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TEODORO P. ALMARIO
Petitioner,
PURPOSE
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MATERIAL DATES
The Order of this Honorable Court dated December 10, 2018 was
served at the law office through registered mail of the undersigned counsel
and received by the office secretary on January 09, 2019. The fifteenth (15th)
day or the last day within which petitioner can move for the reconsideration
of the said order is until January 24, 2019. Thu, this Motion for
Reconsideration is timely filed.
Availing of his rights enshrined under Section 1, Rule 52, of the Rules
of Court, petitioner move for the reconsideration of the Order dated
December 10, 2018 based on the following grounds:
I.
DISCUSSION
I.
THE ABSENCE OF THE PETITIONER AND
THE UNDERSIGNED COUNSEL DURING
THE SCHEDULED HEARING ON
DECEMBER 10, 2018 FACTS WAS FOR A
JUSTIABLE CAUSE AND NOT A WILLFUL
DISREGARD OF THE ORDERS OF THIS
HONORABLE COURT WHICH WILL
JUSTIFY THE DISMISSAL OF THE
PETITION.
The dismissal
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of this instant petition in an order dated December 10, 2018, was based
solely on the petitioner and his undersigned counsel’s absence during the
scheduled hearing for the initial hearing to establish jurisdictional facts on
December 10, 2018 as it was construed by this Honorable Court as without
justifiable cause and their failure to comply with its order has the effect of
dismissal of action under Sec. 3, Rule 17 of the Rules of Court, to wit:
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before the court. (Ruiz vs. Estenzo, 186 SCRA 8 [1990] citing
Macasa vs. Herrera, 101 Phil. 44 [1957]). And there is authority that
an order dismissing a plaintiffs complaint without prejudice for
failure of his counsel to appear at a pre-trial conference must be
reversed as too severe a sanction to visit on a litigant where the
record is devoid of evidence reflecting the litigants willful or flagrant
disregard for the Courts authority.”
In this case, the petitioner and his counsel’s absence on the scheduled
initial hearing to establish jurisdictional facts was because the
undersigned counsel only learned of the date of the scheduled hearing
on the first week of December 2018 because he was not in office for a
couple of weeks as he has to attend to a more urgent matter which is
personal to him. The petitioner likewise has no personal knowledge of
the scheduled hearing as it was the office of the undersigned counsel
that received the order of this Honorable Court for the date of the
scheduled hearing. Although, the counsel had duly informed the
petitioner, however, because of the unavailability of the counsel on
that scheduled hearing, counsel then advised the petitioner not to
attend and filed a motion to reset hearing.
II.
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The undersigned counsel of the petitioner, upon learning on the first
week of December 2018 of the scheduled hearing of the petition,
immediately filed a Motion to Reset Hearing dated December 04, 2018
which was received by this Honorable Court only on December 7, 2018. The
ultimate purpose of the motion is to reset the hearing on December 10, 2018
to February 11, 2018 or to any date thereafter most convenient with the
Calendar of this Honorable Court considering that the undersigned counsel
was not available on such date the hearing was scheduled.
III.
The petitioner and the undersigned counsel has clearly establish the
reasons for this absence during the initial hearing and considering that they
have not shown culpable negligence or wanton disregard or failure to
observe the mandatory requirement of the rules, petitioner and the
undersigned sought the kind indulgence and magnanimity of this Honorable
Court to reconsider and reverse its order dated December 10, 2018. The ends
of justice and fairness would best be served if the issues involved in the
petition are threshed out in a full-blown trial.
PRAYER
RESPECTFULLY SUBMITTED.
By:
NOTICE OF HEARING
Greetings:
JURIL B. PATIÑO
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PROS. JAY V. PARADIANG
Office of the Provincial Prosecutor
Ground Floor, Palace of Justice
Capitol, Cebu City
REGISTRY OF DEEDS
Mandaue City, Cebu
EXPLANATION
JURIL B. PATIÑO