Republic of the Philippines

Court of Appeals
MANILA

FOURTEENTH DIVISION

JOSEFINA BILGERA CA-G.R. SP NO. 167768

(DECEASED) AND HEIRS OF
ARNULFO BILGERA NAMELY: Members:
SHIRLEY BILGERA PAREDES, V.I.A., CHAIRPERSON,
(DECEASED), BRIGITTE M. MAMAUAG, JR., F.M., AND
BILGERA-OBA, REPRESENTED BY: HERNANDEZ-AZURA, M.C.V., JJ.
RANDOLF BILGERA AND
MEYNARD M. BILGERA,
REPRESENTED BY: CHARMAINE G.
BILGERA
Petitioners,

- versus - Promulgated:
August 16, 2022
SARAH JANE VALENCIA AND _________________________
ELIZABETH VALERA,
Respondents.
x--------------------------------------------------x

D E C I S I O N
HERNANDEZ-AZURA, M.C.V., J.:

This is a Petition for Certiorari1 filed under Rule 65 of the Revised

Rules of Court assailing the Decision2 dated July 27, 2017 of the Regional
Trial Court ("RTC), Branch 58, Bucay, Abra in Civil Case No. 10-615
ordering the Heirs of Arnulfo Bilgera to peacefully vacate and surrender
one-half portion of the subject property, to execute and sign all necessary
papers and deeds which shall give validity and effect to the said partition, to
remove and demolish all structures and improvements they have erected on
the one-half portion allotted to the Respondents, to pay attorney’s fees and to
pay Respondents the cost of the suit.

The Antecedents

The instant case involves an action for Judicial Partition involving a

parcel of land more particularly described as follows:

1 Rollo, pp. 3-14, Petition for Certiorari.

2 Ibid., pp. 15-17, Decision.
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"A tract of land in Annay, Dapiat, Patiao, Peñarrubia, Abra, bounded on the
North by a Provincial Road and Lourdes Botanes; on the East by Domingo
Gadil and Lourdes Botanes; South by Victoria Bataller; and West by the
Provincial Road, Padaoil and Manangan, with an area of 20,000 square
meters and covered by Tax Declaration 9248." 3

The same property was also the subject of litigation in Civil Case No.
1328 instituted by Teresita Tandigan (“Teresita”) against Arnulfo Bilgera
(“Arnulfo”) and Petitioner Josefina Bilgera (“Josefina”), now both deceased,
before the Regional Trial Court Branch 2 in Bangued, Abra and decided on
August 11, 2008, the dispositive portion of which reads as follows:

"WHEREFORE, premises considered, the Court hereby declares:

1. That the plaintiff Teresita Tandigan is OWNER of ONE-HALF of

the property described in paragraph two of her complaint as her inheritance
from her father Jose Tandigan Gadil;

2. That defendant spouses are owners of the OTHER ONE-HALF

considering that the vendors in Exhibit "3" CAN only SELL one-half thereof;

3. No award of damages for either party for lack of evidence

presented..."

Respondents are the surviving heirs of Teresita who died intestate on

April 13, 1993 while Petitioners Shirley Bilgera (“Shirley”), Brigette
Bilgera (“Brigitte”) and Meynard Bilgera (“Meynard”) are the surviving
heirs of Arnulfo.

Respondents say that based on the foregoing decision, they tried

several times to notify Petitioners, who have occupied the entire disputed
property, of their desire and intention to partition the said property into two
(2) equal parts but all their efforts proved futile because Petitioners violently
and vehemently refused to accede and refused the same. Thus, they filed an
action for Judicial Partition.

On July 5, 2010, Summons was made to Petitioners Josefina, Shirley,

Brigette, and Meynard at their given address. Of the four Petitioners, only
Josefina was duly served. The remaining Petitioners were not served with
summons because they were not residents of the given address. Thus, on
April 14, 2011, the RTC dismissed the instant case for failure of the
Respondents to acquire jurisdiction over the persons of Petitioners Shirley,
Brigette and Meynard. On May 10, 2011, however, the Respondents,
through counsel, filed a Motion for Reconsideration which the Court granted
on June 28, 2011.

