EN BANC
[G.R. No. 145911.
ANDY QUELNAN, petitioner,
vs. VHF PHILIPPINES, INC. and VICENTE T. TAN, respondents.
D E C I S I O N
CARPIO-MORALES, J.:
The present Petition for Review on Certiorari seeks the reversal of the Decision[1] of the Court of Appeals denying the petition for mandamus of Andy Quelnan (petitioner) to compel the trial court to reinstate and implement its Order of April 10, 1997[2] giving due course to his Notice of Appeal.
Gathered from the records of the case are the following antecedents:
Petitioner claimed to have purchased in 1989 from respondents VHF
Philippines, Inc. (VHF) and Vicente Tan, principal stockholder and President of
VHF, Unit 15-0 at the Legaspi Tower Condominium, Roxas Boulevard, P270,000.00)
pesos. He also claimed that instead of
returning the overpayment to him, he and respondents verbally agreed
that he purchase another unit, Unit 20-G, at the condominium for P3,250,000.00
from which the overpaid amount of P270,000.00 would be debited, thereby
leaving a balance of P2,980,000.00 which he would pay “before the end of
June, 1991 without any interest thereon”; that he immediately took possession
of Unit 20-G, making several payments therefor; and that in May 1991 when he
offered to settle his remaining balance, he was informed that Unit 20-G was
mortgaged in favor of Philippine Trust Company and that he was being charged by
respondents the interest and penalties due on the mortgage obligation.[3]
VHF on the other hand claimed that it merely leased Unit 20-G to
petitioner at a monthly rental of P25,500.00 plus P1,500.00 for a
parking space; and that since petitioner failed to pay rentals, they filed an
ejectment complaint against him at the Metropolitan Trial Court of Manila
(MeTC).
Petitioner failed to file his answer to said ejectment complaint
following which, after respondents presented documentary evidence as required
by the MeTC, a
Close to two years later or on
After respondents filed their Answer[6] on
The pre-trial scheduled on
On
During the scheduled pre-trial on
Petitioner’s counsel having in the meantime learned of the trial
court’s open court dismissal of the complaint, he, without awaiting the written
January 17, 1997 Order, filed on January 24, 1997 a Manifestation and Ex-Parte
Motion[9] to
set aside the said order, invoking honest mistake or oversight amounting to
excusable negligence — that he overlooked to transfer from his 1996 diary the
entry regarding the scheduled pre-trial conference on January 17, 1997 to his`
1997 diary. The motion was, however,
denied by Order of
On
On February 24, 1997, petitioner filed an Omnibus Motion[12] reiterating the grounds he set forth in his Manifestation and Ex-Parte Motion filed on January 24, 1997, which Omnibus Motion was denied by Order of March 12, 1997,[13] copy of which order was received by petitioner’s counsel on March 19, 1997.
On
By Order of
Holding that the Notice of Appeal was filed out of time, the
trial court, by Order of
While the petition before the Court of Appeals was captioned as one for mandamus, the said court, in line with the ruling of this Court that the allegations of the complaint or petition and the nature of the relief sought determine the nature of the action, treated it as one for certiorari as, in essence, the petition alleged grave abuse of discretion on the part of the trial court in denying due course to petitioner’s Notice of Appeal.
By the assailed Decision,[21] the Court of Appeals denied the petition on the ground that the March 12, 1997 Order of the trial court denying petitioner’s Omnibus Motion is not appealable, and the January 17, 1997 Order, which should have been, but was not appealed, had thus become final and executory.
Hence, the present petition.
Petitioner maintains that mandamus was the proper remedy in the instant case, and that his Notice of Appeal was seasonably filed.
Mandamus will lie to compel the performance of a ministerial duty, not a discretionary duty,[22] and petitioner must show that he has a well defined, clear and certain right to warrant the grant thereof.[23]
The timeliness of the filing of a notice of appeal determines whether the trial court’s giving due course to it is ministerial.
If the notice of appeal is filed within the reglementary period, it becomes the ministerial duty of the trial court to give it due course.[24] If not, the trial court cannot be compelled by mandamus to do so.[25]
Petitioner’s counsel received the
When petitioner’s counsel received then on
Since petitioner filed the Notice of Appeal on
The appellate court noted, however, that since it was the
Order of
In Republic v. Court of Appeals,[27] this Court, in dismissing a petition for review of a resolution of the Court of Appeals dismissing therein petitioner’s appeal from an order of a Regional Trial Court dismissing his complaint, gave three reasons therefor, the third of which reads:
There is another reason why review of the trial court’s order
cannot be made. Petitioner does not
dispute the fact that, as observed by the Court of Appeals, its notice of appeal referred only to the
order of the trial court denying its Motion for Reconsideration and not the
order of dismissal of its complaint as well.
Such failure is fatal.
Rule 37, §9 of the Rules of Civil Procedure provides that an order denying
a motion for reconsideration is not appealable, the remedy being an appeal from
the judgment or final order. On the
other hand, Rule 41, §1(a) of the same rules also provides that no appeal
maybe taken from an order denying a motion for reconsideration. It is true the present Rules of Civil
Procedure took effect only on July 1, 1997 whereas this case involves an appeal
taken in February 1995. But Rule 37, § 9 and Rule 41, §1(a) simply
codified the rulings in several cases to the effect that an order denying a
motion for reconsideration is interlocutory in nature and, therefore is not
appealable. These rules, therefore, are not really new.
