DENNIS Q.

MORTEL, Petitioner, versus

SALVADOR E. KERR, Respondent.
G.R. No. 156296 | 2012-11-12
FIRST DIVISION

DECISION
BERSAMIN, J.:
When the incompetence, ignorance or
inexperience of counsel is so great and the
resulting error is so serious that the client, who
otherwise has a good cause, is prejudiced and
denied his day in court, the client deserves
another chance to present his case. Hence, the
litigation may be reopened for that purpose.
The client seeks the reversal of the resolution
dated September 5, 2002,1 whereby the Court
of Appeals (CA) denied his petition for review
on certiorari from the order of the Regional
Trial Court, Branch 72, in Olongapo City (RTC)
issued in Civil Case No. 279-0-2000. He pleads
that the rules of procedure should be liberally
construed in his case, and that he should not
be bound by the negligence and errors of his
previous counsels that deprived him of his
property without being afforded his day in
court.
Antecedents
On July 19, 2000, respondent Salvador E. Kerr
(Kerr) instituted a complaint for foreclosure of
mortgage, docketed as Civil Case No. 279-0-
2000, against Dennis Q. Mortel (Mortel), who
duly filed an answer on August 11, 2000
through Atty. Leonuel N. Mas (Atty. Mas) of the
Public Attorney’s Office. The pre-trial was re-
set four times for various reasons, but on the
fifth setting on December 7, 2000, Mortel and
Atty. Mas were not around when the case was
called. On motion of Kerr’s counsel, the RTC
declared Mortel as in default and allowed Kerr
to present evidence ex parte.
On December 28, 2000, Atty. Eugenio S.
Tumulak (Atty. Tumulak) filed a notice of
appearance in behalf of Mortel, but the RTC did
not act on the notice of appearance.
On February 28, 2001, the RTC rendered
judgment in favor of Kerr,2 disposing as
follows:
WHEREFORE, judgment is hereby rendered
ordering the defendant Dennis Q. Mortel to pay
the plaintiff Salvador E. Kerr within a period of
not more than ninety (90) days from receipt of
this Decision the sum of P130,000.00 plus
interest of P6,000.00 per month from
November 1999 until the whole obligation has
been fully paid and the further sum of
P20,000.00 by way of attorney’s fees and the
costs.

In default of such payment, let the house and

lot described in the Deed of Real Estate
Mortgage (Exhibits "A-1" and "A-2") in the
plaintiff’s complaint be sold at public auction
and the proceeds thereof applied to the
aforesaid obligation and the costs of this suit.

SO ORDERED.

On March 22, 2001, Mortel, through Atty.

Leopoldo C. Lacambra, Jr. (Atty. Lacambra),
filed a motion for new trial.3
On March 23, 2001, Atty. Mas filed his
withdrawal of appearance.4
On April 5, 2001, the RTC denied Mortel’s
motion for new trial, noting that Atty. Mas’
withdrawal as counsel of Mortel had been filed
only on March 23, 2001 and approved by the
RTC on March 26, 2001. It held that
considering that the records of the case
showed that Atty. Mas had received the
decision on March 1, 2001, the motion for new
trial had been filed out of time on March 20,
2001.5
On May 4, 2001, Mortel, this time through
Atty. Tumulak, filed a verified petition for relief
from judgment under Rule 38 of the Rules of
Court.6
On August 20, 2001, the RTC denied the
verified petition for relief from judgment on the
ground that the petition for relief had been
filed beyond the reglementary period of 60
days based on a reckoning of the start of the
period from March 1, 2001, the date when
Atty. Mas received the notice and copy of the
Order,7 to wit:
x x x. Now, the petition for relief is again filed
by a counsel whose Notice of Appearance has
not been acted upon. Defendant’s counsel on
record received the Decision on March 1, 2001,
which is the reckoning point to count the
mandatory sixty (60) days in order that a
Petition for Relief can be filed. It is elementary
that notice to counsel is notice to party (People
v. Midtomod, 283 SCRA 395). Hence, from
March 1, 2001 up to May 4, 2001 – the filing
of the Petition for Relief – is already sixty-four
(64) days which is four days beyond the period
within which to file the same. The defendant’s
Counsel now reckoned the period from the
time the client received the said Decision.8

