G.R. No. 189151.  January 25, 2012.

SPOUSES DAVID BERGONIA and LUZVIMINDA

CASTILLO, petitioners, vs. COURT OF APPEALS (4th
DIVISION) and AMADO BRAVO, JR., respondents.

Remedial Law; Certiorari; Appeals; The extraordinary remedy

of certiorari can be availed of only if there is no appeal or any
other plain, speedy, and adequate remedy in the ordinary course of
law, while Section 1, Rule 41 of the Rules of Court states that an
appeal may be taken from a judgment or final order that
completely disposes of the case or a particular matter therein.—It
bears stressing that the extraordinary remedy of certiorari can be
availed of only if there is no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law. On the other
hand, Section 1, Rule 41 of the Rules of Court states that an
appeal may be taken from a judgment or final order that
completely disposes of the case or a particular matter therein.
Same; Civil Procedure; Judgments; Rules to determine
whether a court’s disposition is already a final order or merely an
interlocutory order and the respective remedies that may be
availed in each case.—In Republic v. Sandiganbayan (Fourth
Division), 662 SCRA 152 (2011), this Court laid down the
following rules to determine whether a court’s disposition is
already a final order or merely an interlocutory order and the
respective remedies that may be availed in each case, thus: Case
law has conveniently demarcated the line between a final
judgment or order and an interlocutory one on the basis of the
disposition made. A judgment or order is considered final if the
order

_______________

* SECOND DIVISION.

323

VOL. 664, JANUARY 25, 2012 323

Bergonia vs. Court of Appeals (4th Division)

disposes of the action or proceeding completely, or terminates a
particular stage of the same action; in such case, the remedy
available to an aggrieved party is appeal. If the order or
resolution, however, merely resolves incidental matters and
leaves something more to be done to resolve the merits of the
case, the order is interlocutory and the aggrieved party’s remedy
is a petition for certiorari under Rule 65. Jurisprudence pointedly
holds that: As distinguished from a final order which disposes of
the subject matter in its entirety or terminates a particular
proceeding or action, leaving nothing else to be done but to
enforce by execution what has been determined by the court, an
interlocutory order does not dispose of a case completely, but
leaves something more to be adjudicated upon. The term “final”
judgment or order signifies a judgment or an order which disposes
of the case as to all the parties, reserving no further questions or
directions for future determination. On the other hand, a court
order is merely interlocutory in character if it leaves substantial
proceedings yet to be had in connection with the controversy. It
does not end the task of the court in adjudicating the parties’
contentions and determining their rights and liabilities as against
each other. In this sense, it is basically provisional in its
application.
Same; Special Civil Actions; Certiorari; A petition for
certiorari will prosper only if grave abuse of discretion is alleged
and proved to exist.—Even if we are to assume arguendo that the
petitioners’ resort to the extraordinary remedy of certiorari is
proper, the instant petition would still be denied. A petition for
certiorari will prosper only if grave abuse of discretion is alleged
and proved to exist. The abuse of discretion must be so patent and
gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law or to act at all in
contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility.
Here, there was no hint of whimsicality or gross and patent abuse
of discretion on the part of the CA when it dismissed the appeal of
the petitioners for the failure of the latter to file their appellants’
brief.
Same; Civil Procedure; Appellant’s Brief; The Court of
Appeals’ authority to dismiss an appeal for failure to file the
appellant’s brief is a matter of judicial discretion.—In a long line
of cases, this Court has held that the CA’s authority to dismiss an
appeal for failure to file the appellant’s brief is a matter of judicial
discretion. Thus, a dismissal based on this ground is neither
mandatory nor ministerial; the fundamentals of justice and
fairness must be observed, bearing in mind the background and
web of circumstances surrounding the case.
SPECIAL CIVIL ACTION in the Supreme Court.
Certiorari.
324

324 SUPREME COURT REPORTS ANNOTATED

Bergonia vs. Court of Appeals (4th Division)

   The facts are stated in the resolution of the Court.

