Manila
EN BANC
G.R. No. L-26321 February 25, 1975
THE CITY OF CEBU, CITY COUNCIL OF THE CITY OF CEBU, CEBU CITY TREASURER, CEBU CITY AUDITOR and MARIO D. ORTIZ, petitioners,
vs.
HON. JOSE M. MENDOZA, Judge of the Court of First Instance of Cebu, Branch VI, and EFREN M. ARNEJO, respondents.
City Attorney Nazario R. Pacquiao and Assistant City Attorney Metudio P. Belarmino and Celerino F. Jomuad for petitioners.
Mario D. Ortiz in his own behalf.
Fernando S. Ruiz for respondents.
R E S O L U T I O N
AQUINO, J.:
The petitioners, in these special civil actions of mandamus and certiorari, seek to compel the Court of First Instance of Cebu to give due course to their appeal in Civil Case No. R-8612. The factual milieu of the case is as follows:
Efren M. Arnejo used to be a police captain of Cebu City. On October 21, 1959 he was designated by President Carlos P. Gracia as Acting Assistant Chief of Police of Cebu City, vice Higino Pacaña who was designated Acting Chief of Police. Genaro L. Alforque was appointed to Arnejo's position of police captain. Four years later or on November 9, 1963 Alfonso Palencia was designated Chief of Police to take Pacaña's place. On the following day, November 10th, Acting City Mayor Mario D. Ortiz terminated Arnejo's services as Assistant Chief of Police because Pacaña was "automatically reverted" to that position. Ortiz asked the Municipal Board to create a new item of police captain for Arnejo. The Board did not take any action on his recommendation.
Arnejo was on terminal leave of absence for the period from November 10, 1963 to September 5, 1964. In connection with that leave he was paid the sum of P3,092.06. On April 27, 1964 Arnejo complained to the Civil Service Commission against his removal as Assistant Chief of Police. The Commission referred his complaint to the Mayor.
On November 2, 1964 he filed a mandamus suit against Ortiz, Sergio Osmeña, Jr., the City of Cebu and its City Council, Auditor and Treasurer to compel his reinstatement as Assistant Chief of Police and for the recovery of his back salaries plus P5,000 as attorney's fees. He filed against Ortiz a claim for P30,000 as moral and exemplary damages.
After trial, Judge Jose M. Mendoza rendered a decision dated September 10, 1965, declaring that Arnejo's removal from the position of Assistant Chief of Police was void and ordering his reinstatement with the "right to receive the corresponding salaries from the time of his removal up to the actual reinstatement". The respondents were ordered to pay Arnejo P5,000 as exemplary damages, P500 as attorney's fees and the costs.
The decision was served on the respondents, now the petitioners, on October 18,1965. Five days later, or on October 23, 1965, they filed a motion for reconsideration. Judge Mendoza denied the motion in his order of November 26, 1965. That order of denial was served in the law office of Ortiz on December 1,1965. Ortiz says that he actually received a copy of the order from his wife on December 9, 1965 in Bacolod City where he was functioning as Judge of the Court of First Instance.
On December 14, 1965 Ortiz filed a novel, tripartite "Second Motion for Reconsideration or Motion for Leave to Amend Answer of Defendant Ortiz and/or for Extension of Time to Perfect Appeal".
The other respondents in Civil Case No. R-8612 were served with the order of denial on December 16, 1965 through their counsel, the City Fiscal. On December 18, 1965 they filed a "Second Motion for Reconsideration or Motion for Leave to Amend Answer of Defendants". They adopted the motion of Ortiz.
Arnejo opposed the two second motions for reconsideration. He pointed out that the said motions were not based on grounds not existing when the first motion for reconsideration was filed.
Judge Mendoza, in his order of January 5, 1966, denied the motions "for lack of sufficient merits". That order was served upon the City Fiscal on January 7, 1966. The copy for Ortiz was served on January 10, 1966 upon Felisa Soco of the Montemayor Security Agency whose office adjoined the former law office of Ortiz.
On January 14, 1966 all the respondents (apparently including) Ortiz filed a notice of appeal signed by an Assistant City Fiscal. The next day, January 15th, they filed a record on appeal and deposited one hundred twenty pesos as appeal bond.
On February 4, 1966 Arnejo filed a motion to dismiss the appeal on the ground that it was not perfected within the reglementary period because the motions for reconsideration were pro forma and, therefore, the period for perfecting the appeal was not interrupted.
Judge Mendoza, in his order of February 18, 1966, dismissed the appeal. He ruled that his decision was already "final and executory". He said that respondents' first motions for reconsideration were pro forma because they merely restated "the contents of respondent Ortiz's memorandum". He regarded the second motions for reconsideration as pro forma also because they were intended "to set aside not the judgment but the order denying respondents' first motion for reconsideration".
He denied respondents' motions for reconsideration of the order dismissing their appeal. Ortiz filed a petition for relief from the order dismissing the appeal. His petition was ultimately denied.
