G.R. No. 227289, February 20, 2017


For Resolution is a Petition for Review on Certiorari under Rule 45 seeking the reversal of the Regional Trial Court (RTC) Orders dated June30, 2016 and September 23, 2016 in Civil Case No. 14-132644, dismissing the complaint for failure to prosecute or present evidence pursuant to Section 3, Rule 17 of the Revised Rules of Court.

As stated in the assailed Order [1] dated June 30, 2016, the RTC ordered Atty. Abelardo James Sonico (Atty. Sonico), the petitioners' counsel, to present his first witness. However, instead of presenting his witness, Atty. Sonico made a lengthy narration of the facts of his case. The defendants' counsel vehemently objected to such narration and argued that during the last hearing, Atty. Sonico was warned that should he fail to present his evidence on the next hearing, the case will be dismissed. Thus, the RTC called the attention of Atty. Sonico and ordered him to present his witness in order to testify on the matter that he just narrated or manifested. The RTC further warned Atty. Sonico that if he cannot present his evidence, the case will be dismissed considering that the presentation of plaintiffs' evidence was already reset for several times. Apparently, Atty. Sonico was not ready to present his witness and the defendants' counsel moved for the dismissal of the case.

Accordingly, the RTC rendered the assailed Order dated June 30, 2016. The dispositive portion states:

This Court is, therefore, constrained to dismiss this case based on the following reasons:
  1. For failure to comply and obey the Order of the Court to submit an Amended Judicial Affidavit;
  2. For failure of the plaintiff to prosecute or to present evidence for several times, and
  3. The dismissal of the case is pursuant to Section 3, Rule 17 of the Revised Rules of Court.
The case is hereby ordered [DISMISSED].

Aggrieved by the unfavorable Order, petitioners filed a Motion for Reconsideration which was subsequently denied by the RTC in its Order dated September 23, 2016.

Hence, this petition.


Whether the RTC erred when it issued the orders dated June 30, 2016 and September 23, 2016

Ruling of this Court

We deal first with the procedural issue, which is the propriety of the remedy availed of by petitioners.

It bears stressing that the RTC Order dated June 30, 2016 dismissing Civil Case No. 14-132644 for failure to prosecute or present evidence is a final order. It operates as a judgment on the merits. Indeed, this is an express provision in Section 3, Rule 17 of the Rules of Court. The same characterization applies to the September 23, 2016 Order denying the motion for reconsideration. It is axiomatic that the remedy against such final order is appeal and not certiorari[2]

In Murillo v. Consul,[3] which was later adopted by the 1997 Revised Rules of Civil Procedure, this Court had the occasion to clarify the three (3) modes of appeal from decisions of the RTC, namely: (1) ordinary appeal or appeal by writ of error, where judgment was rendered in a civil or criminal action by the RTC in the exercise of original jurisdiction; (2) petition for review, where judgment was rendered by the RTC in the exercise of appellate jurisdiction; and (3) petition for review on certiorari.

The first mode of appeal is taken to the Court of Appeals on questions of fact or mixed questions of fact and law.

The second mode of appeal is brought to the Court of Appeals on questions of fact, of law, or mixed questions of fact and law.

The third mode of appeal elevated to this Court is governed by Rule 45 of the Rules of Court and allows only questions of law.

A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them.[4]

In the present case, the petitioners challenged the orders of the RTC dismissing their complaint for failure to prosecute. A resolution on the propriety of the dismissal of the case due to failure to prosecute requires a review of the factual circumstances that led the RTC to so decide, such as the number of postponements and the reasons or grounds therefor. It, therefore, involves issues of both. Thus, petitioners should have brought this case to the Court of Appeals via the first mode of appeal under Rule 41 of the Rules of Court.

