ROSE MARIE A. TUMULAK, CHRISTIANE STEP TUMULAK ALEJANDRINO AND JOSE ANTONIO TUMULAK DIOSANTA, PETITIONERS, VS. THE HONORABLE JUDGE, RTC BRANCH 53, LAPU-LAPU CITY AND BANCO DE OR…

Tumulak versus the Presiding Judge of the Regional Trial Court of Lapu-Lapu City

The Case

This is a petition for certiorari under Rule 65 of the Rules of Court, brought by Rose Marie Tumulak, Christiane Step Tumulak Alejandrino, and Jose Antonio Tumulak Diosanta against the Presiding Judge of Branch 53 of the Regional Trial Court of Lapu-Lapu City and against Banco de Oro Unibank. The petitioners had sued the bank in the trial court to annul a mortgage, asking also for a writ of preliminary injunction and a temporary restraining order, and they claimed rights over the property as beneficiaries of a family home. The trial court dismissed their complaint for lack of cause of action, and instead of appealing, they came to the Supreme Court on certiorari. The case matters because it is a clean teaching vehicle on the relationship between appeal and certiorari: it tells us when an order is final and appealable, and why certiorari cannot be used as a substitute for a lost or waived appeal.

Procedural History

The petitioners filed their complaint for annulment of mortgage, with a prayer for a writ of preliminary injunction and a temporary restraining order, before Branch 53 of the Regional Trial Court of Lapu-Lapu City. The bank moved to dismiss. The petitioners received an incomplete copy of that motion, the annexes mentioned in it not being attached, and a few days later they received a manifestation submitting the missing annexes, the bank explaining that the omission was due to inadvertence under pressure of work. The petitioners filed a comment opposing the motion. The trial court granted the motion to dismiss, holding that the complaint failed to state a cause of action. The petitioners moved for reconsideration, and the trial court denied it. Rather than appeal, the petitioners went directly to the Supreme Court by a petition for certiorari under Rule 65, asking that the two orders be nullified or set aside.

Facts

On the twenty-ninth of December, 2010, the petitioners filed a complaint before the Regional Trial Court of Lapu-Lapu City for annulment of mortgage, with a prayer for a writ of preliminary injunction and a temporary restraining order, against Banco de Oro Unibank. The complaint was docketed as a civil case and assigned to Branch 53.

On the fifteenth of February, 2011, the petitioners received from the bank a motion to dismiss that was incomplete, because the annexes mentioned in the pleading were not appended to it. A few days later they received a manifestation dated the seventh of February, 2011, which submitted the missing annexes, the bank citing inadvertence due to pressure of work as the reason for the omission. On the third of March, 2011, the petitioners filed their comment to the motion to dismiss, asking that it be set aside, with supporting laws and jurisprudence.

On the sixteenth of June, 2011, the trial court granted the motion to dismiss, holding that the complaint was dismissed for lack of cause of action. The petitioners moved for reconsideration, but the trial court denied it in its order dated the third of October, 2011. The petitioners then filed the present petition for certiorari, raising two grounds: that the trial court committed grave abuse of discretion amounting to lack of jurisdiction in granting the motion to dismiss for lack of cause of action, and that the trial court erred in not giving credence to their rights as legal beneficiaries of the family home under Article 158 of the Family Code.

Issues

• Whether or not a petition for certiorari under Rule 65 is the proper remedy to challenge a trial court order granting a motion to dismiss and dismissing the complaint for lack of cause of action.
• Whether or not the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in granting the motion to dismiss and in not appreciating the petitioners' rights as beneficiaries of the family home.

Applicable Provisions

Section 1 of Rule 65 of the Rules of Court provides:

SECTION 1. Petition for certiorari. – When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of its or his jurisdiction, and there is no appeal, or any plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

This provision fixes the extraordinary character of certiorari and makes the absence of appeal, or of any plain, speedy and adequate remedy in the ordinary course of law, a condition for its availability.

Section 1 of Rule 41 of the Rules of Court provides:

Section 1. Subject of appeal. – An 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.

This provision identifies the order that must be challenged by appeal, and it is the provision the Court uses to classify the trial court's order dismissing the complaint.

Ruling

On the first issue, the Court held that the petition was clearly an improper remedy. A writ of certiorari may issue only when three requirements are set out in the petition and established: first, that the writ is directed against a tribunal, a board, or any officer exercising judicial or quasi-judicial functions; second, that such tribunal, board, or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and third, that there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. The Court found that the orders subject of the petition partake of the nature of a judgment or final order, which is appealable under Rule 41. Citing its earlier definition, the Court explained that a final judgment or order is one that finally disposes of a case, leaving nothing more for the court to do with respect to it, and that it may be an order or judgment that dismisses an action. The order granting the motion to dismiss is final, not interlocutory, because the proceedings are terminated and nothing more is left for the lower court to do. The Court restated the basic rule that a writ of certiorari will not issue where the remedy of appeal is available to the aggrieved party, and that a remedy is plain, speedy, and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court. Here, appeal was not only available but also a speedy and adequate remedy. Quoting its earlier decision in Madrigal Transport against Lapanday Holdings, the Court held:

Where appeal is available to the aggrieved party, the action for certiorari will not be entertained. Remedies of appeal (including petitions for review) and certiorari are mutually exclusive, not alternative or successive. Hence, certiorari is not and cannot be a substitute for an appeal, especially if one's own negligence or error in one's choice of remedy occasioned such loss or lapse. One of the requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy. Where an appeal is available, certiorari will not prosper, even if the ground therefor is grave abuse of discretion.

On the second issue, the Court did not reach the merits of the family home claim, because the petition was improperly brought. Since the case was improperly brought before the Court, it had to be dismissed.

Doctrine

First, appeal and certiorari are mutually exclusive, not alternative or successive. Certiorari under Rule 65 lies only when there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, and it will not prosper even if the ground invoked is grave abuse of discretion where an appeal is available.

Second, an order granting a motion to dismiss and dismissing the complaint is a final order that completely disposes of the case, because it terminates the proceedings and leaves nothing more for the lower court to do. Being a final order, it is appealable under Section 1 of Rule 41, and it cannot be the subject of a petition for certiorari.

Third, a remedy is plain, speedy, and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court. Where such a remedy exists, the extraordinary writ of certiorari is closed to the aggrieved party.

Disposition

The petition was dismissed for lack of merit, the Court holding that certiorari was the wrong remedy because the trial court's order of dismissal was a final order appealable under Rule 41.

Remember This

Memorize the line: where appeal is available, certiorari will not prosper, even if the ground is grave abuse of discretion. Examiners use this case to test whether a student can classify an order dismissing a complaint as a final, appealable order, and to test the rule that appeal and certiorari are mutually exclusive remedies.