On July 22, 1966 the respondents in Civil Case No. R-8612, now the petitioners (except Osmeña, Jr.), filed these mandamus and certiorari actions.
This Court required respondents Arnejo and Judge Mendoza to answer the petition. It issued a writ of preliminary injunction restraining them from executing the judgment in Civil Case No. R-8612. In their answer they maintain that petitioners' appeal was not perfected within the reglementary "fifteen-day" period, a contention which they reiterated in their memorandum. The petitioners did not bother to file a memorandum.
This Court in its resolution of December 20, 1973 required the parties to manifest whether the case had become moot. The petitioners manifested that it "is extremely difficult" to withdraw the case because of the award for damages.
On the other hand, Arnejo, in his manifestation of January 22, 1974, said that the case had not become moot. He argued that its adjudication is necessary in order to determine whether the judgment in his favor for reinstatement and damages should be implemented. (Other supplemental facts are indicated in the note below). *
The pivotal question is whether the petitioners seasonably perfected their appeal from the lower court's decision.
As the necessary majority could not be had on the resolution of that issue, the Court, in order to comply substantially with section 11, Rule 56 of the Rules of Court, directed the parties, in its resolution of March 12, 1974, to file within thirty (30) days from notice simultaneous memoranda on the legal issues involved in the appeal.
In compliance with that resolution, respondent Arnejo submitted a memorandum dated April 30, 1974 and the petitioners filed a memorandum dated May 2, 1974.
After further deliberation, Chief Justice Makalintal, and Justices Castro, Teehankee, Muñoz Palma and the writer voted for the dismissal of the petition for the following reasons:
Petitioners' appeal could have been easily accomplished by filing a notice of appeal and an appeal bond within the thirty-day period. A record on appeal was not necessary.
The trial court and respondent Arnejo erred in assuming that in a mandamus case, the appeal should be perfected within the fifteen-day period. That conclusion would be correct under section 17, Rule 41 of the 1940 Rules of Court.
The fifteen-day period was abolished. The phrase "but within fifteen days" found in the old rule is not reproduced in section 17, Rule 41 of the 1964 Rules of Court. The deletion of that phrase means that the appeal in mandamus, certiorari, quo warranto, prohibition and employers' liability cases should be perfected, like appeals in ordinary actions, within the thirty-day period fixed in section 3 of Rule 41 (Enciso vs. Remo, L-23670, September 30, 1969, 29 SCRA 580, 588).
The resolution of the issue as to the timeliness of petitioners' appeal hinges on the determination of whether their motions for reconsideration interrupted the thirty-day period.
As already noted, the trial court held that petitioners' first motions for reconsideration were pro forma because they were allegedly a rehash of the memorandum filed by Ortiz.
A motion for new trial may be predicated on fraud, accident, mistake, excusable negligence, newly discovered evidence, award of excessive damages, and "insufficiency of the evidence to justify the decision, or that the decision is against the law" (Sec. 1, Rule 37, Rules of Court).
A motion for reconsideration is treated as a motion for new trial "for it can have no basis other than the grounds for new trial" (2 Moran's Comments on the Rules of Court, 1970 edition, page 222). A motion for new trial based on the ground that excessive damages were awarded or that the decision is contrary to law or the evidence (Sec. 1[c], Rule 37) is not designated by pleaders as a motion for new trial because, actually, no new trial is sought. What is sought therein is the rendition of a new decision that, from the movant's viewpoint, would be conformable to the law or the evidence or that would not award excessive damages. Hence, pleaders designate such motion for new trial as a motion for reconsideration. (Note that section 3 of Rule 41 speaks of a "motion to set aside").
Petitioners' motion for reconsideration and their supplemental arguments in support thereof do not cite the grounds for new trial. But, on the face thereof, it can be gleaned that they were based on the grounds enumerated in paragraph (c), section 1 of Rule 37, which are that excessive damages have been awarded and that the decision is contrary to the law and the evidence. Those motions cannot be characterized as pro forma or motions filed for the sake of form. They assail the legality of the decision on several counts. They point out that it is contrary to the evidence. They attack the award of exemplary damages and attorney's fees as "improper".
A motion based on paragraph (c) is pro forma if it does "not point out specifically the findings or conclusions in the judgment, which are not supported by the evidence or which are contrary to law, making express reference to the pertinent evidence or legal provisions" (Alvero vs. De la Rosa, 76 Phil. 428, 435). Petitioners' motions specified the trial court's conclusions which they regarded as erroneous.
Judge Mendoza, in the order of denial, noted that the movants raised "one significant issue": that the appointment of Arnejo as Assistant Chief of Police was "good only up to the close of session of Congress in 1960". That circumstance shows that the motions for reconsideration were not a mere echo of the memorandum of Ortiz. Therefore, the motions, not being pro forma, interrupted the thirty-day period for perfecting the appeal.
