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[G.R. No. 141984. July 10, 2000]

DIVINA P. PANAGUITON vs. THE HON. COURT OF APPEALS et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 10 2000.

G.R. No. 141984. (Divina P. Panaguiton vs. The Hon. Court of Appeals, et al.)

Petitioner Divina P. Panaguiton filed a complaint for ejectment against respondent Nerissa M. Ona in the Metropolitan Trial Court, Quezon City which, on September 28, 1988, rendered judgment in her favor and ordered respondent to vacate the property subject matter of the action.

Respondent appealed to the Regional Trial Court. Her case was raffled to Branch 105, presided over by Judge Benedicto B. Ulep. On December 11, 1998 she received a copy of the notice to file memorandum. On December 24, 1998, she filed a motion for an extension of twenty (20) days from December 26, 1998 within which to file her memorandum, and on January 14, 1999, she filed her appeal memorandum. However, Judge Ulep denied respondent's motion for extension on the ground that it was filed out of time. She moved for a reconsideration, pointing out that her motion for extension was filed within fifteen (15) days from receipt of the notice to file appeal memorandum. In his order, dated March 9, 1999, Judge Ulep acknowledged that respondent had indeed filed her motion for extension on time. However, he held that an extension period of more than fifteen (15) days could not be granted.

Respondent, therefore, filed a petition for certiorari in the Court of Appeals which, on January 20, 2000, set aside the challenged orders. The appellate court held that �7(b) of Rule 40 is silent with regard to the allowable period for extension of time to file an appeal memorandum. Hence, the determination of the period of extension rests in the sound discretion of the trial court. It then went on to say that the court abused that discretion considering that only one motion for extension was filed and the appeal memorandum was in fact filed before the extended period asked by respondent expired.

Hence this petition for review.

Petitioner contends that the Court of Appeals erred in giving due course to respondent's petition for certiorari, the remedy of the latter being an appeal from the orders of the trial court. She argues that it was within the trial court's discretion whether to extend the period to file the memorandum required of respondent.

The petition has no merit.

Rule 41, �1(d) clearly provides that no appeal may be taken from an order disallowing or dismissing an appeal. On the other hand, Rule 65, �7 states that when a tribunal, board or officer exercising judicial or quasi judicial function has acted without or in excess of its jurisdiction or with grave abuse of its discretion and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a party may file a petition for certiorari. The filing of a petition for certiorari in the Court of Appeals was appropriate. Not only was there no appeal available to respondent; it was also a grave abuse of discretion on the part of the trial court to rule that an extension of only 15 days could be allowed for filing an appeal memorandum. Rule 40, �7 provides:

Procedure in the Regional Trial Court.

(a) Upon receipt of the complete record or the record on appeal, the clerk of court of the Regional Trial Court shall notify the parties of such fact.

(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. Within fifteen (15) days from receipt of the appellant's memorandum, the appellee may file his memorandum. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal.

(c) Upon the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall be considered submitted for decision. The Regional Trial Court shall decide the case on the basis of the entire record of the proceedings had in the court of origin and such memoranda as are filed.

The trial court construed �7(b) as limiting its power to grant extension to only fifteen (15) days; however, as correctly pointed out by the Court of Appeals, there is nothing in this particular rule which limits the allowable period for extensions. Any intimation that respondent was merely using said period to delay the proceedings is belied by the fact that she only asked for an extension once and that her appeal memorandum was in fact filed before the lapse of the extended period she asked for.

WHEREFORE, the petition is DENIED for lack of merit.

Very truly yours,

(Sgd.) TOMASITA B. MAGAY-DRIS

Clerk of Court

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