  Law Firm of Lapeña & Associates for petitioners.
  Alfredo Remigio for private respondent.

RESOLUTION

REYES,  J.:
This is a petition for certiorari under Rule 65 of the
Rules of Court filed by the spouses David Bergonia and
Luzviminda Castillo (petitioners) assailing the Resolutions
issued by the Court of Appeals (CA) on May 18, 20091 and
June 29, 20092 in CA-G.R. CV No. 91665.
The petitioners were the plaintiffs in Civil Case No. Br.
23-749-03 entitled “Spouses David Bergonia and
Luzviminda Castillo v. Amado Bravo, Jr.” in the Regional
Trial Court (RTC), Branch 23, Roxas, Isabela. On January
21, 2008, the RTC rendered a decision adverse to the
petitioners. The petitioners consequently sought a
reconsideration of the said decision but the same was
denied by the RTC in an Order dated April 25, 2008 which
was received on May 6, 2008. On May 7, 2008, the
petitioners filed a Notice of Appeal.3
In January 2009, the Law Firm of Lapeña & Associates
filed with the CA its formal entry of appearance as counsel
for the petitioners, in view of the withdrawal of the former
counsel, Atty. Panfilo Soriano. The substitution of lawyers
was noted in the Resolution4 dated January 20, 2009. In
the same resolution, the CA further directed the appellants
therein to remit the deficient amount of P20.00 within 5
days from notice. Thereafter, the CA issued a Resolution on
January 30, 2009 requiring the filing of the Appellant’s
Brief within 45 days from receipt.

_______________
1  Penned by Associate Justice Andres B. Reyes, Jr., with Associate
Justices Fernanda Lampas-Peralta and Apolinario D. Bruselas, Jr.,
concurring; Rollo, p. 14.
2 Id., at pp. 15-16.
3 Id., at pp. 17-18.
4 Id., at p. 20.
 325

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Bergonia vs. Court of Appeals (4th Division)

On April 8, 2009, respondent Amado Bravo, Jr. (the

defendant-appellee therein), filed a Motion to Dismiss
Appeal5 dated April 2, 2009 stating that the petitioners
failed to file their Appellant’s Brief within the 45-day
period granted to them by the CA in the Resolution dated
January 30, 2009. Citing Section 1 (e), Rule 50 of the Rules
of Court, respondent prayed for the dismissal of the
petitioners’ appeal.
In an Opposition/Comment promptly filed on April 8,
2009,6 the petitioners alleged that the Motion to Dismiss
filed by the respondent had no basis considering that they
or their counsel did not receive any resolution from the CA
requiring them to file their Appellants’ Brief within 45
days.7
On May 18, 2009, the CA issued the assailed resolution8
which reads:

“For failure of the plaintiffs-appellants to file the required

appellant’s brief within the reglementary period which expired on
22 March 2009, as per Judicial Records Division Report dated 05
May 2009, the appeal is hereby considered ABANDONED and is
hereby DISMISSED pursuant to Section 1 (e), Rule 50, 1997
Rules of Civil Procedure.
SO ORDERED.” (citation omitted)

On May 25, 2009, the CA issued a Resolution9 which

stated, among others, that the January 30, 2009 notice to
file brief addressed to petitioners’ counsel was received by a
certain Ruel de Tomas on February 5, 2009.
On June 5, 2009, the petitioners filed a Compliance and
Motion for Reconsideration10 praying that the dismissal of
their appeal be set aside in the interest of justice and
equity. The petitioners claimed that their failure to file
their brief was due to the fact that they were

_______________
5  Id., at pp. 21-22.
6  Id., at pp. 23-24.
7  Id., at p. 24.
8  Supra note 1.
9  Rollo, p. 31.
10 Id., at pp. 26-30.
 326

