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[G.R. No. 156297. February 19, 2003]

MAPA vs. MENDEZABAL

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 19 2003.

G.R. No. 156297( Spouses Reynaldo and Evangeline Mapa vs. Spouses Romeo and Amelia Mendezabal.)

For consideration are the following: (a) Manifestation and Motion to Withdraw (Motion for Extension of Time to File Petition for Review on Certiorari under Rule 45); (b) Petition for Certiorari under Rule 65; (c) Motion for Leave to File Incorporated Supplemental Petition for Review on Certiorari; and (d) Supplement to the Petition for Certiorari.

Petitioner spouses Reynaldo and Evangeline Mapa were owners of a parcel of land situated in Tondo, Manila, On April 30, 1997, they sold one-half of the said parcel of land, on which a house had been erected, for P60,000.00, to respondent spouses Romeo and Amelia Mendezabal. Petitioners were allowed to stay in the premises for 15 days to enable them to look for another place to stay. However, even after the 15 days given them, petitioners still failed to leave and turn over the premises to respondents.

Hence, respondents brought suit against them for unlawful detainer in the Metropolitan Trial Court, Branch 22, Manila. Petitioners denied conveying the subject property by way of sale to the respondents and averred that the deed of absolute sale was fraudulently done by one Aida Tuazon, to whom they owed P100,000.00, in connivance with respondents' lawyer, Atty. Alfredo Austria. Petitioners claimed that they obtained a loan in the amount of P100,000.00 from Tuazon who made them sign blank documents which were supposed to be used for the registration of the subject land with the Registry of Deeds of Manila. However, so petitioners averred, the special power of attorney purportedly designating respondent Amelia Mendezabal as their attorney-in-fact to administer and dispose of the subject property was fictitious.

On June 7, 2000, the trial court rendered judgment for respondents and ordered petitioners to surrender the premises to respondents. Petitioners were also ordered to pay them P1,000.00 every month, counted from the time the action was filed on September 1999 up to the time they vacate the premises, as reasonable compensation for the use and occupancy of the premises, P10,000.00 as attorney's fees, and the costs of suit.

On appeal, the decision was affirmed by the Regional Trial Court, Branch 45, Manila on February 7, 2001. Petitioners' motion for reconsideration was denied on April 5, 2002.

Petitioners then filed a petition for review with the Court of Appeals, but it was dismissed on June 23, 2002 on the ground that the MeTC decision of June 7, 2000 and the RTC order of April 5, 2002 denying their motion for reconsideration, both attached to the petition, were mere photocopies. Only the RTC decision, dated February 7, 2001, was duly certified. Petitioners filed a Motion for Reconsideration and Compliance, alleging that through mistake of the office staff of their counsel, the certified true copies of the documents were not attached. They therefore submitted certified true copies of the assailed MeTC decision of June 7, 2000 and the RTC order of April 5, 2002. Finding petitioners' failure to include an affidavit of proof of service of the motion for reconsideration and their excuse to be flimsy, the appeals court denied the motion for reconsideration on November 22, 2002. Petitioners received a copy of the said resolution on December 12, 2002.

On December 23, 2002, they filed in this Court a motion for extension of thirty (30) days from December 27, 2002 within which to file a petition for review on certiorari. Their motion was granted. On January 21, 2003, they filed a Manifestation and Motion to Withdraw the Motion for Extension earlier filed on the ground that "they intend to file a petition for certiorari under Rule 65 [of the 1997 Rules of Civil Procedure]." On January 24, 2003, petitioners filed a Petition for Certiorari under Rule 65. On January 30, 2003, petitioner Evangeline Mapa, in her own behalf, filed a Motion for Leave to File Incorporated Supplemental Petition for Review on Certiorari. On January 31, 2003, both petitioners filed a Supplement to the Petition for Certiorari under Rule 65.

Petitioners contend that the Court of Appeals erred in dismissing their petition for failure to append to the petition certified true copies of the MeTC decision dated June 7, 2000 and the RTC order dated April 5, 2002. They claim that the appeals court also erred in denying their motion for reconsideration for failure to attach to their motion an affidavit of service.

