Lopez v.

Court of Appeals
G.R. No. 148510 July 21, 2004 J. Carpio Morales petitioners ALBERTO LOPEZ a.k.a. CESAR A. LOPEZ respondents HON. COURT OF APPEALS, HON. BENJAMIN ANTONIO, Presiding Judge of RTC, Branch 170, Malabon, Metro Manila and CHERRY PIE LOPEZ summary Alberto Lopez aka Cesar Lopez filed motion for reconsideration assailing a CA resolution dismissing his appeal of the support aspect of a decision but his MR did not contain an affidavit or proof of service. It also did not state the material dates. Thus, it is considered a mere scrap of paper and did not toll the running of the period to file the motion. STILL, he is not without remedy because 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.

facts of the case

Nature: Action to nullify resolutions of the Court of Appeals via petition for certiorari under Rule 65 The RTC of Malabon rendered a decision declaring the nullity of marriage between Cherry Pie Lopez and Alberto Lopez a.k.a Cesar Lopez The decision became final and executory. Petitioner moved to reconsider the support aspect of the decision but was denied on January 26, 2001. On February 8, 2001, the RTC, acting on petitioners Notice of Appeal filed on February 7, 2001, gave it due course and directed the transmittal of the records of the case to the Court of Appeals as soon as possible. On February 12, 2001, petitioner paid before the RTC a total PhP60 as docket fees. CA dismissed his appeal for his failure to pay the full amount of PhP 520.00 in docket fees on March 19,2001. Petitioner filed a Motion for Reconsideration but it was denied by Resolution of April 26, 2001on 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 MR MR denied on the ground that no second motion by the same party can be entertained

issue
WON petitioners petition for certiorari may be entertained NO. (This is the main issue but not really the part relevant to the topic, so I took the liberty of underlining the important bit below.)

ratio - 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. 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 petitioners 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 motionIn fact, petitioner did not even state when he received the said resolution, hence, it can not even be determined when the reglementary period expired. o 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 dismissal of the petition notwithstanding, the petitioner 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.

Digest by: PMR Gairanod