[REM REV] Rule 65 Certiorari - 77

CLAIRE MARCELO
ELMER CERVANTES v. CA CERVANTES FILED A MOTION FOR THE FORFEITURE OF THE
G.R. No. 166755 November 18, 2005| Ynares-Santiago, J. SHARE OF ANTONIO IN THE PROFITS OF THE CONJUGAL
PROPERTY  RTC DENIED
Respondents: CA, Hon. Norma Perello (Presiding Judge of RTC Petitioner filed a motion for the forfeiture of the share of the
Muntilupa), and Pilar Antonio private respondent in the net profits of the conjugal
properties in favor of the common children and to
FACTS adjudicate the Ayala Alabang residence to him pursuant to
Articles 40, 43 (2), 50 and 129 (9) of the Family Code.  RTC
CERVANTES FILED A PETITION FOR ANNULMENT OF DENIED on the grounds that the equal division of the conjugal
MARRIAGE AND CUSTODY OF MINOR CHILDREN BEFORE properties cannot be superseded inasmuch as the same had
THE RTC MUNTINLUPA  GRANTED already become final, affirmed by the Court of Appeals, and
The trial court resolved to grant the annulment of the the Supreme Court, without violating the fundamental rules of
marriage based on private respondents psychological procedure.
incapacity, award to petitioner the custody of the minor
children, and order the liquidation of the conjugal properties. CERVANTES CLARIFIED WHAT HE FILED  DENIED PA DIN
Petitioner filed a Manifestation and Motion clarifying that
ANTONIO FILED MR  GRANTED what he filed was a motion to forfeit the share of the private
Antonio filed a Motion for Reconsideration/New Trial and to respondent in the net profits of the conjugal properties and
Admit Answer which the trial court granted in an order dated not a motion to amend an order, and praying that the same
February 12, 1997. In addition, private respondent was motion be resolved by the trial court. August 27, 2004: RTC
awarded visitation rights over the minor children DENIED.1

CERVANTES FILED MR  GRANTED [IMPT] Instead of filing a motion for reconsideration,

Petitioner moved to reconsider the February 12, 1997 Order petitioner filed a petition for certiorari with the CA. 
which was granted by the trial court in the Order of October November 22, 2004: CA dismissed the petition outright
10, 1997. The trial court set aside the February 12, 1997 Order because no MR was filed.2  CA also denied the MR.
and affirmed the December 13, 1996 Resolution granting the
annulment of the marriage and directed the parties to submit HENCE THIS PETITION FOR REVIEW TO THE SC
an inventory of their conjugal assets. Cervantes: Filing a motion for reconsideration before
recourse to the special civil action of certiorari would be futile
RTC ORDERED THAT THE CONJUGAL ASSETS BE SOLD because the trial court had already ordered the execution of
private respondent submitted an inventory of conjugal assets the judgment, citing the case of Guevarra v. Court of Appeals.
which included their Ayala Alabang Village house and lot. He claims that the trial court was amply given opportunity to
Petitioner manifested that the conjugal abode be adjudicated correct itself when he filed the Manifestation and Motion
in his favor considering that he was awarded the custody of clarifying the August 2, 2004 Order.
the children while private respondent was adjudged to be the
party in bad faith. On August 4, 1999, The trial court ordered ISSUES
that the conjugal properties which include the conjugal
abode, certificate of stock and motor vehicle, should be sold
and the proceeds thereof be divided equally between the
parties.
1
Order of the RTC denying the motion:
This is a MANIFESTATION AND MOTION, which is unopposed.
ANTONIO: EXECUTION; CERVANTES: RECONSIDERATION 
RTC GRANTED THE MOTION FOR EXECUTION Evaluating the same, the Court did not find merit on the motion,
On October 20, 1999, respondent filed a motion for considering that the DECISION by this Court has long became final
execution of the August 4, 1999 resolution, while on and executory, and this Court has lost jurisdiction over the case. If it
November 18, 1999, petitioner prayed for its is the intention of the movant to forfeit the declared share of the
Plaintiff in the conjugal assets, he should file a new complaint for that
reconsideration. On March 15, 2000, the trial court declared purpose.
that the August 4, 1999 resolution has become final. A writ of
execution was accordingly issued on March 17, 2000. To grant the requested forfeiture thru this motion would in effect
reopen the case and the DECISION, which has long became final and
CERVANTES WENT TO THE CA  CA DISMISSED executory.
Cervantes filed a petition for certiorari before the CA  CA Therefore, the motion is denied.
dismissed the petition  CA also denied the MR
2
Order of the CA dismissing the petition:
CERVANTES WENT TO THE SC  SC 3RD DIVISION DENIED No motion for reconsideration to the assailed August 27, 2004 Order
was filed by petitioner before resorting to this petition. Furthermore,
THE PETITION
no explanation had been alleged to show that the assailed August 27,
Petitioner then elevated the case to the Supreme Court. 2004 Order is a final order as opposed to a mere interlocutory order.
However, the Third Division of the Supreme Court denied the There is no allegation and justification on why the filing of a motion
petition for lack of merit. for reconsideration was dispensed with.