3 Ibid., p. 15.
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On July 8, 2011, Ex-parte Motion for Leave to Serve Summons by

Publication was filed by the Respondents. On the same day, the RTC granted
the said motion. Subsequently, the Summons was published on November
23 and 30, and December 7, 2011 at Police Files Tonite.

On February 2, 2012, Respondents filed a Motion to Declare in

default Petitioners Shirley, Brigette and Meynard. On May 15, 2012,
Petitioners Shirley and Meynard Bilgera were declared in default. Brigette
Bilgera was not declared in default at that time since the Summons by
Publication did not mention Petitioner Brigette.

A day after Petitioners Shirley and Meynard were declared in default,

a Motion to Dismiss was filed by Atty. Noel Magalgalit but the same was
denied by the RTC per Order dated July 30, 2012.

On April 20 and 29, and May 6, 2013, Summons by Publication was

also made to Petitioner Brigette also via Police Files Tonite. Thus, the said
Petitioner was declared in default on February 20, 2014.

The RTC rendered a summary judgment4 on the basis that the issue of
ownership had long been settled in Civil Case No. 1328, the only remaining
issue was the Petitioners' refusal to accede to the said decision, as well as the
fact that the said Petitioners had been declared in default. The dispositive
portion of which reads, as follows:

"IN VIEW OF THE FOREGOING, the defendants are hereby ordered to:

1. Peacefully vacate and surrender one-portion (Southern portion) of

the above-mentioned property as plaintiffs are the rightful owner thereof;

2. Execute and sign all necessary papers and deeds which shall give
validity and effect to said partition;

3. Remove and demolished [sic] all structures and improvements they

have erected on the one-half portion allotted to the plaintiffs at their own
expense;

4. Pay attorney's fees in the amount of Forty Thousand Pesos

(P40,000);

5. Pay plaintiffs the cost of the suit in the amount of:

a. Four Thousand Three [Hundred] Twenty Five Pesos (P4,325.00) as
filing fee; and
b. Twenty Four Thousand Pesos (P24,000.00) as publication fee.

SO ORDERED.

4 Supra, at note 2.
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Bucay, Abra, 27 July 2017."

A perusal of the records reveals that the Petitioners did not appeal the
aforesaid Decision. Subsequently, the Petitioners filed the instant Petition for
Certiorari5 dated December 29, 2020 and Amended Petition for Certiorari6
dated March 21, 2021.

Assignment of Errors

1. The Court a quo erred and acted without or in excess of its

jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction in allowing to proceed with
Civil Case No. 10-0615 for Judicial Partition in Violation of
Rule 39 Section 06 of the Rules of Court;
2. The Court a quo erred and acted without or in excess of its
jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction in implementing the subject
Decision without being published pursuant to Rule 13
Section 09 of the Rules of Court;
3. The Court a quo erred and acted without or in excess of its
jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction in proceeding with the hearing
of Case without giving Notice to the Petitioners in Violation
of procedural Due Process;

Petitioners' Arguments

Petitioners contend that (i) the petition for Judicial Partition is

unprocedural and violative of Rule 39, Section 6 of the Rules of Court; (ii)
that the subject Decision dated July 27, 2017 was not published pursuant to
Rule 13, Section 9 of the Rules of Court and (iii) that the proceedings in
Civil Case No. 10-0615 are null and void because they were not given
notices. Thus, Petitioners pray for the reversal of the RTC Decision dated
July 27, 2017.

Private Respondent's Arguments

On the other hand, the Respondents insist that (i) the Petitioners'
reliance on Rule 13, Section 9 is misplaced; (ii) they have the right to file the

5 Supra, at note 1.
6 Rollo, pp. 37-48.
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case for Judicial Partition because they needed the structures to be

demolished; (iii) the notices were sent and received by the Petitioners'
counsel Atty. Noel Magalgalit and that service to counsel is deemed to be
service to the client; (iv) the petition for certiorari is the wrong remedy and
is not available to the Petitioners because the decision had already attained
its finality and the latter failed to appeal the same.

Issue

Whether the RTC committed grave abuse of discretion amounting to

lack or excess of jurisdiction in issuing its Decision in Civil Case No. 10-
0615.

Our Ruling
We deny the petition.