On November 14, 2001, Mortel moved for the

reconsideration of the denial of his petition for
relief from judgment.9
On December 6, 2001, the RTC granted the
withdrawal of Atty. Lacambra and Atty. Mas as
counsels for Mortel, and finally recognized
Atty. Tumulak as the only counsel.10
On January 16, 2002, the RTC treated Mortel’s
motion for reconsideration as a mere scrap of
paper and ordered it stricken from the records
for failure of the counsel to serve a notice of
hearing with the motion for reconsideration.11
Mortel filed an urgent motion for
reconsideration vis-à-vis the RTC’s order of
January 16, 2002.12
On June 17, 2002, the RTC denied the urgent
motion for reconsideration for being a second
motion for reconsideration and for being moot
and academic; and granted Kerr’s ex parte
motion for the issuance of a writ of
possession.13
Subsequently, the RTC issued a writ of
execution on June 20, 2002,14 and Kerr was
then placed in possession of the property.
On August 26, 2002, Mortel, through Atty.
Tumulak, filed in the CA a petition for review
on certiorari with prayer for the issuance of a
restraining order.15
On September 5, 2002, the CA issued a
resolution dismissing Mortel’s petition for
review for failing to state the specific material
dates showing that the petition had been filed
within the reglementary period, in violation of
Section 6(d), Rule 43 of the Rules of Court. It
observed that Mortel thereby resorted to the
wrong remedy considering that he was
assailing the propriety of the RTC’s order
declaring him in default, against which the
proper remedy was a petition for certiorari.16
On October 14, 2002, Mortel sought the
reconsideration of the denial of his petition for
review.17
On November 18, 2002, the CA denied Mortel’s
motion for reconsideration for lack of merit
because the defects of the petition for review
were not corrected, and for availing himself of
the remedy of petition for review when he
should have filed a petition for certiorari
instead.18
Atty. Tumulak received the denial by the CA on
December 5, 2002.19
Instead of appealing via petition for review on
certiorari in the Supreme Court (SC), Mortel,
through Atty. Tumulak, filed in the CA on
December 20, 2002 an urgent motion for
extension of time to appeal to the SC.20
On December 23, 2002, Mortel, by himself,
sought an extension of time to file a petition
for review on certiorari.21
On January 27, 2003, the Court granted
Mortel’s motion for extension with a warning
that no further extension would be given.22
On January 22, 2003, Mortel, still by himself,
filed his petition for review on certiorari
assailing the CA’s dismissal of his petition for
review on certiorari.
Issues
Mortel contends that:
WITH DUE RESPECT, THE HONORABLE COURT
OF APPEALS ERRED IN DENYING THE MOTION
FOR RECONSIDERATION DATED SEPTEMBER
28, 2002 FROM THE RESOLUTION DATED
SEPTEMBER 5, 2002 DISMISSING THE
PETITION FOR REVIEW FILED BY THE
PETITIONER.23

Mortel prays that the Rules of Court be liberally

interpreted in his favor to allow his petition for
review on certiorari despite the various lapses
of his counsels resulting in the loss of his
opportunity to assail the resolutions of the
RTC.
On the other hand, Kerr insists that the CA
correctly dismissed the petition because the
errors of his former counsels bound Mortel.24
Accordingly, the issues to be resolved are the
following:
1. Whether or not the negligence of Mortel’s
previous counsels should bind him; and
2. Whether or not Mortel was deprived of his
property without due process of law.

