Republic of the Philippines

COURT OF APPEALS
Manila
SECOND DIVISION
JOSEFINA L. LEWIS, CA G.R. CV NO. 90480

Plaintiff-Appellant, Members:

-versus- ALIŇO-HORMACHUELOS,
Chairman
ANNABELLE PATRICIA MEDINA, ABDULWAHID,
MELANIO MEDINA, and AURELIA DY-LIACCO FLORES, JJ.
MEDINA,
Promulgated:
Defendants-Appellees.
December 24, 2008
x------------------- ---------------------------x

RESOLUTION

DY-LIACCO FLORES, J:

This is an Appeal1 under Rule 41 of the Rules of Court from the Decision2
of the Regional Trial Court (RTC), Branch 52, of Manila in Civil Case No.
05-111616 for Rescission of Contract with Damages dated July 3, 2007. The
court a quo decreed, thus:

“WHEREFORE, judgment is hereby rendered as follows:

1. the dismissal of the complaint earlier ordered by

the court is CONFIRMED;
2. the Conditional Deed of Sale entered into by the
parties is hereby RESCINDED and the plaintiff is
directed to refund defendants the amount she
has received under the foregoing agreement in
the Total amount of Php752,000.00 with 6%
interest per annum from November 2004.
3. for plaintiff to pay defendants attorney’s fees in
the amount of Php20,000.00 and costs of suit.

SO ORDERED.”

Appellant seasonably filed her Notice of Appeal3.

1
This case is part of the Ponente’s initial caseload, raffled on May 22, 2008 for completion of records.
2
Records, p. 219-224, Decision dated July 3, 2007 and penned by Judge Antonio M. Rorales.
3
Records, p. 272
CA G.R. CV NO. 90480 Page 2 of 8
Resolution

After the records of the case had been elevated to this Court on appeal,
the Judicial Records Division (JRD) notified appellant and her counsel to file the
Appellant’s Brief within forty-five (45) days from receipt of notice pursuant to
Rule 44, Section 7 of the Rules of Court.4 Appellant’s counsel Atty. Allene Anigan
received the Notice on July 10, 20085. Hence, appellant had until August 24,
2008 within which to file the required appeal brief. Appellant also received this
Court’s notice on July 21, 2008.6

On July 22, 2008, Atty. Anigan filed a motion captioned Withdrawal of

Appearance as Counsel for Plaintiff-Appellant and Manifestation for Change of
Address.7 Appellant conformed to the said Motion thru her signature affixed
thereon.8

Per verification report by the Judicial Records Division (JRD), as of

September 16, 2008, no motion for extension to file Appellant’s Brief was filed.9

On September 1, 2008, Atty. Diosdado Agcaoili, Jr. filed a pleading

captioned Entry of Appearance with Plaintiff-Appellant’s Brief.10

Appellant’s Brief assigned one error:

THE COURT A QUO COMMITTED SERIOUS AND

REVERSIBLE ERRORS OF FACT AND LAW IN
PROCEEDING TO RENDER AND GRANT
DEFENDANTS-APPELLEES’ CLAIM IN ITS
DECISION DATED 3 JULY 2007 AND ORDER
DATED 18 SEPTEMBER 2007 DENYING THE
MOTION FOR RECONSIDERATION THEREFOR
DESPITE ABSENCE OF ADEQUATE AND
COMPETENT LEGAL ASSISTANCE FOR
PLAINTIFF-APPELLANT.

RULING

We dismiss this appeal on two grounds:

a.) For failure to comply with procedural rules; and
b.) On the merits, the appeal is frivolous.

