G.R. No. 155824

FIRST DIVISION

GILLAMAC’S MARKETING, INC., G.R. No. 155824

Petitioner,

Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,

- v e r s u s - CORONA,

AZCUNA and

GARCIA, JJ.

ABOITIZ SHIPPING CORPORATION

AND THE HONORABLE COURT

OF APPEALS,

Respondents. Promulgated:

January 31, 2007

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D E C I S I O N

CORONA, J.:

At bar is a special civil action for certiorari under Rule 65 of the Rules of Court seeking the reversal of the Court of Appeals (CA) resolutions in CA-G.R. CV No. 73252[1] dated February 15, 2002 and August 22, 2002, respectively.

The facts follow.

Petitioner Gillamac’s Marketing, Inc. operates an appliance store in Ormoc City. On March 30, 1995, it sent assorted appliance units on board the “MV Elcano,” a commercial vessel owned and operated by private respondent Aboitiz Shipping Corporation. The bill of lading issued by the latter stated that the appliances were worth P740,833 and they were to be delivered to petitioner’s Cavite branch within a week. However, it was only after nine months that private respondent delivered them. Worse, they were delivered in bad condition. Petitioner refused to accept delivery and instead demanded payment of the shipment’s value.

When the parties failed to settle amicably, petitioner filed in the Regional Trial Court (RTC) of Cebu City, Branch 9, a complaint for collection of sum of money. Petitioner claimed that the damage to the appliance units was caused by private respondent’s failure to exercise extraordinary diligence. It sought the following reliefs, namely:

1) P740,833 as actual value of the damaged appliance units;

2) P16,660.33 as freightage;

3) P444,499 as unrealized income from the supposed sale of the units and;

4) P15,000 as attorney’s fees.[2]

Private respondent countered that petitioner’s unsuitable packaging of the appliance units caused the damage. It added that, if at all it was liable, its liability was limited only to the actual value of the goods as appearing on the bill of lading.[3]

After trial, the court a quo ruled in favor of petitioner. It held:

…From the evidence adduced by [petitioner], the Court is convinced that [private respondent] did not exercise extraordinary diligence in taking care of [petitioner’s cargoes] as required by law[;] [private respondent] being a common carrier…[F]urther, [private respondent] incurred gross delay in the delivery of the cargoes of [petitioner]…

The Court is inclined to grant the other damages prayed for by [petitioner] in its complaint, although not in the amount prayed for. For instance, with respect to the unearned income fixed by [petitioner] at 60% of the value of the cargo or the amount of P444,499.00 is found by the Court to be too speculative aside from being too high. The Court is inclined to grant a mark up of only 15% of [petitioner’s] principal by way of unearned income. The attorney’s fees of 25% of [petitioner’s] principal claim is likewise found by the Court to be rather too high even if it is contingent. The Court is inclined to allow 10% thereof…

The Court takes note of the fact that the parties stipulated that the total price of the units shipped is P740,833.00

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WHEREFORE, judgment is hereby rendered in favor of [petitioner], Gillamac’s Marketing, Inc. and against [private respondent], Aboitiz Shipping Corporation, ordering [private respondent] to pay to [petitioner the following]:

1) The amount of P740,833 as actual damages;

2) The amount equivalent to 15% of the actual damages by way of unearned income;

3) Legal interest on the actual damages at 12% per annum to start from the time of the filing of the complaint until the whole amount is fully paid;

4) The amount equivalent of 10% of the actual damages by way of attorney’s fees and P15,000.00 as litigation expenses.

Plus costs.

SO ORDERED.[4]

Private respondent appealed the case to the CA. On October 31, 2001, the CA dismissed private respondent’s appeal after it failed to pay appeal and docket fees.[5] Its counsel, Atty. Jose C. Palma, filed a motion for reconsideration (MR) of the above resolution stating that he took care of his ailing father (who eventually died of kidney cancer) and instead asked a member of his staff to pay the required fees. He later on discovered that the latter failed to pay the fees, hence, he immediately paid them.