Ruling
The petition, being meritorious, is granted.
The CA found that despite the opportunity
given to him to do so, Mortel’s counsel erred in
failing to state the specific material dates
required by Section 6(d) of Rule 43, Rules of
Court to show that the petition for review was
filed within the reglementary period; and that
Mortel resorted to the wrong remedy by filing
a petition for review instead of a petition for
certiorari because he was questioning the
propriety of the RTC’s order declaring him as
in default.25
Mortel’s counsel committed another error
when he filed his urgent motion for extension
of time to file an appeal in the CA, instead of
in the SC, resulting in not stopping the running
of the period of appeal and in thereby
rendering the Resolution of the CA final.
As a rule, a client is bound by his counsel’s
conduct, negligence and mistake in handling a
case.26 To allow a client to disown his counsel’s
conduct would render proceedings indefinite,
tentative, and subject to reopening by the
mere subterfuge of replacing counsel.27
But the rule admits of exceptions. In several
rulings, the Court held the client not concluded
by the negligence, incompetence or mistake of
the counsel. For instance, in Suarez v. Court of
Appeals,28 the Court set aside the judgment
and mandated the trial court to reopen the
case for the reception of the evidence for the
defense after finding that the negligence of the
therein petitioner’s counsel had deprived her of
the right to present and prove her defense.
Also, in Legarda v. Court of Appeals,29 the
Court ordered restored to the petitioner her
property that had been sold at public auction
in satisfaction of a default judgment resulting
from the failure of her counsel to file an answer
and from counsel’s lack of vigilance in
protecting her interests in subsequent
proceedings before the trial court and the CA.
Lastly, in Amil v. Court of Appeals,30 the Court
declared that an exception to the rule that a
client is bound by the mistakes of his counsel
is when the negligence of the counsel is so
gross that the client was deprived of his day in
court, thereby also depriving the client of his
property without due process of law.
The relevant question becomes, therefore,
whether the negligence of Mortel’s counsels
was so gross and palpable as to deprive him of
his property without due process of law.
We hold that it was.
Mortel did not have his day in court, because
he was unable to submit his evidence to
controvert the claim of Kerr about his
contractual default after the RTC declared
Mortel as in default due to his counsel’s failure
to appear at the fifth setting of the pre-trial.
Yet, he explained that he was only late because
he arrived in court a few minutes after the case
had been called. His explanation appears
plausible, considering that he had unfailingly
appeared in court in the four previous settings
of the pre-trial. In view of the fact that it was
his first time not to be present when the case
was called at the fifth setting of the pre-trial,
the RTC could have allowed a second or a third
call instead of immediately granting his
adverse party’s motion to declare him as in
default. In Leyte v. Cusi,31 the Court has
admonished against precipitate orders of
default because such orders have the effect of
denying a litigant the chance to be heard.
Indeed, we have reminded trial courts that
although there are instances when a party may
be properly defaulted, such instances should
be the exception rather than the rule and
should be allowed only in clear cases of a
litigant’s obstinate refusal or inordinate neglect
to comply with the orders of the court. Without
such a showing, the litigant must be given
every reasonable opportunity to present his
side and to refute the evidence of the adverse
party in deference to due process of law.32
Nevertheless, the negligence that actually
warrants the undoing of the RTC’s decision was
serial on the part of Atty. Mas, the RTC and
Atty. Tumulak.
The primary negligence occurred on the part of
Atty. Mas. He did not appear at the pre-trial
despite being notified of it. What is very
disturbing is that he was then an attorney in
the Public Attorney’s Office in Olongapo City
whose place of work was located in the same
Hall of Justice of Olongapo City where the RTC
was then sitting. Moreover, he did not offer any
explanation for his non-appearance at the pre-
trial despite notice to him; nor did he take the
necessary move to protect the interest of
Mortel upon learning that Mortel had been
declared as in default by the RTC. His non-