It cannot be overemphasized that an appeal taken to either this Court or the CA by the wrong mode or inappropriate mode shall be dismissed. This rule is now incorporated in Section 5,[5] Rule 56 of the 1997 Rules of Civil Procedure. Moreover, the filing of the case directly with this Court runs afoul of the doctrine of hierarchy of courts. Pursuant to this doctrine, direct resort from the trial courts to this Court will not be entertained unless the appropriate remedy cannot be obtained in those tribunals. This Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the Constitution and immemorial tradition.[6] Thus, an appeal assailing the decision involving both questions of fact and law must first be brought before the CA.

Even if we were to treat petitioners' appeal under Rule 45 of the Rules of Court, the instant petition will still face dismissal for failure to comply with the requirements of the Rule as provided under Section 5[7] of Rule 45. First, the petitioners failed to set forth concisely the statements of the matters involved and the reasons and arguments for the allowance of the petition except for petitioners' bare statement that they are very much interested in pursuing their case. Second, the verification and certification of non-forum shopping is fatally defective for having been signed by petitioner's counsel instead of the petitioners themselves. The Court explained in Jacinto v. Gumaru[8] the effects of non-compliance with the requirement of verification and certification of non-forum shopping, to wit:
5) The certification against forum shopping must be signed by all the plaintiffs or petitioners in a case; otherwise, those who did not sign will be dropped as parties to the case. Under reasonable or justifiable circumstances, however, as when all the plaintiffs or petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them in the certification against forum shopping substantially complies with the Rule.

6) Finally, the certification against forum shopping must be executed by the party-pleader, not by his counsel. However, for reasonable or justifiable reasons, the party-pleader is unable to sign, he must execute a Special Power of Attorney designating his counsel of record to sign on his behalf, (emphasis supplied)
Petitioners' counsel signed the verification and certification of non-forum shopping without any showing of a Special Power of Attorney executed by the petitioners in his favor. Lastly, the petition was filed out of time. Section 2, Rule 45 of the Rules of Court stated the proper time of filing of the appeal by certiorari, to wit:
Section 2. Time for filing; extension. — The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition, (1a, 5a) (Emphasis supplied)
The foregoing rules are clear. This Court grants only an extension of thirty (30) days to file the petition. As stated in their petition, the petitioners received the denial of their Motion for Reconsideration on October 4, 2016. They filed a motion for extension on October 17, 2016. With an extension of 30 days, the petition must be filed on or before November 18, 2016.

Even if we were to disregard the dismissibility of this case on procedural grounds, we still find no fault on the part of the trial court in rendering the assailed Orders. It is the duty of the plaintiff to prosecute his or her action within a reasonable length of time, and comply with the Rules and court orders. Failure to do so would justify the dismissal of the case.[9] The true test for the exercise of the power to dismiss a case on the ground of failure to prosecute is whether, under the prevailing circumstances, the plaintiff is culpable for want of due diligence in failing to proceed with reasonable promptitude.[10]

IN VIEW OF THE FOREGOING, the instant petition is DENIED for lack of merit. (Reyes, J., on leave; Caguioa, J., designated as Fifth Member of the Third Division per Special Order No. 2417 dated January 4, 2017)


[1] Rollo, pp. 16-17.

[2] American Home Assurance Company v. Court of Appeals, G.R. No. 94149, May 5, 1992, 208
SCRA 343.

[3] Resolution of the Court En Banc in UDK-9748, March 1, 1990.

[4] Binay v. Odea, G.R. No. 163683, June 8, 2007.

[5] Section 5. Grounds for dismissal of appeal. - The appeal may be dismissed motu propio or on motion of the respondent on the following grounds:
(a) Failure to take the appeal within the reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs;
(d) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition;
(e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause;
(f) Error in the choice or mode of appeal ; and
(g) The fact that the case is not appealable to the Supreme Court. (Emphasis supplied)
[6]Ouano v. PGTT International Investment Corporation, 434 Phil. 28, 34 (2002).

[7] Section 5. Dismissal or denial of petition. — The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof.

[8] Jacinto v. Gumaru, G.R. No. 191906, June 2, 2014.

[9] Rules of Court, Rule 17, Sec. 3.

[10] Belonio v. Rodriguez, G.R. No. 161379, August 11, 2005, 466 SCRA 557, 580.