ELOISA, CARLOS, JR., ARCHIMEDES, CAROLINE, AND MA. CARLOTA, ALL SURNAMED ARAMBULO, PETITIONERS, VS. COURT OF APPEALS AND ENGR. DANILO G. FERRERAS, RESPONDENTS.

Petitioners urge us to review and set aside the Resolution of the
respondent Court of Appeals of 11 November 1991^[1] in
CA-G.R. CV No. 32348^[2]
which, for failure to pay the docket fee, considered their appeal
“ABANDONED and DISMISSED, pursuant to Section 1(d), Rule 50, Rules of
Court,” and its Resolution of 8 June 1992^[3] which
denied their motion to reconsider the former. They claim that the notice to pay the docket fee was addressed to an
attorney who had already withdrawn his appearance with their consent.

The pleadings of the parties and the original record of CA-G.R.
CV No. 32348 disclose the undisputed antecedents of this case.

Petitioners and private respondent are parties to a contract for
the construction of a 4-storey dormitory building. Private respondent, as the contractor, filed an action before
Branch LXI of the Regional Trial Court at Angeles City against the
petitioners-spouses Carlos S. Arambulo and Eloisa I. Arambulo to claim the
balance of the contract price and the increase in the construction cost due to
additional scope of work done and increase in the cost of materials. The case was docketed as Civil Case No.
5301. The defendants, through Atty.
Romeo P. Pineda, filed an Answer with Counterclaim. At the pre-trial, the defendants were represented by Atty. Jose
Jimenez, Jr., who submitted a special power of attorney executed by the
defendants wherein he was designated as their attorney. Since then and until he purportedly withdrew
as counsel, he appeared at the trial for the defendants, handled the case, and
prepared and signed all pleadings for the latter. Both the adverse party and the trial court served pleadings and
notices on him.^[4]

The minutes of the trial court for the hearings on 20 September
1988, 19 October 1988; 10 November 1988, 19 January 1989, 11 April 1989, 11
August 1988, 5 October 1989 and 7 December 1990^[5]
reveal that it was Atty. Jimenez who appeared for the Arambulos, cross-examined
the witnesses for the plaintiff and conducted the direct examinations of Eloisa
and Carlos Arambulo. On 7 December
1990, after Atty. Jimenez cross-examined anew the plaintiff’s witness,
Architect Ernesto Nasol, the parties agreed to submit the case for decision.

On 30 January 1991, the trial court rendered a decision^[6]
in favor of the private respondent the dispositive portion of which reads as
follows:

“WHEREFORE, by preponderance of evidence, judgment is hereby
rendered in favor of Plaintiff Danilo S. Ferreras, ordering defendant Spouses
Carlos S. Arambulo and Eloisa I. Arambulo to -?

1) Pay unto said Plaintiff Danilo S. Ferreras the amounts of -?

a) P365,000.00 — representing the balance of
the contract price of P1,700,000.00;

b) P90,333.75 — proportionate ½ share of
defendant-spouses in the increase in the cost of construction materials; and

c) to pay the costs.

Defendants’ counterclaim is DISMISSED.

SO ORDERED.”^[7]

On 7 February 1991, the Arambulos, through Atty. Jimenez, filed
their notice of appeal informing the trial court that they are appealing the
decision to the Court of Appeals.^[8]

On 12 February 1991, Atty. Jimenez filed a Withdrawal of
Appearance^[9]
with the express conformity of the defendants, while Atty. Pineda entered his
Appearance as their new counsel.^[10]
Copies of the pleadings were furnished the counsel for the plaintiff. Furthermore, the Summary Index prepared by
one Ramon A. Rosario, Officer-in-Charge of the Office of the Clerk of Court of
the trial court and attached to the original record of CA-G.R. CV No. 32348,^[11]
indicates that the Withdrawal of Appearance and the Appearance are respectively
found on pages 209-210 and 207-208 of the original record of Civil Case No.
5301.

Thereafter, an order directing the “Clerk of
Court/Officer-In-Charge” of the court to elevate the complete record of
the case to the Court of Appeals^[12] was
issued by the trial court on 4 March
1991.

