ADVERTISEMENT
SECOND DIVISION
[G.R. No. 257291. September 27, 2021.]
MA. TERESA A. GUNDAY VALMOCENA, petitioner,vs. JOSEFINA S. VALMOCENA, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated 27 September 2021which reads as follows:
"G.R. No. 257291 (Ma. Teresa A. Gunday Valmocena v. Josefina S. Valmocena). — The Court resolves to: (1) GRANT petitioner Ma. Teresa A. Gunday Valmocena's (petitioner) motion for extension of thirty (30) days from the expiration of the reglementary period within which to file a petition for review on certiorari, and NOTE and GRANT the formal entry of appearance 1 dated June 16, 2021 of Atty. Noel R. Valerio of The Law Offices of Maderazo Valerio & Partners as counsel for petitioner, with prayer that all Court processes be sent to him at No. 66 West Ave., West Triangle, Quezon City; (2) NOTE the manifestation 2 dated June 16, 2021 of counsel for petitioner that due to time constraints, petitioner is paying the appeal fee for her instant petition through cash payment thereto attached; and (3) NOTE the payment dated September 1, 2021 in the amount of P4,530.00 for the docket/legal fees under O.R. No. 0295059 made by counsel for petitioner.
After a judicious study of this case, the Court further resolves to DENY the instant petition 3 and AFFIRM the Resolutions dated January 7, 2021 4 and May 25, 2021 5 of the Court of Appeals (CA) in CA-G.R. CV No. 115074 for failure of petitioner to sufficiently show that the CA committed any reversible error in dismissing her appeal for failure to timely file her Appellant's Brief.
As correctly ruled by the CA, petitioner failed to show any acceptable justification for the belated filing of her Appellant's Brief. Her claim to be relieved of the consequences of her 'new' counsel's negligence was also properly rejected by the CA. It is undisputed that both petitioner and her 'former' counsel, Atty. Juan Eugenio Tan Banico (Atty. Banico), received notices of the CA's directive to file Appellant's Brief but failed to timely comply or move for extension to file the same. Notably, Atty. Banico made a formal withdrawal of appearance 6 in the case only after receipt of the Resolution of the CA dated May 25, 2021 denying petitioner's motion for reconsideration. It is axiomatic that in the absence of a notice of withdrawal or substitution of counsel in accordance with the procedure laid down in Section 26, 7 Rule 138 of the Rules of Court, the Court will rightly assume that the counsel of record continues to represent his client, and receipt of notice by the former is the reckoning point of the reglementary period. 8 Here, Atty. Banico did not file any notice of withdrawal prior to the dismissal of the appeal, and neither did petitioner manifest that she consented to terminate his services and hire a new counsel. Absent proper substitution of counsel, she cannot conveniently claim that her 'new' counsel was negligent because Atty. Banico who, coincidentally, was the same counsel who filed the motion for reconsideration from the order of dismissal, continued to be her counsel of record.
The Court's exercise of liberality in the application of rules only obtains for the most persuasive reasons, and only in the absence of indication that the failure to comply with such rules is due to negligence or design, 9 which is not the case here. 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. While the power to dismiss an appeal conferred upon it is discretionary and directory and not ministerial or mandatory, for the proper exercise of its leniency to still allow the belated filing of the appeal brief, it is imperative that: (a) the circumstances obtaining warrant the court's liberality; (b) 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; and (e)at least there is no motion to dismiss filed. 10 In this case, the dismissal of the appeal was precipitated by a Motion to Dismiss filed by respondent Josefina S. Valmocena. Moreover, petitioner failed to show that her appeal is extremely meritorious that to deprive her of an appeal would unduly affect her substantial rights. 11 Accordingly, the CA was well-within its authority to dismiss the appeal of petitioner who had already lost such remedy not only through her counsel's fault to which she is bound, but also through her own fault. AIDSTE
SO ORDERED."
By authority of the Court:
(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court
Footnotes
1.Rollo, pp. 136-139.
2.Id. at 140-141.
3.Id. at 3-32.
4.Id. at 35-37. Penned by Associate Manuel M. Barrios with Associate Justices Ronaldo Roberto B. Martin and Alfredo D. Ampuan, concurring.
5.Id. at 38-39.
6.Id. at 142-143.
7. Section 26, Rule 138 of the Rules of Court provides:
SEC. 26.Change of Attorneys. — An attorney may retire at any time from an action or special proceeding, by the written consent of his client filed in court. He may also retire at any time from an action or special proceeding, without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. In case of substitution, the name of the attorney newly employed shall be entered on the docket of the court in place of the former one, and the written notice of the change shall be given to the adverse party. (Emphases supplied)
8. See Manaya v. Alabang Country Club, Inc., 552 Phil. 226, 233 (2007).
9. See the Court's Resolution in Chua v. People, G.R. No. 241351, June 17, 2020.
10. See Government of the Kingdom of Belgium v. CA, 574 Phil. 380, 397 (2008).
11. See Jose v. CA, 447 Phil. 159, 167 (2003).