III.

a) If I were the counsel of the defendant, I would file a motion to dismiss the case on the ground of
failure of the plaintiff and his counsel to appear during the pre-trial conference and their failure to
submit a pre-trial brief.

Under Rule 18, Sec. 5 of the Revised Rules of Court, the law provides that “the failure of the
plaintiff to appear (in the pre-trial) when so required shall be cause for the dismissal of the action”.
Likewise, Sec. 6, last paragraph of similar rule indicates that “failure to file the pre-trial brief shall have
the same effect as failure to appear at the pre-trial”.

Therefore, for failure of the plaintiff and his counsel to appear in the pre-trial and to submit the
necessary pre-trial brief, the case should be dismissed against them with prejudice, unless otherwise
ordered by the court.

b) If I were the counsel for the plaintiff, I will file the following remedial action:

A. If the judgment is with prejudice:

1. Motion for reconsideration on the ground that the decision is contrary to law (Rule 37, Sec. 1)
because the absence of the plaintiff and/or his counsel is excusable. Under Rule 18, Sec 4, the
law provides that the non-appearance of a party may be excused if valid cause is shown thereof.
In this case, should the counsel for the plaintiff be able to justify his non-appearance and of his
client, a motion for reconsideration shall be proper.

2. Appeal to the decision of the court. Under Rule 41, Sec. 1, the rule provides that an appeal
may be taken from a judgment or final order that completely disposes of the case or of a
particular matter therein when declared by the Rules to be appealable. Since an order
dismissing an action with prejudice completely disposes of the case, it follows that filing an
appeal in this case shall be proper.

B. If the judgment is without prejudice:

1. Refiling of the same action or claim. In the case of DBP vs. Hon. Carpio, GR. No. 195450, Feb.
1, 2017, the court explained that since judgment with prejudice bars the refiling of the same
action or claim, it is shall be logical that when the judgment is without prejudice, the refiling of
the same action shall be allowed.

2. Certiorari under Rule 65 if the court acted without or in excess of its jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction in dismissing the case. Under Rule
41, Sec. 1 of the Rules of court, last paragraph, the rule provides that any of the foregoing
circumstances (including an order dismissing an action without prejudice), the aggrieved party
may file an appropriate special civil action as provided in Rule 65.