The petition has no merit.

First. Petitioners seek to set aside the resolutions of the Court of Appeals, dated July 23, 2002, dismissing their petition for review, and November 22, 2002, denying their motion for reconsideration.

These resolutions are final dispositions of a case on the merits. Hence, petitioners should have filed a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, not a petition for certiorari under Rule 65. Indeed, in its resolution of January 15, 2003, the Court granted petitioners' motion for extension of thirty (30) days within which to file a petition for review on certiorari, the period to be counted from December 27, 2002. The last day for filing the petition was, therefore, January 27, 2003, the thirtieth day (January 26, 2003) being a Sunday. However, on January 21, 2003, petitioners moved to withdraw their motion for extension and signified their intention to file instead a petition for certiorari under Rule 65. Said petition was filed on January 24, 2003. As already explained, this was not the correct remedy.

Second. Petitioners failed to append as annexes certified true copies of the challenged MeTC decision of June 7, 2000 and the RTC order of April 5, 2002 in their petition for review in the Court of Appeals. As stated, only the RTC decision dated February 7, 2001 was duly certified. Because of this, the Court of Appeals dismissed their petition. When petitioners filed a motion for reconsideration of the dismissal, they failed to submit proof of service of their motion. Thus, their motion for reconsideration was also properly denied.

We see no cogent reason to set aside the assailed resolutions of the Court of Appeals. Rule 42, � 2 of the 1997 Rules of Civil Procedure requires that a petition for review filed in the Court of Appeals shall, among others, be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the Clerk of Court of the Regional Trial Court. In this case, the failure of petitioners to comply with the said requirement constitutes a sufficient ground for the dismissal of their petition under � 3 of the said rules.

On the other hand, Rule 13, � 13 thereof provides that if service of a pleading (in this case, petitioners' motion for reconsideration) is made by registered mail, proof shall be made by an affidavit of the party serving the pleading. Such affidavit should state the date, place, and manner of service upon the adverse party and the lower court whose decision, resolution, or order is the subject of an appeal. Additionally, it should indicate the corresponding registry receipts issued by the mailing office.

Third. Petitioners claim that their failure to comply with the procedural requirements in the filing of a petition for review in the Court of Appeals should not be a ground for its dismissal as "the substantial rights of the adverse parties were not adversely affected." Petitioners point out that an affidavit of service had been duly accomplished, but "the office secretary of petitioners' counsel, by honest mistake or mental lapse, failed to attach the same to the motion for reconsideration." They also aver that a dismissal of their petition in this Court would amount to a deprivation of their property without due process of law because they would eventually be ejected from the premises. Petitioner Evangeline Mapa, in her own behalf, filed a Motion for Leave to File incorporated Supplemental Petition for Review on Certiorari, asking the Court to give due course to the petition on the ground that their lawyer committed reckless or gross negligence.

The contention has no merit. It is inexcusable negligence for petitioners' counsel to merely rely on his office staff to prepare the requirements that accompany the filing of a petition or any other pleadings in the appellate courts. It is the lawyer's duty to ensure that his instructions to his office staff are correctly carried out. A client is bound by the action of his counsel, as well as by the latter's mistake or negligence (Barangay 24 of Legazpi City v. Imperial, 338 SCRA 694 (2000)).

Fourth. On the merits, the petition should be denied as the present case is one of unlawful detainer where the issue is possession and not ownership. Petitioners' attack on the validity of the deed of absolute sale which they purportedly executed in favor of the respondents should be threshed out in a separate suit involving recovery of ownership and not in the present suit. Petitioners were allowed by respondents to stay in the premises only for 15 days. Petitioners' possession of the premises was therefore only by mere tolerance of the respondents. A person who occupies the land of another at the latter's forbearance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him (Jimenez v. Patricia, Inc., 340 SCRA 525 (2000); Refugia v. Court of Appeals, 258 SCRA 347 (1996)).

WHEREFORE, the Court RESOLVED to DENY the manifestation and motion to withdraw (motion for extension of time to file petition for review on certiorari under Rule 45) for lack of merit as well as the petition and supplements to the petition 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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