THIRD DIVISION

[G.R. No. 143440. February 11, 2003]

SERENA T. BACELONIA, GRACIANO BACELONIA, SR. and GRACIANO T.
BACELONIA, JR., petitioners, vs. THE COURT OF APPEALS and SPS. VICTORINO S.
BOLOS, JR. and OLIVIA P. BOLOS, respondents.
DECISION
CORONA, J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court of the
resolution1[1] of the Court of Appeals promulgated on March 6, 2000 in CA.G.R. SP No. 57455
dismissing the petition for certiorari filed by the petitioners and its resolution2[2] promulgated on
May 19, 2000 denying the motion for reconsideration.
The facts show that, on January 12, 1998, private respondents Victorino and Olivia Bolos filed a
complaint3[3] for damages against herein petitioners including Simeon Roxas-Cu and Daniel
Cario before the Regional Trial Court of Quezon City which was docketed as Civil Case No. Q98-33149. The case stemmed from a vehicular accident, involving a tamaraw-type school shuttle
service vehicle and a 6 x 6 Isuzu cargo truck, that occurred along Aurora Blvd. in Quezon City
on February 3, 1993 resulting in the untimely demise of private respondents daughter, Jemelee
Bolos. Jemelee was on board the school shuttle service vehicle that used to transport her from
Marikina City to St. Bridget School in Quezon City.
Petitioners-spouses Graciano, Sr. and Serena Bacelonia were named defendants in the said
complaint for damages as owners/operators of the school shuttle service that figured in the
accident. Graciano Bacelonia, Jr. was the driver thereof. The other defendants therein, Simeon
Roxas-Cu and Daniel Cario were the owner and the driver of the cargo truck, respectively.
On February 9, 1998, the petitioners filed their answer4[4] with special and affirmative defenses
and counterclaim while their co-defendants, Simeon Roxas-Cu and Daniel Cario, filed their
answer with affirmative defenses and cross-claim.

Penned by Associate Justice Renato C. Dacudao and concurred in by Associate Justices

Quirino D. Abad Santos, Jr. and B.A. Adefuin-de la Cruz. Petition, Annex A, Rollo, pp. 2831.
1[1]

2[2]

Petition , Annex B, Rollo, pp. 34-35.

3[3]

Petition, Annex C, Rollo, pp. 38-43.

4[4]

Petition, Annex H, Rollo, pp. 70-75.

Meanwhile, it appears that, prior to the filing of the complaint for damages by the private
respondents, herein petitioners filed on March 1, 1995 a complaint5[5] for damages arising from
the said accident against their co-defendants with the Regional Trial Court of Quezon City which
was docketed as Civil Case No. Q-95-23169. On April 27, 1995, herein petitioners and their codefendants entered into a compromise agreement6[6] that led to the dismissal7[7] of the complaint
in Civil Case No. Q-95-23169 on April 28, 1995 by the trial court.
On September 24, 1999, and upon termination of the testimony of the second witness for the
complainants (herein private respondents) in Civil Case No.Q-98-33149, petitioners filed a
motion8[8] to be dropped as defendants therefrom on the ground that a compromise agreement
had already been entered into by the parties in Civil Case No. 95-23169. The petitioners opined
in essence that their co-defendants, Simeon Roxas-Cu and Daniel Cario, had explicitly admitted
sole responsibility for the vehicular accident by entering into the compromise agreement. Thus,
they (the Bacelonias) should be excluded as defendants in Civil Case No. 98-33149. However,
their co-defendants, Simeon Roxas-Cu and Daniel Cario, filed an opposition9[9] thereto
substantially contending that res-judicata does not obtain insofar as the present case is
concerned, and that, on the contrary, they never admitted any responsibility for the accident on
February 3, 1993.
The trial court resolved to deny the motion of the petitioners to be dropped as defendants from
Civil Case No. Q-98-33149 on January 10, 2000 for lack of merit and scheduled the reception of
evidence of the defense on February 3, 2000.
On January 31, 2000, the petitioners filed a motion for reconsideration10[10] of the trial courts
order denying their motion to be dropped as defendants from Civil Case No. Q-98-33149 and set
the date of hearing11[11] thereof on February 15, 2000 at 8:30 oclock in the morning. On the
same day, January 31, 2000, the petitioners also filed a separate motion to cancel12[12] the hearing
for the presentation of evidence for the defense earlier scheduled on February 3, 2000 so that
their motion for reconsideration, scheduled for hearing on February 15, 2000, may not be

5[5]

Petition, Annex E, Rollo, pp. 45-52.

