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178 SUPREME COURT REPORTS ANNOTATED

Roque vs. Gunigundo

*
Adm. Case No. 1664. March 30, 1979.

DOMINGA ROQUE and JOSE G. ZAPLAN, complainants,

vs. MAGTANGGOL C. GUNIGUNDO, respondent.

Attorneys; Disbarment; Remedial law Civil Procedure;

Pleadings; Filing of motion for extension of time to reconsider the
lower court’s order of dismissal on the last day and sending it by
registered mail and omission to verify second motion for extension
are indicative of lack of competence and diligence of counsel.—The
foregoing explanation is not entirely satisfactory. It is not
sufficient to exculpate the respondent from the charge of
negligence. His filing of motions for extension on the last day and
sending them by registered mail (thus giving the court
insufficient time to act before the extension sought had expired)
and his omission to verify whether his second motion for
extension was granted are indicative of lack of competence,
diligence and fidelity in the dispatch of his clients’ business. If his
clients were wavering on whether to appeal, the order of
dismissal, he could have in the meantime, but within the thirty­
day period, filed his motion for reconsideration.
Same; Same; Same; Same; Same; Motion to extend period of
filing motion for reconsideration of dismissal order not authorized
and running of the period to perfect appeal is not stopped; Period
for filing pleadings and submitting record on appeal extendible;
Thirty­day

_______________

* SECOND DIVISION.

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Roque vs. Gunigundo

period to appeal from dismissal order not extendible for purposes

of filing motion for new trial or reconsideration; Reasons.—The
truth is that a motion to extend the reglementary period for filing
the motion for reconsideration is not authorized or is not in order.
So, it has been held that “a motion for extension to file a petition
for new trial does not stop the running of the reglementary period
for perfecting the appeal” which is also the period for filing the
motion for new trial or reconsideration (Gibbs vs. Court of First
Instance of Manila, 80 Phil. 160, 164.) The period for filing
pleadings and submitting the record on appeal (not notice of
appeal and appeal bond) may be extended but the thirty­day
period for appealing may not be extended for the purpose of filing
the motion for new trial or reconsideration. The reason for not
allowing such an extension is that it is assumed that the
preparation of a motion for new trial or reconsideration would not
consume much time since the case had already been tried and the
movant is supposed to be familiar with the case. On the other
hand, the thirty­day period may be extended for the purpose of
filing the record on appeal because, where the record is
voluminous or the appellant has other pressing matters to attend
to, it may not be practicable to submit the record on appeal within
the reglementary period.
Same; Same; Same; Same; Same; Same; To avoid loss of right
to appeal by losing party counsel should file motion for
reconsideration of dismissal order within the 30­day period of
appeal.—In this case, had the respondent been more conscientious
or experienced, he could have easily avoided the loss of his clients’
right to appeal by filing the motion for reconsideration within the
thirty­day period. He could have even withdrawn from the case
with his clients’ consent and required them to get another lawyer
to perfect their appeal.
Same; Same; Same; Same; Judgments; Order of dismissal of
trial court presumed valid or correct; Reasons.—However, the fact
that the complainants and their six co­plaintiffs lost the right to
appeal would not necessarily mean that they were damaged. The
lower court’s order of dismissal has in its favor the presumption of
validity or correctness. Indeed, an examination of that order
discloses that the trial court painstakingly studied the motion to
dismiss and carefully rationalized its order. It found that the
action was filed more than forty years after the disputed land was
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registered in the name of defendants’ predecessor­in­interest.

Same; Same; Same; Same; Damages; Failure of lawyer to
appeal from judgment which became final thru his fault not
sufficient

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Roque vs. Gunigundo

ground for losing party to recover damages from lawyer, Reasons.

—Where a judgment became final through the fault of the lawyer
who did not appeal therefrom, that fact alone is not a sufficient
ground for the losing party to recover damages from his lawyer
since the action for damages rests “on the unsubstantiated and
arbitrary supposition of the injustice of the decision which became
final through the fault and negligence” of the lawyer (Heredia vs.
Salinas, 10 Phil. 157, 162. See Ventanilla vs. Centeno, 110 Phil.
811, where the lawyer who failed to perfect an appeal was ordered
to pay his client two hundred pesos as nominal damages).
Same; Same; Imposition of drastic disciplinary action on
erring lawyer not warranted where complainants executed
affidavits of desistance in the case; Erring lawyer given
admonition.—In view of the foregoing and considering
complainants’ affidavit of desistance in this ease, drastic
disciplinary action against the respondent is not warranted. But
he is admonished to exercise care and circumspection in attending
to the affairs of his clients. A repetition of the same irregularity
will be treated with more severely.

