G.R. No. 190068, February 03, 2010

SECOND DIVISION

[ G.R. No. 190068, February 03, 2010 ]

VIRGILIO SAULOG PETITIONER V. HON. JUDGE FERNANDO L. FELICEN, PRESIDING JUDGE, RTC, BRANCH 20, IMUS, CAVITE, JEREMIAS M. SAULOG AND ALFONSO GACUTAN ANG RESPONDENTS.

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated 03 February 2010:

G.R. No. 190068 - VIRGILIO SAULOG petitioner v. HON. JUDGE FERNANDO L. FELICEN, Presiding Judge, RTC, Branch 20, Imus, Cavite, JEREMIAS M. SAULOG and ALFONSO GACUTAN ANG respondents,

We resolve in this Resolution the Rule 65 petition for certiorari that the petitioner, Virgilio Saulog (Virgilio), filed to challenge the decision of the Court of Appeals in its decision of August 26, 2009[1] and its resolution of October 30,2009 in CA-G.R. No. 107778.

The records show that on April 26, 1999, petition Virgilio sued respondent Alfonso Gacutan Ang(Ang) before the Regional Trial Court (Branch 20, Imus, Cavite), praying for the cancellation of the deed of sale allegedly executed under fraudulent circumstances in Ang's behalf by Maria Saulog. After Virgilio presented his witnesses, Judge Felicen, the RTC judge, issued an order directing the petitioner to file his Formal Offer of Evidence within 15 days from notice. Four months after Judge Felicen's order, Ang moved to dismiss the case on the grounds that: (a) Virgilio failed to comply with the court order to file a written formal offer of evidence within a period of 15 days from notice; and (b) Virgilio failed to prosecute his case for an unreasonable length of time, considering that the case had been pending for nine years. Judge Felicen granted Ang's motion in its April 24, 2008 order. Since no appeal was filed, the court issued a Certificate of Finality on July 4, 2008.

On October 13, 2008, Virgilio filed a Petition and/or Motion for Reconsideration and/or Relief from Order dated April 24, 2008 and Motion for Leave of Court to Reopen the Case. In the petition/motion, Virgilio claimed that his previous counsel acted with gross negligence when he did not file his formal offer of evidence; thus, he should not be bound by his counsel's act. On December 15, 2008, Judge Felicen denied Virgilio's petition/motion. This denial gave rise to a petition for certiorari Virgilio filed with the Court of Appeals, which the appellate court denied in its ruling now assailed before us through another petition for certiorari.

The Court of Appeals denied Virgilio's petition under the following reasoning:

a)
A petition for relief from Judgment[2] is a legal remedy for a party to set aside a judgment on the ground that he was unjustly deprived of a hearing, or was prevented from taking an appeal, in either case because of fraud, mistake or excusable neglect. Virgilio's counsel's failure to file the formal offer of evidence does not fall under either the fraud or mistake contemplated by Rule 38 because, as used in the rule, the fraud referred to must be extrinsic and collateral. Mistake, on the other hand, refers to a mistake of fact;
b)
Neither could Virgilio's counsel's oversight be considered excusable neglect. The negligence contemplated by this rule is that which is excusable and generally imputable to the party. If it is imputable to the counsel, it is binding on the client;
Virgilio now claims that the CA committed grave abuse of discretion as his counsel's failure to file the formal offer of evidence was not his fault because he was in Canada at the time for treatment for a serious ailment; he was denied due process when Judge Felicen dismissed his complaint for his counsel's lapse.

Virgilio's petition, on its face, lacks merit.

In a special action for certiorari, the burden is on the petitioner to prove not merely the presence of reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the public respondent. By grave abuse of discretion is meant capricious and whimsical exercise of judgment equivalent to lack of jurisdiction.[3]

The present petition, on its face, fails to show sufficient factual bases and legal justification to support the contention that the CA committed grave abuse of discretion. For a claim of counsel's gross negligence to prosper, nothing short of a clear abandonment of the client's cause must be shown. While Virgilio claims that his counsel's gross negligence led to the dismissal of the case, the CA held that Virgilio failed to establish the presence of this negligence to the extent required by jurisprudence. Virgilio merely made general allegations without citing any particulars and of evidence supporting these particulars. Thus, the Court of Appeals did not err when it dismissed Virgilio's petition for failure to show any grave abuse of discretion. Moreover, the petition lacks verification since the submitted verification and certification on non-forum shopping merely attests to non-forum shopping.

WHEREFORE, premises considered, we DISMISS the petition outright for its patent failure to show any grave abuse of discretion amounting to lack or excess of jurisdiction, and for lack of the verification required under Sec. 4, Rule 7 of the Rules of Court.

SO ORDERED.

WITNESS the Honorable Antonio T. Carpio, Chairperson, Honorable Arturo D. Brion, Roberto A. Abad, Mariano C. Del Castillo and Jose P. Perez, Members, Second Division, this 3rd day of February, 2010.

Very truly yours,

(Sgd.) MA. LUISA L. LAUREA
Clerk of Court

[1] Penned by Associate Justice Remedios Salazar-Fernando, with the concurrence of Associate Justice Isaias Dicdican and Associate Justice Romeo Barza.

[2] Under Rule 38 of the Rules of Court.

[3] Solvic Industrial Corp. vs. NLRC, G.R. No. 12554S, September 25, 1998, 296 SCRA 432, 441; Tomas Claudia Memorial College, Inc. v. Court of Appeals, G.R. No. 124262, October 12, 1999.

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