326 SUPREME COURT REPORTS ANNOTATED

Bergonia vs. Court of Appeals (4th Division)

never furnished a copy of the said January 30, 2009

Resolution of the CA directing them to file their brief.
Subsequently, in a Manifestation11 filed on June 16,
2009, the petitioners asserted that their counsel—the Law
Firm of Lapeña and Associates—has no employee in the
name of Ruel de Tomas. However, they explained that Atty.
Torenio C. Cabacungan, Jr., an associate of the law firm
personally knows a person named “Ruel” who sometimes
visits their office and who may have accidentally received
the said January 30, 2009 Resolution of the CA. In such a
case, the same should not be considered officially served
upon them as the latter was not connected with nor
authorized to perform any act for and in behalf of counsel.
On June 29, 2009, the CA denied the motion for
reconsideration.12
Undaunted, the petitioners instituted the instant
petition for certiorari before this Court asserting the
following arguments: (1) their failure to file their
appellants’ brief was merely due to the fact that they were
never properly served with a copy of the January 30, 2009
Resolution of the CA; (2) Ruel de Tomas, the person who
apparently received the copy of the January 30, 2009
Resolution of the CA, was not their employee; and (3) the
CA, in the interest of justice and equity, should have
decided their appeal on the merits instead of dismissing the
same purely on technical grounds.
The sole issue for resolution is the propriety of the
dismissal of the petitioners’ appeal for their failure to file
the appellants’ brief within the reglementary period.
The petition is denied.
At the outset, this Court notes that the petitioners’
resort to a petition for certiorari under Rule 65 of the Rules
of Court is not the proper remedy to assail the May 18,
2009 and June 29, 2009 Resolutions issued by the CA. In
determining the appropriate remedy or remedies available,
a party aggrieved by a court order, resolution or

_______________
11 Id., at pp. 32-34.
12 Supra note 2.

327
 VOL. 664, JANUARY 25, 2012 327
Bergonia vs. Court of Appeals (4th Division)

decision must first correctly identify the nature of the

order, resolution or  decision he intends to assail.13
It bears stressing that the extraordinary remedy of
certiorari can be availed of only if there is no appeal or any
other plain, speedy, and adequate remedy in the ordinary
course of law.14 On the other hand, Section 1, Rule 41 of the
Rules of Court states that an appeal may be taken from a
judgment or final order that completely disposes of the case
or a particular matter therein.
Concomitant to the foregoing, the remedy of a party
against an adverse disposition of the CA would depend on
whether the same is a final order or merely an
interlocutory order. If the Order or Resolution issued by the
CA is in the nature of a final order, the remedy of the
aggrieved party would be to file a petition for review on
certiorari under Rule 45 of the Rules of Court. Otherwise,
the appropriate remedy would be to file a petition for
certiorari under Rule 65.
In Republic v. Sandiganbayan (Fourth Division),15 this
Court laid down the following rules to determine whether a
court’s disposition is already a final order or merely an
interlocutory order and the respective remedies that may
be availed in each case, thus:

“Case law has conveniently demarcated the line between a

final judgment or order and an interlocutory one on the basis of
the disposition made. A judgment or order is considered final if
the order disposes of the action or proceeding completely, or
terminates a particular stage of the same action; in such case, the
remedy available to an aggrieved party is appeal. If the order or
resolution, however, merely resolves incidental matters and
leaves something more to be done to resolve the merits of the
case, the order is interlocutory and the aggrieved party’s remedy
is a petition for certiorari under Rule 65. Jurisprudence pointedly
holds that:
As distinguished from a final order which disposes of the
subject matter in its entirety or terminates a particular
proceeding or action, leaving nothing else to be done but to
enforce by execution what has

_______________
13  See Raymundo v. Isagon Vda. de Suarez, G.R. No. 149017, November 28,
2008, 572 SCRA 384, 404.
14 Rules of Court, Rule 65, Section I.
15 G.R. No. 152375, December 16, 2011.
 328