Rule 50, Section 1 of the Rules of Court states:

Sec. 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:

4
Pursuant to Section 7, Rule 44 of the 1997 Revised Rules of Court,
5
Rollo, p. 15, Registry Return Receipt No. 42 for Atty. Allene Anigan
6
Rollo, p. 15, Per Registry Return Receipt No. 43
7
Rollo, p. 16-17
8
Rollo, p. 17
9
Rollo, p. 15, Per JRD Verification Report on September 16, 2008
10
Rollo, p. 18
CA G.R. CV NO. 90480 Page 3 of 8
Resolution

xxx xxx xxx

(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;

xxx xxx xxx

Rule 44 of the Rules of Court lays the procedure in the Court of Appeals
for Ordinary Appealed Cases. Sections 7 and 13 thereof deal with the contents of
the Appellant’s Brief and the period of its filing while Section 12 of the same Rule
deals with extension of time for filing briefs. Sections 7, 12 and 13 state:

Sec. 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.
Sec. 12. Extension of time for filing briefs.

Extension of time for the filing of briefs will not be

allowed, except for good and sufficient cause, and only if the
motion for extension is filed before the expiration of the time
sought to be extended.

Sec. 13. Contents of appellant’s brief.

The appellant’s brief shall contain, in the order herein

indicated, the following:

xxx xxx xxx

(h) In cases not brought up by record on appeal, the

appellant’s brief shall contain, as an appendix, a copy of the
judgment or final order appealed from.

Appellant has violated the foregoing provisions rendering the appeal

proper for dismissal.

Here, Appellant’s Brief was filed out of time. Its last day to file Appellant’s
Brief fell on August 24, 2008. No motion for extension was filed. Appellant’s Brief
was filed only on September 1, 2008. Under Section 12 aforecited, what
appellant should have done was to file a motion to extend the time to file brief
before the time sought to be extended has elapsed and for good and sufficient
cause. Also, the Appellant’s Brief did not attach a copy of the judgment appealed
from.
CA G.R. CV NO. 90480 Page 4 of 8
Resolution

Thus, Plaintiff-Appellant’s Brief was filed eight (8) days late. In the case of
Karen and Kristy Fishing vs. CA,11 the Supreme Court made this
pronouncement stating:

“As a rule, periods prescribed to do certain acts

must be followed with fealty as they are designed
primarily to speed up the final disposition of the case.
Such reglementary periods are indispensable
interdictions against needless delays and for an orderly
discharge of judicial business. Deviations from the rules
cannot be tolerated. More importantly, its observance
cannot be left to the whims and caprices of the parties.
What is worrisome is that parties who fail to file their
pleading within the periods provided for by the Rules
of Court, through their counsel’s inexcusable neglect,
resort to beseeching the Court to bend the rules in the
guise of a plea for a liberal interpretation thereof, thus,
sacrificing efficiency and order.”
(Emphasis supplied)

Procedural infirmity aside, We also find the appeal frivolous. It deserves

outright dismissal. There is preponderant evidence that proved appellant’s
liability towards the appellees.

We recite with approbation the findings of the court a quo:

xxx xxx xxx

In her complaint, plaintiff alleged that despite their knowledge of

“infirmities” on the title covered by T.C.T. No. 25133 disclosed by her,
defendants enticed her to execute in their favor a Deed of Conditional
Sale of the parcel of land and its improvements embraced in the said
Certificate of Title. She was made to sign the aforementioned contract
although she had not yet met defendant Annabelle Patricia medina nor
had she been presented by the other defendants Melanio and Aurelia
Medina a written authority showing that they were authorized by their
co-defendant, Annabelle Patricia to enter into the said contract in her
behalf. This lack of authority rendered the contract unenforceable. xxx

In their answer, defendants claimed that the only infirmity

disclosed by plaintiff to them was the mortgage to one Domingo de
Guzman in the amount of P800,000.00 and even assured them that the
down payment of P500,000.00 shall be used as partial payment for the
loan. They further asserted that after paying plaintiff the down payment
of P500,000.00 and the first (4) installments of P252,000.00 she failed
to give them the transfer certificate of title with corresponding
cancellation of mortgage. When they secured a certified true copy of
the title, they were surprised to discover the infirmities mentioned by
plaintiff. Hence they sought the rescission of the contract and prayed
for award of damages.

