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680 Phil. 10


[ G.R. No. 158239, January 25, 2012 ]




The denial of a motion for reconsideration of an order granting the defending party’s motion to dismiss is not an interlocutory but a final order because it puts an end to the particular matter involved, or settles definitely the matter therein disposed of, as to leave nothing for the trial court to do other than to execute the order.[1] Accordingly, the claiming party has a fresh period of 15 days from notice of the denial within which to appeal the denial.[2]


On September 8, 1979, Margarita Marquez Alma Jose (Margarita) sold for consideration of P160,000.00 to respondent Ramon Javellana by deed of conditional sale two parcels of land with areas of 3,675 and 20,936 square meters located in Barangay Mallis, Guiguinto, Bulacan. They agreed that Javellana would pay P80,000.00 upon the execution of the deed and the balance of P80,000.00 upon the registration of the parcels of land under the Torrens System (the registration being undertaken by Margarita within a reasonable period of time); and that should Margarita become incapacitated, her son and attorney-in-fact, Juvenal M. Alma Jose (Juvenal), and her daughter, petitioner Priscilla M. Alma Jose, would receive the payment of the balance and proceed with the application for registration.[3]

After Margarita died and with Juvenal having predeceased Margarita without issue, the vendor’s undertaking fell on the shoulders of Priscilla, being Margarita’s sole surviving heir. However, Priscilla did not comply with the undertaking to cause the registration of the properties under the Torrens System, and, instead, began to improve the properties by dumping filling materials therein with the intention of converting the parcels of land into a residential or industrial subdivision.[4] Faced with Priscilla’s refusal to comply, Javellana commenced on February 10, 1997 an action for specific performance, injunction, and damages against her in the Regional Trial Court in Malolos, Bulacan (RTC), docketed as Civil Case No. 79-M-97 entitled Ramon C. Javellana, represented by Atty. Guillermo G. Blanco v. Priscilla Alma Jose.

In Civil Case No. 79-M-97, Javellana averred that upon the execution of the deed of conditional sale, he had paid the initial amount of P80,000.00 and had taken possession of the parcels of land; that he had paid the balance of the purchase price to Juvenal on different dates upon Juvenal’s representation that Margarita had needed funds for the expenses of registration and payment of real estate tax; and that in 1996, Priscilla had called to inquire about the mortgage constituted on the parcels of land; and that he had told her then that the parcels of land had not been mortgaged but had been sold to him.[5]

Javellana prayed for the issuance of a temporary restraining order or writ of preliminary injunction to restrain Priscilla from dumping filling materials in the parcels of land; and that Priscilla be ordered to institute registration proceedings and then to execute a final deed of sale in his favor.[6]

Priscilla filed a motion to dismiss, stating that the complaint was already barred by prescription; and that the complaint did not state a cause of action.[7]

The RTC initially denied Priscilla’s motion to dismiss on February 4, 1998.[8] However, upon her motion for reconsideration, the RTC reversed itself on June 24, 1999 and granted the motion to dismiss, opining that Javellana had no cause of action against her due to her not being bound to comply with the terms of the deed of conditional sale for not being a party thereto; that there was no evidence showing the payment of the balance; that he had never demanded the registration of the land from Margarita or Juvenal, or brought a suit for specific performance against Margarita or Juvenal; and that his claim of paying the balance was not credible.[9]

Javellana moved for reconsideration, contending that the presentation of evidence of full payment was not necessary at that stage of the proceedings; and that in resolving a motion to dismiss on the ground of failure to state a cause of action, the facts alleged in the complaint were hypothetically admitted and only the allegations in the complaint should be considered in resolving the motion.[10]  Nonetheless, he attached to the motion for reconsideration the receipts showing the payments made to Juvenal.[11]  Moreover, he maintained that Priscilla could no longer succeed to any rights respecting the parcels of land because he had meanwhile acquired absolute ownership of them; and that the only thing that she, as sole heir, had inherited from Margarita was the obligation to register them under the Torrens System.[12]

On June 21, 2000, the RTC denied the motion for reconsideration for lack of any reason to disturb the order of June 24, 1999.[13]

Accordingly, Javellana filed a notice of appeal from the June 21, 2000 order,[14] which the RTC gave due course to, and the records were elevated to the Court of Appeals (CA).

