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[ G.R. No. 136411. July 5, 1999]

ASSET PRIVATIZATION TRUST, vs. JOSE MORENO, JR.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 5, 1999.

G.R. No. 136411 (Asset Privatization Trust, petitioner-appellant vs. Jose Moreno, Jr., respondent-appellee.)

This is a petition for review of the orders issued by the Court of Appeals dated December 10, 1997 and November 11, 1998 in CA-G.R. CV No. 49227 dismissing the appeal filed by the Asset Privatization Trust (APT) for failure to file the required appellant's brief within the reglementary period for filing the same.

The Solicitor-General alleges that the APT lawyer who actively handled the case resigned from the service without turning over the records of this case, submitting a report on the status of all cases handled by him, while the collaborating counsel has long ceased to take part in the case when he was appointed Associate Executive Trustee in 1994. The APT was informed of the ground for dismissal of the appeal when it served a copy of the Motion to Dismiss Appeal filed by herein private respondent. APT filed an opposition to the said motion attaching thereto the required appellant's brief. The counsel for APT stressed that the late filing of the appellant's brief was not intended to delay the proceedings; on the contrary, the immediate resolution of the case is to the best interest of APT. The appellate opposed the admission of the appellant's brief and stated that the neglect of counsel is binding on the APT and that the appeal is proper for dismissal under the rules.

The Court of Appeals issued a resolution granting the Motion to dismiss appeal pursuant to Section 1(e), Rule 50 of the RCP and held that the failure of counsel for APT to file the appellant's brief on time is not excusable.

It appears from the annexes of the petition that this case arose from a specific performance filed by the private respondent to compel APT to execute a deed of sale in his favor pertaining to five stories of the J. Moreno Building located behind the AIM compound in Makati for twenty one million pesos (P21M). Moreno claims that there is a perfected contract of sale between the parties and that he had paid the required 10% down payment. APT denied the existence of a perfected contract of sale and asserts that what transpired between the parties is only negotiation for an intended settlement wherein the APT suggested the amount of forty-two million pesos (P42M) as the "ball park price" from which the settlement price will be determined. The amount suggested by the private respondent is too low considering the location of the property, and the said price would not have and in fact did not receive the approval of the APT. APT also alleged that it acts as a collegial body and the alleged assurances of a member thereof to the private respondents is not binding upon the APT. In the course of the proceedings before the regional trial court the parties entered into a stipulation of facts upon which the trial court rendered judgment in favor of the private respondent.

APT argued before the appellate court that it has a meritorious appeal which should be allowed due course because the trial court disregarded the clear import of the stipulation of facts entered by the parties and that the substantial issues raised in the appeal deserve a thorough examination of the evidence. APT pleads for relaxation of the Rules in view of the millions of pesos the government is bound to lose if the RTC decision becomes final and that the delay in the filing of the brief was not intentional.

We find that the appeal raises substantial issues which justify a review of the case on the merits. In the interest of substantial justice the order of dismissal issued by the Court of Appeals is hereby set aside and the appeal filed by APT with the said court is hereby reinstated. Let this case be remanded to the Court of Appeals for appropriate action.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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