March 2011 - Philippine Supreme Court Resolutions
Philippine Supreme Court Resolutions
[G.R. No. 181817 : March 28, 2011]
BEHN JOSEPH O. TESIORNA AND JOJEAN H. TESIORNA V. COURT OF APPEALS, [TWENTY THIRD DIVISION], PHILAND INDUSTRIES, INC. AND ROSSANA HWANG
G.R. No. 181817 (BEHN JOSEPH O. TESIORNA and JOJEAN H. TESIORNA v. COURT OF APPEALS, [TWENTY THIRD DIVISION], PHILAND INDUSTRIES, INC. and ROSSANA HWANG). � This is a petition for certiorari, under Rule 65 of the Rules of Court, to annul the twin Resolutions of the Court of Appeals (CA) dated July 20, 2005[1] and December 11, 2007[2] which reversed, upon private respondents' motion for reconsideration, its earlier Decision dated October 12, 2004.[3]
The decretal portion of the reversed CA Decision states:
"WHEREFORE, finding that there was no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the public respondent, the instant petition is hereby DISMISSED for lack of merit, and the Resolutions dated January 31, 2001 and October 16, 2001 of the NLRC are hereby AFFIRMED and UPHELD.
SO ORDERED.�[4]
The first assailed Resolution disposed as follows:
"WHEREFORE, the Motion for Reconsideration is GRANTED. The questioned Decision of the public respondent NLRC dated January 31, 2001 for the reinstatement with back wages of [petitioners] is REVERSED and SET ASIDE, and the Decision of the Labor Arbiter dated December 15, 1999 dismissing the complaint is AFFIRMED with the following modifications, to wit:
(a) Ordering [private respondent] to pay Behn Tesiorna the amount of THIRTY THOUSAND (P30,000.00) PESOS representing nominal damages for non-compliance with the statutory due process of twin requirements of notice and hearing: and
(b) Upholding the legality of the dismissal of [petitioner] Jo Jean Tesiorna because of abandonment, but likewise ordering [private respondent] to pay Jo Jean Tesiorna the same amount of THIRTY THOUSAND (P30,000.00) PESOS representing nominal damages.
SO ORDERED.�[5]
The second assailed resolution denied petitioners' motion for reconsideration.
The Facts
Petitioner-spouses Behn Tesiorna and JoJean Tesiorna were employed as Branch Manager and Cashier/Finance Officer-in-Charge, respectively at the Davao Branch of private respondent Philand Industries, (Philand) Inc. owned by Rosanna Hwang.
On May 14, 1998, Jerry Salibad, Philand's Branch Finance Officer in Davao, informed Mr. Tesiorna that the branch's revolving funds were already depleted. He asked if there were cash on delivery accounts that could be collected and used for such purpose. To address the problem, Mr. Tesiorna and Mr. Salibad approached the owner of Davao United Educational Supply, Sonia Yap (Yap), one of their big customers. Yap agreed to help them in their predicament by issuing a check in the amount of P19,964.00 with Mr. Tesiorna as payee in order for him to immediately encash the same. The cash amount of the check was turned over to Mr. Salibad who acknowledged receipt thereof by affixing his signature on the provisional receipt issued to Yap.
Sometime in July 1998, in the course of an audit conducted by Philand's Internal Auditor, Efren Cardoza (Cardoza), the aforementioned transaction was discovered. The appearance of Mr. Tesiorna's name as payee in the check was deemed as misappropriation because the same was not reflected on record as payment.
On August 1, 1998, Mr. Tesiorna was given a Memo Form by the company's administrative manager instructing him to voluntarily resign and/or immediately turn over all records in his possession. He was forthwith replaced by Carlos Seiga as Branch Manager. Mrs. Tesiorna thereafter informed Cardoza that she was also resigning. Their resignations were not formalized in writing. Since then, they have not reported for work and instead filed a complaint for illegal dismissal.