The Officer-in-Charge of the Office of the Clerk of Court of the
trial court transmitted the original record of Civil Case No. 5301, together
with pertinent documents, to the Court of Appeals on 24 April 1991 but which
the latter received on 16 May 1991.^[13] The
appeal was then docketed as CA-G.R. CV No. 32348.

On 19 June 1991, the Chief of the Judicial Records Division of the Court of Appeals sent Atty.
Jimenez a letter informing him that the original records of the case were being
processed and also requiring him to pay the docketing fee of P400.00 and the
additional amount of P20.00 pursuant to R.A. No. 3870 within fifteen days from
receipt thereof.^[14]
From the return card,^[15] it
appears that Atty. Jimenez received this letter on 9 July 1991. No such letter or any notice to pay the
aforesaid amounts was sent to Atty. Romeo Pineda.

On 11 November 1991, the Court of Appeals (Third Division)
promulgated a Resolution^[16]
reading as follows:

“For failure to pay the docket fee, the appeal is hereby
considered ABANDONED and DISMISSED, pursuant to Section 1 (d), Rule 50, Rules
of Court.”

A copy of the resolution was
furnished to Atty. Jimenez who, per the return card,^[17]
received it on 21 November 1991.

In a manifestation and motion filed with the Court of Appeals on
21 January 1992, counsel for the plaintiff-appellee prayed that final judgment
be entered into the records in view of the failure of the appellants “to
perfect their appeal” and that the case be remanded to the trial court for
execution of judgment. A copy of the
above pleading was sent to Atty. Jimenez.

On 22 January 1992, the
Clerk of Court of the Court of Appeals made an entry of judgment in
CA-G.R. CV. No. 32348 declaring therein
that the Resolution of 11 November 1991 had become final and executory on 7
December 1991.^[18] Copy thereof was again sent to Atty.
Jimenez.

No copy of the aforementioned resolution of the Court of Appeals
of 11 November 1991 and of the entry of judgment of 22 January 1992 was ever sent
to Atty. Pineda.

The records of Civil Case No. 5301 were remanded to the court of
origin on 12 February 1992,^[19]
where a motion for the issuance of a writ of execution was filed by the private
respondent on 27 February 1992,^[20] copy
of which was furnished only to Atty. Jimenez. The trial court granted the motion on 3 March 1992.^[21]
When the sheriff of the trial court attempted to enforce the writ of execution,
the petitioners, through Atty. Pineda, filed a Motion for Reconsideration,
Reinstatement of Appeal, and Acceptance of Docket Fee^[22]
with the Court of Appeals on 12 March 1992. On the said date, they also paid the required docket and other legal
fees.^[23]
But the Court of Appeals denied the motion in its Resolution of 8 June 1992^[24]
on the ground that the Resolution of 11 November 1991 had already become final
and the records had been remanded to the trial court after the entry of
judgment was made.

Hence, the instant petition. The petitioners raise this sole assignment of error:

“The public respondent committed a grave abuse of discretion
amounting to lack of jurisdiction in dismissing petitioners’ appeal for failure
to pay docket fee, notstanding [sic] the gravely defective service of notices,
and in denying petitioners’ motion for reconsideration
of said Resolution of dismissal.”^[25]

The main thesis of the petitioners as it appears to us from their
petition is that since the notice to pay the docket and other fees was served
not on their new counsel, Atty. Pineda, but on Atty. Jimenez who had already
withdrawn as their counsel when the case was still with the trial court, the
service of such notice on the latter was void and did not bind them,
consequently, the dismissal of their appeal deprived them of due process.

The private respondent filed his Comment.^[26]
He contends therein that Atty. Pineda was the original counsel for the
petitioners and that he never formally withdrew as counsel even after Atty.
Jimenez, who had not made any “formal appearance,” “took over
the handling of the defense for and in behalf of defendants Arambulos”;
hence, they “gave the impression that they were acting in corroboration
[sic] with each other and since Atty. Jimenez took over the active role as
counsel, all pleadings and notices were coursed through him.” Private respondent
then concludes that the “alleged withdrawal of Atty. Jimenez and entry of
appearance of Atty. Pineda were of no moment.” Moreover, their status as
collaborating “counsels for the defendants” is “borne by the
fact that the court has not ruled on their motions to withdraw and enter
appearance respectively.”

