CONEJOS vs.

CA
G.R. No. 149473 August 9, 2002

FACTS:
Respondent EUTIQUIO PLANIA alleged in his Complaint for specific performance/rescission
with damages filed with the municipal trial court that on 19 September 1989 he entered
into a Memorandum of Agreement with Teresita Pacaa Conejos whereby they agreed that
each of them would pay half of the purchase price of the 134-square-meter residential lot
situated in Tisa, Cebu City, and that upon full payment they would equally divide the lot
and register it in their individual names. Plania averred that after paying P22,804.91
corresponding to the value of his one-half share, petitioner Conejos, despite repeated
demands, refused to divide the subject lot and register it in their individual names
conformably with their agreement.
Respondent Plania brought the matter to the Office of the Barangay Captain of Tisa, and,
as borne out by the Minutes of Hearing Plania shelled out the amount of P22,804.91 to the
Borromeo Bros. Estate, Inc., as payment for his one-half (1/2) portion of the lot. At the
same time Plania admitted having authorized herein petitioner Conejos to sell his share in
the property to Nenita Gavan but petitioner Conejos failed to remit the proceeds of the
sale to him. This admission was likewise evidenced by the Minutes.
During their meeting, Conejos promised to pay the amount of P22,804.91 to Plania in June
1995, but Conejos reneged on her promise so that Plania instituted this instant action
before the Municipal Trial Court in Cities in Cebu City. Conejos alleged that the
Memorandum of Agreement was mutually abandoned by the parties and that Plania's
alleged payment was frowned upon by the Statute of Frauds, the stipulations contained in
the Minutes of the Hearing were mere proposals by Plania for an amicable settlement
which she rejected.
MTCC dismissed the complaint ruling that Plania had failed to present sufficient evidence
to substantiate his allegations. RTC reversed the MTCC.
Petitioner filed petition for review with CA denied, motion for reconsideration denied, so
she filed the instant Petition for Certiorari.

ISSUE: Whether Court of Appeals gravely abused its discretion amounting to lack of jurisdiction
(a) in not ruling that there was mutual cancellation by both parties of the Memorandum of
Agreement of 19 September 1989; and, (b) in giving any probative value to the Minutes of
Hearing of 5 May 1995 and the official receipts presented in evidence by Plania?

HELD: NO. Petitioners Petition for Certiorari should be summarily dismissed for adopting
the wrong mode of appeal.
TIMELINE:
1. The Court of Appeals promulgated its Decision dismissing petitioner's petition for review - 9
January 2001
2. received by petitioner - 22 January 2001
3. Petitioner filed a motion for reconsideration - 29 January 2001
4. Court of Appeals denied the same in its Resolution - 31 May 2001
5. notice of which was received by petitioner - 13 June 2001.
*SHOULD FILE PETITION FOR REVIEW ON CERTIORARI (R45) UNTIL 28 JUNR 2001
**INSTEAD PETITIONER FILED PETITION FOR CERTIORARI (R65) 13 AUGUST 2001 (1M25D LATE)

Petitioner's remedy would have been to file a petition for review on certiorari before
this Court, and, counting fifteen (15) days from receipt of the resolution denying her
motion for reconsideration petitioner had until 28 June 2001 to file a petition for review
on certiorari before this Court. However, instead of a petition for review on certiorari,
petitioner filed on 13 August 2001 a petition for certiorari or one (1) month and
twenty-five (25) days after the lapse of the allotted period within which to file a
petition for review on certiorari. Apparently, petitioner resorted to this special civil
action after failing to appeal within the fifteen (15)-day reglementary period. This
cannot be countenanced. The special civil action of certiorari cannot be used as a substitute for
an appeal which petitioner already lost. Certiorari lies only where there is no appeal nor any
plain, speedy, and adequate remedy in the ordinary course of law. There is no reason why the
question being raised by petitioner, i.e., whether the appellate court committed a grave abuse of
discretion in dismissing petitions, could not have been raised on appeal.

DISPOSITIVE: WHEREFORE, the instant Petition for Certiorari is DISMISSED as a wrong remedy
and for utter lack of merit. Costs against petitioner.