The RTC did not commit grave

abuse of discretion amounting to
lack or excess of jurisdiction in
issuing its Decision in Civil Case
No. 10-0615

It is settled that a special civil action for certiorari under Rule 65 of

the Rules of Court is proper only when there is neither an appeal, nor plain,
speedy, and adequate remedy in the ordinary course of law. The remedies of
appeal and certiorari are mutually exclusive, not alternative or successive
such that where an appeal is available, certiorari will not prosper, even if the
ground is grave abuse of discretion. To reiterate, certiorari is not a substitute
for a lost appeal. It is not allowed when a party to a case fails to appeal a
judgment to the proper forum, especially if one's own negligence or error in
one's choice of remedy occasioned such loss or lapse.7
In the instant case, the Petitioners did not appeal the assailed Decision.
They cannot now belatedly file the instant Petition by raising grave abuse of
discretion in its place. In the case of Heirs of Cabrera v. Jurado,8 the
Supreme Court emphasized that a petition for certiorari is not a substitute
for a lost appeal:

"In this case, petitioners foremost failed to convincingly explain why they
failed to appeal the dismissal order of the trial court. After the dismissal by
the RTC and within the time allowed, it was clear that they were neither
prevented nor legally barred in filing an appeal. Consequently, when they

7 Heirs of Cabrera v. Jurado, G.R. No. 235308. May 12, 2021 citing Miranda v. Civil Service
Commission, G.R. No. 213502, February 18, 2019.
8 Id.
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belatedly filed their petition for certiorari before the CA, petitioners generally
ascribed grave abuse of discretion against the trial court and tried to make it
appear that appeal could not have been speedy and adequate remedy for
them."

Clearly, a petition for certiorari is not the speedy, adequate, and

proper remedy in the ordinary course of law. On this ground alone, this
instant Petition may be dismissed.

Going into the merits, anent the issue of whether there was a violation
of Rule 39, Section 6 of the Rules of Court, We hold that there was none.
The said provision states:

"Section 6. Execution by motion or by independent action. — A final and

executory judgment or order may be executed on motion within five (5) years
from the date of its entry. After the lapse of such time, and before it is barred
by the statute of limitations, a judgment may be enforced by action. The
revived judgment may also be enforced by motion within five (5) years from
the date of its entry and thereafter by action before it is barred by the statute
of limitations. (6a)"

Such provision is not applicable because a reading of the dispositive

portion of the Decision9 in Civil Case No. 1328 reveals that the RTC did not
indicate which "one-half of the property" belongs to the Petitioners and the
Respondents, respectively. It failed to delineate with particularity which
portions belong to them. Furthermore, and as the Respondents posit, the said
Decision was insufficient in protecting their rights, taking into consideration
the structures that were already erected by the Petitioners and their
predecessor-in-interest in the subject property. To execute the judgment by
mere motion would not suffice to settle the controversy between the parties.
A definition of specific metes and bounds regarding the portions of the
subject property to be split in half between the parties would finally put an
end to the litigation. Hence, the petition for Judicial Partition is proper.

Petitioners insist that when a party is summoned by publication, the

judgment against him shall be served upon him also by publication pursuant
to Rule 13, Section 9 of the Rules of Court, now Rule 13, Section 13 of the
Revised Rules of Court. Such position is correct, however, the Petitioners
failed to take into consideration a key portion of the said provision, to wit:

"Section 9. Service of Judgments, Final Orders or Resolutions. — Judgments,

final orders, or resolutions shall be served either personally or by registered
mail. When a party summoned by publication has failed to appear in the
action, judgments, final orders or resolutions against him shall be served
upon him also by publication at the expense of the prevailing party."
(Emphasis supplied)

9 Rollo, pp. 77-78.

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It is only when the party summoned by publication fails to appear in

