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[G.R. No. 139429.November 15, 1999]

WEE II vs. THE CA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated NOV 15, 1999.

G.R. No. 139429(George Wee II vs. The Court of Appeals, et al.)

In our Resolution, dated 1 September 1999, we dismissed the instant special civil action for certiorari for being an erroneous mode of review of the 26 November 1998 and 28 May 1999 Resolutions of the Court of Appeals (CA) which dismissed petitioner's special civil action for certiorari for being filed a day beyond the reglementary period and affirmed its 26 November 1998 Resolution, respectively. We further stated therein that even if this Court allowed petitioner to avail of this erroneous mode of review, the petition is still dismissible for having been filed beyond the sixty (60) day reglementary period under Rule 65.

Petitioner now moves' for reconsideration of our 1 September 1999 Resolution. He contends that since the CA resolutions did not tackle the merits of the case, the same are not the final judgments which can be appealed through a petition for review. In relation thereto, petitioner asserts that the proper mode for assailing the said resolutions before this Court is through a special civil action for certiorari under Rule 65 and not by petition for review under Rule 45. Moreover he argues that a petition for review of his case would be a "slow, inadequate and insufficient mode of appeal and, as such, the instant case should be excepted from the coverage of Rule 45. Petitioner then posits that if he is allowed to pursue his case through a special civil action for certiorari, the instant petition would no longer be dismissible since it was filed seven (7) days before the lapse of the sixty (60) day reglementary period under Rule 65.

We disagree.

The definition of an appealable order or judgment was discussed by the Court in Salazar vs. Torres, et al., ¹ 108 Phil 209 (1960) wherein we said:

Courts have defined a final order or judgment which is appealable as one which either terminates the action itself or operates to vest some right in such manner as to put it out of the power of the court making the order to place the parties in their original condition:

"The true test for determining whether an order or judgment is final for the purpose of appeal is not whether the judgment disposes of the contentions of the parties, or whether it touches the merit of the case, but whether it finally disposes of the legal proceeding, so that nothing more can be done with it in the court where it is determined or in the language of Sec. 143 of Act No. 190, whether 'it disposes of the action.'" (Fuentebella vs. Carrascoso, Lawyers' Journal Vol. XIV, p. 305). ² Id., at 214.

This was reiterated by the Court in Ceniza vs. Court of Appeals, ³ 218 SCRA 390 (1993). to wit:

Moreover, the Resolution being questioned herein is a final order, contrary to petitioners' contention.Courts have defined a final order or judgment which is appealable as one which either terminates the action itself or operates to vest some right in such manner as to put it out of the power of the court making the order to place the parties in their original condition. More specifically, it is that which disposes of the whole subject matter or terminates the particular proceedings or action, leaving nothing to be done but to enforce by execution what has been determined. x x x ⁴ Id., at 398.

Based on the above pronouncements, the questioned CA resolutions are undeniably final orders appealable by petition for review. ⁵ Sec. 1 of Rule 45 provides:

Sec. 1.Filing of petition with Supreme Court.- A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari.The petition shall raise only questions of law which must be distinctly set forth.The said resolutions terminated petitioner's action, leaving nothing to be done except for petitioner to appeal or allow the appeal period to lapse in order for the said resolutions to beexecuted. Clearly, a determination of whether the merits of petitioner's case was disposed of by the CA is not relevant.

Petitioner, nevertheless, insists that even if the mode of appeal usually falls under Rule45, his case should be excepted therefrom since the said mode of review would be "slow, inadequate and insufficient" for his purposes. ⁶ Rollo, p. 220.In this regard, petitioner contends that he should be allowed to pursue his case under Rule 65. We are not persuaded.

If petitioner is really interested in obtaining a speedy resolution of his case, he should have been, more vigilant in filing his action within the reglementary period. Even assuming, ex gratia argumenti, that petitioner can elevate his case to this Court through the present special civil action, the petition is still dismissible for having been filed beyond the proper period. The reglementary period for filing a special civil action for certiorari is provided under Sec. 4, Rule 65, to wit:

SEC. 4. Where and when petition to be filed.--The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals.

If the petitioner had filed a motion for new trial or reconsideration in due time after notice of said judgment, order or resolution, the period herein fixed shall be interrupted.If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of such denial. No extension of time to file the petition shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. ⁷ Underscoring supplied.

In the present case, petitioner received a copy of the 26 November 1998 Resolution of the Court of Appeals on 3 December 1998. Fourteen (14) days. thereafter, or on 17 December 1998, petitioner filed a motion for reconsideration. On 18 June 1999, petitioner received a copy of the 28 May 1999 Resolution of the CA denying petitioner's motion for reconsideration. At this point in time, petitioner only had forty-six (46) days, or until 3 August 1999, to file his special civil action. However, petitioner only filed his petition on 10 August 1999. Based on the foregoing, petitioner cannot deny that the instant special civil action was filed beyond the prescribed reglementary period.

Petitioner's lack of interest in filing his action on time, both in the CA and before this Court, defeats his claim of a need for a speedy resolution of his case.

ACCORDINGLY, the motion for reconsideration is hereby DENIED with finality.JUSTICE REYNATO S. PUNO took no part.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

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