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[ G.R. No. 142268. April 5, 2000]

CRISTINA D. BAUTISTA vs. VICTOR K. LORZA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated APR 5 2000.

G.R. No. 142268 (Cristina D. Bautista vs. Victor K. Lorza, et al.)

Before the Court is a petition for review under Rule 45 assailing the Resolutions of the Court of Appeals dated 21 October 1999 and 4 February 2000. The first resolution denied petitioner's special civil action for certiorari and affirmed the Order of the Regional Trial Court of Pasig City, Branch 67, which in turn, denied petitioner's "Petition for relief from Judgment Denying the Appeal". On the other hand, the second resolution denied petitioner's motion for reconsideration of the previous resolution.

The antecedents of this case are as follows:

On 21 December 1996, a complaint for sum of money and damages was filed by petitioner against private respondents before the Regional Trial Court of Pasig City, Branch 67. On 11 December 1998, the trial court issued a decision in favor of private respondents. Petitioner received a copy of the decision on 11 January 1999. On 25 January 1999, or after the lapse of 14 days, petitioner filed a motion for reconsideration. On 3 February 1999, petitioner filed an amended motion for reconsideration. On 23 February 1999, the trial court denied the motion for reconsideration for lack of merit. Petitioner received a copy of the order denying her motion for reconsideration on 17 March 1999. Thus, at this point, petitioner only had one day left, or until 18 March 1999, within which to file her appeal. However, petitioner only filed her Notice of Appeal on 29 March 1999, or after the lapse of 11 days. Accordingly, the trial court denied the Notice of Appeal for having been filed beyond the 15-day reglementary period. A motion for reconsideration was filed by petitioner, but this was, likewise, denied. As a last ditch effort to revive her case, petitioner filed a "Petition for Relief from Judgment Denying the Appeal". In an Order dated 28 June 1999, the trial court denied the said petition.

Not satisfied with the order of the trial court, petitioner filed on 15 September 1999 a special civil action for certiorari before the Court of Appeals. On 21 October 1999, the Court of Appeals issued the first questioned Resolution denying petitioner's special civil action for certiorari. The Court of Appeals reasoned:

Relief from judgment is allowed only in exceptional cases as when there is no other available or adequate remedy. When a party had another adequate remedy available to him, which was either a motion for new trial or appeal from the adverse decision of the lower court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking the appeal, he cannot avail himself of the relief provided under Rule 38 (Herrera, Comments on the 1997 Rules of Civil Procedure, Volume VII, 1997 ed., p. 314).

In this case, the petitioner was not deprived of his right to appeal. It was due to her own fault, in failing to file the appeal on time, that she lost her right to appeal.

With more reason we cannot grant the petition for certiorari.

x x x

As to the remedy applied for, it is settled that the writ of certiorari may not be availed of to make up for the loss, through omission or oversight, of the right to appeal. It has been previously discussed that petitioner's right to appeal was lost due to her own fault.

Wherefore, premises considered, the instant petition is hereby denied. 1 Annex "A" of petition, Rollo, p. 30.

Petitioner filed a motion for reconsideration but the same was, likewise denied by the Court of Appeals in its second questioned Resolution dated 4 February 2000.

On 29 February 2000, petitioner received a copy of the second questioned resolution. Thus, petitioner had until 15 march 2000 within which to elevate her case before this Court. However, as of 15 march 2000, petitioner was not yet in possession of certified true copies of the resolution of the Court of Appeals which she desires to question.2 Rollo, p. 26. Since certified true copies of these resolutions are required to be annexed to her petition for review on this Court, as mandated by Rule 45, Sections 4(d) and 5 in relation to Rule 56, Section 5, petitioner, through her lawyer, conceived of an ingenious scheme to circumvent this requirement. Petitioner sent copies of her petition, with only photocopies, not certified true copies, of the questioned resolution annexed, to this Court, to the Court of Appeals and to private respondents. Realizing that her petition for review sent via registered mail would be outrightly denied by the Court for failure to annex thereto the required certified true copies, petitioner remedied the situation by personally filing the same petition for review with this Court on 20 March 2000. However, this time, certified true copies of the questioned resolutions were already annexed. The true copies of the resolutions were certified as such only on 20 March 2000. It should also be noted that is was only on 20 March 2000 that she paid the docket fees on her petition. Again, realizing that her petition would already be considered as filed late if it is reckoned as of the date of its personal filing, she attached to her petition the registry receipts of the copies of the petitions which she sent by registered mail on 15 March 2000.

Also, the Court notes that the allegation in the petition for review glossed over important dates to hide the fact that petitioner's motion for reconsideration of the trial court decision was filed out of time. In the petition, the dates pertaining to the receipt of the 11 December 1999 Decision of the trial court and the filing of the motion for reconsideration of the aforesaid decision were not stated. Instead Atty. Raterta only mentioned the date the trial court issued its decision3 Id., at 6. and misstated the date of petitioner's motion for reconsideration as 15 January 1999 when in fact it is dated 25 January 1999.4 Id., at 7. Even in the copy of the said motion for reconsideration annexed to the present petition, the last page was deliberately taken out5 Annex "C" of Petition, Rollo, pp. 86-92. to conceal any indications that said motion was already filed out of time.

IN VIEW OF THE FOREGOING, the petition is DENIED. Atty. Manuel James K. Raterta is WARNED that a repetition of the same conduct described above shall be dealt with more severely.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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