the action that judgments, final orders or resolutions against him would be
served also by publication. In this case, the Petitioners in fact appeared in the
proceedings. By their own admission, a Motion to Dismiss was filed by one
Atty. Noel Magalgalit when Petitioners Shirley and Meynard were declared
in default.10 Such filing of the said Motion constitutes voluntary appearance.
A defendant is deemed to have voluntarily submitted themselves to the
jurisdiction of the court if they seek affirmative relief from the court.11
Furthermore, the Decision is valid and binding because service to the
counsel is deemed to be service to the client. In the case of Taningco v.
Fernandez,12 the Court emphasized:
"When a party is represented by counsel of record, service of orders and
notices must be made upon said attorney. Notice sent to counsel of record
binds the client and the neglect or failure of counsel to inform him of an
adverse judgment resulting in the loss of his right to appeal is not a
ground for setting aside a judgment, valid and regular on its face.
(Emphasis supplied)
xxx
Verily, Mrs. Taningco is presumed authorized to receive the CA Decision on
behalf of Atty. Taningco that was sent to the office address on record. It
necessarily follows that petitioners, through Atty. Taningco, duly received the
said decision in the ordinary course of business. Hence, in the absence of
competent evidence to prove otherwise, the legal presumption of
regularity in the performance of official duty with respect to service of
notice stands. (Emphasis supplied)
Moreover, petitioners failed to present even a scintilla of evidence other than
the bare assertion of non-receipt thereof and a mere photocopy of the
identification cards with signatures therein of Mrs. Taningco and Dennis Jr."

Petitioners asserted that they were not given any notices regarding the
proceedings, in violation of Rule 9, Section 3a of the Rules of Court.
However, they failed to substantiate such claim. There is no proof, other than
their bare allegation, that they nor their counsel did not receive any notices.
Verily, the legal presumption of regularity in the performance of official duty
with respect to service of notice stands.
Petitioners also state in their Petition, "if at all the Notices [were]
forwarded to said Counsel[,] [they] were not effective Notices to Petitioners
as the Lawyer ceased to safeguard the rights of Petitioners]." Such statement
holds no water because of the absence of reckless or gross negligence on the

10 Supra, at note 6, p. 4, paragraph 6.

11 Jorgenetics Swine Improvement Corporation v. Thick & Thin Agri-Products, Inc., G.R. Nos. 201044 &
222691. May 5, 2021.
12 G.R. No. 215615. December 9, 2020.
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part of the counsel. In the case of Baya v. Sandiganbayan,13 the Supreme

Court held:
“Hiring the services of counsel does not relieve a litigant of the duty to
monitor the status of his or her cases. This was the ruling in Ong Lay Hin v.
Court of Appeals, where petitioner Ong Lay Hin, claiming that his counsel
did not appeal his conviction despite receipt of the adverse judgment against
him, was nevertheless declared bound by his counsel's actions:
The general rule is that the negligence of counsel binds the
client, even mistakes in the application of procedural rules. The
exception to the rule is "when the reckless or gross negligence of the
counsel deprives the client of due process of law." (Emphasis
supplied)
The agency created between a counsel and a client is a highly
fiduciary relationship. A counsel becomes the eyes and ears in the
prosecution or defense of his or her client's case. This is inevitable
because a competent counsel is expected to understand the law that
frames the strategies he or she employs in a chosen legal remedy.
Counsel carefully lays down the procedure that will effectively and
efficiently achieve his or her client's interests. Counsel should also have
a grasp of the facts, and among the plethora of details, he or she
chooses which are relevant for the legal cause of action or defense
being pursued.
It is these indispensable skills, among others, that a client
engages. Of course, there are counsels who have both wisdom and
experience that give their clients great advantage. There are still,
however, counsels who wander in their mediocrity whether consciously
or unconsciously.
The [S]tate does not guarantee to the client that they will receive
the kind of service that they expect. Through this [C]ourt, we set the
standard on competence and integrity through the application
requirements and our disciplinary powers. Whether counsel discharges
his or her role to the satisfaction of the client is a matter that will ideally
be necessarily monitored but, at present, is too impractical.
Besides, finding good counsel is also the responsibility of the
client especially when he or she can afford to do so. Upholding client
autonomy in these choices is infinitely a better policy choice than
assuming that the [S]tate is omniscient. Some degree of error must,
therefore, be borne by the client who does have the capacity to make
choices.
This is one of the bases of the doctrine that the error of counsel
visits the client. This [C]ourt will cease to perform its social functions if
it provides succor to all who are not satisfied with the services of their
counsel.
But, there is an exception to this doctrine of binding agency

