[G.R. No. 142437. April 25, 2001]

ALPHA INSURANCE & SURETY COMPANY vs. TOMBO

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated APR 25 2001.

G.R. No. 142437 (Alpha Insurance & Surety Company, Inc., petitioner vs. Marcelino Doret Tombo, respondent.)

Petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolution of the Court of Appeals promulgated on September 1, 1995 dismissing petitioner’s appeal and Resolution of March 10, 2000 denying its motion for reconsideration in CA-G.R. CV No. 46835, “Marcelino Doret Tombo, vs. ALPHA Insurance & Surety Co., Inc.”

The undisputed facts of the case are:

On February 28 and November 26, 1990, respondent Marcelino Doret Tombo insured his Kenworth Tractor against loss and damage with petitioner Alpha Insurance & Surety Co., Inc. (Alpha Insurance, for brevity) for P1,600,000.00. Respondent paid the premiums and petitioner issued to him insurance Policy Nos. CV-RBP 3416 and CV-RBP 4156.

On March 15, 1991, at around 3 o’clock in the morning, the insured tractor, driven by respondent’s driver, Luis Lopez, figured in an accident at Dalton Pass, Caranglan, Nueva Ecija, while travelling from Isabela. Despite repeated demands, petitioner Alpha Insurance refused and failed to pay for the repairs, prompting respondent to file with the Regional Trial Court, Branch 44, San Fernando, Pampanga, Civil Case No. 9310 against the said petitioner for sum of money. The defense interposed was that the insurance claim is fraudulent and that respondent could not show which of the damages is accident related or that the damage is compensable under his insurance policies.

After trial, the RTC rendered a decision dated March 9, 1994, the dispositive portion of which reads:

“WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant:

“1) Ordering the defendant to pay plaintiff;

a) P856,000.00 representing the damages to the insured vehicle including parts and accessories;

b) P100,000.00 as and by way of attorney’s fees;

“2) Dismissing the counterclaim of the defendants; and

“3) Ordering the defendant to pay the costs of suit.

“SO ORDERED.”

Petitioner filed a motion for reconsideration, but was denied.

Forthwith, it interposed an appeal to the Court of Appeals.

On September 1, 1995, the Court of Appeals issued the assailed Resolution dismissing the appeal, holding that:

“The record shows that defendant-appellant’s counsel received a copy of Registered Letter No. 16189, containing notice to file brief, on March 2, 1995. Hence, appellant’s original period expired on April 16, 1995. The first motion for extension was filed by appellant on April 20, 1995 which is four (4) days late, a fact concealed from the Court.

“On May 26, 1995, appellant again filed its second urgent motion for extension of thirty (30) days from May 26, 1995 or until June 25, 1995 within which to file the appellant’s brief. Since June 25, 1995 falls on Sunday, June 26 should have been the last day for filing the appellant’s brief but another motion for extension of at least 20 days was instead filed by appellant. This third motion for extension should have been filed before the expiration of the period sought to be extended.

“On July 17, 1995, another urgent motion for final extension was filed, again late by one (1) day or after the expiration of the period sought to be extended. Plaintiff-appellee vigorously opposed this final motion for extension.

“We note that despite the fact that counsel for the defendant-appellant filed four (4) motions for extension of time to file appellant’s brief (a total of 95 days extension), the first motion for extension is late by four (4) days; the second motion is one (1) day late; the third motion is again late by one (1) day; and the final motion was likewise filed one (1) day late.” (Resolution, pp. 1-2; Rollo, pp. 47-48).

Petitioner filed a motion for reconsideration but was denied by the Court of Appeals on March 10, 2000 in this wise:

“We reiterate the Court’s finding that all four (4) motions for extension of time to file appellant’s brief were filed after the expiration of the period sought to be extended, in violation of Section 15, Rule 46 of the Rules of Court. For appellant’s failure to file its appellant’s brief within the reglementary period despite due notice the appeal ought to be dismissed pursuant to Section 1(f) of Rule 50 of the Rules of Court.”

