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[JENETTE MARIE B. CRISOLOGO v. GLOBE TELECOM INC.](https://lawyerly.ph/juris/view/ca551?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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DIVISION

[ GR NO. 167631, Dec 16, 2005 ]

JENETTE MARIE B. CRISOLOGO v. GLOBE TELECOM INC. +

RESOLUTION

514 Phil. 618

SECOND DIVISION

[ G.R. NO. 167631, December 16, 2005 ]

JENETTE MARIE B. CRISOLOGO, PETITIONER, VS. GLOBE TELECOM INC. AND CESAR M. MAUREAL, VICE PRESIDENT FOR HUMAN RESOURCES, RESPONDENTS.

RESOLUTION

AUSTRIA-MARTINEZ, J.:

Petitioner was an employee of respondent company. When she was promoted as Director of Corporate Affairs and Regulatory Matters, she became entitled to an executive car, and she procured a 1997 Toyota Camry. In April 2002, she was separated from the company. Petitioner filed a complaint for illegal dismissal and reinstatement with the National Labor Relations Commission (NLRC), which later dismissed the complaint. Petitioner filed, on August 12, 2004, a petition for certiorari with the Court of Appeals, docketed as CA-G.R. SP No. 85679 assailing the NLRC's dismissal.

Pending said petition, respondent company filed with the Regional Trial Court of Mandaluyong (Branch 213) an action for recovery of possession of a motor vehicle with application for a writ of replevin with damages, docketed as Civil Case No. MC04-2480. Petitioner filed a motion to dismiss on the ground of litis pendentia and forum shopping but this was denied by the trial court. Thus, petitioner filed a petition for certiorari with the Court of Appeals, docketed as CA-G.R. SP No. 85927.[1] Petitioner also filed with the Court of Appeals a motion for the issuance of a writ of prohibition to enjoin proceedings in the replevin case before the trial court.

Thereafter, respondent company filed a motion to declare defendant in default in Civil Case No. MC04-2480, which was granted by the trial court. Respondent company was thus allowed to present its evidence ex-parte. Petitioner filed a motion for reconsideration of the order of default but it was denied by the trial court. On April 5, 2005, the trial court rendered a judgment by default, the dispositive portion of which reads:
WHEREFORE, finding merit in all the foregoing uncontroverted facts supported by documentary exhibits, judgment is hereby rendered declaring plaintiff to have the right of possession over the subject motor vehicle and ordering defendant plaintiff to pay plaintiff the following:
  1. The amount of TWO MILLION FIVE HUNDRED FIFTY SIX THOUSAND FOUR HUNDRED SIXTY PESOS (p2,556,460.00) as damages in the form of unpaid daily car rental for 730 (From 15 August 2002 until 22 June 2004) days at THREE THOUSAND FIVE HUNDRED TWO PESOS (P3,502.00) per day;

  2. The sum of TWO HUNDRED THOUSAND PESOS (P200,000.00) AS AND BY WAY OF Attorney's fee;

  3. The sum of TWO HUNDRED THOUSAND PESOS (P200,000.00) as exemplary damages in order to deter others from doing similar act in withholding possession of a property to another to which he/she has no right to possess; and

  4. Costs of suit.

    SO ORDERED.
Petitioner then filed with the Court a petition for review on certiorari under Rule 45 of the Rules of Court, which was denied by the Court in a Resolution dated May 16, 2005, for being the wrong remedy under the 1997 Rules of Civil Procedure, as amended.

Petitioner thus filed the present motion for reconsideration, alleging that the filing of said petition is the proper recourse, citing Matute vs. Court of Appeals, 26 SCRA 798 (1969), wherein it was ruled that a defendant declared in default has the remedy set forth in Section 2, paragraph 3 of Rule 41 of the old Rules of Court.[2] Petitioner then cited in her motion, "Section 2, paragraph 3 or (c) of the Rules of Civil Procedure."[3]

Evidently, petitioner misread the provision cited in the Matute case as that pertaining to Section 2(c), Rule 41 of the 1997 Rules of Civil Procedure, as amended, which states: "(c) Appeal by certiorari. - In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45." Hence, she directly filed her petition for review on certiorari with the Court.

Petitioner should be reminded that the Matute case is of 1969 vintage and pertained to the old Rules of Court. As stated in the Matute case, a defendant validly declared in default has the remedy set forth in Section 2, paragraph 3 of Rule 41. Note that under the old Rules, Section 2, paragraph 3 of Rule 41 governed appeals from Courts of First Instance, the Social Security Commission and the Court of Agrarian Relations TO THE COURT OF APPEALS, and reads:
A party who has been declared in default may likewise appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition for relief to set aside the order of default has been presented by him in accordance with Rule 38. (Emphasis supplied)
Had petitioner been more circumspect, she would have easily ascertained that said Section 2, paragraph 3 of Rule 41 of the old Rules of Court, as cited in the Matute case, had already been superseded by the 1997 Rules of Civil Procedure, as amended, and under these new rules, the different modes of appeal are clearly laid down.

The decision sought to be reviewed in this case is a judgment by default rendered by the trial court in Civil Case No. MC04-2480. As such, the applicable rule is Section 2, Rule 41 of the 1997 Rules of Civil Procedure, as amended, which provides for the different modes of appeal from a Regional Trial Court's judgment or final order, to wit:
Section 2. Modes of appeal. 

