REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

THIRD JUDICIAL REGION
BRANCH 56
ANGELES CITY

PACIMAR ESTAE AND PACIMAR

HOMEOWNERS AND RESIDENT
ASSOCIATION, INC., CIVIL CASE NO. (02) 10744
Plaintiffs,
- versus - FOR:

RECOVERY OF POSSESSION

SPS. AMADO AND LETICIA GALLO

AND ROGER ZABLAN
Defendants.
x-----------------------------------------------x

MOTION TO DISMISS APPEAL

Respondents, through undersigned counsel, respectfully

move this Honorable Court to dismiss the Appeal in the above-
captioned case based on the following grounds:

THE APPEAL WAS FILED ON

OF TIME BUT THE RECORDS
OF THE CASE WAS NOT
TRANSMITTED TO THE
COURT OF APPEALS WITHIN
THE REQUIRED UNDER THE
RULES OF COURT.

II
THE APPEAL MUST BE
DISMISSED ON THE
GROUND UNDER RULE 17
OF THE RULES OF COURT IN
THE EXERCISE OF THIS
HONORABLE COURTS
RESIDUAL JURISDICTION.
 2

DISCUSSION

The Appeal was filed on time

but where the records of this
case were not transmitted to
the Court of Appeals is a
ground for dismissal of the
Appeal.

PACIMAR ESTATE and PACIMAR HOMEOWNERS and

RESIDENT ASSOCIATION, INC. (PHORAI for brevity) are herein
Plaintiffs of the civil case for Recovery of Possession and
docketed as Civil Case No. (02) 10744 filed against Spouses
Amado and Leticia Gallo and Roger Zablan, herein defendants,
before this Honorable Court.

After due trial and based on the merits of this case, a

judgment was rendered finding plaintiffs PACIMAR Estate and
PHORAI entitled to the possession of the disputed property. Thus,
in the dispositive portion of the said 19 March 2015 Decision, this
Honorable Court ordered in this wise

WHEREFORE, in view of the foregoing

disquisition, judgment is hereby rendered in favor
of the plaintiffs and the defendants are hereby
ordered:

1. To vacate and surrender possession

of Road Lot 1 to the plaintiffs;

2. To remove and/or demolish any

improvements erected on Road, Lot 1;

3. To pay P50,000.00 as attorneys fees;

and

4. To pay the cost of the suit.

Consequently, on 11 May 2015, Defendants, through Atty.

Westremundo Y. De Guzman, gave notice that they are appealing
the Decision rendered on 09 March 2015 in the above-entitled
case to the Court of Appeals Manila, which a copy of the Notice of
Appeal was received by Plaintiffs counsel on 13 May 2015.
Thereafter, on 26 May 2015, an Order was issued by this
Honorable Court finding the Notice of Appeal of Defendants had
 3

been filed on time as prescribed under the Rules by their counsel,

and that the corresponding appellate docket fees have been paid
by the same thus, thereby given due course.

While on appeal, one of the defendants, Leticia Gallo died.

Her fact of death was formally disclosed through a Manifestation
by their counsel before this Honorable Court. Plaintiffs herein were
also informed of the fact of death of Leticia Gallo. However,
subsequently thereafter, the other spouse Defendant Amado Gallo
also passed away. Only after then that Plaintiffs counsel received
reliable information that indeed, Defendant Amado Gallo had
already died. No formal notice whatsoever was given to Plaintiffs
from the Defendants.

More than a year have passed from the time that Appeal to
the Court of Appeals was taken by Defendants but up to this date,
Plaintiffs have not yet received any notice, order or process
regarding with the status of the proceeding of this case. Thus,
alarmed by this fact, just recently, Plaintiffs counsel inquired as to
the status of the case, and was later on discovered that the
records of this case were not transmitted to the Court of Appeals.

Hence, this Motion to Dismiss Appeal filed before this

Honorable Court.