We gave due course to the petition after the petitioners filed
their Reply to the Comment.

The petition, which is more appropriately a special civil action
for certiorari under Rule 65 of the Rules of Court, is
partly impressed with merit.

Under the circumstances of this case, we do not hesitate to rule
that the public respondent committed grave abuse of discretion in dismissing the appeal of the
Arambulos solely on the basis of the alleged failure of the petitioners to pay
the docket and other fees. As earlier
adverted to, the notice with respect thereto was not furnished to or received
by their counsel of record, Atty. Romeo Pineda.

The rule is that every pleading subsequent to the complaint,
every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of
judgment or similar papers shall be filed with the court, and served upon the
parties affected thereby; however, service upon a party represented by counsel
shall be made on his attorneys or one of them, unless service upon said party
himself is ordered by the court.^[27] When
a party is represented by a counsel in an action in court, notices of all
kinds, including motions and pleadings of all parties and all orders of the
court must be sent to the counsel.^[28]
Notice to counsel is notice to the client.^[29]

In the instant case, it is not disputed that the Withdrawal of
Appearance of Atty. Jose Jimenez, Jr. was filed with the trial court on 12
February 1991. Since the withdrawal was
with the clients’ consent, no approval thereof by the trial court was required
because a court approval is indispensable only if the withdrawal is without the
client’s consent. The first paragraph
of Section 26 of Rule 138 expressly provides:

“SEC. 26. Change of
attorneys. — An attorney may
retire at any time from any action or special proceeding, by the written
consent of his client filed in court. He may also retire at any time from an action or special proceeding,
without the consent of his client, should the court, on notice to the client
and attorney, and on hearing, determine that he ought to be allowed to
retire. In case of substitution, the
name of the attorney newly employed shall be entered on the docket of the court
in place of the former one, and written notice of the change shall be given to
the adverse party.”

Under the first sentence of this section, the retirement is
completed once the withdrawal is filed in court. No further action thereon by the court is needed other than the
mechanical act of the clerk of court of entering the name of the new counsel in
the docket and of giving written notice thereof to the adverse party. The failure of the clerk of court to do
either does not affect the validity of the retirement. The appearance of the new counsel, Atty.
Pineda, did not likewise require the approval of the court. An appearance may be made by simply filing a
formal motion, plea or answer, or through the formal method, viz., by
delivering to the clerk of court a written direction ordering him to enter the
appearance of the counsel.^[30] The
latter method is exactly what Atty. Pineda followed.

We cannot subscribe to the view of the private respondent that
the 12 February 1991 withdrawal by Atty. Jimenez and the appearance of Atty.
Pineda were of “no moment” because the former had in fact never made
a formal appearance and the latter, who was originally the counsel of record of
the defendants, had not formally withdrawn as counsel, hence, both attorneys
remained as counsel of the defendants. At its surface, the private respondent’s argument appears logical and
impressive. But in truth, it is
definitely unpersuasive and fallacious. Atty. Jimenez first appeared at the pre-trial fully armed with a special
power of attorney. Thereafter, he alone
signed all pleadings for the defendants and his appearance for them gained full
recognition from the trial court and from the counsel for the private
respondent. He had undoubtedly made a
valid appearance for the defendants.^[31]

On the other hand, although Atty. Pineda did not formally
withdraw before Atty. Jimenez took over the handling of the case, the execution
by the Arambulos of the special power of attorney in favor of Atty. Jimenez
amounted to a dismissal of Atty. Pineda. The latter evidently acceded to his dismissal when he ceased to appear
for the Arambulos. Even the trial court
and the counsel for the private respondent undoubtedly recognized his dismissal
when no notice of hearings, orders, judgment and pleadings were served on
him. The dismissal of Atty. Pineda is
clearly authorized under the second paragraph of the aforementioned Section 26
of Rule 138 which reads as follows:

“A client may at any time dismiss his attorney or substitute
another in his place, but if the contract between client and attorney has been
reduced to writing and the dismissal of the attorney was without justifiable
cause, he shall be entitled to recover from the client the full compensation
stipulated in the contract x x x.”