6[6]

Petition, Annex F, Rollo, pp. 66-67.

7[7]

Petition, Annex G, Rollo, p. 68.

8[8]

Petition, Annex I, Rollo, pp. 76-79.

9[9]

Petition, Annex J, Rollo, pp. 80-85.

10[10]

Petition, Annex K, Rollo, pp. 86-97.

11[11]

Petition, Annex K-1, Rollo, p. 97.

12[12]

Petition, Annex L, Rollo, pp. 98-99.

rendered moot and academic. The motion to cancel hearing was itself scheduled to be heard on
February 3, 2000. Private respondents opposed the twin motions of the petitioners for lack of
merit and argued that the scheduled hearing on February 3, 2000 for the initial presentation of
evidence of the defense may be availed of by said petitioners for oral argument in support of
their motion for reconsideration.
During the scheduled hearing for the initial presentation of evidence of the defense on February
3, 2000, the trial court denied the motion for reconsideration of the petitioners for lack of
merit.13[13] The petitioners elevated the matter to the Court of Appeals through a petition for
certiorari14[14] maintaining that they were not accorded their right to due process when their
motion for reconsideration was denied by the trial court prior to its scheduled hearing on
February 15, 2000. However, the petition was dismissed by the Court of Appeals in the
questioned Resolution promulgated on March 6, 2000 for being premature and for lack of merit.
The appellate court explained that the questioned order of the trial court was interlocutory and
could not be assailed in a petition for certiorari and that, moreover, res judicata did not apply
insofar as the claim in Civil Case No. Q-98-33149 was concerned. The subsequent motion for
reconsideration was denied by the appellate court on May 19, 2000. Hence, the instant
petition15[15] raising the sole issue of whether or not the Court of Appeals exceeded its
jurisdiction when it dismissed the petition in CA-G.R. SP No. 57455.
The private respondents filed their Comment16[16] on October 9, 2000 which elicited a Reply17[17]
from the petitioners on May 15, 2001. Both parties filed their respective memoranda18[18] on
December 18, 2001 in compliance with our resolution dated October 8, 2001 after which the case
was deemed submitted for decision.
It should be noted at the outset that, while the instant petition is ostensibly denominated as a
petition for review on certiorari under Rule 45 of the Revised Rules of Court seeking a review of
the questioned resolutions of the Court of Appeals, the discussion therein exclusively dwells on
the sole issue of whether or not the appellate court committed grave abuse of discretion, a
question which may be appropriately addressed through a petition for certiorari under Rule 65.
Specifically, petitioners claim that the Court of Appeals exceeded its jurisdiction when it
dismissed their petition in CA G.R. S.P. No. 57455 allegedly for being premature and for lack of
merit, thereby totally ignoring the basic issue on the alleged violation by the trial court of their

13[13]

Petition, Annex M, Rollo, p. 100.

14[14]

Petition, Annex N, Rollo, pp. 101-125.

15[15]

Rollo, pp. 3-27.

16[16]

Rollo, pp. 226-236.

17[17]

Rollo, pp. 242-249.

18[18]

Rollo, pp. 254-261; 262-272.

basic right to due process. It must be emphasized that a petition for review under Rule 45 of the
Revised Rules of Court is generally limited only to questions of law or errors of judgment. 19[19]
On the other hand, the petition for certiorari under Rule 65 may be availed of to correct errors of
jurisdiction including the commission of grave abuse of discretion amounting to lack or excess of
jurisdiction.20[20] Consequently, the instant petition for review may be denied for being an
erroneous legal recourse.
At any rate, and to finally dispose of the instant controversy, we rule that the Court of Appeals
correctly dismissed the petition in CA G.R. S.P. No. 57455 for the reason that the trial court did
not abuse its discretion in denying the petitioners motion for reconsideration on February 3,
2000. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment
as would be equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross
as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law,
or to act at all in contemplation of law as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility.21[21]
It should be noted that the motion for reconsideration of the trial courts resolution on January
10, 2000 was filed by the petitioners on January 31, 2000. The date and time of hearing thereof
was set by the petitioners on February 15, 2000 at 8:30 oclock in the morning. In this
connection, Rule 15, Section 5 of the Revised Rules of Court on motions provides:
Section 5. Notice of hearing.- The notice of hearing shall be addressed to all parties concerned,
and shall specify the time and date of the hearing which must not be later than ten (10) days after
the filing of the motion. (Emphasis ours)
It is clear then that the scheduled hearing of the said motion for reconsideration was beyond the
period specified by the Revised Rules of Court which was not later than ten (10) days after the
filing of the motion, or no later than February 10, 2000. Significantly, the above provision of
Rule 15, Section 5 uses the mandatory term must in fixing the period within which the motion
shall be scheduled for hearing. A motion that fails to religiously comply with the mandatory
provision of Rule 15, Section 5 is pro forma and presents no question which merits the attention
and consideration of the court.22[22]

Tanedo vs. CA, 252 SCRA 80,90 (1996); Engineering and Machinery Corp. vs. CA, 252
SCRA 156,162 (1996).
19[19]

20[20]

Asian Trading Corp. vs. CA, 303 SCRA 152,161-162 (1999).