328 SUPREME COURT REPORTS ANNOTATED

Bergonia vs. Court of Appeals (4th Division)

been determined by the court, an interlocutory order does

not dispose of a case completely, but leaves something more
to be adjudicated upon. The term “final” judgment or order
signifies a judgment or an order which disposes of the case
as to all the parties, reserving no further questions or
directions for future determination.
On the other hand, a court order is merely interlocutory
in character if it leaves substantial proceedings yet to be
had in connection with the controversy. It does not end the
task of the court in adjudicating the parties’ contentions
and determining their rights and liabilities as against each
other. In this sense, it is basically provisional in its
application.” (citations omitted)

Here, the assailed May 18, 2009 and June 29, 2009
Resolutions issued by the CA had considered the
petitioners’ appeal below as having been abandoned and,
accordingly, dismissed. Thus, the assailed Resolutions are
in the nature of a final order as the same completely
disposed of the petitioners’ appeal with the CA. Thus, the
remedy available to the petitioners is to file a petition for
review on certiorari under Rule 45 with this court and not a
petition for certiorari under Rule 65.
Even if we are to assume arguendo that the petitioners’
resort to the extraordinary remedy of certiorari is proper,
the instant petition would still be denied. A petition for
certiorari will prosper only if grave abuse of discretion is
alleged and proved to exist.16 The abuse of discretion must
be so patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined
by law or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by
reason of passion or hostility.17 Here, there was no hint of
whimsicality or gross and patent abuse of discretion on the
part of the CA when it dismissed the appeal of the
petitioners for the failure of the latter to file their
appellants’ brief.

_______________
16 Beluso v. Commission on Elections, G.R. No. 180711, June 22, 2010,
621 SCRA 450, 456.
17  Estrada v. Hon. Desierto, 487 Phil. 169, 182; 445 SCRA 655, 668
(2004), citing Duero v. Court of Appeals, 424 Phil. 12, 20; 373 SCRA 11, 17
(2002).

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VOL. 664, JANUARY 25, 2012 329

Bergonia vs. Court of Appeals (4th Division)

Section 1 (e), Rule 50 of the Rules of Court succinctly

provides that:

“Section  1.  Grounds for dismissal of appeal.—An appeal may

be dismissed by the Court of Appeals, on its own motion or on that
of the appellee, on the following grounds:
x x x x
(e)  Failure of the appellant to serve and file the required
number of copies of his brief or memorandum within the time
provided by these Rules; x x x”

In a long line of cases, this Court has held that the CA’s
authority to dismiss an appeal for failure to file the
appellant’s brief is a matter of judicial discretion. Thus, a
dismissal based on this ground is neither mandatory nor
ministerial; the fundamentals of justice and fairness must
be observed, bearing in mind the background and web of
circumstances surrounding the case.18
Having in mind the peculiar circumstances of the
instant case, we find that the petitioners’ excuse for their
failure to file their brief was flimsy and discreditable and,
thus, the propriety of the dismissal of their appeal. Indeed,
as aptly ruled by the CA, the records of the case clearly
showed that the petitioners, through their counsel, received
the January 30, 2009 Resolution which required them to
file their appellants’ brief. Thus:

“The records of this case are clear that the Resolution of 30

January 2009 requiring the [petitioners] to file the required brief
was received by a certain Ruel de Tomas for [petitioners’] counsel
on 05 February 2009. Hence, mere denial by [petitioners’] counsel
of the receipt of his copy of the Resolution cannot be given weight
in the absence of any proof that the said person is neither an
employee at his law office nor someone unknown to him.
Likewise, it is highly implausible that any person in the building
where [petitioners’]

_______________
18 Bachrach Corporation v. Philippine Ports Authority, G.R. No. 159915, March
12, 2009, 580 SCRA 659, 664, citing Philippine Merchant Marine School, Inc. v.
Court of Appeals, 432 Phil. 733; 383 SCRA 175 (2002); Aguam v. Court of Appeals,
388 Phil. 587; 332 SCRA 784 (2000); Catindig v. Court of Appeals, 177 Phil. 624;
88 SCRA 675 (1979).