In reiteration of the above-stated grounds of this Motion,

Defendants respectfully submit that:

In Section 10, Rule 41 of the Revised Rules on Civil

Procedures, which it provides

Duty of clerk of court of the lower court

upon perfection of appeal. Within thirty (30)
days after perfection of all the appeals in
accordance with the preceding section, it shall be
the duty of the clerk of court of the lower court:

(a) To verify the correctness of the

original record or the record on appeal, as
the case may be aid to make certification of
its correctness;

(b) To verify the completeness of the

records that will be, transmitted to the
appellate court;
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(c) If found to be incomplete, to take

such measures as may be required to
complete the records, availing of the
authority that he or the court may exercise
for this purpose; and

(d) To transmit the records to the

appellate court.

If the efforts to complete the records fail, he

shall indicate in his letter of transmittal the
exhibits or transcripts not included in the records
being transmitted to the appellate court, the
reasons for their non-transmittal, and the steps
taken or that could be taken to have them
available.

The clerk of court shall furnish the parties

with copies of his letter of transmittal of the
records to the appellate court. (Emphasis ours.)

Based on the foregoing, it is crystal clear that it is the duty of

the clerk of court to transmit the entire records of the case to the
Court of Appeals within Thirty (30) days from the perfection of the
appeal. But in this case, this mandate has not been done to the
damage and prejudice of herein Plaintiffs since it has been more
than a year that lapsed from the time Defendants has filed their
Appeal, and yet, up to this time, the entire original records of this
case still remains in the custody of the clerk of court of this
Honorable Court.

Moreover, before Plaintiffs discovered the said fact of non-

transmittal, Plaintiffs counsel first tried to ascertain the veracity of
the matter before the Court of Appeals, which thereafter, was able
to confirm that this case appealed was not yet docketed as an
appealed case before said appellate court. Hence, a clear proof
that the case has not taken its course for reasons that proximately
attributable to failure of the Clerk of this Honorable Court to
transmit the original record of this case. However, herein Plaintiffs
are not entirely pointing the fault to the officer of this Honorable
Court but also equally attaching the same fault to Defendants as
well as to their counsel of record, Atty. Westremundo Y. De
Guzman.
 5

Under Section 3 of Rule 44 of the Rules of Court, it

provides that:

Order of transmittal of record. If the

original record or the record on appeal is not
transmitted to the Court of Appeals within thirty
(30) days after the perfection of the appeal,
either party may file a motion with the trial
court, with notice to the other, for the
transmittal of such record or record on
appeal. x. x .x. (Emphasis Ours)

Clearly from the foregoing, either party may file a motion

before this Honorable Court, but nevertheless, it is expected in this
case, that it is the defendants who should have taken the initiative
and earnest efforts as they were the party assailing the judgment
of this Honorable Court. More so, well-settled is the rule that
defendants have the duty to prosecute their claim.

Conceding to the point that it is the clerk of court who is

primarily responsible for seeing to it that the records of appealed
cases are properly sent to the appellate court without delay (and
having failed to do so subjects him to administrative liability), it
behooves the litigants to be more vigilant of their rights. They
should take it upon themselves to call the attention of the trial court
as to any delay in action over their cases (Estela vs. CA, 185
SCRA 732, 738).

In Arcega, et al. vs. Court of Appeals, et al., 166 SCRA

773, 776, the Supreme Court ruled that:

"x.x.x It cannot be said that the

respondent Court of Appeals abused its
direction or exceeded its jurisdiction in
dismissing the appeal of the petitioners for
failure to prosecute, since it appears that
the petitioners did nothing to effect or
facilitate the transmittal of the records of
the case to the appellate court for almost
two (2) years from the issuance of the
order to elevate said records to the
appellate court. The Court has held that,
 6

while it is the duty of the clerk of the

lower court to transmit the records of an
appealed case to the appellate court, it
is also the duty of the appellant to make
the clerk of court act, and the failure of
the clerk to perform his legal duty is no
justification for the appellant's failure to
perform his, and he cannot justify his
failure by saying that the fault was that
of the clerk of the lower court."
(Emphasis and underscoring ours.)

