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[G.R. No. 148073.July 18, 2001]

DELA CRUZ vs. ANTONIO MIRABEL JR.

SECOND DIVISION

Gentleman:

Quoted hereunder, for your information,is resolution of this Court dated JUL 18 2001.

G.R. No. 148073( Emiliana S. dela Cruz vs. Antonio Mirabel Jr.)

Petitioner Emiliana S. dela Cruz represented herself to respondent Antonio Mirabel, Jr., a public works contractor, as a former employee of the Department of Budget and Management (DBM) who could secure public works contracts or projects to interested parties. In November 1996, she offered to work for respondent for the release of an infrastructure project worth P46,000,000.00 to be funded by the Bases Conversion Development Authority (BCDA) at the premises of the Philippine Merchant Marine Academy. Petitioner suggested to respondent that he issue two undated checks payable to the petitioner in the amounts of P900,000.00 and P120,000.00 as "show money" in order to boost her credibility in negotiating with the BCDA and the DBM for the release of the BCDA funded project. Petitioner assured respondent that the two undated checks would not be encashed nor negotiated to other persons. For this reason, respondent issued two undated Development Bank of the Philippines (DBP) checks, one for P900,000.00 and another for P120,000.00 to petitioner. However, despite the fact that petitioner failed to secure the release of the public works contracts, petitioner did not return the checks issued by respondent. Instead, in June 1997, petitioner placed the dates February 28, 1997 on the P900,000.00 check and May 30, 1997 on the P120,000.00 check and then deposited them in her own bank account. Nonetheless, petitioner was not able to withdraw the proceeds of the two checks as respondent's account with the DBP was closed. For this reason, petitioner filed a criminal complaint for violation of B.P. Blg. 22 before the Municipal Trial Court of Antipolo City against respondent. On the other hand, respondent filed a complaint for "Declaration of Nullity of Bills of Exchange and Damages" against petitioner before the Regional Trial Court, Branch 9, Legaspi City. Respondent asked the court to order petitioner to pay him P1,000,000.00 as moral damages and P100,000.00 as attorney's fees and litigation expenses. For petitioner's failure to file an answer, she was declared in default. Thereafter, the trial court rendered a judgment on the pleadings declaring the two checks void from the very beginning and ordering petitioner to pay respondent P100,000.00 in moral damages, P50,000.00 as attorney's fees, and costs of the suit.

Petitioner filed a notice of appeal, but her appeal was dismissed by the Court of Appeals for failure of petitioner's counsel to file an appellant's brief within the extended period granted. Petitioner filed a motion for reconsideration but it was denied. Hence, this petition for review on certiorari.

Petitioner contends that the RTC erred in declaring the two checks as null and void in a judgment on the pleadings, and that the said judgment was rendered without awaiting her receipt of the notice of the order declaring her in default.

The petition has no merit.

The dismissal of petitioner's appeal in the Court of Appeals rendered the decision of the RTC final. Consequently, its merits cannot be questioned in this appeal where the only issue is the correctness of the dismissal of petitioner's appeal for failure of petitioner's counsel to file an appeal brief. Petitioner is bound by her counsel's negligence. The right to appeal is a mere privilege and, therefore, should be exercised only in the manner prescribed by law ( See Cabellan v. Court of Appeals, 304 SCRA 119 (1999)).

In any event, we hold that petitioner was properly declared in default by the RTC because her former counsel likewise failed to seasonably answer respondent's complaint despite the fact that he had been granted an extension of time for filing the same by the trial court. Hence, upon motion of the respondent, petitioner was declared in default and the case was deemed submitted for judgment on the pleadings. Petitioner's "Omnibus Motion (to Lift Order of Default and for Reconsideration)" was likewise denied. It is, therefore, clear that petitioner cannot raise in this appeal issues that she should have raised in the Court of Appeals.

WHEREFORE, the petition is DENIED for lack of showing that the Court of Appeals committed any reversible error.

Very truly yours,

(Sgd.) TOMASITA B. MAGAY-DRIS

Clerk of Court

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