While the petitioners (respondents below) could file a motion for new trial or reconsideration as a matter of right, they were not invariably entitled to file a second motion for new trial that would suspend the remaining reglementary period for perfecting their appeal. Rule 37 provides:
SEC. 4. Second motion for new trial. — A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial, based on a ground not existing nor available when the first motion was made, may he filed within the time herein provided excluding the time during which the first motion had been pending.
Section 4 explicitly spells out that the first motion for reconsideration should include all the available ground and that those excluded are deemed waived. The evident intention is to prevent the filing of interminable motions for new trial that would subject to delay a case already decided.
Razon de esta disposicion: evitar que se prolongue indebidamente el despacho de los asuntos. Las razones que tuviere una parte para pedir una nueva vista deben exponerse todas enumerandolas en una mocion, y no en dosis separadas. Si se permitiese la teoria de que una parte que pierde un asunto puede presentar tantas mociones de nueva vista cuantos fundamentos encuentre, el pleito nunca se terminaria: podria presentar diez mociones de nueva vista y se puede calcular el tiempo que el juez perderia en la vista de cada mocion en vez de emplearlo en asunto mas importantes. (Ronquillo vs. Amparo, 97 Phil. 38).
Section 4 decrees that the second motion for new trial should be "based on a ground not existing nor available when the first motion was made".ℒαwρhi৷ The obvious intendment is to discourage trifling with the court by the filing of a frivolous and repetitive second motion for new trial.
A second motion for new trial is an exceptional case. A litigant, who does not observe the requisites of a second motion for new trial, files it at his peril, the peril of losing his right to appeal due to the expiration of the remaining period within which to appeal.
A second motion for new trial ... will not be entertained and will not interrupt the period of appeal if it is a reiteration of the first (Rill vs. Chunaco, 87 Phil. 545; Vaswani vs. Tarachand Bros., 110 Phil. 521; Marquez vs. Panganiban, 109 Phil. 1121) or it is founded on a ground that was available at the time of the filing of the first motion. The court's time is valuable and to file two separate motions on the same ground or on grounds existing at the filing of the first is to trifle with the court. (Sawit vs. Rodas, 73 Phil. 310; Rafanan vs. Rafanan, 98 Phil. 162 cited in 2 Moran, Comments on the Rules of Court, 1970 Edition, page 229).
The second motion for reconsideration filed by Ortiz prays "for reconsideration of the order" denying the first motion for reconsideration and for the granting of the prayer in that first motion. The other petitioners, in their second motion for reconsideration, pray that the order denying the first motion for reconsideration be reconsidered and that Arnejo's petition for mandamus be dismissed.
It is incontrovertible that the second motions for reconsideration of the petitioners (respondents below) were not based on a ground not existing nor available when they riled their first motions. The trial court correctly noted that they were asking for the reconsideration of the order denying their first motion for reconsideration. They invoked the same grounds ventilated in their first motions.
Hence, petitioners' second motions for reconsideration, not being sanctioned by section 4, did not interrupt the remaining twenty-five day period within which to perfect their appeal. They could have easily perfected their appeal within that period after they received the order denying their first motions for reconsideration.
Ortiz received the order denying his first motion for reconsideration on December 1, 1965. December 26th was the last day for the perfection of his appeal. The City Fiscal, as counsel for the other respondents, received that same order on December 16, 1965. January 10, 1966 was the last day for the perfection of their appeal. The respondents (now the petitioners) filed their notice of appeal only on January 14, 1966 and deposited on January 15, 1966 their cash appeal bond. Their appeal was not perfected on time (See Reyes vs. Court of Appeals, 74 Phil. 235).
Inasmuch as the necessary eight votes for granting the petition could not be secured, the action in this case is dismissed (See. 11, Rule 56, Rules of Court). No costs.
SO ORDERED.
Makalintal, C.J, Muñoz Palma and Castro, JJ., concur.
Barredo, Esguerra, Antonio and Fernandez, JJ., dissent.
Fernando and Makasiar, JJ., took no part.
Footnotes
* On February 22, 1966, or before the case reached this Court, Arnejo assumed the duties of Acting Chief of Police of Cebu City pursuant to a designation made by President Ferdinand E. Marcos. He served in that capacity up to June 15, 1966. He received the salaries of the position. His appointment was not confirmed. On August 1, 1968, he was designated Acting Chief of Police of Lapu-Lapu City. He has been occupying that position up to this time and receiving the corresponding compensation.
On the other hand, on June 14, 1966 the City Treasurer recommended to the Mayor that the sum of P15,967.50 be appropriated for Arnejo's claim under the judgment. That amount consists of (a) P9,875 as Arnejo's back salaries from July 1, 1964 to February 21, 1966; (b) P592.50 as his insurance and retirement premiums; (c) P5,000 as exemplary damages and (d) P500 as attorney's fees. Arnejo's counsel apparently agreed with that recommendation. The Mayor referred the matter to the City Council which resolved on August 1, 1966 that the claim he held in abeyance bending the outcome of the case in this Court.
The Lawphil Project - Arellano Law Foundation
