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[ G.R. No. 142816. June 19, 2000]

HEIRS OF ANITA TAN, etc. vs. CA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 19 2000.

G.R. No. 142816 (Heirs of Anita Tan, etc. vs. Court of Appeals, et al.)

Before the Court is a petition for review under Rule 45 of the Resolutions of the Court of Appeals in CA-G.R. SP No. 52496, entitled "Heirs of Anita Tan et al. vs. Fortunato C. Tan, et al.," dated 5 May 1999, 5 January 2000 and 9 March 2000 which dismissed the petition for annulment of judgment filed by petitioners and denied their first and second motions for reconsideration, respectively.

The Antecedents of this case are as follows:

On 29 April 1999, petitioners filed a Complaint before the Court of Appeals whereby they sought the annulment of the Order of the then Court of First instance of Cotabato, Branch 1, dated 8 August 1973, in Special Case No. 648, entitled "In the Matter of the Intestate Estate of the deceased Anita Lim Tan (formerly known as BULAWAN KANAKAN)." The questioned Order directed the register of Deeds of the Province of Cotabato to cancel the transfer certificate of title (TCT) in the name of the deceased Anita Lim Tan and, consequently, to issue a new TCT in the name of her lawful heirs as declared in the 6 October 1973 Order of the trial court. In its Resolution, dated 5 May 1999, the Court of Appeals dismissed the said petition for violation of Section 4, Rule 47 of the Rules of Court since petitioners failed to attach a certified true copy of the Order sought to be annulled and the affidavits of witnesses supporting their cause of action. Accordingly, petitioners filed a motion for reconsideration claiming that the reason for their inability to attach a certified true copy of the questioned Order is because the entire records of the case could no longer be found in the Office of the Clerk of Court. In this regard, petitioners pointed out that a certification to this effect, executed by the Clerk of Court, Atty. Kasan Abdulrakman, was already attached as an annex to their petition. Furthermore, petitioners assert that the only office that has a copy of the questioned Order is the Office of the register of Deeds and, as such, they were only able to obtain a copy of the Order from the said office and not from the Clerk of Court. With regard to absence of affidavits of witnesses in support of their cause of action, petitioners attached to their motion for reconsideration the joint-affidavit of their four (4) witnesses. Petitioners, likewise, attached their own joint-affidavit to the motion for reconsideration. In its resolution, dated 5 January 2000, the Court of appeals denied the motion for reconsideration. The Court of Appeals reiterated petitioners' violation of Sec. 4, Rule 47 of the Rules of Court and, additionally, pointed out that the petition is defective since there was no assignment of errors which, under Sec. 1, Rule 50, is a ground for the dismissal of the petition. Undaunted, petitioners filed a second motion for reconsideration with motion for leave of court to admit amended petition. In their second motion, petitioners claimed that their failure to include an assignment of errors in their petition was only an honest mistake of their counsel. Thus, petitioners prayed that their amended petition, containing the required assignment of errors, be admitted in lieu of their original petition. Furthermore, petitioners reiterated their explanation as to why there was no certified true copy of the questioned Order. However, this time, petitioners included a certified true copy of the questioned Order as attested to by the Register of Deeds. On this score, petitioners asserts that since the said register of deeds is the legal custodian of the only remaining duplicate original of the questioned Order, the contents of the same may be proved by a certified true copy thereof issued by the said office pursuant to Sec. 7, Rule 130 of the Rules of Court. In its resolution, dated 9 March 2000, the Court of Appeals denied petitioners' motion on the ground that the Rules of Court prohibits the filing of a second motion for reconsideration. Hence, the present petition.

The Rules of Court, under Sec 2 of Rule 52, explicitly prohibits the filing of a second motion for reconsideration, to wit:

Sec. 2. Second motion for reconsideration. - No second motion for reconsideration of a judgment of final resolution by the same party shall be entertained.

Clearly, the Court of Appeals committed no reversible error in denying petitioners' second motion for reconsideration.

In this regard, since a second motion for reconsideration is a prohibited pleading, the filing of the same with the Court of Appeals did not toll the running of the reglementary period within which to file a petition for review under Rule 45. Since petitioners received the Resolution denying their first motion for reconsideration on 31 January 2000, they only had until 15 February 2000 within which to file their petition for review to this Court. However, instead of filing the said petition, petitioners opted to file a second motion for reconsideration and await the resolution of the same by the Court of Appeals. As such, when petitioners received the Resolution of the Court of Appeals, dated 9 March 2000, and filed the instant petition on 10 April 2000, the reglementary period for filing the petition for review had already lapsed.

Another factor, which merits the denial of the instant petition, is the failure of petitioners to attach material portions of the record that would support their petition as required by Sec. 4(d) of Rule 45. Petitioners did not attach to their petition for review the alleged certified true copy of the questioned Order obtained from the Register of Deeds of the Province of Cotabato. Also, they failed to attach to the instant petition a complete copy of their original petition for annulment of judgment (the annexes of the same, which includes a copy of the questioned Order, were not included) as well as the amended version of the said petition.

IN VIEW OF THE FOREGOING, the petition is hereby DENIED.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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