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[G.R. No. 149225. November 26, 2001]
BOMPAT vs. ESTOQUE
THIRD DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated NOV 26 2001.
G.R. No. 149225(Manuelita R. Bompat vs. Sammy L. Estoque.)
Petitioner assails the resolution issued by the Court of Appeals dismissing her petition for certiorari dated March 21, 2001 as well as the denial of her motion for reconsideration.
The present petition stemmed from a dismissal of a petition for Declaration of Nullity of Marriage filed before the Regional Trial Court of Pasig. Expectedly, petitioner filed a motion for reconsideration which was denied in an order dated November 29, 2000.
Thereafter, petitioner again prayed for a reconsideration of the order denying her motion for reconsideration and pleaded for the trial court to wait for whatever comment or opinion the Office of the Solicitor General and/or trial prosecutor might submit before the merits of the motion are resolve, because allegedly these parties may still submit favorable opinions that might alter the result of the case.
In an order dated January 23, 2001, the trial court again, denied for lack of merit, the motion for reconsideration of the order dated November 29, 2000 ratiocinating thus:
Records disclosed that the Office of the Solicitor General (OSG) and/or the Public Prosecutor was directed to submit any a comment/opposition to Petitioner's Motion for Reconsideration dated October 5, 1998 in the Order dated July 27, 2000. However, when said offices failed to submit one, the Court deems it a waiver on their part to submit the same and it resolved the subject incident in the questioned Order dated November 29, 2000 as a matter of course.
It must emphasized that the Motion for Reconsideration dated October 5, 1998 has been pending since October 16, 1998 but the Court still issued the order dated July 27, 2000 to give the offices concerned the opportunity to submit their comment/opposition but failed. Hence, to reiterate anew the directive to the OSG and the public prosecutor would unduly prolong the final disposition of this case.
Displeased, petitioner filed a petition for certiorari with the Court of Appeals reiterating anew his argument that the trial court's action in resolving her motion for reconsideration without awaiting the required comment or opposition from the Solicitor General or Prosecutor is premature.
The Court of Appeals dismissed the petition for lack of merit. It held that the remedy of certiorari was not proper under the premises since the remedy is sought to be used as a substitute for a lost appeal. It was also pointed out that what petitioner should have done was to appeal the decision of the trial court after the denial of her motion for reconsideration of the decision dated August 28, 1998 and not the order of November 29, 2000 which amounted to a second motion for reconsideration. Noted too was the absence of any allegation in the petition that there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law, which is a condition precedent in a petition for certiorari.
A motion for reconsideration was filed and denied.
Hence, the instant petition which is utterly devoid of merit.
Petitioner asseverates that the Court of Appeals erred when it held that petitioner's motion for reconsideration filed in regard to the order of November 29, 2000 which denied a previous motion for reconsideration amounted to a second motion for reconsideration which is a prohibited pleading, asserting that it should not be considered as such since the motion is meritorious as the order sought to be reconsidered was rendered without the required comments of the Office of the Solicitor General.
At the outset, it must be stressed that herein petitioner in filing a petition for certiorari with the Court of Appeals had indeed availed of a wrong remedy. It is a well-settled rule that certiorari will lie only if there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. This does not seem to be the case here. The Court of Appeals was correct when it held that what petitioner, following the denial of her motion for reconsideration of the decision dated August 28, 1998, should have done was to appeal the decision instead of filing another motion for reconsideration of the order denying her first motion for reconsideration.
Section 5 of Rule 37 of the Rules of Court is explicit on the matter, to wit:
No party shall be allowed a second motion for reconsideration of a judgment or final order.
A perusal of the record shows that petitioner's motion for reconsideration dated November 29, 2000 was indeed a second motion for reconsideration which the Rules prohibit. Such being the case, the Court of Appeals was correct when it held that at the time the remedy of certiorari was resorted to, such was intended to be a substitute for a lost appeal for by that time, the period for appealing had lapsed. Well-entrenched is the doctrine that certiorari cannot be used as a substitute for a lost or lapsed remedy of appeal especially so if such loss or lapse was occasioned by one's neglect or error in the choice of remedies (Republic vs. CA, 313 SCRA 376 [1999]).
WHEREFORE, petition is denied due course.
SO ORDERED.
Very truly yours,
(Sgd.) JULIETA Y. CARREON
Clerk of Court
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