SANAO vs. CA

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated SEP 29 2004 .

R E S O L U T I O N

G.R. No. 163941 (Amado A. Sanao vs. Court of Appeals, et al.)

Before the Court is the petition for certiorari under Rule 65 of the Rules of Court filed by Amado A. Sanao, seeking to set aside for having been rendered with grave abuse of discretion the Resolution ^[1] cralaw dated November 14, 2003 of the Court of Appeals in CA-G.R. CV No. 77891 denying the petitioner's application for writ of preliminary injunction. Likewise sought to be set aside is the appellate court's Resolution dated April 19, 2004, denying the petitioner's motion for reconsideration.

The case stemmed from the application for preliminary injunction, temporary restraining order and damages filed by petitioner Amado Sanao with the Court of Appeals (CA) which sought to enjoin the implementation of the Writ of Execution dated March 13, 2002 issued by the Regional Trial Court, Naga City, Branch 27 in the consolidated Civil Cases Nos. RTC-88-1506 and RTC-90-2218. The two cases involved the same subject matter (subject lot), parties and causes of actions. The complainants therein sought the nullification of the two deeds of sale covering the subject lot. The writ of execution stated in part:

. . .

WHEREAS, on 29 November 1999, the Court of Appeals in C.A. G.R. CV No. 52769 which is the appeal of the above cases in its joint judgment has rendered the following dispositive portion, to wit:

"WHEREFORE, the foregoing premises considered, judgment is hereby rendered declaring the Deeds of Absolute Sale dated 15 April 1975 and 10 March 1982 and the Deed of Sale with Real Estate Mortgage dated 09 August 1990 as null and void. Accordingly, Transfer Certificates of Title Nos. 17746, 17747 and 13402 issued in the name of Raul Santos and TCT No. 20747 in the name of Amado Sanao arc ordered cancelled and new titles corresponding thereto be issued in the name of the heirs of Irene P. Mariano.

Furthermore, defendants-appellees are ordered to pay plaintiffs-appellants the sum of One Hundred Thousand Pesos (P100,000.00) as moral damages and Fifty Thousand Pesos (P50,000.00) as attorney's fees.

Likewise, plaintiff-appellant Erlinda M. Villanueva is ordered to pay intervenor-appellant Law Firm of San Buenaventura Moraleda Obias and Yambao the amount of Fifty Thousand Pesos (P50,000.00) as attorney's fees.

x x x x

SO ORDERED.

WHEREAS, on 12 March 2002, this court granted the Motion for Execution filed by the plaintiffs.

WHEREAS, the aforesaid judgment is now final and executory. ^[2] cralaw

Subsequent to the writ of execution, the RTC issued the Notice to Vacate dated July 7, 2003, expressly directing petitioner Sanao or his authorized representative to vacate, within five days from notice, the subject lot situated in Panganiban Avenue , Naga City .

In his application for preliminary injunction, temporary restraining order and damages, the petitioner alleged that Sheriff Herberto R. Benito, of the said RTC and Atty. Manuel Rosales, counsel for the Heirs of Jose P. Mariano, plaintiffs in Civil Cases Nos. RTC-88-1506 and RTC-90-2218, and other unidentified men, entered the subject lot and the improvements thereon consisting of a Caltex gasoline station, an office and a two-storey residential house, through force, stealth and strategy, and without notice to the petitioner. Sheriff Benito, together with his companions, then proceeded to erect a perimeter fence around the subject lot preventing the ingress and egress of the petitioner's family and their employees. The petitioner alleged that the case was still pending appeal and prayed that a writ of injunction be issued to enjoin the sheriff and/or his representatives from their acts of dispossessing the petitioner of the subject lot and the improvements thereon.

In the assailed Resolution dated November 14, 2003, the appellate court denied the petitioner's application for preliminary injunction, temporary restraining order and damages holding that he failed to show that he had a clear right to the subject lot and that the acts sought to be enjoined are violative of such right. The CA explained that the petitioner's title to the subject lot (TCT No. 20747) had already been declared null and void in the Decision ^[3] cralaw dated November 29, 1999 of the former Special Tenth Division of the Court of Appeals, which decision, upon appeal to the Supreme Court in G.R. No. 144325, was affirmed and became final and executory with an entry of judgment on June 5, 2001. ^[4] cralaw

The petitioner filed a motion for reconsideration of the said resolution but the appellate court, in the assailed Resolution dated April 19, 2004, denied the same.