Of course, nothing can prevent the Arambulos from re-hiring Atty.
Pineda as their counsel. The pleadings
do not disclose and no suggestion is made by the private respondent, that the
withdrawal of Atty. Jimenez and the re-appearance of Atty. Pineda were done in
bad faith to delay the case.

Both the Withdrawal of Appearance of Atty. Jimenez and the
Appearance of Atty. Pineda are undeniably found in the original record of Civil
Case No. 5301 and are explicitly referred to in the Summary Index in the record
of CA-G.R. CV No. 32348. And since the
withdrawal of Atty. Jimenez had taken effect upon its filing before the trial
court on 12 February 1991, the notice to pay the docket and other fees sent to
him by the Judicial Records Division of the Court of Appeals on 4 March 1991 was thus void or otherwise
ineffective. Receipt thereof by him did
not operate as notice to the Arambulos. It is a fact on record that no notice to pay the docket fee was sent to
and received by Atty. Pineda, therefore, the 15-day period to pay the required
docket fee did not even commence to run.

Accordingly, the public respondent Court of Appeals should not
have declared the appeal abandoned and ordered its dismissal solely on the
basis of the failure of the petitioners to comply with the 19 June 1991 notice
to pay the docketing and other fees, which was erroneously sent to Atty.
Jimenez.

Nevertheless, the appeal can be dismissed, not on the basis of
the respondent Court of Appeals’ error but on a different ground for which
Atty. Pineda must answer. As the new counsel
for the petitioners, it was incumbent upon him, consistent with his duty to
serve his client with competence and diligence,^[32] to
inquire either from the trial court or the appellate court about the status of
the appeal since he had not received any notice to pay the docketing and other
fees despite the lapse of several months from the time he entered his
appearance. While he had every reason
to expect that the office of the Clerk of Court of the Court of Appeals would
faithfully comply with Sections 2(3) and 3, Rule 4 of the Revised Internal
Rules of the Court of Appeals on the issuance of notice to the parties to pay
the docketing and other fees, his failure to receive the notice for so long a
time should have alarmed him to the possibility that something must have gone
awry somewhere. The justification given
in the Motion for Reconsideration, Reinstatement of Appeal, and Acceptance of
Docket Fee that the petitioners “had no reason to be alarmed about the
status of the appeal because of the eruption of Mt. Pinatubo in June 1991,
which caused disarray and confusion in Angeles City and because of
defendants-appellants’ reliance on the established judicial practice whereby
the proper party is notified of the elevation of the records of the case to this
Honorable Court, the receipt of such records by the latter and the need to pay
the corresponding docket fee within the prescribed period”^[33]
is flimsy and wholly unacceptable. On
the contrary, the eruption of Mt. Pinatubo provided added reason why they should
have verified from the trial court if the records of the case were still intact
or had been destroyed or damaged as a consequence of the eruption.

In the fairly recent case of Mateo vs. Court of Appeals,^[34]
this Court, speaking through Mme. Justice Carolina C. Griño-Aquino, made this
apt observation:

“Indeed, if the appellant does nothing to press his appeal, it
may safely be concluded that he believes the judgment of the trial court to be
correct and his appeal aims to accomplish nothing more than mere delay in the
execution of the adverse judgment, certainly unfair to the appellee who is
denied the enjoyment of the fruits of his victory in the case as long as the
appeal is not resolved.”

This statement certainly holds true here. Not only did the petitioners and their
counsel sleep on their right, they put nothing in their Motion for
Reconsideration, Reinstatement of Appeal, and Acceptance of Docket Fee that
gives a semblance of merit to their appeal other than their general statement
that they “have a meritorious case, and they are confident that they are
favored by the evidence, the law, and jurisprudence,”^[35]
which they merely reiterated in the instant petition.^[36]
As we see it then, the failure of Atty. Pineda and the petitioners to exercise
due diligence with respect to the appeal was either done deliberately to delay
the execution of judgment, which we cannot tolerate, or caused by negligence,
in which case the settled rule that the negligence of counsel binds the client^[37]
should be applied.