AQUINO, J.:

Respondent Magtanggol C. Gunigundo (admitted to the bar

in 1960 and now forty­three years old) was the counsel of
the plaintiffs in Civil Case No. 3826­M of the Court of First
Instance of Bulacan, entitled “Dionisio Roque, et al. vs.
Julita V. Adriano, et al.” That case was an action to recover
Lot No. 4672 of the Malolos, Bulacan cadastre with an area
of around five hectares and for an accounting of the fruits
thereof.
On July 23, 1974 respondent Gunigundo received a copy
of the order in the said case dismissing it on the grounds of
laches and prior judgment. On August 22 or the last day of
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the reglementary period within which to appeal or file a

motion for new trial, he filed, through an associate, a
motion for an extension of fifteen days or up to September
6 within which to file a motion for reconsideration. The
motion was granted but Gunigundo was not able to file the
motion for reconsideration.
Instead, on the last day, September 6, he sent by
registered mail a motion for a second extension of ten days.
On September 16, the last day of the second extension
sought by
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Roque vs. Gunigundo

him, he filed a motion for a third extension of forty­eight

hours. The motion for reconsideration was mailed on
September 18, 1974, the last day of the third extension.
The trial court denied the second and third motions for
extension on the ground that the order of dismissal was
already final. It also denied Gunigundo’s motion for
reconsideration of the orders denying his motions for
extension.
Gunigundo then filed in the Court of Appeals a petition
for certiorari and mandamus wherein he assailed the
orders denying his motions for extension. He prayed that
the lower court be directed to resolve his motion for
reconsideration. The Court of Appeals dismissed his
petition (Roque vs. Court of First Instance, CA­G.R. No.
SP­04431, November 27, 1975). It applied the ruling that
the filing of a motion for extension of the period to file the
record on appeal does not suspend the period for appeal
(Philippine Virginia Tobacco Administration vs. De los
Angeles, L­29736, October 31, 1974, 60 SCRA 432).
This Court did not give due course to the appeal of
respondent’s clients from that decision of the Court of
Appeals (Resolution of March 29, 1976 in L­42879, Roque
vs. Court of Appeals).
On September 6, 1976, the spouses Dominga Roque and
Jose G. Zaplan, two of the eight plaintiffs in Civil Case No.
3826­M, filed in this Court a joint affidavit charging Atty.
Gunigundo with gross negligence in not seasonably filing
the motion for reconsideration and in not perfecting an
appeal from the trial court’s order of dismissal.
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After the submission of respondent’s answer, the case

was referred to the Solicitor General for investigation,
report and recommendation.
In June, 1978 or during the pendency of the case in the
Solicitor General’s office, the complaining spouses made a
volte­face. They executed an affidavit of desistance before
Atty. Rosario R. Rapanut, a senior attorney in the Citizens
Legal Assistance Office. They alleged that their complaint
for disbarment was due to a misunderstanding. They
affirmed that respondent Gunigundo was not negligent in
handling

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Roque vs. Gunigundo

their case (“walang pagkukulang at pagpapabaya sa

kanyang tungkulin”).
Explaining why he filed a motion for reconsideration
instead of appealing forthwith from the order of dismissal,
the respondent testified that there was vacillation among
the eight plaintiffs as to whether they would appeal; that
there were no available funds to defray the expenses of an
appeal since not all of the plaintiffs were inclined to appeal;
that some of the plaintiffs wanted to hire another lawyer;
that when the period was about to expire, the plaintiffs
changed their mind and decided to continue with the
respondent’s services and that the eldest plaintiff died and
plaintiffs’ desire to appeal was communicated to the
respondent only after the funeral.
The foregoing explanation is not entirely satisfactory. It
Is not sufficient to exculpate the respondent from the
charge of negligence. His filing of motions for extension on
the last day and sending them by registered mail (thus
giving the court insufficient time to act before the extension
sought had expired) and his omission to verify whether his
second motion for extension was granted are indicative of
lack of competence, diligence and fidelity in the dispatch of
his clients’ business.
If this clients were wavering on whether to appeal the
order of dismissal, he could have in the meantime, but
within the thirty­day period, filed his motion for
reconsideration.
The truth is that a motion to extend the reglementary
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period for filing the motion for reconsideration is not

authorized or is not in order. So, it has been held that “a
motion for extension to file a petition for new trial does not
stop the running of the reglementary period for perfecting
the appeal” which is also the period for filing the motion for
new trial or reconsideration (Gibbs vs. Court of First
Instance of Manila, 80 Phil. 160, 164).
The period for filing pleadings and submitting the record
on appeal (not notice of appeal and appeal bond) may be
extended but the thirty­day period for appealing may not
be extended for the purpose of filing the motion for new
trial or reconsideration. The reason for not allowing such
an extension is that it is assumed that the preparation of a
motion for new trial or reconsideration would not consume
much time since the case
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Roque vs. Gunigundo