In his appeal (C.A.-G.R. CV No. 68259), Javellana submitted the following as errors of the RTC,[15] to wit:









Priscilla countered that the June 21, 2000 order was not appealable; that the appeal was not perfected on time; and that Javellana was guilty of forum shopping.[16]

It appears that pending the appeal, Javellana also filed a petition for certiorari in the CA to assail the June 24, 1999 and June 21, 2000 orders dismissing his complaint (C.A.-G.R. SP No. 60455). On August 6, 2001, however, the CA dismissed the petition for certiorari,[17] finding that the RTC did not commit grave abuse of discretion in issuing the orders, and holding that it only committed, at most, an error of judgment correctible by appeal in issuing the challenged orders.

On November 20, 2002, the CA promulgated its decision in C.A.-G.R. CV No. 68259,[18]  reversing and setting aside the dismissal of Civil Case No. 79-M-97, and remanding the records to the RTC “for further proceedings in accordance with law.”[19] The CA explained that the complaint sufficiently stated a cause of action; that Priscilla, as sole heir, succeeded to the rights and obligations of Margarita with respect to the parcels of land; that Margarita’s undertaking under the contract was not a purely personal obligation but was transmissible to Priscilla, who was consequently bound to comply with the obligation;  that the action had not yet prescribed due to its being actually one for quieting of title that was imprescriptible brought by Javellana who had actual possession of the properties; and that based on the complaint, Javellana had been in actual possession since 1979, and the cloud on his title had come about only when Priscilla had started dumping filling materials on the premises.[20]

On May 9, 2003, the CA denied the motion for reconsideration, [21]  stating that it decided to give due course to the appeal even if filed out of time because Javellana had no intention to delay the proceedings, as in fact he did not even seek an extension of time to file his appellant’s brief; that current jurisprudence afforded litigants the amplest opportunity to present their cases free from the constraints of technicalities, such that even if an appeal was filed out of time, the appellate court was given the discretion to nonetheless allow the appeal for justifiable reasons.


Priscilla then brought this appeal, averring that the CA thereby erred in not outrightly dismissing Javellana’s appeal because: (a) the June 21, 2000 RTC order was not appealable; (b) the notice of appeal had been filed belatedly by three days; and (c) Javellana was guilty of forum shopping for filing in the CA a petition for certiorari to assail the orders of the RTC that were the subject matter of his appeal pending in the CA.  She posited that, even if the CA’s decision to entertain the appeal was affirmed, the RTC’s dismissal of the complaint should nonetheless be upheld because the complaint stated no cause of action, and the action had already prescribed.

On his part, Javellana countered that the errors being assigned by Priscilla involved questions of fact not proper for the Court to review through petition for review on certiorari; that the June 21, 2000 RTC order, being a final order, was appealable; that his appeal was perfected on time; and that he was not guilty of forum shopping because at the time he filed the petition for certiorari the CA had not yet rendered a decision in C.A.-G.R.

CV No. 68259, and because the issue of ownership raised in C.A.-G.R. CV No. 68259 was different from the issue of grave abuse of discretion raised in C.A.-G.R. SP No. 60455.


The petition for review has no merit.

Denial of the motion for reconsideration of the
order of dismissal was a final order and appealable

Priscilla submits that the order of June 21, 2000 was not the proper subject of an appeal considering that Section 1 of Rule 41 of the Rules of Court provides that no appeal may be taken from an order denying a motion for reconsideration.

Priscilla’s submission is erroneous and cannot be sustained.