With the foregoing disquisitions, it is no longer necessary to
take up the contention of the private respondent that Atty. Jimenez had the
“duty” to inform the Court of Appeals that notices were erroneously
or inadvertently sent to him and to inform the petitioners themselves or Atty.
Pineda about the notices he received.^[38]
Suffice it to say that if Atty. Jimenez had any duty, it could only be a moral
duty, not a legal or professional one. For all legal intents and purposes, the lawyer-client relationship
between him and the petitioners had been completely severed on 12 February 1991
and with it the “duty” spoken of by the private respondent ceased to
exist. Of course, fealty to fairness
and perhaps consideration for his former clients would have dictated upon him
to do that which the private respondent has suggested considering that the
notice he received clearly shows that none was furnished to Atty. Pineda or to
the petitioners. Nevertheless, his
failure to do either can by no means prejudice the petitioners.

In the light of the foregoing, the dismissal of the petitioners’
appeal in CA-G.R. CV No. 32348 was justifiable for another reason. Concurrence in the result of the challenged
resolutions is inevitable.

WHEREFORE, the instant petition is DENIED.

No costs in this instance.

SO ORDERED.

Cruz, (Chairman), Bellosillo,
and Quiason, JJ., concur.

Griño-Aquino, J., on leave.

^[1]
Annex “G” of Petition; Rollo, 31. Per Associate Justice Luis L. Victor, concurred in by Associate
Justices Santiago M. Kapunan and Segundino G. Chua.

^[2]
Entitled “Engr. Danilo G. Ferreras, plaintiff-appellee, versus Spouses Carlos S.
Arambulo and Eloisa Arambulo, defendants-appellants.”

^[3]
Annex “A” of Petition; Rollo, op. cit., 20. Per Associate Justice Luis L. Victor,
concurred in by Associate Justices Jainal D. Rasul and Pacita Cañizares Nye.

^[4]
Rollo, 46.

^[5]
Original Records (OR), CA-G.R. CV No. 32348, 8-15.

^[6]
OR, CA-G.R. CV No. 32348, 16-20; Annex “B” of Petition; Rollo,
21-25. Per Judge David R. Rosete.

^[7]
Id., 20; Id., 25.

^[8]
Annex “C” of Petition; Rollo, 26.

^[9]
Annex “D” of Petition; Rollo, 27.

^[10]
Annex “E” Petition; Id., 28.

^[11]
OR, CA-G.R. CV No. 32348, 4-6.

^[12]
Annex “F” of Petition; Rollo, op. cit., 29.

^[13]
OR, CA-G.R. CV No. 32348, op. cit.,
3.

^[14]
OR, CA-G.R. CV No. 32348, 21.

^[15]
Attached at the dorsal portion of page 21, Id.

^[16]
Id., 28.

^[17]
Attached to dorsal portion of page 27, Id.

^[18]
OR, CA-G.R. CV No. 32348, 32.

^[19]
Id., 31.

^[20]
Id., 53.

^[21]
Id., 35.

^[22]
Id., 33-36.

^[23]
Xerox copies of the Official Receipts are attached to page 36, Id.

^[24]
Id., 57.

^[25]
Rollo, 12.

^[26]
Id., 40-41.

^[27]
Section 2, Rule 13, Revised Rules of Court.

^[28]
Cubar vs. Mendoza, 120 SCRA 768 [1983]; Ruiz vs. Court of
Appeals, 201 SCRA 577 [1991].

^[29]
Palanca vs. The American Food Mfg. Co., 24 SCRA 819 [1968]; Lincoln
Gerard, Inc. vs. NLRC, 187 SCRA 701 [1990].

^[30]
Flores vs. Zurbito, 37 Phil. 746 [1918].

^[31]
See Rinconada Telephone Co. vs. Buenviaje, 184 SCRA 701 [1990], where an
attorney was considered as counsel entitled to notices despite the absence of a
formal appearance because the trial court itself recognized his appearance as
counsel.

^[32]
Canon 18, Code of Professional Responsibility.

^[33]
OR, CA-G.R. CV No. 32348, 34-35.

^[34]
G.R. No. 97839, 22 April 1993.

^[35]
OR, CA-G.R. CV No. 32348, 35.

^[36]
Rollo, 15.

^[37]
B.R. Sebastian Enterprises, Inc. vs. Court of Appeals, 206 SCRA 28
[1992].

^[38]
Rollo, 39.