THIRD DIVISION
G.R. No. 191353, April 17, 2017
ULTRA MAR AQUA RESOURCE, INC., REPRESENTED BY ITS PRESIDENT VICTOR B. PRIETO, Petitioner, v. FERMIDA CONSTRUCTION SERVICES, REPRESENTED BY ITS GENERAL MANAGER MYRNA T. RAMOS, Respondent.
D E C I S I O N
TIJAM, J.:
Assailed in this Petition for Review1 under Rule 45 is the Decision2 dated July 28, 2009 and Resolution3 dated February 9, 2010 of the Court of Appeals4 (CA) in CA G.R. CV No. 86540 which affirmed with modification the Regional Trial Court's (RTC) Decision5 dated October 7, 2004 and ordered Petitioner Ultra Mar Aqua Resource, Inc., (Ultra Mar) to pay Respondent Fermida Construction Services (Fermida) the construction costs of a warehouse pursuant to the parties' agreement.
"WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of [Fermida] and against [Ultra Mar] as follows: ordering the [Ultra Mar] to pay [Fermida] the amount of P1,106[,]000.38; with interest thereon at the legal rate from the date of the filing of this complaint. The amount of P50,000.00 as attorney's fees and P10,000.00 as litigation expenses; P100,000.00 as nominal damages and to pay the costs of suit.
SO ORDERED."16
"8. Since there were variations made construction does not conform with the approved plan and specifications. It appears there were items of works completed which are not included from the scope of work indicated in the contract documents.
9. No variation order approved and issued by the owner to contractor regarding the additional works performed by the contractor, but no written notice from ULTRA MAR AQUA RESOURCES INC., that they opposed the alteration or variation during the construction. It is apparent that PERMIDA [sic] CONSTRUCTION had received a verbal instruction regarding the supposed additional works.
CONCLUSIONS AND RECOMMENDATIONS
(a) Under GC-12 Completion and Acceptance of General Conditions of Contract which states that: 'Upon completion of the Work, written notice thereof shall be served by the Contractor to the Owner. Upon receipt of the said notice, the Owner shall inspect the Work to determine if it has been satisfactorily performed and completed in accordance with the Contract. xxx'
Based on the result of my ocular inspection, the contractor have [sic] to repair all defected [sic] works, and this project cannot be considered substantially completed and final billing should be withheld pending completion of repair and uncompleted item.x x x x x x x x x"19
"Considering that there are minor repair works noted in my July 1, 2004 report, I have recommended that the contractor have [sic] to repair all defected [sic] works and the final billing should be withheld pending completion of repair of defected [sic] works. I wish to be corrected that I just based that withholding of final billing on the usual way of collection being done by most private contractor that is 30% down payment followed by progress billing and a 10% final retention. Ultra Mar should withheld the payment of Fermida Construction for the 10% retention and not based on the final billing which includes the whole of contract amount and the supposed variation works. However, in this case, a surety bond was already posted by Fermida Construction, hence, the bond should be liable in this case to Ultra Mar if in case the contractor refuses to repair any of alleged defected [sic] works."20
"WHEREFORE, the Appeal is PARTIALLY GRANTED. The Decision dated 7 October 2004 of the Regional Trial Court, Third Judicial Region, Olongapo City, Branch 72, in Civil Case No. 199-0-2004 is MODIFIED as follows:
1. Appellant Ultra Mar Aqua Resources, Inc. is directed to pay appellee Fermida Construction Services the amount of P1,106,038.82 with legal interest thereon from the date of the filing of the Complaint subject to the 10% retention.
2. The awards of nominal damages, attorney[']s fees and litigation expenses are DELETED.
SO ORDERED."21
"(1) The Court of Appeals erred in holding that the Trial Court did not commit any reversible error in denying the Omnibus Motion to Lift Order of Default, Admit Attached Pre-trial Brief and Set the Case for Pre-trial Conference filed by Atty. Mas and in denying Atty. Mas' Motion for Reconsideration [of the Order dated September 17, 2004] with Compliance pursuant to Section 2, Rule 52 of the Rules of Court.
(2) The Court of Appeals erred in not relieving the petitioner from the effects of gross negligence of its counsel Atty. Leonuel Mas who despite receipt of the Decision of the Trial Court on October 15, 2004 did not inform the petitioner albeit deceivingly sent the petitioner a report dated November 26, 2004 that he moved the case be set for pre-trial."25
Section 4. Appearance of parties. – It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents.
Section 5. Effect of failure to appear. – The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.
Section 6. Pre-trial brief. – The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others:x x x
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.