First of all, the denial of Javellana’s motion for reconsideration left nothing more to be done by the RTC because it confirmed the dismissal of Civil Case No. 79-M-97. It was clearly a final order, not an interlocutory one. The Court has distinguished between final and interlocutory orders in Pahila-Garrido v. Tortogo,[22] thuswise:

The distinction between a final order and an interlocutory order is well known. The first disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing more to be done except to enforce by execution what the court has determined, but the latter does not completely dispose of the case but leaves something else to be decided upon.  An interlocutory order deals with preliminary matters and the trial on the merits is yet to be held and the judgment rendered.  The test  to  ascertain  whether  or not an order or a judgment is interlocutory or final is: does the order or judgment leave something to be done in the trial court with respect to the merits of the case?  If it does, the order or judgment is interlocutory; otherwise, it is final.

And, secondly, whether an order is final or interlocutory determines whether appeal is the correct remedy or not. A final order is appealable, to accord with the final judgment rule enunciated in Section 1, Rule 41 of the Rules of Court to the effect that “appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable;”[23] but the remedy from an interlocutory one is not an appeal but a special civil action for certiorari. The explanation for the differentiation of remedies given in Pahila-Garrido v. Tortogo is apt:

xxx The reason for disallowing an appeal from an interlocutory order is to avoid multiplicity of appeals in a single action, which necessarily suspends the hearing and decision on the merits of the action during the pendency of the appeals. Permitting multiple appeals will necessarily delay the trial on the merits of the case for a considerable length of time, and will compel the adverse party to incur unnecessary expenses, for one of the parties may interpose as many appeals as there are incidental questions raised by him and as there are interlocutory orders rendered or issued by the lower court. An interlocutory order may be the subject of an appeal, but only after a judgment has been rendered, with the ground for appealing the order being included in the appeal of the judgment itself.

The remedy against an interlocutory order not subject of an appeal is an appropriate special civil action under Rule 65, provided that the interlocutory order is rendered without or in excess of jurisdiction or with grave abuse of discretion. Then is certiorari under Rule 65 allowed to be resorted to.

Indeed, the Court has held that an appeal from an order denying a motion for reconsideration of a final order or judgment is effectively an appeal from the final order or judgment itself; and has expressly clarified that the prohibition against appealing an  order  denying a  motion  for reconsideration referred only to a denial of a motion for reconsideration of an interlocutory order.[24]

Appeal was made on time pursuant to Neypes v. CA

Priscilla insists that Javellana filed his notice of appeal out of time.  She points out that he received a copy of the June 24, 1999 order on July 9, 1999, and filed his motion for reconsideration on July 21, 1999 (or after the lapse of 12 days); that the RTC denied his motion for reconsideration through the order of June 21, 2000, a copy of which he received on July 13, 2000; that he had only three days from July 13, 2000, or until July 16, 2000, within which to perfect an appeal; and that having filed his notice of appeal on July 19, 2000, his appeal should have been dismissed for being tardy by three days beyond the expiration of the reglementary period.

Section 3 of Rule 41 of the Rules of Court provides:

Section 3. Period of ordinary appeal. — The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order.

The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. (n)

Under the rule, Javellana had only the balance of three days from July 13, 2000, or until July 16, 2000, within which to perfect an appeal due to the timely filing of his motion for reconsideration interrupting the running of the period of appeal. As such, his filing of the notice of appeal only on July 19, 2000 did not perfect his appeal on time, as Priscilla insists.

The seemingly correct insistence of Priscilla cannot be upheld, however, considering that the Court meanwhile adopted the fresh period rule in Neypes v. Court of Appeals,[25] by which an aggrieved party desirous of appealing an adverse judgment or final order is allowed a fresh period of 15 days within which to file the notice of appeal in the RTC reckoned from receipt of the order denying a motion for a new trial or motion for reconsideration, to wit:

The Supreme Court may promulgate procedural rules in all courts. It has the sole prerogative to amend, repeal or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. In the rules governing appeals to it and to the Court of Appeals, particularly Rules 42, 43 and 45, the Court allows extensions of time, based on justifiable and compelling reasons, for parties to file their appeals. These extensions may consist of 15 days or more.

