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[ G.R. No. 139590. October 11, 1999]

TEVES VILLAMOR REALTY DEV'T CORP. vs. HON. JOSE P. SOBERANO, JR., et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this court dated OCT 11, 1999.

G.R. No. 139590 (Teves Villamor Realty Development Corporation vs. Hon. Jose P. Soberano, Jr., Presiding Judge, RTC, Branch 58, Cebu City and Filomena and Feliecito Mayol.)

Petitioner, seeks to set aside the decision of the Court of Appeals which denied his petition filed thereat. The assailed decision affirmed the dismissal of the appeal of petitioner against the order of the regional trial court. the notice of appeal was denied due course by the RTC in an order dated April 3, 1998 for non-compliance with the provisions of Section 11, Rule 13 (priorities in modes of service and filing) Section 4, Rule 41 (appellate court docket and other lawful fees).

Petitioner asseverates that was already substantial compliance with the technical rules when a copy of the notice of appeal was served through registered mail albeit concededly, there was no explanation why such mode was resorted to. It is also contended that its failure to remit the required docket fee was cured when the trial court accepted petitioner's subsequent remittance. Petitioner further argues that the appellate court erred when it relied on the ruling in Solar Team Entertainment vs. Hon. Ricafort (G.R. No. 132007, August 5, 1998) as its authority in upholding the trial court's denial of petitioner's notice of appeal when precisely, the non-observance of Rule 13 was excused in said case. A subsequent motion for reconsideration proved unavailing.

Hence, the instant petition which is bereft of merit.

Solar cannot be made the basis for allowing the instant petition. The facts therein are not at all square with the case at bar. There, the trial court excused the non-observance of Rule 13 and the CA and this Court merely said that for the trial court to act in the manner that it did was entirely within its discretion. It must also be noted that the condonation in the aforecited case was deemed proper because the said violation or non-compliance with the rules on service was committed only on the 39th day following the effectivity of the 1997 Rules of Civil Procedure. In the case at bar, the trial court did not condone the lapse committed on April 3, 1998 which was several months after the New Rules took effect. Thusly, the petitioner cannot expect to be treated in the same way.

Moreover, it is a basic rule that non-payment of docket and other legal fees is mandatory and jurisdictional and non-compliance therewith is fatal. Hence, any late payment made cannot cure any defect attendant thereto.

WHEREFORE, the petition is hereby DENIED.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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