The Court of Appeals cannot be faulted with reversible error, much less grave abuse of discretion, for dismissing a petition because petitioner's brief was not filed on time. Indeed, in so doing, the appellate court is merely abiding by the Rules of Court.


Before us is a Petition for Certiorari and Mandamus under Rule 65 of the Rules of Court, praying for the setting aside of the January 13, 1999^[1] and the April 26, 1999^[2] Resolutions of the Court of Appeals (CA) in CA-GR CV No. 58804. The first Resolution is worded as follows:

"Upon consideration of the motion to dismiss appeal filed by plaintiff-appellee and the Judicial Records Division's Report that no appellant[']s brief has been filed as of December 9, 1998, the appeal is hereby ordered DISMISSED pursuant to Section 1 (e), Rule 50, 1997 Rules of Civil Procedure."^[3]

The second Resolution denied petitioner's "Motion for Reconsideration/Petition for Relief & Motion to Admit Appellant's Brief."^[4]


In his Memorandum, Petitioner Robert del Mar alleges as follows:

"1. The private respondent, Norma Ebersole Del Mar, and her sister, Florence Ebersole Finch, inherited three (3) parcels of land covered by TCT Nos. T-58397, T-58398 and T-58402, situated in Mabini, Santiago City, with a total area of 29,736 square meters, more or less. On December 6, 1974, Florence Ebersole Finch, a resident of New York, USA, executed a general power of attorney naming and constituting private respondent as her attorney-in-fact with regard to the subject property.

"2. On January 29, 1975, private respondent, acting for herself and as attorney-in-fact of Florence Ebersole Finch, executed Deeds of Absolute Sale in favor of petitioner covering the three aforementioned parcels of land. The private respondent is the mother of herein petitioner.

"3. On March 25, 1976, Florence Ebersole Finch executed a Deed of Confirmation in New York, USA, confirming and ratifying all the acts and deeds executed by Norma Ebersole del Mar, in conveying properties to Robert E. del Mar, 'as appearing in Document Nos. 1780, Page 57, Book No. 14, Series of 1975; 1781, Page 58, Book No. 14, Series of 1975; and 1782, Page 58, Book No. 14, Series of 1975, of the Notarial Registry of Paulo Pascua, a notary public for and in the Province of Isabela, Philippines'. This document was authenticated by Wenceslao J.O. Quirolgico, Vice-Consul of the Philippine Consulate Office in New York, USA.

"4. After x x x said parcels of land were sub-divided into several lots, x x x petitioner obtained the following Certificates of Title in his name: TCT Nos. T-32251, T-82257, T-282260, and T-82263, all on April 18, 1975; T-116117 on January 11, 1979; T-17549 on March 16, 1979; and T-13664 on October 15, 1981.

"5. After the peaceful and continuous possession by petitioner of the subject properties for more than twenty-two (22) years, a complaint for reconveyance was filed by x x x private respondent against x x x petitioner on May 15, 1997, alleging, inter-alia, that x x x petitioner obtained the aforementioned Certificates of Title through fraud and deceit. Private respondent claimed that x x x said properties were left by her under the administration of petitioner, who allegedly transferred the ownership of x x x said realty in his name by causing the issuance of Certificates of Title in his name without her knowledge and consent. However, records show that before she left for the United States, private respondent executed the corresponding Deeds of Absolute Sale in favor of petitioner. This case, entitled 'Norma Ebersole del Mar represented by Gerald del Mar vs. Roberto del Mar and the Register of Deeds, Province of Isabela' was filed before the Regional Trial Court of Santiago City, Branch 35 and docketed as Civil Case No. 2373.

"6. In his Answer, x x x petitioner claimed that x x x private respondent and her co-owner, Florence Ebersole Finch, sold x x x said properties to him before the former left for the United States. Moreover, the properties were transferred for good, sufficient and valuable consideration, hence the sale was lawful and valid.

