing.

A single instance of non-appearance of the petitioner and

undersigned counsel should not be construed a willful disregard of the
orders of this Honorable Court which will justify the dismissal of the
action.

In Marahay v. Melicor, G.R. No. 44980, February 6, 1990, 181

SCRA 811, 817. the Supreme Court ruled that:

“While a court can dismiss a case on the ground of non

prosequitur, the real test for the exercise of such power is
whether, under the circumstances, plaintiff is chargeable with
want of due diligence in failing to proceed with reasonable
promptitude. In the absence of a pattern or scheme to delay the
disposition of the case or a wanton failure to observe the
mandatory requirement of the rules on the part of the plaintiff,
as in the case at bar, courts should decide to dispense with
rather than wield their authority to dismiss.

II.

PRIOR TO THE SCHEDULED HEARING

ON DECEMBER 10, 2018, UNDERSIGNED
COUNSEL OF THE PETITIONER FILED A
MOTION TO RESET HEARING AS HE
WAS NOT AVAILABLE ON SUCH DATE.

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 The undersigned counsel of the petitioner, upon learning on the first
week of December 2018 of the scheduled hearing of the petition,
immediately filed a Motion to Reset Hearing dated December 04, 2018
which was received by this Honorable Court only on December 7, 2018. The
ultimate purpose of the motion is to reset the hearing on December 10, 2018
to February 11, 2018 or to any date thereafter most convenient with the
Calendar of this Honorable Court considering that the undersigned counsel
was not available on such date the hearing was scheduled.

The undersigned counsel then duly informed the petitioner of the

scheduled hearing and that he filed a motion to reset hearing due to his
unavailability. The petitioner was constrained not to attend the scheduled
hearing sans his counsel.

The filing of the Motion to Reset Hearing by the undersigned counsel,

albeit belatedly received by this Honorable Court on December 07, 2018, is
a clear manifestation that the petitioner and his counsel’s obedience and
respect of the orders of this Honorable Court without any slight intention to
flagrantly or willfully disregard this honorable Court’s jurisdiction and
authority. If not because of the personal matter which the undersigned would
have to attend to which coincides with the scheduled hearing of this case, he
and the petitioner would have been present on that day as they are more than
willing to pursue this case.

III.

THE ENDS OF JUSTICE AND FAIRNESS

WOULD BE BEST SERVED IF THE
PETITIONER WILL BE GIVEN AN
OPPORTUNITY TO FULLY THRESH OUT
THE ISSUES OF HIS PETITION IN A FULL
–BLOWN TRIAL.

The petitioner and the undersigned counsel has clearly establish the
reasons for this absence during the initial hearing and considering that they
have not shown culpable negligence or wanton disregard or failure to
observe the mandatory requirement of the rules, petitioner and the
undersigned sought the kind indulgence and magnanimity of this Honorable
Court to reconsider and reverse its order dated December 10, 2018. The ends
of justice and fairness would best be served if the issues involved in the
petition are threshed out in a full-blown trial.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

of this Honorable Court that the Order dated December 10, 2018 be
reconsidered by declaring that the Order dated December 10, 2018
dismissing the petition be set aside and vacated and further ordering the new
schedule date for the initial hearing to establish jurisdictional facts.
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 Such other reliefs equitable and consistent with criminal justice are
hereby prayed of.

Cebu City, Philippines, (For Mandaue City) December 04, 2018

RESPECTFULLY SUBMITTED.

THE LAW FIRM OF PIRAMIDE FAMOR JR CORPUZ PATIÑO &

PIRAMIDE
Suite 222 C.S. Ladia Bldg., P. Del Rosario St.,
cor. Junquera St., Cebu City
Tel No. (032) 254-5545

By:

ATTY. JURIL B. PATIÑO

Counsel for the Petitioner
Roll of Attorney No. 63966 April 27,2015
PTR OR No. 8791706 /12/05/2017/Cebu City
IBP OR No. 035101 01/18/86 Cebu City Chapter
MCLE COMPLIANCE No.V-0015102
Email add: juril.patino@yahoo.com

NOTICE OF HEARING

The Branch Clerk of Court

Regional Trial Court
Branch 28
Mandaue City, Cebu

Greetings:

Kindly submit the foregoing Motion for Reconsideration for the

consideration of the Honorable Court immediately upon receipt and schedule
the same for hearing on February 15, 2019, (Friday) at 8:30 o’clock in the
morning.

JURIL B. PATIÑO

COPY FURNISHED by registered mail:

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PROS. JAY V. PARADIANG
Office of the Provincial Prosecutor
Ground Floor, Palace of Justice
Capitol, Cebu City

Received by: ________________________

Date Received: ______________________

REGISTRY OF DEEDS
Mandaue City, Cebu

Received by: ________________________

Date Received: ______________________

EXPLANATION

Undersigned counsel has furnished the public prosecutor and the

Office of the Registry of Deeds of Mandaue City of a copy of the foregoing
motion though registered mail, and not by personal delivery due to distance
and time constraint and for lack of personnel to effect personal service.

JURIL B. PATIÑO