(a)  Ordinary appeal. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner.

(b)  Petition for review. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.

(c)  Appeal by certiorari. In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. (Emphasis supplied)
In Cerezo vs. Tuazon,[4] the Court reiterated the remedies available to a party declared in default:
a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion under oath to set aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake or excusable negligence, and that he has a meritorious defense (Sec. 3, Rule 18 [now Sec. 3(b), Rule 9]);

b) If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a motion for new trial under Section 1 (a) of Rule 37;

c) If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief under Section 2 [now Section 1] of Rule 38; and

d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him (Sec. 2, Rule 41).
Moreover, a petition for certiorari to declare the nullity of a judgment by default is also available if the trial court improperly declared a party in default, or even if the trial court properly declared a party in default, if grave abuse of discretion attended such declaration.[5]

The filing of the present petition is clearly not the proper remedy to assail the default judgment rendered by the trial court. Petitioner still has the available remedy of filing with the Regional Trial Court a motion for new trial or an ordinary appeal to the Court of Appeals from the trial court's default judgment. Note that petitioner admits that she was "properly declared in default."[6] Thus, there is no question of any improvident or improper declaration of default by the trial court, and the remedy of filing a special civil action for certiorari has been effectively foreclosed on petitioner. Her only recourse then is to file an ordinary appeal with the Court of Appeals under Section 2(a), Rule 41 of the 1997 Rules of Civil Procedure, as amended.

Instead, she came directly to this Court via petition for review on certiorari, without setting forth substantial reasons why the ordinary remedies under the law should be disregarded and the petition entertained. Petitioner cannot even find solace in the Matute case as the old Rules of Court then applicable explicitly laid down the remedy of an ordinary appeal to the Court of Appeals, and not appeal by certiorari to this Court, by a defendant declared in default.

Petitioner further argues that the petition involved questions of law, and the Court should have taken cognizance of the case. The grounds set forth in her petition prove otherwise, viz.:

GROUNDS

I
THE COMPLAINT FOR REPLEVIN FILED BY RESPONDENTS AGAINST PETITIONER SHOULD HAVE BEEN DISMISSED ON THE GROUND OF LITIS PENDENTIA AND FOR RESPONDENTS' VIOLATION OF THE RULES AGAINST FORUM-SHOPPING

II

THE TRIAL COURT WENT AHEAD WITH THE EX-PARTE PRESENTATION OF RESPONDENT'S EVIDENCE DESPITE THE PETITIONER'S PENDING MOTION FOR RECONSIDERATION

III

THE MONETARY AWARDS FOR DAMAGES AND ATTORNEY'S FEES ARE UNWARRANTED AND UNJUSTIFIABLE CONSIDERING THAT SUCH ARE NOT SUPPORTED BY LAW AND JURISPRUDENCE

IV

THE COURT A QUO ISSUED THE ASSAILED DECISION IN A WAY THAT IT IS NOT IN ACCORD WITH LAW OR APPLICABLE DECISIONS OF THE SUPREME COURT AND HAS SO FAR DEPARTED FROM THE USUAL COURSE OF JUDICIAL PROCEEDINGS AS TO CALL FOR THE EXERCISE BY THE SUPREME COURT OF ITS POWER OF SUPERVISION
The test of whether a question is one of law or of fact is not the appellation given to such question by the party raising the same; rather, it is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise, it is a question of fact.[7] The issues on the award of damages call for a re-evaluation of the evidence before the trial court, which is obviously a question of fact. Cases where an appeal involved questions of fact, of law, or both fall within the exclusive appellate jurisdiction of the Court of Appeals.[8] (Emphasis supplied)

It is on this score that the Court is inclined to concur with petitioner's argument that even if the remedy resorted to was wrong, the Court may refer the case to the Court of Appeals under Rule 56, Section 6, paragraph 2 of the 1997 Rules of Civil Procedure, as amended, which provides: "(A)n appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of fact may be referred to the Court of Appeals for decision or appropriate action." This despite the express provision in Section 5(f) of the same Rule, which provides that an appeal may be dismissed when there is error in the choice or mode of appeal.

Both Sections 5(f) and 6 of Rule 57 use the term "may," denoting discretion on the part of the Court in dismissing the appeal or referring the case to the Court of Appeals. The question of fact involved in the appeal and substantial ends of justice warrant a referral of this case to the Court of Appeals for further appropriate proceedings.

WHEREFORE, the motion for reconsideration is GRANTED. The petition is reinstated and the case is REFERRED to the Court of Appeals for appropriate action.

SO ORDERED.

Puno, Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.



[1] The copy of the petition referred to by petitioner as Annex "F" pertains to the petition filed in CA-G.R. SP No. 85679.

[2] Rollo, p. 670.

[3] Id., p. 672.

[4] G.R. No. 141538, March 23, 2004, 426 SCRA 167, 180.

[5] Ibid.

[6] Rollo, p. 673.

[7] China Road and Bridge Corporation vs. Court of Appeals, G.R. No. 137898, December 15, 2000, 348 SCRA 401, 411.

[8] Section 2, Rule 42 and Section 15, Rule 44 of the Rules of Civil Procedure, as amended; see also Far East Marble (Phils.), Inc. vs. Court of Appeals, G.R. No. 94093, August 10, 1993, 225 SCRA 249, 255.
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