"7. During the pre-trial conference, neither x x x petitioner nor his counsel, Atty. Federico Abuan, appeared, by reason of which the trial court issued an order declaring petitioner as in default. The non-appearance was due to the failure of Atty. Abuan, Jr. to inform petitioner's attorney-in-fact, Angelita Austria, of the scheduled hearing. Said petitioner filed a motion for reconsideration but the same was denied, and x x x private respondent was allowed to adduce her evidence ex-parte. On the same day that x x x said motion was denied, the trial court rendered its October 21, 1997 [D]ecision in favor of x x x private respondent and against x x x petitioner, the dispositive portion of which reads:

'WHEREFORE, judgment is rendered against [petitioner] and in favor of [private respondent], as follows:

1. Ordering the Register of Deeds of Ilagan, Isabela to cancel Titles Nos. T-82257; T-82261, T-82260, T-82263, T-82264, T-234664, T-116117 and T-822659;
   
   
2. Ordering Robert E. del Mar to reconvey the ownership of properties to [private respondent] and in case of failure on the part of [petitioner], the Register of Deeds is directed to execute the necessary deed of reconveyance in favor of [private respondent];
   
   
3. Enjoining permanently [petitioner] or any person acting for and in [his] behalf from committing or doing any act of disposition or alienation of the properties;
   
   
4. Ordering [petitioner] to pay the amount of FIVE HUNDRED THOUSAND (P500,000.00) as moral damages to [private respondent];
   
   
5. Ordering [petitioner] to pay the amount of TWO HUNDRED FIFTY THOUSAND PESOS ([P]250,000.00) as attorney's fees.
   
   
6. Cost of the suit."^[5]

On the other hand, private respondent counters with the following allegations in her Memorandum:

"The parcels of land covered by the land titles that are sought to be nullified x x x are all owned by [private] respondent NORMA EBERSOLE DEL MAR by way of inheritance from her lawful [ascendants]. The original titles were all issued in her name and favor.

"In the early 1970's [private] respondent x x x together with her two children, GERALD and FLORENCE went to the United States with the intent of obtaining domicile there[i]n and leaving behind the other son x x x petitioner x x x, and entrusting [to] his [administration] x x x their properties.

"In 1974, [private respondent] came back to the Philippines and stayed up until 1978 and thereafter went back to the US. During her stay, the properties were intact.

"Sometime in 1996, [private respondent] discovered that the properties were already in the name of [petitioner]. [Private respondent] protested because she never had done any act of transfer of the properties in favor of [petitioner], because her intent was to have these properties to be eventually x x x divided into THREE (3) equal parts for her THREE (3) children x x x. The transfer was [without] the knowledge of [private respondent]. It was fraudulent and unlawful x x x."

Private respondent also claims that petitioner had been duly served summons, but neither he nor his counsel appeared for pretrial. Hence, petitioner was declared in default. While he did receive the Order of Default, he never bothered to have it lifted. So, trial proceeded and evidence ex parte for private respondent was received by the trial court.^[6]

Petitioner filed a Notice of Appeal. On January 7, 1998, Noel T. Tomas, legal researcher and officer in charge of the Regional Trial Court (RTC) of Santiago City (Branch 35), forwarded to the CA the records of Civil Case No. 35-2373.^[7] Buenaventura B. Miguel, chief of the Judicial Records Division of the appellate court, thereafter wrote a letter^[8] dated August 13, 1998, addressed to Atty. Federico Abuan Jr., counsel for petitioner, stating the following:

"Pursuant to the resolution en banc of the Supreme Court, dated February 23, 1984, you are hereby required to file with this court SEVEN (7) printed copies of the brief, or SEVEN (7) eleven inches in leng[th] by eight and a half inches in width - commonly known letter size[,] written double space, copies of said brief together with the proof of service of TWO (2) printed typewritten or mimeographed copies hereof upon the appellee. The decision of Trial Court shall be appended to the brief."^[9]

On December 8, 1998, Atty. Amado C. Vallejo Jr., counsel for private respondent, moved to dismiss^[10] the appeal on the ground that petitioner had failed to file the required brief within the reglementary period.


As already stated, the CA granted the Motion to Dismiss via the first assailed Resolution.