11
G.R. No. 172760-61, October 17, 2007
CA G.R. CV NO. 90480 Page 5 of 8
Resolution

On January 2006, plaintiff Josefina Lewis testified on partial

direct examination. The continuation of direct (sic) was repeatedly reset
for reasons that the parties may be able to arrive at a settlement, the
withdrawal of the original counsels representing the parties and the
referral of the case to Manila PMC Unit last October 2006.
Consequently, when the parties failed to arrive at a mutually acceptable
arrangement before the PMC, the court set the case for hearing on
January 24, 2007 at 8:30 a.m. During the hearing Josefina Lewis failed
to appear. Thus, on motion of her counsel, Atty. Rodrigo Marinas,
hearing was reset for the last time to February 19, 2007 at 8:30 a.m. At
that hearing both plaintiff and her counsel did not show up.
Consequently, on motion of defendant’s counsel, Atty. Maramba, the
partial direct testimony of Josefina Lewis was ordered stricken off the
record and the case dismissed. Also on motion of Atty. Maramba, the
case was set for presentation of defendant’s evidence in support of their
counterclaim.

Upon receipt of the order of dismissal, plaintiff through counsel

filed a Motion for Reconsideration claiming that in view of the death of
plaintiff’s husband on January 2, 2007, she has to rush to the United
States to manage and take care of the property left by her deceased
husband.
xxx xxx xxx

Because of the factual issue involved, the court set the Motion
for Reconsideration for hearing on 25 April 2007 at 8:30 a.m. On
motion of Atty. Marinas, hearing on the Motion for Reconsideration was
reset for the last time to 21 may 2007 at 8:30 a.m. Again, plaintiff and
her counsel failed to appear and adduce evidence in support of the
motion. Consequently, in an order issued in open court, the court
denied the Motion for Reconsideration. On 19 June 2007, plaintiff
herself filed a motion styled “Motion for Reconsideration and Stay of
Order dated May 21, 2007”. In an order dated 29 June 2007, the court
threw out the motion on the following grounds: a) for lack of the
required notice of hearing, it is a mere useless piece of paper which
does not deserve consideration by the court; b) because it assails an
order denying the Motion for Reconsideration, it is tantamount to a
second Motion for reconsideration which is a prohibited pleading under
the rules; c) plaintiff failed to show that she has good and valid cause
of action; and that d) the non-appearance of plaintiff and her counsel
was not caused by excusable negligence.

In the meantime, on 6 June 2007 at 2 p.m., defendants through

counsel presented their evidence in support of the counterclaim also
seeking rescission of the Conditional Deed of Sale on the ground that
plaintiff can no longer comply with her undertaking to deliver
possession of the property in question it appearing that the same had
been earlier been foreclosed, sold and registered in the name of
Eduardo Tongco, the refund of the amount paid by them to plaintiff
totaling Php752,000.00 with 6% legal interest from date of demand and
payment of moral and exemplary damages and attorney’s fees.

During the ex-parte hearing, defendant Aurelia M. Medina and

one corroborative witness, Olivia D. Blanco took the witness stand.
CA G.R. CV NO. 90480 Page 6 of 8
Resolution

They also introduced in evidence the following documentary

exhibits, to wit: xxx

Based on the testimony of Aurelia M. Medina and Olivia D.

Blanco, the key facts areas follows: On 16 July 2004, the parties herein
entered into a Conditional Deed of Sale (Exhibit “1”). Under the said
agreement, plaintiff as vendor binds herself, among others, to sell to
defendants the parcel of land and the improvements erected thereon
covered by TCT 252133 for Php2,800,000.00 with a down payment oh
Php500,000.00 and the balance payable at a monthly amortization of
Php63,000.00. During the negotiation of the Contract and at the same
time of the signing of the agreement, the only infirmity disclosed by the
plaintiff to the defendants was a mortgage to a certain Domingo de
Guzman in the sum of Php800,000.00 annotated at the back of TCT No.
252133 under Entry No. 7939 (Exhibit “2-a”). But plaintiff assured
them that it will not be a problem because the down payment of
Php500,000.00 will be used to augment the amount to be used in
paying the mortgage obligation in favor of de Guzman.