WHEREFORE, premises considered, being insufficient in form and

substance, this petition is hereby DISMISSED outright.
 [REM REV] Rule 65 Certiorari - 77
CLAIRE MARCELO
Whether or not certiorari was proper remedy when Cervantes WRIT OF CERTIORARI IS A PREROGATIVE WRIT
haven’t filed an MR? NO. Must show reasons why mr was It must be emphasized that a writ of certiorari is a prerogative
not availed. writ, never demandable as a matter of right, never issued
except in the exercise of judicial discretion. Hence, he who
RULING seeks a writ of certiorari must apply for it only in the manner
and strictly in accordance with the provisions of the law and
PERTINENT PROVISION: the Rules. Petitioner may not arrogate to himself the
Sec. 1, Rule 65 Petition for certiorari. When any tribunal, board determination of whether a motion for reconsideration is
or officer exercising judicial or quasi-judicial functions has acted necessary or not. To dispense with the requirement of filing a
without or in excess of its or his jurisdiction, or with grave abuse motion for reconsideration, petitioner must show a concrete,
of discretion amounting to lack or excess of jurisdiction, compelling, and valid reason for doing so, which petitioner
and there is no appeal, nor any plain, speedy, and adequate failed to do.
remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging ALSOW, THE DECISION HAS LONG BEEN FINAL AND
the facts with certainty and praying that judgment be rendered EXECUTORY
annulling or modifying the proceedings of such tribunal, board or Even assuming that the petition for certiorari may be given
officer, and granting such incidental reliefs as law and justice may due course by the Court of Appeals despite failure to file a
require. x x x prior motion for reconsideration, still it is dismissible
considering the decision of the trial court has long become
THE P.S.A. REMEDY IS THE MR final and executory. As correctly ruled by the trial court, the
Flores v. Sangguniang Panlalawigan of Pampanga: The manifestation and motion to forfeit the share of the private
plain and adequate remedy referred to in the Sec. 1, Rule 65 respondent filed by the petitioner has the ultimate effect of
is a motion for reconsideration of the assailed Order or modifying the decision in regard to the liquidation of the
Resolution, the filing of which is an indispensable condition to conjugal properties.
the filing of a special civil action for certiorari, subject to
certain exceptions: Nothing is more settled in law than that when a final
(a) Where the order is a patent nullity, as where the court a judgment is executory, it thereby becomes immutable and
quo has no jurisdiction; unalterable. The only recognized exceptions are the
(b) Where the questions raised in the certiorari proceedings
corrections of clerical errors or the making of the so-
have been duly raised and passed upon by the lower
called nunc pro tunc entries, in which case no prejudice to any
court, or are the same as those raised and passed upon
in the lower court;
party, and, of course, where the judgment is void, none of
(c) Where there is an urgent necessity for the resolution of which is present in this case.
the question and any further delay would prejudice the
interests of the government or of the petitioner or the DISPOSITIVE PORTION
subject matter of the action is perishable; WHEREFORE, the petition is DENIED. The November 22,
(d) Where, under the circumstances, a motion for 2004 and January 13, 2005 Resolutions of the Court of
reconsideration would be useless; Appeals in CA-G.R. SP No. 87330, are AFFIRMED.
(e) Where petitioner was deprived of due process and there
is extreme urgency for relief;
(f) Where, in a criminal case, relief from an order of arrest is
urgent and the granting of such relief by the trial court is
improbable;
(g) Where the proceedings in the lower court are a nullity for
lack of due process;
(h) Where the proceedings was ex parte or in which the
petitioner had no opportunity to object; and
(i) Where the issue raised is one purely of law or public
interest is involved.

CERVANTES DID NOT SHOW JUSTIFIABLE REASON WHY DI

SYA UMAVAIL NG MR
Although we held in Guevarra that a motion for
reconsideration may be dispensed with in cases of urgency
like when the trial court had ordered the execution of the
judgment, this circumstance must be clearly shown by the
petitioner as a concrete, compelling and valid reason, and
not just leave it for the courts to ascertain.

Petitioner not only failed to explain his failure to file a motion

for reconsideration of the August 27, 2004 Order of the trial
court; he also failed to show sufficient justification for
dispensing with the requirement. Neither did he show that
the case falls under any of the above exceptions. It was only
in the motion for reconsideration of the November 22, 2004
Resolution of the Court of Appeals and in the instant petition
that he explained why he dispensed with the filing of prior
motion for reconsideration.