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[G.R. No. 143890. August 14, 2000]
DBT MAR-BAY CONSTRUCTION, INC. vs. GETULIO VENUS, JR., et al.
SECOND DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated AUG 14 2000.
G.R. No. 143890 (DBT Mar-Bay Construction, Inc. v. Getulio Venus, Jr., et al.).
On June 29, 1989, respondents Getulio Venus, Jr. and Elmer Lino Javier filed a complaint for specific performance against herein petitioner DBT Mar-Bay Construction, Inc., docketed as Civil Case No. Q-89-2862, in the Regional Trial Court, Branch 106, Quezon City. Respondents alleged that, under separate agreements, petitioner bound itself to sell to each of them a subdivision lot in North Fairview Park, Quezon City, the same to be paid through the Philippine National Bank (PNB)-Provident Fund; that each respondent accordingly gave a deposit of P5,000.00 to petitioner; and that despite approval of their loans by the PNB-Provident Fund, petitioner refused to take any steps to finalize the sale of the lots to them. Respondents prayed that petitioner be ordered to comply with its obligation under their agreements and to pay damages, attorney's fees, and the costs of the suit.
Instead of filing an answer, petitioner moved to dismiss the complaint on the ground that jurisdiction over the case was vested in the Housing and Land Use Regulatory Board (HLURB). The trial court, however, denied petitioner's motion to dismiss. Petitioner's motion for reconsideration was likewise denied.
On January 31, 1991, respondents moved to declare petitioner in default for failure to file its answer. Petitioner filed an opposition. In its order, dated June 27, 1991, the trial court denied respondents' motion and gave petitioner a grace period of 10 days within which t file its answer. As petitioner still failed to comply, respondents again moved to declare petitioner in default. The motion was set for hearing on September 30, 1991, but, as petitioner's counsel failed to appear, the trial court declared petitioner in default and authorized the reception of evidence for respondents ex parte. On December 18, 1991, the trial court rendered judgment by default and ordered petitioner to comply with its obligation under the agreements and to pay respondents P20,000.00, as attorney's fees, and the costs.
Petitioner filed a notice of appeal, but its appeal was dismissed by the Court of Appeals for its failure to file the appellant's brief. The resolution dismissing the appeal became final and executory on March 27, 1993.
On November 16, 1993, the trial court granted respondents' motion for issuance of a writ of execution. Petitioner moved to recall the writ, but its motion was denied by the trial court. Petitioner's motion to vacate the trial court's decision was likewise denied by the RTC.
On April 6, 1999, upon respondents' motion, the trial Court issued an alias writ of execution. Petitioner moved to quash the alias writ, but its motion was denied for lack of merit by the trial court in its order dated August 12, 1999.
Petitioner then filed a petition for certiorari under Rule 65. Its petition was dismissed, as was its motion for reconsideration. The Court of Appeals found the verification and the certification on non-forum shopping in the petition defective because the basis of the authority of the person signing the same on behalf of petitioner was not established. On the merits, the Court of Appeals held that the trial court did not gravely abuse its discretion in denying petitioner's motion to quash the alias writ of execution.
Hence this petition.
First. Petitioner contends that the decision of the trial court is void because it has no jurisdiction over the subject matter of the case as the case involves a complaint for specific performance filed by a lot buyer against the seller of a subdivision lot. Petitioner argues that, in dismissing its special civil action of certiorari, the appellate court committed reversible error.
It is true that a special civil action of certiorari may be filed to question the jurisdiction of any court, tribunal, or board exercising judicial or quasi-judicial functions. However, a prime specification of this extraordinary legal remedy is that there is no appeal nor any other adequate remedy in the ordinary course of law. (Rule 65, �1 of the 1997 Rules of Civil Procedure) In this case, petitioner's remedy was appeal, but its appeal was dismissed because of its failure to file its appellant's brief. The dismissal of its appeal is now final. Hence, the execution of the decision of the trial court. It is clear that, in filing a special civil action of certiorari, petitioner is making use of this writ as a substitute for appeal. This of course could not be done, and the Court of Appeals committed no reversible error in dismissing petitioner's action.
Second. Petitioner contends that the Court of Appeals erred in upholding the trial court's issuance of an alias writ of execution considering that respondents filed their motion only on March 22, 1999, which was more than five years from March 27, 1993 when the RTC's decision became final and executory.
However, as the trial court correctly pointed out in its order dated August 12, 1999:
In the instant case, the decision sought to be enforced became final and executory on March 27. 1993. Plaintiffs filed the Motion For the Issuance of the Writ on November 10, 1993. So from March 27, 1993 to November 10, 1993, 228 days had already been consumed. The Order of execution was granted on November 16, 1993. However, a motion to recall writ was filed on November 29, 1993 and several other motions were filed thereafter and the same were resolved only on November 13. 1995 (Records, p. 107). The running of remaining period from the 5-year period will start on November 13, 1995 until another motion for issuance of alias writ was filed on March 25, 1999. From November 13, 1995 to March 25, 1999, 3 years and 142 days had been consumed. Even adding the 228 days, still the motion was filed well within 5-year period. The period when the motion for the recall of the writ was filed up to its resolution must be subtracted from the 5-year period. (Casela v. CA, 35 SCRA 279; RP v. CA, 260 SCRA 344).
WHEREFORE, the petition is DENIED for lack of showing that the Court of Appeals committed any reversible error.
Very truly yours,
(Sgd.) TOMASITA B. MAGAY-DRIS
Clerk of Court�
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