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[ G.R. No. 140744. March 13, 2000]

LUIS U. URANZA, JR., vs. CA, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 13 2000.

G.R. No. 140744 (Luis U. Uranza, Jr., vs. Court of Appeals and Hon. Antonio M. Eugenio, Jr.)

This Court dismissed the instant petition by Resolution, dated 13 December 1999, on the ground that a petition for certiorari is not a substitute for a lost remedy or appeal. As a petition for review on certiorari, it would have to be denied for having been filed late since the reglementary period within which to file that petition and to pay the docket fees therefor expired on 23 October 1999, counsel for petitioner having received a copy of the resolution of the Court of Appeals denying petitioner's motion for reconsideration thereat on 08 October 1999.

Petitioner filed a motion for reconsideration of the 13th December Resolution arguing that the assailed order being interlocutory in nature is not appealable. This contention is utterly wanting in merit. It must be noted that the subject matter of the instant petition is the resolution of the Court of Appeals denying the petition for certiorari filed with said court. That resolution of the appellate court is a final order because it has finally disposed of said petition for certiorari, and nothing else is left to be resolved by the appellate court. The resolution being final in nature, the proper recourse to this Court should been via a petition for review on certiorari under Rule 45. A petition of that nature should have been filed within fifteen days from receipt of a copy of the denial of the petition by the Court of Appeals or from receipt of the denial of a motion for reconsideration (if one is filed) under Section 2, Rule 45, of the 1997 Rules of Civil Procedure, viz:

"Sec. 2. Time for filing; extension. - The petition shall be filed within fifteen (15) days form notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition.

"The provision for extension of time subject to full payment of docket fees is based on previous established procedure in the Supreme Court."

Thus, the petition filed with this Court n 02 December 1999, even if deemed to be a petition for review on certiorari, would have clearly been out of time, petitioner having received a copy of the denial of his motion for reconsideration on 08 October 1999.

A petition for certiorari with the Court would not have been an appropriate remedy, such a petition not being a valid substitute for lost appeal. At any rate, even if, to reiterate, the instant petition before the Court were to be treated as a petition for certiorari filed under Rule 65, as it ostensibly appears to be, the same should still have to be denied for being filed late. Petitioner received a copy of the assailed decision on 25 June 1999 and filed his motion for reconsideration on 7 July 1999. He received a copy of the denial of his motion for reconsideration on 08 October 1999 but filed the petition before this Court only on 02 December 1999. Section 4, Rule 65, prescribed how the 60-day reglementary period, is be applied.

"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 areas 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 on 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 petitions shall be granted except for the most compelling reasons and in no case to exceed fifteen (15) days."

Clearly, whether the petition falls under Rule 45 or under Rule 65, the same is dismissible for having been filed late. Parenthetically, while it may be true that some members of the Court might propose a re-examination of Rule 65, until any amendment thereto is formally adopted and approved by the Supreme Court, the ruled presently in force, however, must still govern.

Finally, attention must be called to Section 2 of Rule 52 -

"Sec. 2. Second motion for reconsideration. - No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.

in relation to Section 2 of Rule 56, which provides:

"Sec. 2. Rule applicable. - The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with the applicable provisions of the constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule, subject to the following provisions:

"a) All references in said Rules to the Court of Appeals shall be understood to also apply to the Supreme Court;

"b) The portions of said Rules dealing strictly with and specifically intended for appealed cases in the Court of Appeals shall not be applicable; and

"c) Eighteen (18) clearly legible copies of the petition shall be filed, together with proof of service on all adverse parties.

"The proceedings for disciplinary action against members of the judiciary shall be governed by the laws and Rules prescribed therefor, and those against attorneys by Rule 139-B, as amended."

ACCORDINGLY, the Court resolved to DENY for lack of merit the Motion for Reconsideration, dated 22 February 2000, filed by petitioner.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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