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[G.R. No.144165.� August 17, 2005]
CBC vs. SOLIS
THIRD DIVISION
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this Court dated AUG 17 2005.
G.R. No. 144165 (CHINA BANKING CORPORATION vs. NATHANIEL SOLIS.)
This petition seeks the nullification and reversal of the resolutions of the Court of Appeals (CA) dated April 28, 2000 and May 12, 2000 in CA-G.R. No. 58129. The resolution [1] cralaw dated April 28, 2000 read as follows:
Petitioner's "Urgent Motion for Extension of Time to File Petition for Certiorari" under Rule 65 of the 1997 Rules of Civil Procedure is hereby denied for lack of merit. As alleged by the Petitioner, it had until April 9, 2000 from its receipt of the Order of the Public Respondent within which to file its "Petition for Certiorari". However, the Petitioner failed to file its "Petition" within the reglementary period therefore. Petitioner's plea for an extension until April 24, 2000 within which to file its "Petition" is anchored only on the ground that the Petitioner's counsel, Atty. Ma. Erlinda R. Calangi, in the following weeks, had to leave to attend to some equally important business matters is untenable. The Petitioner is represented by the law firm "LIM VIGILA ALCALA DUMLAO & ORENCIA". Irrefragably, any of the partners in the Law Firm can very well prepare a simple "Petition for Certiorari" within the sixty-day period provided for under Rule 65 of the 1997 Rules of Civil Procedure. [2] cralaw
The resolution [3] cralaw dated May 12, 2000, on the other hand, read:
The petition for certiorari and prohibition filed on April 24, 2000 is merely NOTED in view of the resolution dated April 28, 2000 which denied petitioner's motion for extension of time to file said petition.
The factual antecedents follow.
Petitioner China Banking Corporation (the bank) is a banking corporation duly organized and existing under the laws of the Philippines. Respondent Nathaniel Solis (Solis) was an officer of the bank which was the registered owner of a motor vehicle over which it had a contract of lease with Solis. The possession of the motor vehicle was entrusted to the latter, subject to the terms and conditions stated in the lease agreement. The parties stipulated that in case Solis was separated or removed from office for cause as provided for by law or by the regulations of the bank, the contract of lease would automatically be considered rescinded and the bank could take immediate possession of the vehicle, with Solis losing all his rights and privileges under the contract.
The bank terminated Solis for cause and, by reason thereof, formally demanded the return of the vehicle. Solis, however, refused to return it. [4] cralaw
On May 7, 1996, the bank filed a complaint for replevin and damages in the Regional Trial Court of Makati City. Upon the ex parte application of the bank, the trial court issued a writ of seizure, after which Solis surrendered the motor vehicle to the sheriff. [5] cralaw In his answer with counterclaim, Solis stated that he was the beneficial owner of the subject motor vehicle and that the true agreement of the parties was a lease-purchase agreement. He claimed that he had assailed the validity of his separation from employment before the National Labor Relations Commission but, despite earnest efforts to reach a workable solution with respect to the car plan, the bank opted to file the action precipitately. He contended that he was entitled to use the motor vehicle until the issue of his employment status was settled. [6] cralaw
On July 2, 1997, the trial court issued an order dismissing the case for failure of the bank to prosecute for an unreasonable length of time. [7] cralaw In a motion to return property subject of the writ of seizure filed on July 2, 1999, [8] cralaw Solis sought the return of the motor vehicle to him. This was granted by the trial court which also denied the bank's motion for reconsideration.
On April 5, 2000, the bank filed an urgent motion asking the Court of Appeals for an extension of 15 days from April 9, 2000 or until April 24, 2000 within which to file its petition for certiorari under Rule 65 of the Rules of Court. [9] cralaw It thereafter filed its petition for certiorari and prohibition on April 24, 2000. However, in a resolution promulgated on April 28, 2000, the CA denied the bank's motion for extension. Consequently, in a resolution dated May 12, 2000, the CA merely "noted" the petition filed by the bank in view of its April 28, 2000 resolution. The bank moved for a reconsideration of both resolutions but this too was denied by the CA.
At this point, we need not dwell on the grounds relied upon by the bank in filing this petition. From the facts narrated, it is clear that after the trial court dismissed the case for failure of the bank to prosecute for an unreasonable length of time and ordered the return of the vehicle to Solis upon motion of the latter, the bank's proper remedy was to file an ordinary appeal with the CA under Rule 41 of the Rules of Court and not a petition for certiorari and prohibition under Rule 65.
Section 3 of Rule 17 [10] cralaw states that the dismissal of an action for failure to prosecute for an unreasonable length of time shall have the effect of an adjudication on the merits, unless otherwise provided by the court. Such order of dismissal is a final order inasmuch as it is an adjudication on the merits of the case and dismisses the bank's action. [11] cralaw The return of the vehicle to Solis was a mere consequence of the dismissal of the replevin case. Thus, the bank should have appealed to the CA via ordinary appeal under Rule 41, Section 2.
Certiorari generally lies only when there is no appeal or other plain, speedy or adequate remedy available. Here, appeal was available but the bank instead filed a special civil action of certiorari. As we held in Fajardo v. Bautista: [12] cralaw
Generally, an order of dismissal, whether right or wrong, is a final order, and hence a proper subject of appeal, not certiorari. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. Accordingly, although the special civil action of certiorari is not proper when an ordinary appeal is available, it may be granted where it is shown that the appeal would be inadequate, slow, insufficient, and will not promptly relieve a party from the injurious effects of the order complained of, or where appeal is inadequate and ineffectual. Nevertheless, certiorari cannot be a substitute for the lost or lapsed remedy of appeal, where such loss is occasioned by the petitioner's own neglect or error in the choice of remedies. [13] cralaw
WHEREFORE, in view of the foregoing, the instant petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
Garcia, J., no part.
Very truly yours,
(Sgd.) LUCITA ABJELINA-SORIANO
Clerk of Court
Endnotes:
[1] cralaw Penned by Associate Justice Romeo J. Callejo, Sr. (now Associate Justice of the Supreme Court) and concurred in by Associate Justices Cancio C. Garcia (now Associate Justice of the Supreme Court) and Martin S. Villarama, Jr. of the Second Division.
[2] cralaw Rollo, p. 8.
[3] cralaw Annex "C," Rollo, p. 10.
[4] cralaw Petitioner's Complaint, Rollo, pp. 37-38.
[5] cralaw Petitioner's Memorandum, Rollo, p. 261.
[6] cralaw Respondent's Memorandum, Rollo, p. 276.
[7] cralaw Rollo, p. 54.
[8] cralaw This was incorporated in respondent's motion for reconsideration of the order of the trial court denying respondent's motion to set counterclaim for hearing.
[9] cralaw Rollo, p. 166. Petitioner received the order of the trial court on November 3, 1999. It filed a motion for reconsideration on November 12, 1999 so 9 days of the 60-day period was used. The Rules of Court, before it was amended in 2000, stated that the filing of motion for reconsideration interrupts the 60-day period. Thus, after the motion was denied on February 18, 2000, petitioner had 51 days to file the petition for certiorari with the CA. The period ended on April 9, 2000.
[10] cralaw Sec. 3. Failure to prosecute. - If plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court's own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by the court. (emphasis supplied)
[11] cralaw See Vergara v. Intermediate Appellate Court, G.R. No. 74998, 7 May 1990, 185 SCRA 29, 32.
[12] cralaw G.R. Nos. 102193-97, 10 May 1994, 232 SCRA 291.
[13] cralaw Id., p. 298. See also Sps.Zarate v. Maybank Philippines, Inc., June 8, 2005, G.R. No. 160976.
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