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*
G.R. No. 139008. March 13, 2002.

ROBERT DEL MAR, petitioner, vs. COURT OF APPEALS

and NORMA EBERSOLE DEL MAR, respondents.

Appeals; Pleadings and Practice; Appeal Briefs; The Court of

Appeals may dismiss an appeal for, inter alia, failure of appellant
to serve and file the required number of copies of his brief or
memorandum with the time provided by the Rules.—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.”
Same; Same; Certiorari; When Proper.—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.
Same; Same; Attorneys; It is well-settled that the negligence of
counsel binds the client, except when the negligence is so gross,
palpable, reckless and inexcusable that the client is deprived of the
due process of law, and, when the application of such due process
results in the outright deprivation of one’s property through a
technicality.—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. 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

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in the outright deprivation of one’s property through a

technicality.

______________

* THIRD DIVISION.

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Same; Same; Same; Where the client consented to the shabby

and negligent treatment of his case by his counsel, he should not
complain of the negligence or “fraud” done to him by his lawyer.—
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. 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. 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.
Same; Same; Certiorari; Well-settled is the rule that certiorari
is not a substitute for a lost appeal.—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. Even if for this
reason alone, the Petition should not be given due course.

SPECIAL CIVIL ACTION in the Supreme Court.

Certiorari and Mandamus.

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The facts are stated in the opinion of the Court.

     Venancio M. Tarriela and Francisco T. Ignalaga, Jr.
for petitioner.
     Amado C. Vallejo, Jr. for private respondent.

PANGANIBAN, J.:

The Court of Appeals cannot be faulted with reversible

error, much less grave abuse of discretion, for dismissing a
petition be-

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Del Mar vs. Court of Appeals

cause petitioner’s brief was not filed on time. Indeed, in so

doing, the appellate court is merely abiding by the Rules of
Court.

The Case

Before us is a Petition for Certiorari and Mandamus under

Rule 65 of the Rules of Court,1
praying for the setting aside2
of the January 13, 1999 and the April 26, 1999
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 3pursuant to Section 1 (e),
Rule 50, 1997 Rules of Civil Procedure.”

The second Resolution denied petitioner’s “Motion for

Reconsideration/Petition
4
for Relief & Motion to Admit
Appellant’s Brief.”

The Facts

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

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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.

______________

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.

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“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-

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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

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due to the failure of Atty. Abuan, Jr. to inform petitioner’s

attorney-in-fact, Angelita Austria, of the scheduled
hearing. Said petitioner filed amotion for reconsideration
but the same was denied, and x x x privaterespondent was
allowed to adduce her evidence ex-parte. On the same
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daythat 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.
5
6. Cost of the suit.”

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

______________

5 Rollo, pp. 166-168.

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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
6
for private respondent was received by the trial
court.
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),7
forwarded to the CA the records of Civil Case No. 35-2373.
Buenaventura B. Miguel, chief of the Judicial Records8
Division of the appellate court, thereafter wrote a letter
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.
9
The decision of
Trial Court shall be appended to the brief.”

______________

6 Memorandum for private respondent; Rollo, pp. 192-193.

7 CA Rollo, p. 3.
8 Ibid., p. 6.
9 CA Rollo, p. 6.

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Del Mar vs. Court of Appeals

On December 8, 1998, Atty. Amado C. Vallejo,

10
Jr., counsel
for private respondent, moved to dismiss the appeal on
the ground that petitioner had failed to file the required
brief within the reglementary period.

Ruling of the Court of Appeals

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

______________

10 Motion to Dismiss; CA Rollo, p. 7.

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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
11
the degree of vigilance needed to protect his remedies in
law.”
12
Hence, this Petition.

The Issues
13
Petitioner, in his Memorandum, 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 discretion in ruling in favor of private respondent.”

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

The Court’s Ruling

The Petition has no merit.

First Issue:
Effect of Failure to File a Brief

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

______________

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.
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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.

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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
14
of law for annulling or modifying the
proceeding.
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
15
that the negligence of
counsel binds the client. 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 outright16 deprivation of one’s property through a
technicality.
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

______________

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. I, 304 SCRA 440, 445, March 10, 1999;
Velasquez v. Court of Appeals, 309 SCRA 539, 549, June 30, 1999.

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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.

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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
complain17 against the manner in which the latter handled
the case.
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,
18
if the party was likewise guilty of the
same. Clients should suffer the consequences of the
negligence, mistake or lack of competence of the counsel
whom they themselves hired, and whom they had19 full
authority to fire at any time and replace with another.
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.

Second Issue:
Petitioner’s Defenses

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

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Confirmation of Sale allegedly signed by Florence; and (3)

an alleged “Cer-

______________

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.

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tificate 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 the20
rule that
certiorari is not a substitute for a lost appeal. 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.

Petition dismissed.

Note.—A notice of appeal may be validly substituted by

an appeal brief. (Pahilan vs. Tabalba, 230 SCRA 205
[1995])
If the appeal brief cannot be filed on time, extension of
time may be allowed provided (1) there is good and
sufficient cause, and (2) the motion for extension is filed

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before the expiration of the time sought to be extended.

(Republic vs. Imperial, Jr., 303 SCRA 127 [1999])

——o0o——

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20 Chico v. CA, 284 SCRA 33, 37, January 5, 1998; BF Corporation v.

Court of Appeals, 288 SCRA 267, 279, March 27, 1998.

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