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[ G.R. No. 132019. August 25, 1999]

FLORA SALUDAGA IGOT, petitioner vs. SPS. ASTRID BOZA, ET AL., respondents.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated AUG 25, 1999.

G.R. No. 132019 (Flora Saludaga Igot, petitioner, vs. Sps. Astrid and Jose Maria Boza, Mobilia Land Corporation, Rodavlas Management and Development Corp. and Register of Deeds of Lapu-Lapu City, respondent.)

At bar is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court which seeks to annul the Resolutions1 [Court of Appeals-GR CV No. 53810-Fifteenth Division, J. Ynares-Santiago, Consuelo, ponente, JJ. Vasquez, Conrado M. and Barrios, Roberto A. as members.] of the Court of Appeals dated October 27, 1997 and November 28, 1997, respectively, which dismissed the appeal and denied petitioner's motion for reconsideration in Court of Appeals G.R. CV No. 53810.

The facts of the case are undisputed.

The present petition has its roots from petitioner's action for declaration of nullity of transfer certificates of title, recovery of possession and ownership, damages and other reliefs against the private respondents. On March 27, 1996, the Regional Trial Court of Lapu Lapu City dismissed the case on the grounds of prescription and res judicata.2 [Civil Case No. 417-L, dated March 27, 1996, Branch 53 of Lapu Lapu City, Cebu penned by Judge Benedicto G. Cobarde, RTC of Cebu.]

On April 19, 1996, petitioner filed a Notice of Appeal to the Court of Appeals. On April 24, 1997, she received a Notice to file the Appellant's Brief within forty-five (45) days from notice or until June 8, 1997.

On May 28, 1997, she presented a motion to withdraw her counsel, Atty. Lloyd Limbaga, in whom she had lost confidence.

On June 27, 1997, the Court of Appeals issued a Resolution directing the petitioner to require the counsel of record to send in a formal withdrawal of appearance with her conformity.

On September 11, 1997, another Resolution ordered petitioner to explain why Atty. Lloyd Limbaga should be withdrawing his appearance, when, as indicated in the records below, the said lawyer never appeared for her before the lower Court.

On the same day, September 11, 1997, the said lawyer submitted his motion to withdraw as counsel with the conformity of petitioner, and a new counsel of record entered his appearance for petitioner.

On November 5, 1997, petitioner received the Resolution3 [Annex "B", Rollo, p. 38.] of dismissal of appeal, disposing thus:

"For failure of appellants to file brief within the reglementary period, this appeal is hereby considered ABANDONED and DISMISSED, pursuant to Section 1 (e), Rule 50 of the 1997 Rules of Civil Procedure.

SO ORDERED."

Petitioner's Motion for Reconsideration met the same fate. It was denied.

Undaunted, petitioner found her way to this court via the present petition for Review, raising as the sole issue whether the Court of Appeals erred in dismissing her appeal and rendering the appealed decision final and executory, for failure of petitioner to seasonably filed he Appellant's Brief.

The petition is not impressed with merit.

Petitioner theorizes that the running of the reglementary period should not have been strictly applied to her case, since her former counsel, Atty. Lloyd Limbaga, presented his motion to withdraw as her counsel only on September 11, 1997, which was beyond the reglementary period for the filing of Appellant's Brief. And as it was only on the same day that she was able to hire a new counsel, the Court of Appeals should have taken the said predicament of hers into consideration before dismissing the appeal.

The right to appeal is merely a statutory right. It is not an element of due process. The party who takes such a recourse must comply with the requirements of the Rules therefor. By failing to do so, petitioner lost the right to appeal.4 [Ozaeta vs. Court of Appeals, 179 SCRA 800.] Under the 1997 Revised Rules of Civil Procedure, extension of time for the filing of briefs is not allowed except for a good and sufficient ground, and the motion for extension must be presented before the expiration of the period sought to be extended.5 [Sec. 12, Rule 44 of the 1997 Revised Rules of Court.] Petitioner having failed to comply with the Rules, dismissal of her appeal was proper. Section 1 (e), Rule 50 of the Revised Rules of Court, reads:

Rule 50. Grounds for dismissal of appeal. - An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds:

xxx xxx xxx

(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided for by these Rules;

xxx xxx xxx

In light of the foregoing antecedent facts, it can be gleaned unerringly that gross negligence on the part of the petitioner was the proximate cause of the loss of her right to appeal. The Court discerns no basis for excusing her delay in looking for a new lawyer to file her Appellant's Brief. The pendency of her Motion to Formally Withdraw Counsel of Record was of no moment. Petitioner was very much aware that the reglementary period for filing the Appellant's brief started to run when she received the Notice to file Appellant's Brief. Knowing that the time for the filing of the Appellant's Brief was due to expire on June 8, 1997, she should have filed a motion for extension of time before the expiration of the reglementary period.

According to petitioner, what she did was to move for withdrawal of appearance of her counsel, and to ask for an extension of forty-five (45) days so as to give her enough time to look for another lawyer. But the said allegation of petitioner is disputed by the private respondents and is not reflected in the records of the case. Not even in the assailed Resolutions of the Court of Appeals is there any mention of a motion for extension of time ever presented by petitioner. Neither was there a prayer for any extension of time in petitioner's Motion to Formally Withdraw Counsel.

Granting ex gratia argumenti that the petitioner asked for an extension of time in the Motion to Formally Withdraw Counsel of Record, her receipt of the Resolution of the Court of Appeals dated June 27, 1997, which contained no ruling on her alleged request for an extension of forty-five (45) days, should have alerted petitioner to engage with dispatch, the services of another lawyer to file her Appellant's Brief or at least, to inquire from the Division Clerk of the Fifteenth Division of the Court of Appeals what happened to her alleged motion for extension of time.

Unfortunately, instead of taking any of such steps, petitioner mistakenly assumed that the filing of her Motion to Withdraw Counsel had, in effect, suspended the running of the period for the filing of the Appellant's Brief.

Petitioner's reliance on the ruling in the case of Alonza vs. Villamor, 6 [16 Phil 315.] that:

"xxx A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the other. xxx"

is misplaced. Having filed her Notice of Appeal and subsequent motions without the assistance of a lawyer, she took the risk of a consequent dismissal of her appeal. Succinct and to the is the jurisprudence that:

"A litigant has a right to act as his own attorney, but he should be restricted to the same rules of evidence and procedure as required of those who practice law, and ignorance should not be unjustly rewarded."7 [Agpalo, Ruben. Legal Ethics. 1987 ed. Citing the case of Lombardi vs. Citizenx National Trust and Savings Bank, 289 Pacific Reporter, 2d Series 823, p. 824.]

WHEREFORE, for lack of merit, the Petition under consideration is DENIED, and the Resolutions of the Court of Appeals, dated October 27, 1997 and November 28, 1997, respectively, in CA G.R. CV No. 53810 AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Very truly yours,

(SGD.) JULIETA Y. CARREON

Clerk of Court