"xxx xxx xxx
Here, We note that in the Preliminary Pre-Trial Order dated 8 June 2004, the court a quo had already directed the parties to submit their respective Pre-Trial Briefs at least three days before the Pre-Trial Conference, i.e., on or before 9 August 2004. However, on said date, appellant's counsel filed an Urgent Ex-Parte Motion for Postponement on the ground that he had an urgent matter to attend to. The records revealed that the Pre-Trial Conference was rescheduled and eventually pushed through on 7 September 2004. Once again, however, appellant's counsel failed to appear and file the required Pre-Trial Brief
In his attempt to set aside the Order allowing the presentation of evidence ex-parte, appellant's counsel filed the Omnibus Motion advancing his ill-health as reason for his failure to comply with the court a quos Order. x x x
From the foregoing factual milieu, We find no convincing ground to apply the policy of liberality. Appellant's counsel advanced no plausible justification why he failed to submit the Pre-Trial Brief the court a quo had directed him in its Preliminary Pre-Trial Order. Lenient as it was, the court a quo still gave appellant's counsel a chance albeit with the condition that he submit a Medical Certificate. Unfortunately, he failed to comply. That the subject Medical Certificate is dated 6 September 2004 did not escape Our attention. Verily, We find it perplexing why it was never attached to the Omnibus Motion dated 8 September 2004 or it was ever mentioned therein. As a practicing lawyer, appellant's counsel is aware that any claim of illness must be substantiated by a Medical Certificate. Likewise, We note that appellant's counsel was given five days from 9 September 2004 within which to submit the Medical Certificate in question. Interestingly, counsel was mum about the impossibility of his compliance because he left his records in Sta. Cruz, Zambales during the time he was ill. It was only on 13 October 2004 or 34 days after 9 September 2004 that he informed the court a quo the reason for his non-compliance. Under such factualness the court a quo unerringly denied the Omnibus Motion and subsequent Motion for Reconsideration with Compliance treating the latter as a Second Motion for Reconsideration prohibited under the Rules.xxx xxx xxx"30
"The general rule is that a client is bound by the counsel['s] acts, including even mistakes in the realm of procedural technique. The rationale for the rule is that a counsel, once retained, holds the implied authority to do all acts necessary or, at least, incidental to the prosecution and management of the suit in behalf of his client, such that any act or omission by counsel within the scope of the authority is regarded, in the eyes of the law, as the act or omission of the client himself."
"As clients, petitioners should have maintained contact with their counsel from time to time, and informed themselves of the progress of their case, thereby exercising that standard of care which an ordinarily prudent man bestows upon his business.
Even in the absence of the petitioner['s] negligence, the rule in this jurisdiction is that a party is bound by the mistakes of his counsel. In the earlier case of Tesoro v. Court of Appeals, we emphasized:It has been repeatedly enunciated that a client is bound by the action of his counsel in the conduct of a case and cannot be heard to complain that the result might have been different had he proceeded differently. A client is bound by the mistakes of his lawyer. If such grounds were to be admitted as reasons for reopening cases, there would never be an end to a suit so long as new counsel could be employed who could allege and show that prior counsel had not been sufficiently diligent or experienced or learned (citation omitted).33"
Endnotes:
1Rollo, pp. 9-31.
2 Id. at pp. 32-46.
3 Id. at pp. 45-46.
4 Penned by Associate Justice Japar B. Dimaampao and concurred in by Associate Justices Rebecca De Guia-Salvador and Estela M. Perlas-Bernabe.
5Rollo, pp. 87-95.
6 Id. at pp. 54-55.
7 Id. at p. 33.
8 Id.
9 Id. at p. 34.
10 Id. at p. 35.
11 Id. at pp. 47-53.
12 Id. at p. 80.
13 Id. at p. 82.
14 No copy attached to the Petition.
15Rollo, pp. 45-46.
16 Id.
17 Id. at pp. 83-84.
18 Section 2, Rule 52 of the Rules of Court provides:
SEC. 2. Second motion for reconsideration. - No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.
19 Id. at pp. 41-42.
20 Ibid.
21 Supra Note 2 at p. 43.
22 Id. at p. 45.
23 Supra Note 3.
24 Id. at p. 19.
25 Ibid.
26 Sec. 2. A party who fails to appear at a pre-trial conference may be non-suited or considered as in default.
27 Regalado, Remedial Law Compendium, Vol. I, Ninth Revised Edition, p. 309.
28Daaco v. Yu, G.R. No. 183398, June 22, 2015.
29 Ibid.
30 Id. at pp. 39-40.
31 The Philippine American Life & General Insurance Company v. Enario, G.R. No. 182075, September 15, 2010.
32 G.R. No. 173390, June 27, 2012 citing Bejarasco v. People, G.R. No. 159781, February 2, 2011, 641 SCRA 328, 330-331.
33Tan v. Court of Appeals, 524 Phil. 752, 760-761 (2006).
34Suico Industrial Corp. v. Lagura-Yap, G.R. No. 177711, September 5, 2012, 680 SCRA 145, 159.
35Rollo, p. 21.
36Del Rosario v. Bonga, G.R. No. 136308, January 23, 2001.
37Rollo, p. 43.
38 "2 (d) The ten percent (10%) retained amount shall be paid by the Owner to the Contractor, without interest, after written acceptance of the work by the Owner, subject to the formal request of the Contractor and upon posting of Surety Bond equivalent to ten percent (10%) in favor of the Owner."
39 Supra Note 20.