MARGARITO R. JAMERO, PETITIONER, VS. THE HONORABLE ACHILLES L. MELICOR, IN HIS CAPACITY AS PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF TAGBILARAN CITY, BRANCH 4, ATTY. ALBERT…

Jamero versus Melicor

The Case

This is a petition for review on certiorari brought by Margarito Jamero against Judge Achilles Melicor, in his capacity as presiding judge of the Regional Trial Court of Tagbilaran City, Branch 4, against Atty. Alberto Bautista, the special administrator appointed over the estate of the petitioner's deceased mother, and against Ernesto Jamero, the petitioner's brother who opposed the appointment. The petitioner asks the Supreme Court to set aside two resolutions of the Court of Appeals that dismissed his petition for certiorari on purely procedural grounds. The case matters for two reasons: it fixes the retroactive reach of the amended rule on the sixty-day period for certiorari, and it clarifies that while the appointment of a special administrator is interlocutory and discretionary, it may still be annulled by certiorari upon a showing of grave abuse of discretion.

Procedural History

Before the Regional Trial Court of Tagbilaran City, Branch 4, the petitioner filed a special proceeding for the administration and settlement of the estate of his deceased mother, Consuelo Jamero. His brother Ernesto opposed his petition to be appointed regular administrator. Over the petitioner's objection, the trial court, in an order dated December 4, 1998, appointed Atty. Alberto Bautista as special administrator pending the appointment of a regular administrator. The petitioner moved for reconsideration, and the trial court denied the motion in an order dated February 26, 1999, which the petitioner received on March 4, 1999.

The petitioner then went up to the Court of Appeals on a petition for certiorari. The Court of Appeals dismissed the petition outright in a resolution promulgated on June 14, 1999, for failure to state the material dates, and in any event for late filing. It denied the petitioner's motion for reconsideration in a resolution promulgated on November 24, 1999. The petitioner then came to the Supreme Court by petition for review on certiorari.

Facts

Consuelo Jamero died, and her son Margarito opened a special proceeding for the settlement of her estate, seeking appointment as regular administrator. His brother Ernesto opposed the petition. Acting on Ernesto's motion and over Margarito's objection, the trial court appointed a third party, Atty. Alberto Bautista, as special administrator pending the appointment of a regular administrator.

The petitioner received the appointment order on December 11, 1998. He filed his motion for reconsideration on December 28, 1998, which he says was the last day of the fifteen-day period, because the fifteenth day, December 26, 1998, fell on a Saturday when the post office held no office. The trial court denied the motion in an order the petitioner received on March 4, 1999.

On April 21, 1999, the petitioner filed his petition for certiorari with the Court of Appeals. The appellate court dismissed it, noting that the petition did not state the date the motion for reconsideration was filed, and adding that even counting from December 26, 1998, the petition was late by three days. The petitioner's motion for reconsideration was denied, and he elevated the matter to the Supreme Court.

Issues

• Whether or not the Court of Appeals erred in dismissing the petition for certiorari as having been filed out of time.
• Whether or not the Court of Appeals erred in ruling that the appointment of a special administrator is discretionary on the appointing court and, being an interlocutory order, is not appealable nor subject to certiorari.
• Whether or not the appointment of a special administrator was in accordance with law and jurisprudence.

Applicable Provisions

Section 4 of Rule 65 of the Rules of Court, as amended by the Supreme Court's circular effective September 1, 2000, provides:

Section 4. When and where petition filed. The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.

This amended provision governs the timeliness of the petitioner's certiorari petition, because under it the sixty days are counted from his receipt of the denial of his motion for reconsideration on March 4, 1999.

Section 4 of Rule 65 as it stood before that amendment, quoted in the assailed resolution, provides:

If the petitioner had filed a motion for new trial or reconsideration in due time after notice of said judgment, order or resolution the period herein fixed shall be interrupted. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of such denial. No extension of time to file the petition shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.

This was the version the Court of Appeals applied when it counted the period from the filing of the motion and found the petition three days late.

Section 3 of Rule 46, as amended, provides:

In actions filed under Rule 65, the petition shall further indicate the material dates showing when notice of the judgment or final order or resolution subject hereof was received when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received.

This is the requirement the Court of Appeals found violated when it dismissed the petition outright.

Ruling

On the first issue, the Court ruled in favor of the petitioner. The amendment introduced by the circular is procedural or remedial in character. It creates no new rights and removes no vested rights; it merely furthers a remedy or confirms rights already existing. Procedural laws do not come within the legal conception of a retroactive law, and they may be given retroactive effect to actions pending and undetermined at the time of their passage, because there are no vested rights in rules of procedure. Applying the amended rule, the petitioner had sixty days from March 4, 1999, or until May 3, 1999, to file his petition, and he filed it on April 21, 1999. The petition was therefore timely.

On the second issue, the Court agreed with the Court of Appeals in part. The appointment of a special administrator is indeed interlocutory, discretionary on the part of the trial court, and non-appealable. But the Court held that it may be the subject of certiorari if it can be shown that the trial court committed grave abuse of discretion, or acted without or in excess of jurisdiction. An interlocutory order is not appealable, yet certiorari remains the proper remedy to annul it when it is rendered with grave abuse of discretion.

On the third issue, the Court did not resolve the merits itself. Because the petition for certiorari should not have been dismissed, the question of whether the appointment of the special administrator was in accordance with law and jurisprudence must be passed upon by the Court of Appeals in the petition filed with it. The case was therefore remanded.

Doctrine

First, the sixty-day period under Section 4 of Rule 65, as amended, is counted from notice of the denial of a timely motion for reconsideration, whether such motion is required or not. The amendment is procedural and remedial, and it applies retroactively to actions pending and undetermined at the time of its passage, since no one has a vested right in rules of procedure.

Second, the appointment of a special administrator is an interlocutory and discretionary order of the probate court, and it is not appealable. It may, however, be annulled by certiorari upon a showing of grave abuse of discretion, or of lack or excess of jurisdiction. Interlocutory does not mean immune from review; it means review by certiorari rather than by appeal.

Disposition

The petition was partially granted; the two resolutions of the Court of Appeals were set aside, and the case was remanded to the Court of Appeals for further proceedings, with the National Bureau of Investigation directed to arrest and detain Atty. Bautista until full payment of his four thousand peso fine.

Remember This

Memorize this line: an order appointing a special administrator is interlocutory and discretionary, hence not appealable, but it may be struck down by certiorari for grave abuse of discretion. Examiners use this case to test the retroactive application of procedural rules and the distinction between appeal and certiorari against interlocutory orders.