Hence, defendants paid plaintiff the down payment of

Php500,000.00 (Exhibit “6”) and the four (4) succeeding monthly
amortizations at Php63,000.00 monthly totaling Php252,000.(See:
Exhibits “6-a”, “6-b”, “6-c”, and “6-d”. All in all, defendants had paid
plaintiff the aggregate amount of Php752,000.00. After settling the
fourth installment (4th) payment, defendants tried to contact plaintiff to
ask for a certified true copy of the title showing the cancellation of the
mortgage in favor of de Guzman, but to no avail. And so, they secured
a certified true copy of the title from the office of the Registry of Deeds
of Manila. To their surprise, they found out that [the] on 5 June 2002
the property was already mortgaged to Asset Enterprise Corporation as
evidenced by entry No. 7605 and that as of 20 August 2003 it was
auctioned off and a Certificate of Sale issued to Eduardo Tongco. On
22 September 2004 the title was consolidated in the name of Eduardo
Tongco (See: Exhibits “3-a” to “3-d” inclusive). And so, defendants
stopped paying the succeeding amortizations, demanded refund of the
amounts they have made and likewise filed Estafa case against plaintiff
which is still pending with the Office of the City Prosecutor of Manila.

It clearly appears from the evidence presented by defendants

that plaintiff as vendor could no longer perform her undertaking under
the Conditional Deed of Sale because the property had been foreclosed
and title thereto consolidated in the name of certain Eduardo Tongco.
With this overwhelming evidence, defendants are well within their rights
to rescind the said contract taken into consideration the reciprocal
nature of the contract. And the net effect of rescission is for the parties
to revert back to the situation before the contract was entered into.
Otherwise stated, defendants as vendees will be released from their
prestation to pay the purchase price and for vendor to return to them
the amounts the have paid so far. Defendants are also entitled to
attorney’s fees considering that were compelled to litigate and for that
purpose, they engaged the services of a lawyer.
xxx xxx xxx
(Emphasis supplied)
CA G.R. CV NO. 90480 Page 7 of 8
Resolution

In this appeal, appellant prays that We reverse the decision and order the
remand of the case for further proceedings. This We cannot do. On the basis of
her allegations in the Complaint, the defenses put up in the Answer, and the
evidence adduced, the court a quo is correct in finding that the facts and the law
are in favor of the Appellee. Appellant had forfeited her right to present her
evidence by her repeated failure to appear during the presentation of her own
evidence. When she filed her Motion for Reconsideration dated March 19, 2007,
it was also set for hearing. Yet, again, she and her counsel failed to appear.12
Rule 17, Section 3 of the Rules of Court states:

SEC. 3. 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 supplied)

Appellant cannot blame the court a quo or her former counsel for the
unfavorable outcome of the decision in Civil Case No. 05-111616. Appellant lost
her case a quo because of her failure to appear during the presentation of her
evidence in chief. Appellant also lost her remedy before Us, because of her
failure to file the Appellant’s Brief on time and for the several shortcomings of
her Appellant’s Brief. In the case of Villamor vs. Tolang13 the Supreme Court
made this declaration:

It is doctrinally entrenched that the right to appeal is

merely statutory and a party seeking to avail of that right must
comply with the statute or rules. This principle is stated by this
Court in Oro vs. Diaz, thus:

“It should be stressed that the right to appeal

is not a natural right or a part of due process.
Rather, it is a procedural remedy of statutory origin
and, as such, may be exercised only in the manner
prescribed by the provisions of law authorizing its
exercise.”
(Emphasis supplied)

12
Records, p. 165
13
G.R. No. 144689, June 9, 2005 (Oro vs. Diaz 361 SCRA 108)
CA G.R. CV NO. 90480 Page 8 of 8
Resolution

IN VIEW OF ALL THE FOREGOING, the Appeal is hereby DISMISSED.

SO ORDERED.

TERESITA DY-LIACCO FLORES

Associate Justice

WE CONCUR:

PORTIA ALIŇO -HORMACHUELOS HAKIM S. ABDULWAHID

Associate Justice Associate Justice