As regards petitioner's "Motion for Reconsideration/Petition for Relief & Motion to Admit Appellant's Brief," the appellate court's denial is justified by the following reasons:

"Clearly, the subject motion/petition can not be in the nature of a Petition for Relief for Denial of Appeal under Rule 38 of the Rules of Court. Section 2 of Rule 38 provides that -

'When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course.'

"In the present case, the appellant was not prevented from taking an appeal as in fact, notice of appeal was timely filed by the appellant on 11 November 1997 from the challenged decision. The instant motion/petition, though denominated as such will be properly treated simply as a motion for reconsideration [of] the order of dismissal.

"From the allegations in the subject motion for reconsideration, this Court finds no cogent reason to disturb the dismissal of the appellant. The appellant's brief became due [i]n October 1998. The movant claims ignorance of the fact that counsel failed to file the appellant's brief. There being no showing that counsel's failure to file the appellant's brief was due to gross negligence, the rule that negligence of counsel is binding upon the client must be applied. Besides, it appears from the records that herein appellant, as party-defendant in the proceedings below, was declared in default for his and counsel's non-appearance during the pre-trial conference. Having lost the opportunity to present evidence in view of the default order, the appellant, through his attorney-in-fact, should have shown more vigor in protecting his statutory right of appeal. He should have jealously guarded this opportunity, knowing that this could well be his last chance to protect his rights. The interest of justice so conveniently invoked by the appellant now will be better served if this dispute will be put to an end for failure of the appellant to observe the degree of vigilance needed to protect his remedies in law."^[11]

Hence, this Petition.^[12]


Petitioner, in his Memorandum,^[13] raises the following issues:

"Who between the petitioner and the private respondent has a better right to the properties in question.

"Whether or not the Respondent Court of Appeals committed grave abuse of di[s]cretion in ruling in favor of private respondent."

For reasons that will be evident later on, the issues will be tackled in reverse order.


The Petition has no merit.


Petitioner argues that the CA gravely abused its discretion in dismissing his appeal for his mere failure to file his Brief within the reglementary period.

We disagree. Rule 50, Section 1(e) of the Revised Rules of Court, expressly authorizes the CA to dismiss an appeal for, inter alia, "failure of appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules."

Certiorari as a special civil action can be availed of when the following requisites concur: (a) a tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess of jurisdiction; and (b) there is no appeal or plain, speedy and adequate remedy in the ordinary course of law for annulling or modifying the proceeding.^[14]

Petitioner claims that Atty. Abuan's failure to file the required pleading constituted fraud against him, and that his absence from the country while the appeal was pending constituted a mistake that was excusable.

We disagree. It is well-settled that the negligence of counsel binds the client.^[15] Exceptions to this rule arise when (1) such negligence is so gross, palpable, reckless and inexcusable that the client is deprived of the due process of law; and (2) the application of such due process results in the outright deprivation of one's property through a technicality.^[16]

The negligence of Atty. Abuan does not fall under these exceptions. His negligence in this case was his inexcusable failure to file the required appellant's Brief, thus causing the dismissal of the appeal of petitioner. But the latter was not without fault. He was aware of Atty. Abuan's failure to appear at the pretrial conference, a failure that had placed him in default. Because petitioner was in default, private respondent's evidence was received ex parte by the RTC. No wonder, the trial court decided against him. Yet, he retained Atty. Abuan's services for the appeal. One is bound by the decisions of one's counsel regarding the conduct of the case, especially where the former does not complain against the manner in which the latter handled the case.^[17]

In effect, petitioner consented to the shabby and negligent treatment of his case by his counsel. Hence, he should not complain now of the negligence or "fraud" done to him by his lawyer. A party's counsel cannot be blamed for negligence, if the party was likewise guilty of the same.^[18] Clients should suffer the consequences of the negligence, mistake or lack of competence of the counsel whom they themselves hired, and whom they had full authority to fire at any time and replace with another.^[19]

Petitioner cannot be said to have been denied due process, because he was afforded the opportunity to be heard. In fact, he filed an Answer to private respondent's Complaint. That he did not present evidence in his favor was the effect of his being in default and his continued failure to move that such status be lifted. His claim that he was abroad is unavailing.

We cannot attribute grave abuse of discretion to the Court of Appeals which merely followed Rule 50 in dismissing the appeal.