In this petition, petitioner raises the following issues:

“I

WHETHER OR NOT THE MISTAKE OF COUNSEL IN READING THE DATE OF ACTUAL RECEIPT OF THE NOTICE TO FILE BRIEF MAKES DISMISSAL OF THE APPEAL MANDATORY ON THE COURT OF APPEALS.

“II

WHETHER OR NOT AN EXTENSION FILED ON THE LAST DAY ALLOWED FOR FILING THE APPELLANT’S BRIEF OUGHT TO BE CONSIDERED LATE THEREBY MAKING THE PERIOD INEXTENDIBLE.

‘‘III

WHETHER OR NOT THE APPEAL IN CA - G.R. CV NO. 46835 WAS DILATORY.”

The sole issue for our resolution is whether or not the Court of Appeals erred in dismissing petitioner’s appeal.

The prevailing jurisprudence has been that “failure to file the appellant’s brief on time may cause the dismissal of the appeal, upon either the motion of the appellee or on the own motion of the appellate court, provided that notice must be furnished to the appellant to show cause why his appeal should not be dismissed.” ¹ Foralan vs. Court of Appeals, 241 SCRA 176 (1995).The Court of Appeals found that petitioner’s four (4) motions for extension of time to file appellant’s brief were filed after the expiration of the period sought to be extended. Such finding is binding upon this Court. ² Delos Reyes vs. Court of Appeals, 313 SCRA 632 (1999); Security Bank & Trust Company vs. Triumph Lumber and Construction Corporation, 301 SCRA 537 (1999).

Petitioner admits that its former counsel received the notice to file brief on March 2, 1995. However, he was of the impression that the notice to file brief was received on March 12, 1995, instead of March 2, 1995. ³ Petition for Review on Certiorari., p. 5 (Rollo. p. 11).Petitioner thus ratiocinates that the late filing by four (4) days on April 20, 1995 of the first motion for extension of time to file appellant’s brief could be excusable “according to law” and should not result in the dismissal of its petition.

Petitioner’s contention utterly lacks merit. Assuming that petitioner’s former counsel honestly believed that the notice to submit brief was received on March 12, 1995, he should have filed the motion for extension before the expiration of the period to file brief which was on April 16, 1995. But he filed it on April 20, 1995, or four (4) days late.

The old rule like the new one is explicit: “Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended.” ⁴ Section 15, Rule 46, Rules of Court; Section 12, Rule 44 of the 1997 Rules of Civil Procedure, as Amended.In Republic vs. Imperial, Jr., ⁵ 303 SCRA 127 [1999], citing Diman vs. Hon. Florentino M. Alumbres, G.R. No. 134166, 27 November 1998; Viedogram Regulatory Board vs. CA, 265 SCRA 50 [1996].this Court held:

“If the appeal brief cannot be filed on time, extension of time may be allowed provided (1) there is good and sufficient cause, and (2) the motion for extension is filed before the expiration of the time sought to be extended. The court’s liberality on extensions notwithstanding, lawyers should never presume that their motions for extension would be granted as a matter of course or for the length of time sought; their concession lies in the sound discretion of the Court exercised in accordance with the attendant circumstances.”

4 Section 15, Rule 46, Rules of Court; Section 12, Rule 44 of the 1997 Rules of Civil Procedure, as amended.

5 303 SCRA 127 [1999], citing Diman vs. Hon. Florentino M. Alumbres, G.R. No. 131466, 27 November 1998; Videogram Regulatory Board vs. CA, 265 SCRA 50 [1996].

WHEREFORE, the instant petition for review on certiorari is DENIED due course and DISMISSED. The appealed Resolutions of the Court of Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.

Very truly yours,

JULIETA Y. CARREON

Clerk of Court

(Sgd.) LUCITA ABJELINA-SORIANO

Asst. Clerk of Court