To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.

Henceforth, this “fresh period rule” shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.[26]

The fresh period rule may be applied to this case, for the Court has already retroactively extended the fresh period rule to “actions pending and undetermined at the time of their passage and this will not violate any right of a person who may feel that he is adversely affected, inasmuch as there are no vested rights in rules of procedure.”[27] According to De los Santos v. Vda. de Mangubat:[28]

Procedural law refers to the adjective law which prescribes rules and forms of procedure in order that courts may be able to administer justice. Procedural laws do not come within the legal conception of a retroactive law, or the general rule against the retroactive operation of statues — they may be given retroactive effect on actions pending and undetermined at the time of their passage and this will not violate any right of a person who may feel that he is adversely affected, insomuch as there are no vested rights in rules of procedure.

The “fresh period rule” is a procedural law as it prescribes a fresh period of 15 days within which an appeal may be made in the event that the motion for reconsideration is denied by the lower court. Following the rule on retroactivity of procedural laws, the "fresh period rule" should be applied to pending actions, such as the present case.

Also, to deny herein petitioners the benefit of the “fresh period rule” will amount to injustice, if not absurdity, since the subject notice of judgment and final order were issued two years later or in the year 2000, as compared to the notice of judgment and final order in Neypes which were issued in 1998. It will be incongruous and illogical that parties receiving notices of judgment and final orders issued in the year 1998 will enjoy the benefit of the “fresh period rule” while those later rulings of the lower courts such as in the instant case, will not.[29]

Consequently, we rule that Javellana’s notice of appeal was timely filed pursuant to the fresh period rule.

No forum shopping was committed

Priscilla claims that Javellana engaged in forum shopping by filing a notice of appeal and a petition for certiorari against the same orders. As earlier noted, he denies that his doing so violated the policy against forum shopping.

The Court expounded on the nature and purpose of forum shopping in In Re: Reconstitution of Transfer Certificates of Title Nos. 303168 and 303169 and Issuance of Owner’s Duplicate Certificates of Title In Lieu of Those Lost, Rolando Edward G. Lim, Petitioner:[30]

Forum shopping is the act of a party litigant against whom an adverse judgment has been rendered in one forum seeking and possibly getting a favorable opinion in another forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the same cause or supposition that one or the other court would make a favorable disposition. Forum shopping happens when, in the two or more pending cases, there is identity of parties, identity of rights or causes of action, and identity of reliefs sought. Where the elements of litis pendentia are present, and where a final judgment in one case will amount to res judicata in the other, there is forum shopping. For litis pendentia to be a ground for the dismissal of an action, there must be: (a) identity of the parties or at least such as to represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same acts; and (c) the identity in the two cases should be such that the judgment which may be rendered in one would, regardless of which party is successful, amount to res judicata in the other.

For forum shopping to exist, both actions must involve the same transaction, same essential facts and circumstances and must raise identical causes of action, subject matter and issues. Clearly, it does not exist where different orders were questioned, two distinct causes of action and issues were raised, and two objectives were sought.

Should Javellana’s present appeal now be held barred by his filing of the petition for certiorari in the CA when his appeal in that court was yet pending?

