486 CIVIL PROCEDURE
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3. A similar rule is adopted in Sec. 6, Rule 16 and Sec. 3
of Rule 17 wherein the dismissal of the complaint does not carry
with it the dismissal of the counterclaim. The same provision
also grants the defendant a choice in the prosecution of his Chapter VII
counterclaim. Note: Please refer to discussions in Chapter IV.
PRE-TRIAL AND MODES OF DISCOVERY
Dismissal of counterclaim, cross-claim or third-party
complaint A. PRE-TRIAL
Rule 17 shall apply also to the dismissal of any
counterclaim, cross-claim, or third-party complaint. A Concept, nature, and purpose of a pre-trial (Bar 2009)
voluntary dismissal by the claimant by notice of dismissal,
as in Sec. 1 of Rule 17, shall be made before a responsive 1. Specifically, under the Rules, a pre-trial is a
procedural device held prior to the trial for the court to
pleading or a motion for summary judgment is served, or, if
consider the following purposes:
there is none, before the introduction of evidence at the trial
or hearing (Sec. 4, Rule 17, Rules of Court, as amended by (a)The possibility of an amicable settlement or a
A.M. No. 19-10-20-SC). submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
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(c) The necessity or desirability of amendments to
the pleadings;
(d) The possibility of obtaining stipulations or
admissions offacts and of documents to avoid unnecessary
proof;
(e) The limitation of the number and identification
of witnesses and the setting of trial dates;
(f) The advisability of a preliminary reference of
issues to acommissioner;
imomont for tho narties to
(g) I ne requiren
1. Mark their respective evidence if not yet
marked in the judicial affidavits of their witnesses;
2.Examine and make comparisons of the
adverse parties' evidence vis-à-vis the copies to be
marked;
487
498 CIVIL PROCEDURE
CHAPTER VII 499
THE BAR LECTURES SERIES PRE-TRIAL AND MODES OF DISCOVERY
VOLUME I
The phraseology of the provision suggests that it is not Pre-trial brief; filing and contents
sufficient for the written authority to give the representative
1. The parties shall file with the court and serve on the
the power to enter into only one of the matters mentioned in adverse party, in such manner as shall ensure their receipt
Sec. 4 of Rule 18, as when the only authority granted is to enter thereof at least 3 calendar days before the date of the pre-trial
into an amicable settlement. The authority must also confer (Sec. 6, Rule 18, Rules of Court, as amended by A.M. No. 19-
upon the representative the power to submit to alternative 10.20.SC)
modes of dispute resolution, and enter into stipulations or
admissions of facts. An incomplete authority does not satisfy The pre-trial brief shall contain the following matters:
the requirements of the Rules and should be deemed the (a) A concise statement of the case and the reliefs
equivalent of having no authority at all. prayed for;
2.The written authority must be in the form of a special (b) A summary of admitted facts and proposed
power of attorney. Entering into an amicable settlement for a
stipulations of facts;
client, who is the principal in the attorney-client relationship,
involves entering into a compromise. Substantive law (Art. (c) The main factual and legal issues to be tried or
1878[3] of the Civil Code of the Philippines)is explicit: "Special resolved;
power(s) of attorney are necessary x x x To compromise, to
(d) The propriety of referral of factual issues to
submit questions to arbitration x x x" (Italics ours).
commissioners;
Procedural rules (Sec. 23, Rule 138), likewise, prohibit
(e) The documents or other object evidence to be
an attorney to compromise his client's litigation or receive
anything in discharge of a client's claim, but the full amount marked, stating the purpose thereof;
in cash, without a "special authority." (f) The names of the witnesses, and the summary
3. In a case, the petitioner and its counsel of record of their respective testimonies; and
were not present in the scheduled pre-trial, court-annexed (g) A brief statement of points of law and citation of
mediation, and judicial dispute resolution, and they likewise authorities (Sec. 6, Rule 18, Rules of Court, as amended
did not file a pre-trial brief, the Court stressed that Rule 18 of by A.M. No. 19-10-20-SC).
the Rules of Court leaves no room for equivocation; appearance
of parties and their counsel at the pre-trial conference, along 2. The pre-trial brief shall include a manifestation of a
withthe filing of a corresponding pre-trial brief. is mandatory. party's having availed of or the intention to avail of discovery
It is duty. Non-appearance cannot be excused as Sec. 4, in
a procedures (Commissioner of Internal Revenue v. San Miguel
relation to Sec. 6 of Rule 18, allows only 3 exceptions: Corporation, G.R. No. 205045, January 25, 2017).
(1) acts of God;
Identification and marking of evidence
(2) force majeure; or
ts identified
It is vital to have the documents and exhibi
(3) duly substantiated physical inability (Sec. 4, and marked during the pre-trial. The current
rule establishes
Rule 18, Rules of Court, as amended by A.M. No. 19-10- allo wed to be presented
the policy that no evidence shall be
20-SC).
offered during the trial in support of a party's evidence-
and
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THE BAR LECTURES SERIES PRE-TRIAL AND MODES OF DISCOVERY
VOLUME I
refusal, or both of them, to pay the proponent the amount (d) The court may direct the arrest of any party
of the reasonable expenses incurred in obtaining the or agent of a party for disobeying any of the orders of
order, including attorney's fees (Sec. 1, Rule 29, Rules the court, except an order to submit to a physical or
of Court, as amended by A.M. No. 19-10-20-SC). Also, a mental examination (Sec. 3[d], Rule 29, Rules of Court,
refusal to answer after being directed by the proper court as amended by A.M. No. 19-10-20-SC).