As stated accordingly from the foregoing, Defendants

therefore had the responsibility to initiate and take steps to ensure
that original records of the case are transmitted completely to the
Appellate Court and should not entirely depend the process to the
clerk of court. To otherwise rely on the officer of this Court would
be an omission that should be reckoned as unnecessary and
unwarranted delay that must be taken against the Defendants.

The appeal must be

dismissed on the ground
under Rule 17 of the Rules of
Court in the exercise of this
Honorable Courts residual
jurisdiction.

In Section 3 of Rule 17 of the Rules of Court, it

provides that:

Dismissal due to fault of plaintiff. If,

for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his
evidence in chief on the complaint, or to
prosecute his action for an unreasonable
length of time, or to comply with these Rules
or any order of the court, the complaint may
be dismissed upon motion of the defendant
or upon the court's own motion, without
prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the
effect of an adjudication upon the merits, unless
otherwise declared by the court. (Emphasis
ours.)
 7

The rule is well-settled that the defendant may move to

dismiss the complaint where the plaintiff had failed to prosecute
his action for an unreasonable time, or to comply with the Rules.
The reason being that, delays in litigations have always been a
bane in our judicial system; thus, our courts had to make a policy
statement that failure to prosecute will not be countenanced so as
warranting the dismissal of the complaint with prejudice.

Herein Defendant-Appellants comes now became plaintiffs

upon filing their appeal and consequently, they have shouldered
the obligation to prosecute their appeal. Defendants had the duty
to avoid and prevent to cause any delay in their appeal, for which
in this case, did not happen.

Further, when both Defendants-spouses Gallo died, their

counsel had not notified this Honorable Court and so are the
Plaintiffs. No proper substitution was thereafter immediately made
as provided under the Rules. Neither did the surviving Defendant
Zablan took the initiative to cause notice to the Court and request
the same to issue an Order for substitution of parties. Thus, taking
these into consideration constitute a clear and convincing case
that Defendants are no longer interested to prosecute further their
case and also consequently accepting the judgment of this
Honorable Court.

In this regard, in the case Mateo vs. Court of Appeals,

Hon. Eutropio Migrio, G.R. No. 97839. April 22, 1993, wherein
the Supreme Court categorically ruled that:

We find no reversible error in the

decision of the Court of Appeals. Indeed,
while the transmittal of the records of an
appealed case to the appellate court is the
duty of the clerk of court of the trial court
(Sec. 6, Rule 40, Rules of Court), for the
simple reason that said court employee is
the custodian of those records and is
responsible for their safety and integrity,
the speedy prosecution of the appeal is
principally the responsibility of the
appellant, rather than of the personnel of
the trial court. It is the appellant, not the
 8

trial court, that is presumed to be interested

in the review and reversal of the latter's
decision. It is presumed that the appellant
desires a speedy resolution of his appeal
and swift rectification of the errors in the
appealed decision. It behooves the
appellant to be vigilant for the
protection of his right. He should take it
upon himself to call the attention of the
trial court to any delay in the transmittal
of the records of his case. (Emphasis
and underscoring ours)

Also, applicable in this case, the ruling in Fagtanac, et al.

vs. Court of Appeals, et al., 22 SCRA 1227, 1234 wherein
Supreme Court stated in this wise

"The negligence of private

respondents in prosecuting their appeals in
these cases is palpably clear. Their failure
to assist the courts of justice to dispose of
these cases with reasonable dispatch is a
sufficient reason to take away from them
their right to have the alleged errors in the
appealed judgment corrected. They
delayed the administration of justice by
their delay in prosecuting their appeals.
x.x.x
x. x. x
Failure of an appellant to so
prosecute must be reckoned against
him. It would be a travesty in the
administration of justice if we are to
order now the return of the records to
the lower court just to complete the
records on appeal; to procure approval
of the amended record still to be
presented by private respondents in the
land registration case; and thereafter to
elevate the cases once again to the
appellate court for resolution of the
appeals. x. x. x. (Emphasis ours.)
 9

