FIRST DIVISION
[G.R. No. 233527. December 2, 2021.]
NATIONAL TRANSMISSION COMMISSION, petitioner, vs.HEIRS OF ARTEMIO CARMELO, NAMELY: ANGELINA CARMELO, FE CARMELO-MANDAC, MARITES CARMELO, ET AL., respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedDecember 2, 2021which reads as follows:
"G.R. No. 233527 (National Transmission Commission v. Heirs of Artemio Carmelo, namely: Angelina Carmelo, Fe Carmelo-Mandac, Marites Carmelo, et al.). — Section 7, Rule 44 and Section 1 (e), Rule 50 of the Rules of Court provide the procedure in the Court of Appeals (CA) with regard to ordinary appealed cases and the dismissal of appeal, respectively:
PROCEDURE IN THE COURT OF APPEALS
Rule 44
Ordinary Appealed Cases
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Section 7. Appellant's brief. — It shall be the duty of the appellant to file with the court, within forty-five (45) days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee.
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Rule 50
Dismissal of Appeal
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: CAIHTE
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(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;
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In The Government of Kingdom of Belgium v. CA, 1 the Court summarized the guidelines in dismissing an appeal when the appellant fails to file the appellant's brief within the reglementary period, thus:
(1) The general rule is for the [CA] to dismiss an appeal when no appellant's brief is filed within the reglementary period prescribed by the rules;
(2) The power conferred upon the [CA] to dismiss an appeal is discretionary and directory and not ministerial or mandatory;
(3) The failure of an appellant to file his brief within the reglementary period does not have the effect of causing the automatic dismissal of the appeal;
(4) In case of late filing, the appellate court has the power to still allow the appeal; however, for the proper exercise of the court's leniency it is imperative that:
a) the circumstances obtaining warrant the court's liberality;
b) that strong considerations of equity justify an exception to the procedural rule in the interest of substantial justice;
c) no material injury has been suffered by the appellee by the delay;
d) there is no contention that the appellees' cause was prejudiced;
e) at least there is no motion to dismiss filed.
(5) In case of delay, the lapse must be for a reasonable period; and,
(6) Inadvertence of counsel cannot be considered as an adequate excuse as to call for the appellate court's indulgence except:
a) where the reckless or gross negligence of counsel deprives the client of due process of law;
b) when application of the rule will result in outright deprivation of the client's liberty or property; or
c) where the interests of justice so require. 2
Here, it is undisputed that petitioner National Transmission Commission (petitioner) failed to file the appellant's brief to the CA within the reglementary period. 3 Yet, petitioner attributed gross negligence to its counsel for such failure. 4 As a rule, the client is bound by the acts, even mistakes, of his counsel in the realm of procedural technique. While the application of this general rule certainly depends upon the surrounding circumstances of a given case, there are exceptions recognized by the Court: (1) where reckless or gross negligence of counsel deprives the client of due process of law; (2) when its application will result in outright deprivation of the client's liberty or property; or (3) where the interests of justice so require. This case, nonetheless, does not fall under any of the exceptions. Thus, it is required that the negligence of counsel must be so gross that the client is deprived of his day in court. Where a party was given the opportunity to defend its interests in due course, it cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. To properly claim gross negligence on the part of the counsel, petitioner must show that the counsel was guilty of nothing short of a clear abandonment of the client's cause. 5
In this case, it cannot be said that Atty. Zaldy C. Lim's (Atty. Lim) negligence was so gross as to deprive petitioner of due process of law. Notably, Atty. Lim filed a timely notice of appeal, and his negligence consisted in failing to file the appellant's brief upon notice. 6 Nonetheless, this is mere simple negligence which could have been prevented with ordinary diligence and prudence. In Redeña v. CA, 7 the Court ruled that, while the omission to file appellant's brief can plausibly qualify as simple negligence, it does not amount to gross negligence to justify the annulment of the proceedings. 8 Accordingly, the failure to file appellant's brief, though not jurisdictional, results in the abandonment of the appeal which may be the cause for its dismissal. DETACa
We reiterate that the right to appeal is not a natural right but a statutory privilege, and it may be exercised only in the manner and in accordance with the provisions of the law. The party who seeks to avail of the same must comply with the requirements of the Rules. Failing to do so, the right to appeal is lost. 9 The CA thus rightly considered petitioner's appeal abandoned and consequently dismissed it.
Contrary to petitioner's assertion, Section 2, Rule 13 of the Rules of Civil Procedure provides that if any party has appeared by counsel, service upon him shall be made upon his counsel, unless served upon the party himself is ordered by the trial court. Notice or service made upon a party who is represented by counsel is a nullity. Notice to the client and not to his counsel of record is not notice in law. 10 Here, during the appeal period, petitioner was represented by Atty. Lim who filed the notice of appeal. Considering that Atty. Lim was petitioner's counsel of record, the notice to file brief was correctly served upon him. Meanwhile, Aguam v. CA11 finds no application in this case, considering that petitioner did not change its counsel after filing the notice of appeal. When the notice to file brief was sent by the CA, Atty. Lim was the retained counsel of petitioner.
FOR THESE REASONS, the petition is DENIED. The Resolutions of the Court of Appeals dated February 9, 2017 and July 11, 2017 in CA-G.R. CV No. 04371-MIN are AFFIRMED.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1. 574 Phil. 380 (2008).
2.Id. at 397-398.
3.Rollo, pp. 24-25.
4.Id. at 13-17.
5.Gotesco Properties, Inc. v. Spouses Moral, 699 Phil. 99, 105 (2012).
6.Rollo, pp. 12 and 24-25.
7. 543 Phil. 358 (2007).
8.Id. at 370.
9.Sibayan v. Costales, 789 Phil. 1, 9 (2016).
10.Garrucho v. CA, 489 Phil. 150, 156 (2005).
11. 388 Phil. 587 (2000).