On December 15, 1999, the Labor Arbiter (LA) dismissed the complaint for lack of merit.[6] On appeal, the NLRC reversed and set aside[7] the LA's Decision and declared petitioner-spouses illegally dismissed. The dispositive portion of the NLRC decision reads:
WHEREFORE, foregoing considered, the decision appealed from is hereby REVERSED and SET ASIDE. [Petitioner] Behn Tesiorna is hereby declared to have been illegally dismissed from employment. Likewise, [petitioner] JoJean Tesiorna is hereby declared to have been constructively dismissed. [Private respondents] are ordered to pay to [petitioners] full back wages from the time of their dismissal until the finality of this decision. Furthermore, in lieu of reinstatement, [private respondents] are ordered to pay [petitioners] separation pay of one month per year of service, 13th month pay, and attorney's fees equivalent to 10% of the total award.
SO ORDERED.[8]
On October 12, 2004, the CA affirmed[9] the NLRC's Decision. However, on private respondents� motion for reconsideration, the CA set aside its earlier ruling and reinstated the LA's Decision denying the complaint for lack of merit. The CA found that petitioners were dismissed for a just cause and that private respondent merely failed to comply with procedural due process. As such, the CA awarded P30,000.00 each to petitioners as nominal damages.[10]
Displeased, petitioners moved for reconsideration but the motion was denied in CA Resolution dated December 11, 2007.[11] Hence, the instant petition.
We dismiss the petition.
It is elementary in remedial law that the use of an erroneous mode of appeal is cause for dismissal of a petition for certiorari.[12]
Petitioners erroneously resorted to a petition for certiorari under Rule 65 of the Rules of Court when an appeal to this Court from a decision, judgment or resolution of the CA is taken by filing an appeal under Rule 45.[13]
It has been repeatedly stressed that a petition for certiorari is not a substitute for a lost appeal.[14] This is due to the nature of a Rule 65 petition for certiorari which lies only where there is "no appeal,� and "no plain, speedy and adequate remedy in the ordinary course of law."[15] As previously ruled by this Court:
xxx We have time and again reminded members of the bench and bar that a special civil action for certiorari under Rule 65 lies only when "there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law." Certiorari cannot be allowed when a party to a case fails to appeal a judgment despite the availability of that remedy, certiorari not being a substitute for lost appeal. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.[16]
The fact that petitioners utilized the Rule 65 modality as a substitute for a lost appeal is palpable in: a) their act of filing the said petition 60 days after the expiration of the 15-day reglementary period for filing a Rule 45 appeal;[17] and b) their petition which makes specious allegations of "grave abuse of discretion" but asserts the failure of the CA to correctly appreciate facts and conclusions of law.[18]
This rule has been disregarded on occasion by this Court in instances where valid and compelling circumstances warrant.[19] However, petitioners have not provided this Court any compelling reason why it must disregard the mandate of the Rules of Court.
IN VIEW WHEREOF, the petition is DISMISSED. The resolutions of the Court of Appeals dated July 20, 2005 and December 11, 2007 are hereby AFFIRMED.
SO ORDERED.
Very truly yours,
(Sgd.) MA. LUISA L. LAUREA
Clerk of Court
Endnotes:
[1] Rollo, pp. 55-67.[2] Id. at 52-53.
[3] Id. at 68-76.
[4] Id. at 75.
[5] Id. at 65-66.
[6] Id. at 14-16.
[7] Id. at 99-104.
[8] Id. at 103-104.
[9] Supra note 3.
[10] Supra note 1.
[11] Supra note 2.
[12] Nippon Paint Employees Union-Olalia v. Court of Appeals, 485 Phil. 675, 681 (2004), citing Sebastian v. Morales, 445 Phil. 595 (2003); 1997 Rules of Civil Procedure, Rule 56, Sec. (f).
[13] Rules of Court, Rule 45, Sec. 1.
[14] Republic v. Court of Appeals, 379 Phil. 92 (2000), citing Bernardo v. Court of Appeals, 341 Phil. 413 ( 1997).
[15] 1997 Rules of Civil Procedure, Rule 65. Sec. 1; Republic v. Court of Appeals, id.
[16] Republic v. Court of Appeals, id.
[17] Rollo, p. 1, Item Nos. 7 and 8 under the subheading TO BE ACCOMPLISHED BY THE PROCESSOR.
[18] Id. at 27-47.
[19] 402 Phil. 271 (2001), Estate of Salud Jimenez v. Philippine Export Processing Zone, Santo Tomas University Hospital v. Surla, 355 Phil. 804 (1998).