Indeed, if the appellant does nothing to press his appeal, it

may safely be concluded that he believes the judgment of the trial
court to be correct and his appeal aims to accomplish nothing
more than mere delay in the execution of the adverse judgment,
certainly unfair to the appellee who is denied the enjoyment of the
fruits of his victory in the case as long as the appeal is not
resolved (Mateo vs. Court of Appeals, Hon. Eutropio Migrio, G.R.
No. 97839. April 22, 1993).

In this case, however, the motion to dismiss the appeal or to

declare it abandoned, could not be filed in the Court of Appeals
because there was no record on appeal in the appellate court to
speak of. The appeal has not been docketed in the Court of
Appeals. The records were still in this Honorable Trial Court.

Under Section 9, Rule 41 of the Rules of Court, it retained

jurisdiction "to issue orders for the protection and preservation of
the rights of the parties prior to the transmittal of the record on
appeal to the appellate court", thus, even assuming that
Defendants appeal was perfected upon the filing of their notice of
appeal, the trial court was not entirely divested of jurisdiction over
the case.

In fine, based on the given circumstances of this case,

Plaintiffs are of with the right to move and ask for the dismissal of
Defendants appeal since as of to date, Defendants have
deliberately been failing to prosecute their appeal after the lapsed
of more than one year, thus, causing delay in the disposition of this
case to the damage and prejudice of Plaintiffs, while the same
constitutes a continuing violation of their constitutional right to
speedy disposition of their case which this Honorable Court cannot
allow.

PRAYER

WHEREFORE, in view of all the foregoing, Plaintiffs

respectfully pray that the instant Motion be granted and that an
Order be issued dismissing the Appeal filed by Defendants.

Other reliefs and remedies just and equitable under the

premises are likewise prayed for.

Angeles City, __ August 2016.

 10

HIPOLITO TUAZON VILLANUEVA

LAW OFFICES
Counsel for Plaintiffs
Ground Floor, Angeles Business Center
Nepo Complex, Angeles City 2009
PLDT No. 625-3905; 436-1761

By:

ELFREN P. HIPOLITO, JR.

Roll of Attorneys No. 33515
IBP Lifetime Member No. 00416
PTR No. AC-0721366/01-05-2016

CHRIST SHANEY C. SALDON

Roll of Attorneys No. 66095
IBP Member No. 1041370/ 25 May 2016
PTR No. AC-0825143/06-30-2016

NOTICE OF HEARING AND COPY FURNISHED TO:

Atty. Westremundo Y. De Guzman

Counsel for the Defendants
Rm 215 Doa Ponciana Bldg.,
Rizal St., Angeles City

The Branch Clerk of Court

RTC, Branch 56
Angeles City

G r e e t i n g s:

Please take notice that the foregoing motion to dismiss

appeal will be submitted for the consideration and resolution of the
Honorable Court on ___ August 2016, at 8:30 oclock in the
morning, or as soon thereafter as counsel and matter may be
heard.

E.P. HIPOLITO, JR.

C.S.C SALDON
 11

EXPLANATION

(in compliance with Section 11, Rule 13 of the

1997 Rules of Civil Procedure)

Copy of the Motion to which this explanation is appended

was:

filed with this Honorable Court by registered mail;

sent to counsel for the adverse party by registered
mail; due to the following reason/s:
the distance between this Honorable Court and
counsels office which makes personal filing of the
pleading/motion impracticable;
the distance from the office of counsel to the residence
of the adverse party which makes personal service
impracticable;
lack of office personnel to effect personal service;
time constraints

E.P. HIPOLITO, JR.

C.S.C SALDON