330

330 SUPREME COURT REPORTS ANNOTATED

Bergonia vs. Court of Appeals (4th Division)

counsel holds office would simply receive a correspondence

delivered by a postman.”19

Verily, the petitioners were only able to offer their bare

assertion that they and their counsel did not actually
receive a copy of the January 30, 2009 Resolution and that
the person who apparently received the same was not in
any way connected with their counsel. There was no other
credible evidence adduced by the petitioners which would
persuade us to exculpate them from the effects of their
failure to file their brief.
The Court notes that, in concluding that the petitioners
indeed received a copy of the January 30, 2009 Resolution,
the CA was guided by the Report of the Judicial Records
Division of the CA and by the certification issued by the
Postmaster of Quezon City. Indubitably, the petitioners’
bare assertions could not overcome the presumption of
regularity in the preparation of the records of the Post
Office and that of the CA.20
Nonetheless, the petitioners cite a cacophony of cases
decided by this Court which, in essence, declared that
dismissal of an appeal on purely technical ground is
frowned upon and that, as much as possible, appeals ought
to be decided on the merits in the interest of justice and
equity.
The petitioners’ plea for the application of the principles
of substantial justice in their favor deserves scant
consideration. The petitioners should be reminded that
technical rules may be relaxed only for the furtherance of
justice and to benefit the deserving.21 While the petitioners
adverted to several jurisprudential rulings of this Court
which set aside procedural rules, it is noted that there were
underlying considerations in those cases which warranted
a disregard of

_______________
19 Rollo, p. 16.
20  Philippine Merchant Marine School, Inc. v. Court of Appeals, 432
Phil. 733, 741; 383 SCRA 175, 182 (2002).
 21  Barangay Dasmariñas v. Creative Play Corner School, G.R. No.
169942, January 24, 2011, 640 SCRA 294, 306, citing Alfonso v. Sps.
Andres, G.R. No. 166236, July 29, 2010, 626 SCRA 149.

331

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Bergonia vs. Court of Appeals (4th Division)

procedural technicalities to favor substantial justice. Here,

there exists no such consideration.
The petitioners ought to be reminded that the bare
invocation of “the interest of substantial justice” is not a
magic wand that will automatically compel this Court to
suspend procedural rules. Procedural rules are not to be
belittled or dismissed simply because their non-observance
may have resulted in prejudice to a party’s substantive
rights. Like all rules, they are required to be followed
except only for the most persuasive of reasons when they
may be relaxed to relieve a litigant of an injustice not
commensurate with the degree of his thoughtlessness in
not complying with the procedure prescribed.22
In Asian Spirit Airlines v. Spouses Bautista,23 this Court
clarified that procedural rules are required to be followed
except only for the most persuasive of reasons when they
may be relaxed to relieve a litigant of an injustice not
commensurate with the degree of his thoughtlessness in
not complying with the procedure prescribed:

“We agree with the petitioner’s contention that the rules of

procedure may be relaxed for the most persuasive reasons. But as
this Court held in Galang v. Court of Appeals:
Procedural rules are not to be belittled or dismissed
simply because their non-observance may have resulted in
prejudice to a party’s substantive rights. Like all rules, they
are required to be followed except only for the most
persuasive of reasons when they may be relaxed to relieve a
litigant of an injustice not commensurate with the degree of
his thoughtlessness in not complying with the procedure
prescribed.
In an avuncular case, we emphasized that:
Procedural rules are tools designed to facilitate the
adjudication of cases. Courts and litigants alike are, thus,
enjoined to abide strictly by the rules. And while the Court,
in some instances, allows a relaxation in the application of
the rules, this, we stress, was never intended to forge a
bastion for erring litigants to violate the rules with
impunity.
 _______________
22 Lazaro v. Court of Appeals, 386 Phil. 412, 417; 330 SCRA 208, 214 (2000),
citing Galang v. Court of Appeals, G.R. No. 76221, July 29, 1991, 199 SCRA 683.
23 491 Phil. 476; 451 SCRA 294 (2005).

