Case Digest: ALBERTO LOPEZ a.k.a. CESAR A. LOPEZ v. COURT OF APPEALS, et al.

ALBERTO LOPEZ a.k.a. CESAR A. LOPEZ v. COURT OF APPEALS, et al.

434 SCRA 597 (2004)

The Regional Trial Court rendered decision declaring the nullity of marriage between respondent Cherry Pie Lopez and petitioner Alberto Lopez a.k.a Cesar Lopez (Cesar). Cesar moved to reconsider the support aspect of the decision but was denied.

Cesar filed a Petition for Certiorari with the Court of Appeals (CA) but failed to pay the full amount of the docket fees hence his petition was dismissed. Cesar filed a motion for reconsideration but was denied on the ground that the same 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. Cesar filed a second motion for reconsideration but was again denied on the ground that no second motion by the same party can be entertained.

ISSUE:

Whether or not Cesar‘s Petition for Certiorari may be entertained

HELD:

Since Lopez 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. Remedial faux pas aside, even if a petition for certiorari under Rule 65 were to be, in the greater interest of justice, allowed, the petition just the same is dismissable for having been filed out of time.

As Lopez‘s motion for reconsideration of the questioned 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. In fact, Lopez did not even state when he received the said resolution, hence, it cannot even be determined when the reglementary period expired.
Assuming that Lopez received the March 19, 2001 Resolution on the same date it was promulgated, Lopez had 60 days or until May 18, 2001 to file the present petition. He filed it, however, only on July 4, 2001.

En passant, the dismissal of the petition notwithstanding, Lopez is not without remedy. 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.