Petitioner avers that he has in his favor the following valid and meritorious defenses: (1) valid purchase of the disputed lots, (2) acquisitive prescription, and (3) prescription and laches barring private respondent's action. He proposes to prove these arguments with the following documents: (1) an alleged Deed of Sale dated January 29, 1975 purportedly signed by private respondent on her own behalf and as the agent of her sister Florence; (2) a Confirmation of Sale allegedly signed by Florence; and (3) an alleged "Certificate of Authentication" of the confirmation issued by a Philippine vice consul in New York, USA.

Assuming arguendo that this Petition is granted and the CA is required to pass upon the RTC's judgment, how can the CA give any probative value to the above documents, when they were not presented before the trial court? Be it remembered that petitioner had been declared in default, and that he did not even ask for the lifting of the Default Order. Hence, the grant of the Petition will be not only legally unsound, but also practically useless. It will just clog the CA's docket.

Finally, after the CA denied his Motion for Reconsideration, petitioner allowed the reglementary period for filing an appeal to lapse, opting instead to file this Petition for Certiorari. Well-settled is the rule that certiorari is not a substitute for a lost appeal.^[20] Even if for this reason alone, the Petition should not be given due course.

WHEREFORE, the Petition is DISMISSED. Costs against petitioner.

SO ORDERED.

Melo, (Chairman), Vitug, Sandoval-Gutierrez, and Carpio, JJ., concur.

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^[1] Penned by Justice Candido V. Rivera, ponente; with the concurrence of Justices Quirino D. Abad Santos Jr., chairman; and Bernardo Ll. Salas, member.

^[2] Justice Presbitero J. Velasco Jr. replaced Justice Salas as member of the Special Sixth Division.

^[3] Rollo, p. 18.

^[4] Rollo, pp. 19-20.

^[5] Rollo, pp. 166-168.

^[6] Memorandum for private respondent; rollo, pp. 192-193.

^[7] CA rollo, p. 3.

^[8] Ibid., p. 6.

^[9] CA rollo, p. 6.

^[10] Motion to Dismiss; CA rollo, p. 7.

^[11] CA Resolution, p. 2; rollo p. 20.

^[12] The case was deemed submitted for decision upon the submission of the Memorandum for private respondent on March 27, 2001. The said Memorandum was signed by Atty. Amado C. Vallejo Jr.

^[13] Signed by Attys. Venancio M. Tarriela and Francisco T. Ignalaga Jr., who entered their appearance as lawyers for petitioner on September 3, 1999; rollo, p. 169.

^[14] Suntay v. Cojuangco-Suntay, 300 SCRA 760, 766, December 29, 1998.

^[15] Casolita Sr. v. Court of Appeals, 275 SCRA 257, 265, July 8, 1997; Bernardo v. Court of Appeals, 275 SCRA 413, 428, July 14, 1997; Diaz-Duarte v. Ong, 298 SCRA 388, 397, November 3, 1998 Pallada v. Regional Trial Court of Kalibo, Aklan, Br. 1, 304 SCRA 440, 445, March 10, 1999; Velasquez v. Court of Appeals, 309 SCRA 539, 549, June 30, 1999.

^[16] Salonga v. Court of Appeals, 269 SCRA 534, 546, March 13, 1997; Legarda v. Court of Appeals, 280 SCRA 642, 682, October 16, 1997; Kalubiran v. Court of Appeals, 300 SCRA 320, 334, December 21, 1998; Amil v. Court of Appeals, 316 SCRA 317, 323, October 7, 1999.

^[17] Tenebro v. Court of Appeals, 275 SCRA 81, 85, July 7, 1997.

^[18] Macapagal v. Court of Appeals, 271 SCRA 491, 502, April 18, 1997; Villanueva v. People, 330 SCRA 695, 703, April 12, 2000.

^[19] Salva v. Court of Appeals, 304 SCRA 632, March 11, 1999.

^[20] Chico v. CA, 284 SCRA 33, 37, January 5, 1998; BF Corporation v. Court of Appeals, 288 SCRA 267, 279, March 27, 1998.