may be considered a contempt of that court (Sec. 2, Rule
29, Rules of Court, as amended by A.M. IVo. 19-10-20-SC). C. Rerusal to be sworn
(b) If the application for an order to compel a A refusal of a party to be sworn after being directed by
deponent to answer is denied because of the absence of the court may be considered a contempt of that court (Sec. 2,
a substantial justification, the court may require the Rule 29, Rules of Court, as amended by A.M. No. 19-10-20-
proponent or the counsel advising the application, or SC).
both of them, to pay to the refusing party or deponent the
amount of the reasonable expenses incurred in opposing
D. Refusal to admit
the application, including attorney's fees (Sec. 1, Rule 29, If party refuses to admit the genuineness of any
a
Rules of Court, as amended by A.M. No. 19-10-20-SC). document or the truth of any matter of fact and serves a
sworn denial thereof, and if the other party later on proves
B. Refusal to answer designated or particular
the genuineness of the document or the truth of such matter
questions or refusal to nroduce documents or things or
of fact, the court, upon proper application, may order the
to submit to physical or mental examination former to pay the reasonable expenses in making such proof,
(a) The court may order that the matters, regarding including attorney's fees (Sec. 4, Rule 29, Rules of Court, as
which the questions were asked, shall be taken as amended by A.M. No. 19-10-20-SC).
established for purposes of the action in accordance with
E. Failure to attend depositions or to serve
the claim of the party obtaining them (Sec. 3[a], Rule 29,
answers to interrogatories (Bar 2010)
Rules of Court, as amended by A.M. No. 19-10-20-SC).
1. The court may (a) strike out all or any part of the
(b) The court may issue an order refusing to allow
the disobedient party to support or oppose designated
pleading of that party, (b) dismiss the action or proceeding
or any part thereof, (c) enter a judgment by default against
claims or defenses or prohibiting him or her from
that party, and, in its discretion, (d) order him or her to
introducing in evidence designated documents or things
nay reasonable exnenses incurred by the other, including
or items of testimony, or from introducing evidence of
physical or mental condition (Sec. 3[b], Rule 29, Rules of attorney's fees (Sec. 5, Rule 29, Rules of Court, as amended by
A.M. No. 19-10-20-SC).
Court, as amended by A.M. No. 19-10-20-SC).
2. The consequences under Sec. 5 of Rule 29 will
(c) The court may issue order striking out
apply if a party refuses to answer the whole set of written
an
pleadings or parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the action or
ogatories, and not just a particular question. Where
interr
the party, upon whom the written interrogator
ies is served,
proceeding or any part thereof, or rendering a judgment
refuses to answer a particular question in the
set of written
by default against the disobedient party (Sec. 3[c], Rule
29, Rules of Court, as amended by A.M. No. 19-10-20-SC). interrogatories and despite an order compelling him to answer
534 CIVIL PROCEDURE
THE BAR LECTURES SERIES
VOLUME I
the particular question, still refuses to obey the order, Secс. 3(с)
of Rule 29 will apply (Zepeda v. China Banking Corporation,
504 SCRA 126, 134). Chapter VIII
The following are the consequences provided for in
Sec. 3(c) of Rule 29, as amended by A.M. No. 19-10-20-SC: TRIAL, DEMURRER TO EVIDENCE,
ANDIUDGMENT
(a) The court may issue an order striking out
pleadings or parts thereof;
A. TRIAL
(b) The court may issue an order staying further
proceedings until the order is obeyed;
Meaning of 'trial'
(c) The court may issue an order dismissing the
Trial is the judicial examination and determination of
action or proceeding or any part thereof; or
the issues between the parties to the action (Black's Law
(d) The court may issue an order rendering a Dictionary, 5th Ed., 1348; Citations omitted). Simply put, a
judgment by default against the disobedient party. trial is the judicial process of investigating and determining
the legal controversies between or among the parties. During
3. The matter of how, and when, the above sanctions
should be anplied is one that primarily rests on the sound the trial, the parties present their respective evidence of their
claims and defenses. Such claims and defenses shall constitute
discretion of the court where the case is pending, having
always in mind the paramount and overriding interest of the bases for the judgment of the court.
justice. For while the modes of discovery are intended to attain
the resolution of litigations with greatexpediency, they are Trial and hearing
not contemplated, however, to be ultimate causes of injustice. The terms 'trial' and 'hearing' are sometimes
It behooves trial courts to examine well the circumstances of
interchangeably used. There is, however, a marked difference
each and make their considered determination thereafter
between these terms. Hearing is a broader term and is not
case
(Zepeda v. China Banking Corporation, supra). confined to the trial and presentation of the evidence because
it actually embraces several stages in the litigation. It includes
-000- the pre-trial and the determination of granting or denying a
motion (Trocio v. Labayo, 53 SCRA 97, 100).
When trial is necessary/unnecessary (Bar 1996)
s
1. Generally, a trial is necessary when there are issue
denia ls of the mater ial
to be tried as result of the specific
are presented
allegations in the complaint. Where no issues
in the case because the defending
party's answer to the
a
n to conduct
complaint tenders no issue, there is no reaso
535