332

332 SUPREME COURT REPORTS ANNOTATED

Bergonia vs. Court of Appeals (4th Division)

The liberality in the interpretation and application of the

rules applies only in proper cases and under justifiable
causes and circumstances. While it is true that litigation is
not a game of technicalities, it is equally true that every
case must be prosecuted in accordance with the prescribed
procedure to insure an orderly and speedy administration of
justice. The instant case is no exception to this rule.
In the present case, we find no cogent reason to exempt the
petitioner from the effects of its failure to comply with the Rules
of Court.
The right to appeal is a statutory right and the party who
seeks to avail of the same must comply with the requirements of
the Rules. Failing to do so, the right to appeal is lost. More so, as
in this case, where petitioner not only neglected to file its brief
within the stipulated time but also failed to seek an extension of
time for a cogent ground before the expiration of the time sought
to be extended.
In not a few instances, the Court relaxed the rigid application
of the rules of procedure to afford the parties the opportunity to
fully ventilate their cases on the merits. This is in line with the
time-honored principle that cases should be decided only after
giving all parties the chance to argue their causes and defenses.
Technicality and procedural imperfection should, thus, not serve
as basis of decisions. In that way, the ends of justice would be
better served. For, indeed, the general objective of procedure is to
facilitate the application of justice to the rival claims of
contending parties, bearing always in mind that procedure is not
to hinder but to promote the administration of justice. In this
case, however, such liberality in the application of rules of
procedure may not be invoked if it will result in the wanton
disregard of the rules or cause needless delay in the
administration of justice. It is equally settled that, save for the
most persuasive of reasons, strict compliance is enjoined to
facilitate the orderly administration of justice.”24 (citations
omitted)

Reiterating the foregoing in Dimarucot v. People of the

Philippines,25 this Court stated that:
 “The right to appeal is not a natural right and is not part of
due process. It is merely a statutory privilege, and may be
exercised only in accordance with the law. The party who seeks to
avail of the same must comply

_______________
24 Id., at pp. 483-484; pp. 300-302.
25 G.R. No. 183975, September 20, 2010, 630 SCRA 659.

333

VOL. 664, JANUARY 25, 2012 333

Bergonia vs. Court of Appeals (4th Division)

with the requirements of the Rules. Failing to do so, the right to

appeal is lost.
Strict compliance with the Rules of Court is indispensable for
the orderly and speedy disposition of justice. The Rules must be
followed, otherwise, they will become meaningless and useless.”26
(citations omitted)

WHEREFORE, in consideration of the foregoing

disquisitions, the petition is DISMISSED. The assailed
Resolutions dated May 18, 2009 and June 29, 2009 issued
by the Court of Appeals in CA-G.R. CV No. 91665
dismissing the petitioners’ appeal are AFFIRMED.
SO ORDERED.

Carpio, Perez, Sereno and Perlas-Bernabe,** JJ.,

concur. 

Petition dismissed, resolutions affirmed.

Notes.—A petition for certiorari cannot be allowed when

a party fails to appeal a judgment despite the availability
of that remedy as certiorari is not a substitute for a lost
appeal. (Malayan Employees Association-FFW vs. Malayan
Insurance Company, Inc., 611 SCRA 392; Martinez vs.
Garcia, 611 SCRA 537; People vs. Court of Appeals, 626
SCRA 352 [2010])
The failure to serve the required number of copies of the
appellant’s brief does not automatically result in the
dismissal of the appeal. (Tiangco vs. Land Bank of the
Philippines, 632 SCRA 256 [2010])
——o0o——

_______________
26 Id., at pp. 668-669.
 **  Additional Member in lieu of Associate Justice Arturo D. Brion per
Special Order No. 1174 dated January 9, 2012.

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