The outcome of this petition may be a bitter lesson for petitioner, but one mainly of its own doing. Not only did it file its notice of appeal well beyond the reglementary period, it actually failed to appeal from the order dismissing its case against private respondent. The inevitable consequence of such grave inadvertence is to render the trial court’s decision dismissing its case final and executory. The Court of Appeals thus acted properly in dismissing petitioner’s appeal.[28] (Italics, emphasis and underscoring supplied)
As stated in above-quoted portion of the decision in Republic, Rule 37, Section 9 of the Rules of Civil Procedure which reads:
SEC. 9. Remedy against order denying a motion for new trial or reconsideration. – An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order. (Emphasis supplied)
and Rule 41, Section 1(a) of the same Rules which reads:
SEC 1. Subject of appeal. – An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No order may be taken from:
(a) an order denying a motion for new trial or reconsideration;
x x x
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65; (Emphasis supplied)
were invoked to bar the appeal in above-said case, the therein notice of appeal having “referred only to the order of the trial court denying its Motion for Reconsideration and not the order of dismissal of the complaint as well.”
From a considered re-examination of the immediately-quoted rules, this Court finds that the proscription against appealing from an order denying a motion for reconsideration refers to an interlocutory order, and not to a final order or judgment. That that was the intention of the above-quoted rules is gathered from Pagtakhan v. CIR, 39 SCRA 455 (1971), cited in above-quoted portion of the decision in Republic, in which this Court held that an order denying a motion to dismiss an action is interlocutory, hence, not appealable.
The rationale behind the rule proscribing the remedy of appeal from an interlocutory order is to prevent undue delay, useless appeals and undue inconvenience to the appealing party by having to assail orders as they are promulgated by the court, when they can be contested in a single appeal.[29] The appropriate remedy is thus for the party to wait for the final judgment or order and assign such interlocutory order as an error of the court on appeal.
The denial of the motion for reconsideration of an order of dismissal of a complaint is not an interlocutory order, however, but a final order as it puts an end to the particular matter resolved, or settles definitely the matter therein disposed of, and nothing is left for the trial court to do other than to execute the order.
Not being an interlocutory order, an order denying a motion for reconsideration of an order of dismissal of a complaint is effectively an appeal of the order of dismissal itself.
The reference by petitioner, in his notice of appeal, to the
If the proscription against appealing an order denying a motion for reconsideration is applied to any order, then there would have been no need to specifically mention in both above-quoted sections of the Rules “final orders or judgments” as subject of appeal. In other words, from the entire provisions of Rules 39 and 41, there can be no mistaking that what is proscribed is to appeal from a denial of a motion for reconsideration of an interlocutory order.
Technicality aside, on the merits, petitioner’s case just the same fails.
The alleged failure of petitioner’s counsel to record the scheduled pre-trial in his 1997 diary to justify his absence at the pre-trial cannot amount to excusable negligence. To constitute excusable negligence, the absence must be due to petitioner’s counsel’s failure to take the proper steps at the proper time, not in consequence of his carelessness, inattention or willful disregard of the process of the court, but in consequence of some unexpected or unavoidable hindrance or accident.[30]
Petitioner’s counsel’s failure to record the date of pre-trial in his 1997 diary reflects his carelessness, his failure to heed his responsibility of not neglecting a legal matter entrusted to him,[31] especially given the fact that he was given a Special Power of Attorney to represent petitioner in the pre-trial and trial of the case and that the repeated resettings of the pre-trial for a period of 1 year and more than 10 months had unduly prolonged the disposition of petitioner’s complaint which was filed in 1994 yet.
Petitioner’s counsel must know that pre-trial is mandatory.[32] Being mandatory, the trial court has discretion to declare a party non-suited.[33] Absent a showing of grave abuse in the trial court’s exercise thereof, as in the case at bar, appellate courts will not interfere.
WHEREFORE, the petition is, in light of the foregoing discussions, hereby DENIED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Panganiban, J., no part. Former counsel of a party.
[1] In CA-G.R. No. SP 45815.
[2] Records of the Regional Trial Court at 147.
[3] Rollo at 45-47.
[4]
[5]
[6] Records at 35-39.
[7]
Minutes of the
[8]
Vide Registry return receipts
stapled to the dorsal side of the original of said Order of
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20] CA Rollo at 1-17.
[21] Rollo at 18-23.
[22] Angchangco Jr. v. Ombudsman, 268 SCRA 301 (1997).
[23] Sales v. Mathay Sr., 129 SCRA 180 (1984).
[24] Mateo v. Court of Appeals, 196 SCRA 280 (1991).
[25] Vda. De Crisologo v. Court of Appeals, 137 SCRA 231 (1985).
[26] Rule 41, Sec. 3, 1964 Revised Rules of Court, as amended by B.P. 129 (The Judiciary Reorganization Act of 1980), which is reiterated under the same Rule and Section in the 1997 Rules of Civil Procedure.
[27] Republic v. Court of Appeals, 322 SCRA 81 (2000).
[28]
[29] Cheesman v. Intermediate Appellate Court, 193 SCRA 102 (1991).
[30] Black’s Law Dictionary, 6th ed., at 566 (1991).
[31] Canon 18, Rule 18.03 of the Code of Professional Responsibility.
[32] Section 1, Rule 20 of the 1964 Rules of Court, which was in effect during the proceedings in the trial court.
[33] American Insurance Company v. Republic, 21 SCRA 464 (1967).