13 G.R. Nos. 204978-83. July 6, 2020.

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between counsel and client. This is when the negligence of counsel is so

gross, almost bordering on recklessness and utter incompetence, that we
can safely conclude that the due process rights of the client were
violated. Even so, there must be a clear and convincing showing that
the client was so maliciously deprived of information that he or she
could not have acted to protect his or her interests. The error of counsel
must have been both palpable yet maliciously exercised that it should
viably be the basis for disciplinary action.
Thus, in Bejarasco, Jr. v. People, this [C]ourt reiterated:
For the exception to apply . . . the gross negligence should not
be accompanied by the client's own negligence or malice,
considering that the client has the duty to be vigilant in respect of
his interests by keeping himself up-to-date on the status of the case.
Failing in this duty, the client should suffer whatever adverse
judgment is rendered against him.” (Emphasis supplied)

Petitioners should have inquired with their counsel regarding the

status of their case in order to safeguard their interest. Petitioners failed to
adduce evidence showing that their counsel maliciously withheld
information from them, attributing gross negligence on his part, other than
their admission that he did not anymore appear until the subject Decision
was rendered.14 Hence, the general rule that the negligence of counsel binds
the client stands.
Finally, this Court reiterates the principle of immutability of
judgments. In the aforecited case of Taningco v. Fernandez, the Court ruled:
"A decision or order becomes final and executory if the aggrieved party fails
to appeal or move for a reconsideration within 15 days from his or her receipt
of the court's decision or order disposing of the action or proceeding. Thus,
under the doctrine of immutability of judgment, a decision or order that
has attained finality can no longer be modified in any respect, even if the
modification is meant to correct erroneous conclusions of fact and law
and whether it be made by the court that rendered it or by the Highest
Court of the land. (Emphasis supplied)
The doctrine is grounded on public policy and sound practice which must not
simply be ignored. It is adhered to by the courts to end litigations albeit the
presence of errors.
In Mocorro, Jr. v. Ramirez, the Court has exhaustively discussed the principle
of the finality of judgment as follows:
A definitive final judgment, however erroneous, is no longer
subject to change or revision.
A decision that has acquired finality becomes immutable and
unalterable. This quality of immutability precludes the modification of
a final judgment, even if the modification is meant to correct erroneous

14 Supra, at note 6, p. 4, paragraph 9.

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conclusions of fact and law. And this postulate holds true whether the
modification is made by the court that rendered it or by the highest
court in the land. The orderly administration of justice requires that, at
the risk of occasional errors, the judgments/resolutions of a court must
reach a point of finality set by the law. The noble purpose is to write
finis to dispute once and for all. This is a fundamental principle in our
justice system, without which there would be no end to litigations.
Utmost respect and adherence to this principle must always be
maintained by those who exercise the power of adjudication. Any act,
which violates such principle, must immediately be struck down.
Indeed, the principle of conclusiveness of prior adjudications is not
confined in its operation to the judgments of what are ordinarily known
as courts, but extends to all bodies upon which judicial powers had
been conferred.
The only exceptions to the rule on the immutability of final
judgments are (1) the correction of clerical errors, (2) the so-called nunc
pro tunc entries which cause no prejudice to any party, and (3) void
judgments."15

The instant case does not fall under any of the exceptions to the rule
on immutability of final judgments. Hence, the RTC Decision must stand.
However, this Court directs the RTC to conduct further proceedings to
determine with particularity the metes and bounds of the portions of the
property which the respective parties must occupy.
WHEREFORE, the Petition for Certiorari is DISMISSED. The
Decision by the Regional Trial Court, Branch 58, Bucay, Abra in Civil Case
No. 10-615 promulgated on July 27, 2017 is SUSTAINED. The case is
REMANDED to the Regional Trial Court for further proceedings to
determine with particularity the metes and bounds of the portions of the
property which the respective parties must occupy.

SO ORDERED.
ORIGINAL SIGNED
MARY CHARLENE V. HERNANDEZ-AZURA
Associate Justice

15 Supra, at note 12..

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WE CONCUR:

ORIGINAL SIGNED
VICTORIA ISABEL A. PAREDES
Associate Justice

ORIGINAL SIGNED
FLORENCIO M. MAMAUAG, JR.
Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby

certified that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion of the
court.

ORIGINAL SIGNED
VICTORIA ISABEL A. PAREDES
Chairperson, Fourteenth Division