Case Digest: MARCELINO TAN v. COURT OF APPEALS and JOHN GIBERSON

MARCELINO TAN v. COURT OF APPEALS and JOHN GIBERSON

G.R. No. 138526, 16 August 2006, THIRD DIVISION

John Giberson filed a complaint against Spouses Marcelino and Dorothy Tan for collection of rentals, replevin and damages filed with the Cebu Regional Trial Court (RTC). The RTC ruled in favor of Gilbertson. Spouses Tan filed a Notice of Appeal before the trial court through their counsel Atty. Leandro Hilongo. Subsequently, Atty. Hilongo filed with the trial court a Notice of Withdrawal of Appearance as counsel for Tan. On even date, the law firm Gica Del Socorro & Espinoza filed its Notice of Appearance as the couple’s new counsel.

About five months later, instead of sending notice to pay docket fees to the new counsel of Spouses Tan, the Court of Appeals sent the same to Atty. Hilongo. No docket and other legal fees having been paid by Spouses Tan, the appellate court considered their appeal abandoned and accordingly dismissed it pursuant to Sec. 1(c), Rule 50 of the 1997 Rules of Civil Procedure.

Spouses Tan filed a Motion for Reconsideration but the same was denied. It noted that as gathered from the original records of the case, Spouses Tan filed on “April 23, 1998” [sic] the Notice of Appeal through their counsel Atty. Hilongo and that two days after or on April 25, 1998 “they were already notified [by the appellate court] that the original records of the case were being processed and that as of that date they were already required” to pay the amounts covering docket and other legal fees.

ISSUE:

Whether or not the Court of Appeals committed grave abuse of discretion in dismissing the appeal

HELD:

In the present case, the index of the RTC records attached to the records of CA-G.R CV UDK No. 4347 shows that the Notice of Withdrawal of Appearance of Atty. Hilongo was indeed filed on May 8 1997, with the trial court as was on even date and also with the trial court the Notice of Appearance of petitioner’s new counsel.

Tan‘s new counsel’s awareness of the filing of the Notice of Appeal on April 21, 1997 notwithstanding, it did not verify the status of the appeal, despite the lapse of a considerable length of time.

While Tan‘s new counsel asserts that it in fact followed up with the trial court the status of the appeal, it offered no proof thereof. At any rate, if it indeed made an earnest follow up, it would have learned that five months from the time it entered its appearance on May 8, 1997 or on October 8, 1997, the RTC forwarded the records of the case to the appellate court.

At all events, the present petition was belatedly filed. Tan received on December 28, 1998 the Court of Appeals Resolution of November 27, 1998 denying his Motion for Reconsideration of said court’s Resolution dismissing his appeal. He, therefore, had 60 days or up to February 22, 1998 to file the present petition for certiorari. He filed it only on May 3, 1999, however, or more than two months late.

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