had already been tried and the movant is supposed to be

familiar with the case.
On the other hand, the thirty­day period may be
extended for the purpose of filing the record on appeal
because, where the record is voluminous or the appellant
has other pressing matters to attend to, it may not be
practicable to submit the record on appeal within the
reglementary period.
In this case, had the respondent been more
conscientious or experienced, he could have easily avoided
the loss of his clients’ right, to appeal by filing the motion
for reconsideration within the thirty­day period. He could
have even withdrawn from the case with his clients’
consent and required them to get another lawyer to perfect
their appeal.
However, the fact that the complainants and their six
coplaintiffs lost the right to appeal would not necessarily
mean that they were damaged. The lower court’s order of
dismissal has in its favor the presumption of validity or
correctness. Indeed, an examination of that order discloses
that the trial court painstakingly studied the motion to
dismiss and carefully rationalized its order. It found that
the action was filed more than forty years after the disputed
land was registered in the name of defendants’ predecessor­
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in­interest.
Where a judgment became final through the fault of the
lawyer who did not appeal therefrom, that fact alone is not
a sufficient ground for the losing party to recover damages
from his lawyer since the action for damages rests “on the
unsubstantiated and arbitrary supposition of the injustice
of the decision which became final through the fault and
negligence” of the lawyer (Heridia vs. Salinas, 10 Phil. 157,
162. See Ventanilla vs. Centeno, 110 Phil. 811, where the
lawyer who failed to perfect an appeal was ordered to pay
his client two hundred pesos as nominal damages).
In view of the foregoing and considering complainants’
affidavit of desistance in this case, drastic disciplinary
action against the respondent is not warranted. But he is
admonished to exercise care and circumspection in
attending to the affairs of his clients. A repetition of the
same irregularity will be treated with more severity. A copy
of this decision should be

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Roque vs. Gunigundo

attached to respondent’s personal record.

SO ORDERED.

     Fernando (Chairman), Antonio, Concepcion Jr., and

Santos, JJ., concur.
     Barredo, J., did not take part, because a lawyer son
of the Justice is the opponent of Atty. Gunigundo in one
case in Bulacan.
     Abad Santos, J., is abroad.

Respondent admonished.

Notes.—The trial judge committed no plain abuse of

discretion in refusing to re­open the case, for plaintiff,
while alleging excusable negligence, failed to account for its
non­appearance or its attorney on the date the case was
first called for hearing, and the affidavit of merit added
nothing to its cause. (Republic vs. Tajanlangit, 7 SCRA
658.)
Mistakes of counsel as to the competency of witnesses,
the sufficiency and relevancy of evidence, the proper

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defense or the burden of proof, his failure to introduce

certain evidence or to summon witnesses are not proper
grounds for new trial, unless the incompetence of counsel
be so great that his client is prejudiced and prevented from
fairly presenting the case. (Palanca vs. American Food
Mftg. Co., 24 SCRA 319.)
The filing of a motion for reconsideration and a new
trial, while it suspended the period for the finality of
judgment, did not suspend the 60­day period provided for
in Rule 38 of the Rules of Court (Mercado vs. Domingo, 18
SCRA 961).
In the interest of justice, and overlooking the procedural
neglect of which both counsel for the plaintiff and counsel
for the defendant had been equally at fault in the court
below, the Supreme Court rendered the opinion that the
case can still be heard and decided on the merits. (Ramos
vs. Raymundo, 30 SCRA 43.)
Where the relief sought could be properly secured from
the lower court in accordance with Rule 41 of the Rules of
Court,
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Roque vs. Gunigundo

the motion for reconsideration filed in the Supreme Court

must be denied. (Chamber of Filipino Retailers, Inc. vs.
Villegas, 27 SCRA 166.)
The motion for reconsideration must be with affidavits
showing the fraud, accident, mistake, or excusable
negligence relied upon, and the facts constituting the
petitioner’s good and substantial cause of action or defense,
as the case may be which he may prove if his petition be
granted, as provided for and required in Section 3 of Rule
38, Rules of Court. (Rosario vs. Alonzo, 8 SCRA 397.)
A motion for reconsideration, which alleged that the
trial court had lost jurisdiction to consider the partial
project of partition, is not pro forma. It interrupted the
period for filing the record on appeal. (Manila Trading &
Supply Company vs. Enriquez, 1 SCRA 1056.)
The denial of a motion to reconsider a default judgment
becomes binding on the party in default where not appeal
was perfected within the 30 days immediately filed
thereafter comes too late because said order of denial has
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become final. (Soriano vs. Palacio, 12 SCRA 447.)

Where appellant could have remedied the technical
defect observed by the court a quo on which it predicated
its order of dismissal by filing a motion for reconsideration
furnishing the court with the two pleadings which it
considered vital for an intelligent determination of the
certiorari case against the municipal court, it is held that
the appeal has no merit. (Acharon vs. Purisima, 13 SCRA
309.)
A court may properly decline to act on a motion for
reconsideration of its decision when such motion lacks the
notice of the time and place of hearing as required by
Section 2 of Rule 37 of the Revised Rules of Court. (Manila
Surety and Fidelity Co., Inc. vs. Bath Construction and
Company, 14 SCRA 435.)
The date when appellant received notice of the order of
denial of his motion for reconsideration is important for the
determination of whether or not the record on appeal was
filed on time. (Development Bank of the Philippines vs.
Spouses Santos and Habacon, 18 SCRA 481.)
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Lames vs. Lascieras

When the allegations of the pleading clearly show

circumstances constituting mistake and excusable
negligence, which are grounds for a motion for
reconsideration, a dismissal of the motion and a denial of
the relief sought upon the flimsy excuse that the same was
filed as a petition for relief amounts to an abuse of that
discretion. (Clorox Co. vs. Director of Patents, 20 SCRA
965.)

——o0o——

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