SHIMIZU PHILIPPINES CONTRACTORS, INC., v.
law or jurisprudence supports the RTC’s finding of
MRS. LETICIA B. MAGSALIN and FGU Insurance
G.R. No. 170026, June 20, 2012
FACTS: Petitioner filed a complaint for breach of
contract against Magsalin and FGU Insurance.
Subsequently, on March 24, 2003, the court admitted
FGU Insurance’s third-party complaint against Baetiong
who was alleged as counter-guaranty over the surety.
The trial court cancelled the June 20, 2003 hearing upon
FGU Insurance’s motion. On June 16, 2003, Baetiong
filed his Answer to the third-party complaint but did not
serve it upon the petitioner.
With the above procedural events, the lower court motu
proprio dismissed the complaint on the ground of non-
prosequitur.
On appeal, the CA affirmed the decision. Hence, the
instant recourse.
ISSUE: Whether the lower court erred in declaring that
petitioner failed to prosecute the case despite the fact
that petitioner never received a copy of the answer of
third-party defendant-respondent Baetiong.
HELD: Dismissals of actions for failure of the plaintiff to
prosecute is authorized under Section 3, Rule 17 of the
Rules of Court. Procedurally, when a complaint is
dismissed for failure to prosecute and the dismissal is
unqualified, the dismissal has the effect of an
adjudication on the merits.
In our view, the developments in the present case do
not satisfy the stringent standards set in law and
jurisprudence for a non prosequitur. The fundamental
test for non prosequitur is whether, under the
circumstances, the plaintiff is chargeable with want of
due diligence in failing to proceed with reasonable
promptitude. There must be unwillingness on the part
of the plaintiff to prosecute.
In this case, the parties’ own narrations of facts
demonstrate the petitioner’s willingness to prosecute its
complaint. Indeed, neither respondents FGU Insurance
nor Baetiong was able to point to any specific act
committed by the petitioner to justify the dismissal of
their case.
While it is discretionary on the trial court to dismiss
cases, dismissals of actions should be made with care.
The repressive or restraining effect of the rule
amounting to adjudication upon the merits may cut
short a case even before it is fully litigated; a ruling of
dismissal may forever bar a litigant from pursuing
judicial relief under the same cause of action. Hence,
sound discretion demands vigilance in duly recognizing
the circumstances surrounding the case to the end that
technicality shall not prevail over substantial justice.
This court is thus of the opinion that the dismissal of
Civil Case No. 02-488 is not warranted. Neither facts,
failure to prosecute on the part of the petitioner.
REAL BANK, INC.,
v. SAMSUNG MABUHAY CORPORATION
G.R. No. 175862, October 13, 2010
FACTS: Respondent filed a complaint for damages
against petitioner alleging that checks were negligently
credited by defendant [Real Bank] to the account of
Mabuhay Electronics Company, a single proprietorship,
although the check was payable only to Mabuhay
Electronics Corporation, a juridical entity, and to no one
else.
Subsequently, the trial court issued an Order requiring
both petitioner and respondent to appear in a mediation
proceeding. This Order was sent to respondent’s former
counsel, V.E. Del Rosario and Partners which had at that
time already filed a notice of withdrawal of appearance.
The mediator submitted her Report to the court stating
therein that no action was taken for the case referred
for mediation because the plaintiff failed to appear.
Thus, the trial court dismissed the case stating that
mediation is part of pre-trial and that under the Rules,
failure of the plaintiff to appear at the pre-trial shall be
ground for the dismissal of the action for non-suit.
Respondent’s new counsel filed a Motion for
Reconsideration but the court denied the same.
On appeal, the CA reversed the decision of the RTC. The
appellate court stated that respondent judge did not
even peruse or verify the records of the case. Has she
done so, she would have discovered that the former
counsel of petitioner to whom she sent the Notice of the
order had already withdrawn and that a new counsel for
petitioner had already entered their appearance.
Petitioner’s Motion for Reconsideration was denied by
the CA.
Hence, this petition.
ISSUE: Whether the CA erred in setting aside the order
of the trial court dismissing the case before it due to the
failure of respondent and its counsel to attend the
mediation conference.
HELD: In Senalo v. Judge Paderanga, we held that
mediation is a part of pre-trial and failure of the plaintiff
to appear thereat merits sanction on the part of the
absent party.
Under Rule 18, Section 5 of the Rules of Court, failure
of the plaintiff to appear at pre-trial shall be cause for
dismissal of the action.
However, the ruling in Senarlo will not resolve the
present case where the basic issue is whether or not
respondents Samsung non-appearance at the mediation
proceedings is justifiable from the records.

It being daylight clear that the withdrawal of respondent

Samsung’s original counsel was sufficient as the same
carried the stamp of approval of the client, the notice of
mediation sent to respondent Samsung’s original
counsel was ineffectual as the same was sent at the
time when such counsel had already validly withdrawn
its representation. Corollarily, the absence of
respondent Samsung during the scheduled mediation
conference was excusable and justified. Therefore, the
trial court erroneously dismissed the case.

While not at the fore of this case, it may be stated that

the state of the court docket cannot justify injudicious
case dismissals. Inconsiderate dismissals, even without
prejudice, do not constitute a panacea or a solution to
the congestion of court dockets; while they lend a
deceptive aura of efficiency to records of individual
judges, they merely postpone the ultimate reckoning
between the parties. In the absence of clear lack of
merit or intention to delay, justice is better served by a
brief continuance, trial on the merits, and final
disposition of cases before the court.