Chan v.

Abaya

1. CFI Surigao: Chan filed a complaint against Agao for indemnification for damages suffered by him and his
famliy as a result of prosecution by Agao.
a. Agao - Answer: denial with counterclaim for damages, attorney's fees, costs, and payment of back
rentals on a building.
b. Chan - Motion for a Bill of Particulars : regarding the alleged lease contract
i. Abaya, the respondent judge, did not take action on the motion and set the pre-trial
conference on Aug 13 and 14, 1975.
c. Chan - Telegraphic Motion on Aug 11, followed by a formal written motion: asking that pre-trial be
reset until his motion for a bill of particulars shall have been resolved.
i. Pre-trial on Aug 13 continued as scheduled but Chan and counsel were absent.
d. AUG 13 PRE-TRIAL
i. Agao's counsel asked the court that the petitioner be ordered to pay the private respondent
her expenses in coming to court.
1. Granted by Judge Abaya. An Order was issued directing the petitioner and/or his
counsel to pay 200 pesos in damages not later than the next hearing of the case.
a. Chan filed an MR. --> Ruling: Amount was reduced to 100 pesos.
ii. The pretrial conference was re-set to September 23 and 24, 1975.
2. SC: Chan filed a Petition for Certiorari to annul Orders requiring payment of P100.00 for damages.
a. Grounds: (1) Unjustified because he was not properly notified of the pre-trial; (2) the calling of a
pre-trial conference on said date was premature since his MBP had not yet been resolved.
b. ANSWER: There was substantial compliance with the rules on notice. (1) Chan's counsel was notified
by telegram on August 6; (2) His counsel, in turn, notified Chan of such pre-trial hearing by telegram.

ISSUES

WON the calling of a pre-trial conference on August 13, 1975 was untimely: YES

 RULE: The court is directed to hold the pre-trial of the case after the last pleading has been filed (Rule 20.1).
The Court has held that the 'last pleading' is ordinarily the answer, but when the defendant's answer
contains a counterclaim, plaintiff's answer to it is the last pleading.
o Rule 20.1 provides:
 "Section 1. Pre-trial mandatory. — In any action, after the last pleading has been filed, the
court shall direct the parties and their attorneys to appear before it for a conference to
consider [...]"
 Application: The "last pleading" in the case would be the answer of the plaintiff to the counterclaim of the
defendant. But, no answer to the counterclaim had been filed because of the unresolved motion for a bill of
particulars. Obviously, the calling of a pre-trial conference on August 13, 1975 was premature since there
has yet to be filed the "last pleading".

WON respondent judge erred in discarding the MBP: Yes

 Rule: The failure of a movant to appear on the day of the hearing of his motion is not sufficient reason to
discard a motion and treat it as a mere scrap of paper. The better rule is to deny such motion for
abandonment or for failure to prosecute.
 Application:
o Respondent judge's justification for not acting on the MBP:
  The Clerk of Court informed the court that said motion was received by his office in the
afternoon of March 14, 1975 so that although it was set for hearing on said date, it could
not be heard on the specified time it was set for hearing, which was in the morning of March
14
 Moreover, plaintiff's counsel failed to appear on said date to prosecute his motion. Neither
did he verify whether or not his motion reached the court on time, so that he would have
known the status of the same.

WON there was sufficient notice of the pre-trial conference to Chan: NO

 RULE: The parties, as well as their counsel, who are required to appear thereat, must be notified of the
same, and the notice of pre-trial must be served upon them separately.
 Application:
o While a copy of the notice may have been sent to Chan separately by registered mail at his given
address of record on August 8 he received it only on on August 18. His inability to attend and be
present at the pre-trial conference on August 13, 1975 is, therefore, justified.
o The fact that his attorney had sent a telegram of "Escribano" notifying them of the setting of the
pre-trial conference should not militate against Chan because the telegram, to him, was vague and
ambiguous, prompting him to send a telegram to his counsel that he "did not receive any court order
regarding our motion or defendants amended answer", and inquiring who " Escribano " is.

WON the award of damages in the amount of 100 pesos was unfounded and without basis: YES. Such an award
cannot be justified under Article 2208 of the Civil Code.

WHEREFORE, the petition is granted and the orders of the respondent judge dated August 13 and November
3, 1975, in Civil Case No. L-154 of the Court of First Instance of Surigao del Sur, entitled, "Alfonso A. Chan,
plaintiff, versus Sofronia Argao, defendant, " should be, as they are hearby annulled and set aside. Costs
against the private respondent, Sofronia Agao.