appearance despite notice and his subsequent
inaction for his client’s cause manifested his
indifference and lack of professionalism, and is
difficult to comprehend considering that he
was the primary cause why Mortel was
declared as in default by the RTC.
The RTC was equally responsible for Mortel’s
dire plight. It appears that Mortel engaged
Atty. Tumulak to take over as counsel from
Atty. Mas. Atty. Tumulak notified the RTC of
his appearance for Mortel on December 28,
2000. The RTC could have easily noted and
acted on Atty. Tumulak’s entry of appearance
for Mortel, or, if the RTC still desired to require
the submission of Atty. Mas’ withdrawal as
counsel, to direct such withdrawal to be first
submitted, especially after Atty. Mas filed his
withdrawal of appearance on March 23, 2001.
But the RTC uncharacteristically did not take
either of such actions on the notice of
appearance but proceeded to render its
judgment on the merits, a copy of which it
dispatched to Atty. Mas (who received it on
March 1, 2001) and to Mortel himself (who
received it on March 7, 2001). In effect, the
RTC disregarded Atty. Tumulak’s notice of his
substitution of Atty. Mas as counsel of Mortel.
The disregard continued for nearly a year, and
the RTC finally recognized Atty. Tumulak as the
only counsel of Mortel on December 6, 2001.
The reason for the RTC’s disregard of and long-
delayed action upon a matter as essential to
the client and to the administration of justice
in the case as the substitution of counsel is not
easy to appreciate, especially because the RTC
tendered no good reason for it.
With Atty. Tumulak left out and remaining
unaware of the developments in the case
because of the RTC’s inaction on his notice of
appearance, Mortel, upon receipt of the
decision and feeling abandoned again by Atty.
Tumulak, his new counsel, engaged Atty.
Lacambra to collaborate as his counsel. Atty.
Lacambra filed on March 20, 2001 a motion for
new trial. Counting from the time when Mortel
received the copy of the decision on March 7,
2001, Mortel probably thought that he had
filed the motion for new trial within the
required period. However, the RTC considered
March 1, 2001 as the reckoning date, being the
date when Atty. Mas received the notice of the
decision, and ruled that Mortel’s motion for
new trial was already filed beyond the
prescribed period. That action of the RTC was
not prudent and circumspect, considering that
the records of the case already contained since
December 28, 2000 the entry of appearance of
Atty. Tumulak as replacement of Atty. Mas as
Mortel’s counsel. The RTC should have at least
informed either Mortel or Atty. Tumulak or
both of them that it was either allowing or
disallowing Atty. Tumulak’s entry of
appearance in order to enable Mortel to
seasonably clarify his dire situation and, if
necessary, even to rectify it. That prudential
and circumspect approach would have been
easy for the RTC to take because the RTC
became all too aware of the neglect of Atty.
Mas in protecting the interest of Mortel
following the declaration of Mortel as in
default. In addition, the RTC could have
reckoned the period for Mortel to bring the
motion for new trial from March 7, 2001, the
date when Mortel received a copy of the
decision the RTC sent to him directly, instead
of March 1, 2001, the date when Atty. Mas
received the copy of the decision, considering
all the indications about Atty. Mas having
neglected the interest of Mortel.
Atty. Tumulak shared the blame for the
predicament of Mortel through his own series
of errors that mirrored an ignorance of the
rules of procedure. There is no question that
the errors deprived Mortel of the timely means
to successfully undo the adverse decision
rendered by the RTC. Atty. Tumulak’s first
error was in filing a motion for reconsideration
vis-à-vis the RTC’s denial of the petition for
relief from judgment without including a
proper notice of hearing. He next filed a motion
for reconsideration vis-à-vis the RTC’s denial
of his first motion for reconsideration, which
the RTC then denied on the ground of its being
already a prohibited second motion for
reconsideration. This was another fatal error.
The series of errors did not end there, for Atty.
Tumulak opted to file in the CA a petition for
review on certiorari instead of a petition for
certiorari, which was the appropriate remedy
due to his alleging grave abuse of discretion on
the part of the RTC. This was one more error.
The ultimate error was not any less serious,
because Atty. Tumulak filed in the CA instead
