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[ G.R. No. 133900. April 21, 1999]
ERLINDA ALVARAN, petitioners, vs. HEIRS OF ELIAS RICAFORT, ET AL., respondents.
THIRD DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this court dated
APR 21, 1999.G.R. No. 133900 (Erlinda Alvaran, petitioner vs. Heirs of Elias Ricafort, namely: Marietta Ricafort, Elias Ricafort, Jr., Elmer Ricafort, Elma R. Maragay, Edivina R. Villaseñor, Elanio B. Ricafort and Edelfonso B. Ricafort, respondents.)
In a complaint for specific performance with damages filed by Elias V. Ricafort (duly substituted by the above-named heirs) against one Iluminada Lijauco-Entena, which was later amended to include herein petitioner Erlinda Alvaran, the Regional Trial Court of Quezon City (Branch 77) rendered a Decision dated October 10, 1996 in favor of the plaintiff, the dispositive portion of which reads:
"Wherefore, judgment is hereby rendered in favor of plaintiff and against defendants ordering defendant Entena to comply with her obligations under the Contract to Sell dated February 27, 1979; ordering defendant Entena to pay plaintiff the amount of P70,000.00; ordering defendannts Entena and Alvaran to pay jointly and severally plaintiff the amount of P100,000.00 as moral damages and P30,000.00 as and for attorney's fees."1 [Rollo, p. 24.]
Thereafter, the following events transpired as narrated by the appellate court:
"Copies of the decision were sent by registered mail to Atty. Manuel Ubarra, counsel for plaintiff, who received it on November 6, 1996; to Atty. Pedro Mallari, counsel for defendant Alvaran, who received it on October 25, 1996; and to Iluminada Entena who received it on October 24, 1996. On January 28, 1997, plaintiff filed a motion for execution of the decision. The motion was set for hearing on February 7, 1997, on which dated, Atty. Manuel Ubarra, counsel for plaintiff did not appear. Consequently, the Presiding Judge, the Honorable Normandie Pizzaro, denied the motion for execution for "lack of movant". On February 14, 1997, Atty. Mallari, counsel for defendant Alvaran, filed a motion to rectify records praying that an order be issued to strike or delete from the records any indication that defendant, through counsel, received a copy of the decision on October 25, 1996. Atty. Mallari denied knowing any person by the name of Baby Mallari whose signature appears on the return which is attached to the records. He claimed to have received and read the Decision only on February 7, 1997, when he appeared in the lower court to oppose the Motion for Execution which was set for hearing on the same date. Like wise, on February 14, 1997, Atty. Mallari filed with the lower court a notice of appeal. Subsequently, Judge Pizarro granted the motion to rectify the records and approved the notice of appeal based on the finding that it was filed on the reglementary period. Plaintiff filed a motion for reconsidering of the Order of February 7, 1997, which denied the Motion for Execution. The lower court Judge denied the motion for reconsideration on the ground of lack of jurisdiction, noting that an appeal has been filed by the defendant."2 [Rollo, p. 35.] (underscoring supplied)
On October 13, 1997, the Heirs of Ricafort as substitute for the deceased plaintiff filed a motion to dismiss the appeal and motion for execution before the Court of Appeals. On November 24, 1997, defendant Alvaran filed her opposition to the twin motions filed by the plaintiffs.
In a resolution dated February 27, 1998, the appellate court dismissed the appeal for having been filed out of time. The motion for reconsideration was likewise denied on May 27, 1998.
Oddly, in this petition for review on certiorari, petitioner Alvaran seeks the annulment of theDecision dated October 10, 1996 of the Regional Trial Court of Quezon City (Branch 77) and the Resolutions dated February 27, 1998 and May 27, 1998 of the Court of Appeals.
This procedure adopted by the petitioner is highly irregular, to say the least, for instead of dealing solely on the issue of the propriety of the appellate court's disallowance or dismissal of the appeal "for having been filed out of time" and the denial of the motion to reconsider the same, she chose to file the instant petition for review under Rule 45 of the Rules of Civil Procedure assailing both the decision of the trial court and the resolutions of the appellate court.
A perusal of the petition reveals the petitioner wants this Court to focus its attention more on the merits of the decision of the trial court rather than the resolutions of the appellate court which should have been the sole subject of the instant petition. However. Petitioner cannot choose to appeal before the appellate court and ten, because of fault or negligence of counsel, evade the consequence of a dismissal of said appeal by trying to file a petition for review with this Court assailing the decision of the trial court.
The issue to be resolved in the case at bench is whether or not the Court of Appeals committed a reversible error in disallowing the appeal for having been filed out of time.
The Court of Appeals committed no reversible error. It wa not proper for the lower court to grant petitioner's motion to rectify the record' on the sole basis of the affidavit of counsel for petitioner, Atty. Pedro Mallari, that the Baby Mallari who signed the return which is attached to the records of the case is unknown to him and to a member of his household. It is hard to believe that Baby Mallari who bears the same surname as Atty Mallari and who was found at the latter's residence when a copy of the decision was served is unknown to him. As the Court of Appeals aptly pointed out, "it takes more than a mere affidavit to overcome what the court records have established. It was incumbent on Atty. Mallari to present evidence, aside from his affidavit, to butress his claim. The Court has consistently ruled that bare denials unsubstantiated by clear and convincing evidence are negative and self-serving." Otherwise, the oft-repeated rule that "perfection of appeal within the statutory period is not only mandatory but a jurisdictional requirement"3 [Ditching vs. Court of Appeals, 263 SCRA, 343, 355 (1996).] could be trifled with to suit the interest of a party.
WHEREFORE
, petition is DIMISSED for lack of merit. The questioned resolutions of the appellate court are AFFIRMED.Very truly yours,
(SGD.) JULIETA Y. CARREON
Clerk of Court
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