The petitioner now comes to this Court by way of a petition for certiorari alleging that the conclusions of the CA in its decision in CA-G.R. CV No. 52769 declaring as null and void the petitioner's title to the subject property had already become final and executory and, consequently it could not restrain the Notice to Vacate dated July 7, 2003, are contrary to law and jurisprudence. The petitioner claims that said decision is null and void as he was not impleaded as party-defendant in Civil Cases Nos. RTC-88-1506 and RTC-90-2218. Being null and void, the CA decision in CA-G.R. CV No 52769 may be allegedly assailed or impugned at anytime, either directly or collaterally, by means of separate action, or by resisting them in any action or proceeding. The petitioner, likewise, avers that, contrary to the conclusion of the CA, he is still in possession of the subject property.

The petition must be dismissed.

The filing of the instant petition for certiorari under Rule 65 of the Rules of Court is inappropriate. Generally, a petition for certiorari, or special civil action for certiorari, will not lie where the remedy of appeal is available to the aggrieved party. ^[5] cralaw A perusal of the petition in this case shows that the grounds relied upon by the petitioner for its allowance pertain to supposed erroneous conclusions made by the CA. Its conclusions are allegedly contrary to law and jurisprudence. The proper recourse of the petitioner would have been to file with this Court an appeal by certiorari or a petition for review on certiorari under Rule 45 of the Rules of Court. ^[6] cralaw Indeed, the said remedy is proper where the issue or question involved affects the wisdom or legal soundness of the decision. ^[7] cralaw On the other hand, if the error, subject of recourse is one of jurisdiction, or the act complained of was perpetrated by a quasi-judicial officer or agency with grave abuse of discretion, amounting to lack or excess of jurisdiction, the proper remedy of the aggrieved party is a petition for certiorari under Rule 65 of the Rules of Court. ^[8] cralaw

As the petition in this case assails the alleged errors of judgment made by the CA in denying the application for preliminary injunction, not its jurisdiction to render the assailed resolution - the same is beyond the province of a special civil action for certiorari.

From the averments of material dates, it appears that the petitioner resorted to the remedy of certiorari under Rule 65 as a substitute for a lost appeal. The CA promulgated the assailed Resolution on November 14, 2003 , a copy of which was received by the petitioner on December 3, 2003 . ^[9] cralaw He filed a motion for reconsideration thereof on December 18, 2003, but the CA denied the same in the assailed Resolution of April 19, 2004, a copy of which was received by the petitioner on April 28, 2004. ^[10] cralaw As earlier opined, his remedy would have been to file with this Court a petition for review on certiorari under Rule 45, and, reckoning the fifteen (15)-day period to file the same from receipt of the resolution denying his motion for reconsideration, the petitioner had until May 13, 2004 to file a petition for review on certiorari before this Court. Instead, he filed the instant petition for certiorari on June 28, 2004 , more than a month after the lapse of the reglementary period within which to file a petition for review on certiorari.

Evidently, the petitioner resorted to this special civil action of certiorari after failing to appeal within the fifteen-day reglementary period. This cannot be countenanced. The special civil action of certiorari cannot be used as a substitute for an appeal which the petitioner already lost. ^[11] cralaw Certiorari lies only where there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law. ^[12] cralaw There is no reason why the issues raised in the petition, whether the conclusions of the CA, which were made the basis for the denial of the petitioner's application for preliminary injunction, are contrary to law and jurisprudence, could not have been raised by him on appeal or in a petition for review. ^[13] cralaw

Admittedly, this Court, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, has the discretion to treat a petition for certiorari as having been filed under Rule 45, especially if tiled within the reglementary period for filing a petition for review. ^[14] cralaw In this case, however, the Court finds no reason to justify a liberal application of the rules. The petition was filed well beyond the reglementary period to file a petition for review without any reason therefor. ^[15] cralaw By reason of this omission, or for failure to seasonably file the same, the assailed resolution of the CA had become, in the meantime, final and executory, beyond the purview of this Court to act upon. ^[16] cralaw

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.

Very truly yours,

LUDICHI YASAY-NUNAG

Clerk of Court

By:

(Sgd.) MA. LUISA L. LAUREA

Asst. Clerk of Court