Republic of the Philippines

Court of Appeals
Manila

SIXTEENTH DIVISION

FELISA V. ACQUIATAN, CA-G.R. CV No. 115216

represented by EDUARDO
DUMBRIQUE, Members:
Petitioner-Appellant,
Diy, M.E.S., Chairperson
Quimpo-Sale, A.M.W., and
-versus- *
Ruiz, A.C., II, JJ.

Promulgated:
Heirs OF JULIANA ANDRES ______________ January 31, 2023
married to ARMANDO ANDRES,
represented by LOUIESITO A.
ANDRES, MARIA JOY A. BEASCA,
RAUL ANDRES, JOSEPH NOEL
RAYMUND A. ANDRES, and
ALLAN JOHN A. ANDRES and heirs
of RESTITUTA MANUEL, married to
REYNALDO MANUEL, rep. by
JENNIFER A. MANUEL and PETER
PAUL A. MANUEL ,
Respondents-Appellees.
x- - - – - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

RESOLUTION

Quimpo-Sale, J.:

In this appeal under Rule 41 of the Rules of Court,

petitioner-appellant seeks to set aside the Orders of December 12,
20191 and May 18, 20202 rendered by the Regional Trial Court,
Branch 132, Makati City.

The case stems from a petition for relief from judgment filed
* Acting Third Member per Office Order No. 24-23-RSF dated January 18, 2023.
1 Rollo, pp. 7-8.
2 Rollo, pp. 9-10.
 CA-G.R. CV No. 115216
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by petitioner-appellant against respondents-appellees and

docketed as Civil Case No. R-MKT-19-04869-CV before the
Regional Trial Court, Branch 132, Makati City. The petition for
relief assailed the judgment of the same trial court ordering a
partition by commissioners in Civil Case No. R-MKT-17-00231-
CV.

Finding the petition for relief not sufficient in form and

substance, the trial court dismissed the petition in its Order of
December 12, 2019. Petitioner-appellant moved for
reconsideration but the trial court denied it in its Order of May 18,
2020. Petitioner-appellant thereafter filed a notice of appeal before
the trial court under Rule 41.

This Court, through the Judicial Records Division, issued,

on September 8, 2020,3 a notice directing petitioner-appellant to
file her appellant's brief within 45 days from receipt of the
appellant's brief and respondents-appellees to file their appellee's
brief within the same period. An appellant's brief was filed.

For the respondents-appellees, the copy of the September 8,

2020 Notice to File Brief sent to their representative was returned
on November 3, 2020, to this Court unclaimed, with postal
notation on the envelope, “RTS-Deceased.”4 This Court therefore
required petitioner-appellant's counsel to confirm the fact of
death of respondents-appellees' representative, submit adequate
proof of the same, and to procure the appearance of a new
representative, if the appellees' representative is indeed
deceased.5
3 Rollo, p. 17.
4 Rollo, p. 18.
5 Resolution, January 28, 2021, Rollo, p. 130.
 CA-G.R. CV No. 115216
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Petitioner-appellant, through a Manifestation and Motion,

prayed that he be given 30 days from receipt, or until April 14,
2021 to submit the proof of death of the concerned representative
of respondents-appellees.

This Court, in the Resolution of June 2, 2022, 6 granted

petitioner-appellant the extension prayed for and directed his
counsel to submit proof of receipt showing the actual date of
receipt by respondents-appellees of a copy of the appellant's brief.
The copies of the June 2, 2022 Resolution addressed to both
respondents-appellees' representative as well as petitioner-
appellant Felisa V. Acquiatan were returned with postal notation
“RTS-Deceased.”7 To address these returns, this Court, in a
Resolution of October 27, 2022,8 directed counsel for “deceased”
petitioner-appellant to: (1) submit Philippine Statistics Authority-
issued or certified true copies of the Certificates of Death of Felisa
V. Acquiatan and Louiesito A. Andres, the representative of
respondents-appellees; (2) inform this Court of the names and
addresses of the surviving heirs of Felisa and the new duly
authorized representative for respondents-appellees; and (3) file
the appropriate pleading for the substitution of Felisa. The
Resolution also directed the heirs of Felisa to manifest whether
they will retain the services of Atty. Alberic G. Alfonso as their
counsel of record.

To date, the counsel for petitioner-appellant has not yet

complied with the June 28, 2021 and October 27, 2022 Resolutions.

6 Rollo, p. 143.
7 Rollo, pp. 145 and 147.
8 Rollo, p. 148.
 CA-G.R. CV No. 115216
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This appeal must be dismissed.