of in this Court the motion for extension of time
to appeal the CA’s November 18, 2002 denial
of Mortel’s motion for reconsideration. Atty.
Tumulak’s moves in behalf of Mortel, no matter
how well intentioned, were contrary to the
pertinent rules of procedure and worked
against the client’s interest.
The negligence and mistakes committed by his
several counsels were so gross and palpable
that they denied due process to Mortel and
could have cost him his valuable asset. They
thereby prevented him from presenting his
side, which was potentially highly unfair and
unjust to him on account of his defense being
plausible and seemingly meritorious. He stated
that he had already paid the principal of the
loan and the interest, submitting in support of
his statement a receipt for P200,000.00 that
Kerr had allegedly signed. He also stated that
he had actually overpaid in view of his
arrangement for Kerr to withdraw P6,000.00
each month from Mortel’s bank account as
payment of the interest, a statement that he
would confirm in court through the testimony
of a bank representative.33
We held in Apex Mining, Inc. v. Court of
Appeals34 that when the incompetence,
ignorance or inexperience of counsel is so
great and the result is so serious that the
client, who otherwise has a good cause, is
prejudiced and denied his day in court, the
client deserves another chance to present his
case; hence, the litigation may be reopened for
that purpose. Also, when an unsuccessful party
has been prevented from fully and fairly
presenting his case because of his attorney’s
professional delinquency or infidelity the
litigation may be reopened to allow the party
to present his side. Lastly, where counsel is
guilty of gross ignorance, negligence and
dereliction of duty, which resulted in the
client’s being held liable for damages in a
damage suit, the client is deprived of his day
in court and the judgment may be set aside on
such ground.35
Court litigation is primarily a search for truth,
and a liberal interpretation of the rules that
gives to both parties the fullest opportunity to
adduce proof is the best way to ferret out such
truth.36 Thus, a court may suspend its own
rules or except a case from them in order to
serve the ends of justice; or, it may altogether
disregard the rules in a proper case.37 To cling
to the general rule of having the ignorance,
negligence and dereliction of duty of the
counsel bind the client is only to condone
rather than to rectify a serious injustice to a
party whose only fault was to repose his faith
and entrust his cause to his counsel.38
WHEREFORE, the Court REVERSES the
resolution promulgated on September 5,
2002; ANNULS and SETS ASIDE the
decision rendered in Civil Case No. 279-0-2000
on February 28, 2001 by the Regional Trial
Court, Branch 72, in Olongapo City; and RE-
OPENS Civil Case No. 279-0-2000 for the
reception of evidence for the petitioner as the
defendant.
Costs of suit to be paid by the respondent.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
TERESITA J.
MARTIN S.
LEONARDO-DE
VILLARAMA, JR.
CASTRO
Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in
the above Decision had been reached in
consultation before the case was assigned to
the writer of the opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
1
Rollo. pp. 13-14; penned by Associate
Justice Sergio L. Pestafio
(retired/deceased), and concurred in by
Associate Justice Delilah Vidallon-Magtolis
(retired) and Associate Justice Josefina
Guevarra-Salonga (retired)
2
Records, pp. 72-A-73.
3
Id. at 78-82.
4
Id. at 88.
5
Id. at 95.
6
Id. at 97-107.
7
Id. at 125-126.
8
Id. at 125.
9
Id. at 133-134.
10
Id. at 143.
11
Id. at 159.
12
Id. at 168-175.
13
Id. at 181-182.
14
Id. at 184-185.
15
CA rollo, pp. 2-15.
16
Id. at 95-96.
17
Id. at 97-101.
18
Id. at 110.
19
Id. at 108-109.
20
Rollo, pp. 9-11.
21
Id. at 3-7.
22
Id. at 34.
23
Id. at 41.
24
Id. at 70.
25
CA Rollo, pp. 95-96.
26
Saint Louis University v. Cordero, G.R.
No. 144118, July 21, 2004, 434 SCRA 575,
584.
27
Gomez v. Montalban, G.R. No. 174414,
March 14, 2008, 548 SCRA 693, 708.
28
G.R. No. 91133, March 22, 1993, 220
SCRA 274.
29
G.R. No. 94457, March 18, 1991, 195
SCRA 418.
30
G.R. No. 125272, October 7, 1999, 316
SCRA 317.
31
G.R. No. L-31974, July 31, 1987, 152
SCRA 496.
32
Id. at 498-499.
33
CA Rollo, pp. 38-39.
34
G.R. No. 133750, November 29, 1999,
319 SCRA 456.
35
Id. at 468.
36
Go v. Tan, G.R. No. 130330, September
26, 2003, 412 SCRA 123, 129-130.
37
People v. Del Mundo, G.R. Nos. 119964-
69. September 20, 1996, 262 SCRA 266.
38
Apex Mining, Inc. v. Court of Appeals,
supra note 35 at 468.