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[ G.R. No. 142397. June 14, 2000]

LEO MICHAEL & MARIA LINA CORREA vs. ERIC EMBANG, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 14 2000.

G.R. No. 142397 (Leo Michael Correa and Maria Lina Correa vs. Eric Embang and the Court of Appeals.)

Respondent Eric Embang filed a complaint for damages arising from a vehicular accident before the Regional Trial Court of Pampanga docketed as Civil Case No. 97961 against Timoteo Balaquit, Minerva Comia and herein petitioners. Petitioners posed the defense that the proximate cause of the injury to respondent is the negligence of co-defendants Balanquit and Comia. A decision was rendered finding all the defendants therein solidarily liable for the injuries sustained by respondent. Appeal thereto was timely filed but the same was dismissed by the Court of Appeals for failure to pay docket and other legal fees. In the Resolution dated march 17, 1999, the Court of Appeals reinstated the appeal and ordered appellants therein (petitioners herein) to file their brief. On May 5, 1999, petitioners filed a motion for extension to files appellants' brief. On May 18, 1999, the appellants' brief was filed. Meanwhile in the Resolution dated June 30, 1999, the Court of Appeals denied petitioners' motion for extension to file brief and ordered that the appellants' brief be expunged from the records. Said resolution was received on July 27, 1999. On August 10, 1999, petitioners filed a motion for reconsideration which was denied in the Resolution dated January 10, 2000. Said resolution was received by petitioners on February 1, 2000. Hence, the present petition for certiorari filed on March 30, 2000.

The petition does not contain a certification against forum shopping. Petitioners submitted a Manifestation dated April 24, 2000 stating that the certification against forum shopping was not attached to the petition and praying "to admit the certification on forum shopping". What was attached to the Manifestation is a verification and not a certification against forum shopping. Pursuant to Section 5, Rule 7, failure to comply with this requirement on certification against forum shopping shall be cause for the dismissal of the case.

As regards the merits of the petition, petitioner contends that the Court of Appeals committed grave abuse of discretion amounting to lack or excess of jurisdiction when it favored technicality over due process and justice by expunging the appellant's brief and dismissing the appeal. Petitioners argue that the failure to file a timely appellants' brief would not justify an outright dismissal of the appeal as it was unintentional and that the substantial rights of petitioners should not be sacrificed in favor of the rigid rules of technicality.

It appears that the appeal of petitioners was dismissed for failure to pay the required docket and other legal fees but in the interest of substantial justice, the order of dismissal was set aside. Petitioners were given ten (10) days or until April 23, 1999 to file their appellants' brief. Petitioners instead filed a motion for extension to file brief on May 5, 1999 after the expiry date to file brief.1 CA-Resolution dated June 30, 1999.

The denial of the motion for extension was proper as the motion was filed after the expiry date given to file brief. Extension of time for the filing of briefs is filed before the expiration of the time sought to be extended.2 Section 12, Rule 44; PLDT vs. CA, 178 SCRA 94. Settled likewise is the rule that when a motion for extension of time is filed, lawyers should not presume that it would be granted.3 People vs. CA, 242 SCRA 180.

Petitioners' counsel blames his secretary who allegedly lost the entire folder/record of the case prior to the receipt of the assailed resolution but did not tell counsel or his wife. A lawyer should so arrange matters that official and judicial communications sent by mail will reach him promptly and should he fail to do so, not only he but his client as well, must suffer the consequences of his negligence.4 Vil Transport Service, Inc. vs. CA, 193 SCRA 25.

Appeal is a mere statutory privilege. Corollarily, its requirements must be strictly complied with.5 Pedrosa vs. Hill, 257 SCRA 373; Sta. Rita vs. CA, 247 SCRA 484.

WHEREFORE, the petition is hereby DISMISSED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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