Section 1, Rule 50 of the Revised Rules of Court enumerates

the grounds for dismissal of appeal by this Court, thus:

“Section 1. Grounds for dismissal of appeal. — An appeal

may be dismissed by the Court of Appeals, on its own motion
or on that of the appellee, on the following grounds:

(a) Failure of the record on appeal to show on its face that the
appeal was taken within the period fixed by these Rules;

(b) Failure to file the notice of appeal or the record on appeal

within the period prescribed by these Rules;

(c) Failure of the appellant to pay the docket and other lawful
fees as provided in section 5, Rule 40 and section 4 of Rule 41;
(Bar Matter No. 803, 17 February 1998)

(d) Unauthorized alterations, omissions or additions in the

approved record on appeal as provided in section 4 of Rule 44;

(e) Failure of the appellant to serve and file the required

number of copies of his brief or memorandum within the time
provided by these Rules;

(f) Absence of specific assignment of errors in the appellant's

brief, or of page references to the record as required in section
13, paragraphs (a), (c), (d) and (f) of Rule 44;

(g) Failure of the appellant to take the necessary steps for the
correction or completion of the record within the time limited
by the court in its order;

(h) Failure of the appellant to appear at the preliminary

conference under Rule 48 or to comply with orders, circulars,
or directives of the court without justifiable cause; and

(i) The fact that the order or judgment appealed from is not
appealable.”9

9 Emphasis supplied.
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Based on the provision, this Court may dismiss an appeal:

(1) if the appellant failed to comply with the orders, circulars or
directive of this Court without justifiable cause; or (2) if the order
or judgment appealed from is not appealable.

The record shows that the counsel for petitioner-appellant

has not yet complied with the January 28, 2021 Resolution
requiring him to confirm the fact of death of respondents-
appellees' representative, submit adequate proof of the same, and
if the appellees' representative is actually deceased, to procure the
appearance of a new representative.10 No compliance has been
made despite the fact that petitioner-appellant's counsel himself
moved for an extension for compliance until April 14, 2021 which
this Court granted on June 2, 2022. No compliance was also made
with respect to the October 27, 2022 Resolution. For this failure of
petitioner-appellant's counsel to comply with the orders of this
Court without justifiable cause, the appeal must be dismissed
pursuant to Section 1(h), Rule 50.

A perusal of the assailed Order of December 12, 2019 also

shows that the petition for relief from judgment filed by
petitioner-appellant was dismissed while the Order of May 18,
2020 denied the motion for reconsideration. Section 1, Rule 41 of
the Revised Rules of Civil Procedure enumerates the instances
where the judgment or final order is not appealable.

“SECTION 1. Subject of Appeal. — An appeal

may be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein when
declared by these Rules to be appealable.

10 Resolution, January 28, 2021, Rollo, p. 130.

 CA-G.R. CV No. 115216
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No appeal may be taken from:

(a) An order denying a motion for new trial or

reconsideration;
(b) An order denying a petition for relief or any
similar motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a
judgment by consent, confession or compromise on
the ground of fraud, mistake or duress, or any other
ground vitiating consent;
(f) An order of execution;
(g) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless the
court allows an appeal therefrom; and
(h) An order dismissing an action without
prejudice.

In all the above instances where the judgment or final

order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65.”11

From the foregoing, one of the instances where the

judgment or final order is not subject to ordinary appeal is an
order denying a petition for relief from judgment, in which case
the aggrieved party may instead file a special civil action under
Rule 65.

Since the assailed Orders pertain to the trial court's

dismissal of the petition for relief from judgment filed by
petitioner-appellant, the Orders are not appealable under Rule 41.
The proper remedy to assail the Orders is a petition for certiorari
under Rule 65 before this Court.

11 Emphasis supplied.
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It must be emphasized that the right to appeal is neither

natural nor is it a component of due process. It is a mere statutory
privilege, and may be exercised only in the manner and in
accordance with the provisions of law.12 A party who seeks to
avail of the right must, therefore, comply with the requirements
of the rules, failing which the right to appeal is invariably lost.13

For the foregoing reasons, the appeal must be dismissed.

ACCORDINGLY, the appeal is DISMISSED.

SO ORDERED.

ORIGINAL SIGNED
ANGELENE MARY W. QUIMPO-SALE
Associate Justice

WE CONCUR:

ORIGINAL SIGNED
MARIA ELISA SEMPIO DIY
Associate Justice

ORIGINAL SIGNED
ALFONSO C. RUIZ II
Associate Justice

12 Tolentino-Prieto v. Elvas, G.R. No. 192369, November 9, 2016, citing Boardwalk Ventures, Inc. v.
Villareal, Jr., G.R. No. 181182, April 10, 2013.
13 Manila Mining Corporation v. Amor, et al., G.R. No. 182800, April 20, 2015, citing Philux, Inc., et
al. v. NLRC, 586 Phil. 19, 26 (2008).