We are aware that in Young v. Sy,[31] in which the petitioner filed a notice of appeal to elevate the orders concerning the dismissal of her case due to non-suit to the CA and a petition for certiorari in the CA assailing the same orders four months later, the Court ruled that the successive filings of the notice of appeal and the petition for certiorari to attain the same objective of nullifying the trial court’s dismissal orders constituted forum shopping that warranted the  dismissal of both cases. The Court said:

Ineluctably, the petitioner, by filing an ordinary appeal and a petition for certiorari with the CA, engaged in  forum  shopping. When  the  petitioner commenced the appeal, only four months had elapsed prior to her filing with the CA the Petition for Certiorari under Rule 65 and which eventually came up to this Court by way of the instant Petition (re: Non-Suit). The elements of litis pendentia are present between the two suits.  As the CA, through its Thirteenth Division, correctly noted, both suits are founded on exactly the same facts and refer to the same subject matter—the RTC Orders which dismissed Civil Case No. SP-5703 (2000) for failure to prosecute.  In both cases, the petitioner is seeking the reversal of the RTC orders.  The parties, the rights asserted, the issues professed, and the reliefs prayed for, are all the same.  It is evident that the judgment of one forum may amount to res judicata in the other.


The remedies of appeal and certiorari under Rule 65 are mutually exclusive and not alternative or cumulative. This is a firm judicial policy. The petitioner cannot hedge her case by wagering two or more appeals, and, in the event that the ordinary appeal lags significantly behind the others, she cannot post facto validate this circumstance as a demonstration that the ordinary appeal had not been speedy or adequate enough, in order to justify the recourse to Rule 65. This practice, if adopted, would sanction the filing of multiple suits in multiple fora, where each one, as the petitioner couches it, becomes a “precautionary measure” for the rest, thereby increasing the chances of a favorable decision. This is the very evil that the proscription on forum shopping seeks to put right. In Guaranteed Hotels, Inc. v. Baltao, the Court stated that the grave evil sought to be avoided by the rule against forum shopping is the rendition by two competent tribunals of two separate and contradictory decisions.  Unscrupulous party litigants, taking advantage of a variety of competent tribunals, may repeatedly try their luck in several different fora until a favorable result is reached. To avoid the resultant confusion, the Court adheres strictly to the rules against forum shopping, and any violation of these rules results in the dismissal of the case.[32]

The same result was reached in Zosa v. Estrella,[33] which likewise involved the successive filing of a notice of appeal and a petition for certiorari to challenge the same orders, with the Court upholding the CA’s dismissals of the appeal and the petition for certiorari through separate decisions.

Yet, the outcome in Young v. Sy and Zosa v. Estrella is unjust here even if the orders of the RTC being challenged through appeal and the petition for certiorari were the same. The unjustness exists because the appeal and the petition for certiorari actually sought different objectives. In his appeal in C.A.-G.R. CV No. 68259, Javellana aimed to undo the RTC’s erroneous dismissal of Civil Case No. 79-M-97 to clear the way for his judicial demand for specific performance to be tried and determined in due course by the RTC; but his petition for certiorari had the ostensible objective “to prevent (Priscilla) from developing the subject property and from proceeding with the ejectment case until his appeal is finally resolved,” as the CA explicitly determined in its decision in C.A.-G.R. SP No. 60455.[34]

Nor were the dangers that the adoption of the judicial policy against forum shopping designed to prevent or to eliminate attendant. The first danger, i.e., the multiplicity of suits upon one and the same cause of action, would not materialize considering that the appeal was a continuity of Civil Case No. 79-M-97, whereas C.A.-G.R. SP No. 60455 dealt with an independent ground of alleged grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the RTC. The second danger, i.e., the unethical malpractice of shopping for a friendly court or judge to ensure a favorable ruling or judgment after not getting it in the appeal, would not arise because the CA had not yet decided C.A.-G.R. CV No. 68259 as of the filing of the petition for certiorari.

Instead, we see the situation of resorting to two inconsistent remedial approaches to be the result of the tactical misjudgment by Javellana’s counsel on the efficacy of the appeal to stave off his caretaker’s eviction from the parcels of land and to prevent the development of them into a residential or commercial subdivision pending the appeal. In the petition for certiorari, Javellana explicitly averred that his appeal was “inadequate and not speedy to prevent private respondent Alma Jose and her transferee/assignee xxx from developing and disposing of the subject property to other parties to the total deprivation of petitioner’s rights of possession and ownership over the subject property,” and that the dismissal by the RTC had “emboldened private respondents to fully develop the property and for respondent Alma Jose to file an ejectment case against petitioner’s overseer xxx.”[35] Thereby, it became far-fetched that Javellana brought the petition for certiorari in violation of the policy against forum shopping.

WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the decision promulgated on November 20, 2002; and ORDERS the petitioner to pay the costs of suit.


Corona, C.J., (Chairperson), Leonardo-De Castro, *Abad, and Villarama, Jr., JJ., concur.

* Vice Associate Justice Mariano C. del Castillo, who concurred in the decision of the Court of Appeals, per raffle of January18, 2012.

[1] Quelnan v. VHF Philippines, Inc., G.R. No. 145911, July 7, 2004, 433 SCRA 631.

[2] Neypes v. Court of Appeals, G.R. No. 141524, September 14, 2005, 600 SCRA 1.

[3] Records, pp. 25-26.

[4] Id., pp. 18-19 and CA decision, p. 3.

[5] Records, pp. 17-18 (the complaint was amended).

[6] Id., p. 20.

[7] Id., p. 40.

[8] Id., pp. 68-70.

[9] Id., pp. 83-84.

[10] Id., pp. 101-102.

[11] Records, pp. 89-94.

[12] Id., pp. 103-105.

[13] Id., pp. 128-129.

[14] Id., p. 134.

[15] CA rollo, p. 9.

[16] Id., pp. 79-81.

[17] Rollo, pp. 75-80.

[18] Id., pp. 26-37; penned by Associate Justice Mercedes Gozo-Dadole (retired), with Associate Justice Bennie Adefuin-de la Cruz (retired) and Associate Justice Mariano del Castillo (now a member of the Court) concurring.

[19] Id., p. 36.

[20] Id., pp. 35-36.

[21] Id., pp. 39-40.

[22] G.R. No. 156358, August 17, 2011 (the italics are part of the original text).

[23] Bersamin, Appeal and Review in the Philippines, 2nd Edition, Central Professional Books, Inc., Quezon City, p. 117; citing Friedenthal, et al., Civil Procedure, 2nd Edition, 1993, West Group, pp. 582-583.

[24] Quelnan v. VHF Philippines, Inc., G.R. No. 145911, July 7, 2004, 433 SCRA 631, where the Court stated:

If the proscription against appealing an order denying a motion for reconsideration is applied to any order, then there would have been no need to specifically mention in both above-quoted sections of the Rules “final orders or judgments” as subject of appeal.  In other words, from the entire provisions of Rules 39 and 41, there can be no mistaking that what is proscribed is to appeal from a denial of a motion for reconsideration of an interlocutory order.

Quelnan v. VHF Philippines, Inc. has been cited in Apuyan v. Haldeman, G.R. No. 129980, September 20, 2004, 438 SCRA 402 and Silverio, Jr. v. Court of Appeals, G.R. No. 178933, September 16, 2009, 600 SCRA 1.

[25] G.R. No. 141524, September 14, 2005, 469 SCRA 633.

[26] Id., pp. 643-645.

[27] Santiago v. Bergensen D.Y. Philippines, G.R. No. 148333, November 17, 2004, 442 SCRA 486, 490; Sumaway v. Urban Bank, Inc., G.R. No. 142534, June 27, 2006, 493 SCRA 99.

[28] G.R. No. 149508, October 10, 2007, 535 SCRA 411.

[29] Supra, at pp. 422-423.

[30] G.R. No. 156797, July 6, 2010, 624 SCRA 81, pp. 88-89.

[31] G.R. No. 157745, September 26, 2006, 503 SCRA 151.

[32] Id., pp. 166-169.

[33] G.R. No. 149984, November 28, 2008, 572 SCRA 428.

[34] Rollo, p. 78.

[35] Id. (quotes are from the decision in C.A.-G.R. SP No. 60455, p. 4).

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