Asian Trading Corporation vs. CA, supra, pp. 161-162; Commissioner of Internal Revenue
vs. CA, 257 SCRA 200,232 (1996).
21[21]

Goldloop Properties, Inc. vs. CA, 212 SCRA 498, 504 (1998); Prado vs. Veridiano II, 204
SCRA 654, 666-667 (1991);Bank of the Philippine Islands vs. Far East Molasses Corporation,
198 SCRA 689, 698-699 (1991).
22[22]

The mandatory character of Rule 15, Section 5 of the Revised Rules of Court becomes specially
significant in this case, considering the claim of the private respondents that the petitioners have
been engaging in dilatory tactics, an imputation not without factual basis. As borne by the
records, herein petitioners and their co-defendants, Simeon Roxas-Cu and Daniel Cario, entered
into a compromise agreement on April 27, 1995 that led to the dismissal by the trial court of the
complaint in Civil Case No. Q-95-23169 on April 28, 1995.
This compromise agreement was already interposed by the petitioners as one of the special and
affirmative defenses in their answer to the complaint for damages in Civil Case No. Q-98-33149.
Thus it was no longer legally possible for the petitioners to file the Motion to Exclude on
September 24, 1999 in Civil Case No. Q-98-33149 (actually a motion to dismiss the case against
them), based on a compromise agreement that did not even bind the complainants (herein private
respondents) who were not parties thereto.23[23] At such stage, the private respondents were
already winding up the presentation of their evidence in Civil Case No. Q-98-33149.
Upon the denial of their Motion to Exclude on January 10, 2000, the petitioners filed the subject
motion for reconsideration on January 31, 2000. In addition, they moved to cancel the scheduled
hearing for the initial presentation of their evidence already scheduled on February 3, 2000
ostensibly to give way to oral arguments in support of their motion for reconsideration which, as
above discussed, was pro forma. By their actuations, it can be conclusively presumed that the
petitioners had no other intention but to delay the proceedings in Civil Case No. Q-98-33149.
Besides, the petitioners cannot validly invoke violation of due process to question the trial
courts denial of their motion for reconsideration. It should be pointed out that the motion to
cancel the scheduled hearing on February 3, 2000 filed on January 31, 2000 by the petitioners
was itself scheduled to be heard on February 3, 200024[24] which latter date, incidentally, was
previously set by the trial court for reception of defendants evidence. Admittedly, the
petitioners were present during the hearing on said date to argue on the merits of their motion to
cancel.25[25] On the same occasion, the private respondents objected to the motion to cancel the
hearing on February 3, 2000, arguing that no compelling reason existed to grant the said pending
motion; they proposed instead that petitioners avail of the said setting to argue their motion for
reconsideration.26[26]
Despite the denial by the trial court of their motion to cancel, and a subsequent directive for them
to argue their motion for reconsideration on February 3, 2000, the petitioners chose to ignore the
same. The petitioners thus had only themselves to blame for not having been heard on their
Cebu International Finance Corporation vs. CA, 316 SCRA 488, 498-499 (1999); Westmost
Bank vs. Shugo Noda & Co. Ltd., 307 SCRA 381, 391 (1999).
23[23]

24[24]

Rollo, p. 114.

25[25]

Rollo, p. 117.

26[26]

Rollo, p. 226.

motion for reconsideration. Under the Constitution, what is violative of due process is the denial
of the opportunity to be heard. In the case at bar, no grave abuse of discretion can be ascribed to
the trial court inasmuch as it afforded the petitioners more than ample opportunity to explain
their side.27[27]
WHEREFORE, the instant petition for review on certiorari is hereby DENIED.
SO ORDERED.
Puno, (Chairman), Panganiban, Sandoval-Gutierrez and Carpio-Morales, JJ., concur.

27[27]

China City Restaurant Corp. vs. NLRC, 217 SCRA 443, 449 (1993).