The CA did not act on the motion but instead required petitioner (as then appellee in the CA) to file its comment on private respondent’s MR. On February 15, 2002, the CA recalled and set aside its October 31, 2001 resolution, and reinstated private respondent’s appeal.[6] Petitioner filed its MR of this recall/reinstate order but the same was denied on August 22, 2002.[7]

Aggrieved, petitioner is now before us assailing the CA’s above resolutions. It ascribes grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the CA for reinstating private respondent’s appeal despite the latter’s failure to pay the appeal and docket fees.[8] According to petitioner, the non-payment of said fees was fatal to private respondent’s case, hence, the CA should have dismissed the same outright.

We disagree.

The failure to pay docket fees does not automatically result in the dismissal of an appeal, it being discretionary on the part of the appellate court to give it due course or not.[9] We will then not interfere with matters addressed to the sound discretion of the CA in the absence of proof that the exercise of such discretion was tainted with bias or prejudice, or made without due circumspection of the attendant circumstances of the case.[10]

In a special civil action for certiorari, there must be proof that the act of the tribunal or court emanated from the capricious and whimsical exercise of judgment.[11] Likewise, the use of discretion should have been arbitrary due to passion, prejudice or personal hostility so patent and gross that it amounts to evasion to perform a positive duty under the law.[12] In the case at bar, the records do not reveal nor does petitioner allege malice or prejudice on the part of the CA in reinstating private respondent’s appeal.

A perusal of the herein parties’ pleadings also shows that private respondent’s counsel had no intention to violate the rules. He was also candid enough to have admitted his participation in the delay of the payment of the appeal and docket fees although he later on paid them. In some cases,[13] we condoned oversights of parties in failing to pay these fees on time to avoid undue burden on their right to appeal. We are well aware of the importance of appeals, thus, we have advised courts to exercise prudence in dismissing them. In the case of Yambao v. Court of Appeals,[14] we declared:

Considering the importance and purpose of the remedy of appeal, an essential part of our judicial system, courts are well-advised to proceed with caution so as not to deprive a party of the right to appeal, but rather, ensure that every party-litigant has the “amplest opportunity for the proper and just disposition of his cause, freed from constraints of technicalities.” In line with this policy, we have held that, in appealed cases, the failure to pay docket fees does not automatically result in the dismissal of the appeal…

WHEREFORE, the assailed resolutions of the Court of Appeals in CA-G.R. CV No. 73252 dated February 15, 2002 and August 22, 2002, respectively, are AFFIRMED. Accordingly, this petition is hereby DISMISSED.

Costs against petitioner.

SO ORDERED.

RENATO C. CORONA

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

Chairperson

ANGELINA SANDOVAL-GUTIERREZ ADOLFO S. AZCUNA

Associate Justice Associate Justice

CANCIO C. GARCIA

Associate Justice

C E R T I F I C A T I O N

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.

REYNATO S. PUNO

Chief Justice

[1] Gillamac’s Marketing v. Aboitiz Shipping Corporation.

[2] Complaint, “Annex D,” rollo, pp. 24-28.

[3] Answer, “Annex E,” rollo, pp. 36-41.

[4] Decided by Judge Benigno G. Gaviola. Rollo, pp. 43-49.

[5] Issued by Associate Justices Amelita G. Tolentino, Conrado M. Vasquez, Jr. and Andres B. Reyes, Jr., of the Eleventh Division of the Court of Appeals, rollo, p. 55.

[8] Petition, rollo, p. 10.

[9] Yambao v. Court of Appeals, 399 Phil. 712 (2000).

[10] Buenaflor v. Court of Appeals, 400 Phil. 395 (2000).

[11] Angara v. Fedman Development Corporation, G.R. No. 156882, 18 October 2004, 440 SCRA 467; Association of Trade Unions v. Abella, 380 Phil. 6 (2000).

[13] Mactan Cebu International Airport v. Mangubat, 371 Phil. 393 (1999); Andrea Camposagrado v. Pablo Camposagrado, G.R. No. 143195, 13 September 2005, 469 SCRA 602.