Lopez vs. Court of Appeals

A petition for certiorari under Rule 65 cannot substitute for a petition for review on certiorari under Rule 45 to assail final resolutions of the CA; a motion for reconsideration that lacks proof of service and material dates is a mere scrap of paper that does not toll the reglementary period.

Cherry Pie Lopez and Alberto Lopez a.k.a. Cesar A. Lopez were the parties in a marriage nullity case before the RTC of Malabon, Civil Case No. 3023-MN. The present petition concerns the procedural route for challenging the CA's resolutions in that case and the effect of a defective motion for reconsideration on the period to seek review.

Cherry Pie Lopez and Alberto Lopez a.k.a. Cesar A. Lopez were the parties in Civil Case No. 3023-MN before the RTC of Malabon. On June 15, 2000, the RTC rendered a decision declaring the nullity of their marriage, and the decision became final and executory based on a certification dated January 5, 2001. Petitioner moved to reconsider the support aspect of the decision, but the RTC denied the motion by Order dated January 26, 2001.

On February 7, 2001, petitioner filed a Notice of Appeal. On February 8, 2001, the RTC, acting on the notice, gave the appeal due course and directed the transmittal of the records of the case to the CA "as soon as possible." On February 12, 2001, petitioner paid before the RTC a total of Sixty (P60.00) Pesos as docket fees, as shown by Official Receipt Nos. 12968987 and 13536702.

Because petitioner failed to pay the full amount of P520.00 docket fees, the CA, by Resolution dated March 19, 2001, dismissed his appeal. Petitioner filed a Motion for Reconsideration of the March 19, 2001 Resolution. The CA denied it by Resolution dated April 26, 2001 on the grounds that the motion did not contain an affidavit or proof of service and that it did not state on its face the material dates determinative of its timeliness. Petitioner filed a Motion for Reconsideration of the April 26, 2001 Resolution, which the CA denied by Resolution dated June 8, 2001 on the ground that no second motion by the same party can be entertained.

Petitioner filed the present petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure on July 4, 2001, seeking to nullify the CA's March 19, 2001, April 26, 2001, and June 8, 2001 Resolutions in CA-G.R. CV No. 6014-UDK, Cherry Pie Lopez vs. Alberto Lopez a.k.a. Cesar Lopez.

• Proper Remedy: Whether a petition for certiorari under Rule 65 is the proper remedy to assail final resolutions of the CA, instead of a petition for review on certiorari under Rule 45.
• Timeliness: Whether the petition was filed within the 60-day period under Section 4, Rule 65, considering that petitioner's motion for reconsideration lacked an affidavit or proof of service and did not state the material dates determinative of its timeliness.

• Proper Remedy: No. A petition for certiorari under Rule 65 cannot assail final resolutions of the CA; the proper remedy is a petition for review on certiorari under Rule 45.
• Timeliness: No. The petition was filed out of time; the motion for reconsideration lacked proof of service and material dates, was a mere scrap of paper, and did not toll the 60-day period.

• Proper Remedy: The SC ruled that since petitioner assails final resolutions of the CA, he should have filed a petition for review on certiorari under Rule 45, instead of a petition for certiorari under Rule 65. On this score alone, the petition should be dismissed.
• Timeliness: Even if a Rule 65 petition were allowed in the greater interest of justice, the SC found it dismissable for having been filed out of time. Petitioner's motion for reconsideration of the March 19, 2001 Resolution did not contain an affidavit or proof of service as required by Section 6, Rule 15 of the Rules of Civil Procedure and did not state the material dates in order to determine its timeliness; it was therefore considered a mere scrap of paper and did not toll the running of the period. Petitioner did not even state when he received the March 19, 2001 Resolution, so it could not be determined when the reglementary period expired. Assuming he received the Resolution on the same date it was promulgated, he had 60 days, or until May 18, 2001, to file the present petition, but he filed it only on July 4, 2001.

• Rule 45 as the proper remedy for final CA resolutions — A petition for review on certiorari under Rule 45, not a petition for certiorari under Rule 65, is the proper remedy to assail final resolutions of the CA. The SC applied this by dismissing the Rule 65 petition on this ground alone.
• Mere scrap of paper rule — A motion for reconsideration that lacks an affidavit or proof of service as required by Section 6, Rule 15 and does not state the material dates determinative of its timeliness is a mere scrap of paper and does not toll the reglementary period. The SC applied this to petitioner's motion for reconsideration of the March 19, 2001 Resolution, making the July 4, 2001 petition late.
• Support judgment never becomes final — A judgment granting support never becomes final; the obligor may file a motion with the trial court for modification of the amount of support. The SC applied this by noting that despite the dismissal, petitioner could seek modification of the support he was adjudged to provide.

• "Since petitioner assails final resolutions of the Court of Appeals, he should have filed a petition for review on certiorari under Rule 45, instead of a petition for certiorari under Rule 65. On this score alone, the petition should be dismissed." — The SC dismisses the Rule 65 petition because the proper remedy against final CA resolutions is a Rule 45 petition.
• "As petitioner’s motion for reconsideration of the questioned March 19, 2001 Resolution of the appellate court did not contain an affidavit or proof of service as required by Section 6, Rule 15 of the Rules of Civil Procedure nor did it state the material dates in order to determine its timeliness, it is considered a mere scrap of paper, and did not thus toll the running of the period to file the motion." — The SC treats the defective motion for reconsideration as a mere scrap of paper that did not toll the period.
• "Assuming that petitioner received the March 19, 2001 Resolution on the same date it was promulgated, petitioner had 60 days or until May 18, 2001 to file the present petition. He filed it, however, only on July 4, 2001." — The SC computes the deadline from the earliest possible notice and concludes the petition was late.
• "For as what he seeks to assail is the amount of support he was adjudged to provide, he can file a motion with the trial court for its modification since a judgment granting support never becomes final." — The SC notes that the dismissal does not bar petitioner from seeking modification of support because a support judgment never becomes final.

• Cruz vs. Court of Appeals, 388 SCRA 72, 80-81 (2002) — Cited for the rule that a motion for reconsideration lacking an affidavit or proof of service and material dates is a mere scrap of paper and does not toll the reglementary period.

• Section 6, Rule 15, 1997 Rules of Civil Procedure — Requires a motion to contain an affidavit or proof of service; petitioner's motion for reconsideration lacked this requirement, so it was treated as a mere scrap of paper.
• Section 4, Rule 65, 1997 Rules of Civil Procedure — Requires a petition for certiorari to be filed not later than 60 days from notice of the judgment, order, or resolution; if a motion for reconsideration is timely filed, the 60-day period is counted from notice of the denial. The SC applied this by assuming notice on March 19, 2001, giving petitioner until May 18, 2001, and finding the July 4, 2001 petition late.
• Rule 45, 1997 Rules of Civil Procedure — The SC identified a petition for review on certiorari under Rule 45 as the proper remedy to assail final resolutions of the CA, not a Rule 65 petition.