THIRD DIVISION

[G.R. No. 249165. November 10, 2021.]

NORTH SUSANA HOMEOWNERS ASSOCIATION, INC. ,

petitioner, vs. CHEDITA V. MONTENEGRO, respondent.

NOTICE

Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution
dated November 10, 2021, which reads as follows:
G.R. No. 249165 (North Susana Homeowners Association, Inc.,
Petitioner, v. Chedita V. Montenegro, Respondent.) — The Court:
(1) GRANTS petitioner's motion for an extension of twenty (20)
days from March 11, 2021 within which to file a reply to
respondent's comment on the petition for review on certiorari;
and
(2) NOTES said Reply dated March 29, 2021.
This Court resolves the Petition for Review 1 under Rule 45 which seeks
to reverse and set aside the Resolution 2 dated 23 May 2019 and Resolution
3 dated 04 September 2019 of the Court of Appeals (CA) in CA-G.R. SP No.

160330. The CA denied the Petition for Certiorari dated 10 April 2019, which
sought to declare that the Housing and Land Use Regulatory-Board of
Commissioners (HLURB-BOC) and HLURB Arbiters Raymundo A. Foronda
(Arbiter Foronda) and Marife C. Doblada (Arbiter Doblada) acted with grave
abuse of discretion in HLURB Case No. HOA-A-180831-01080 and HLURB
Case No. NCRHOA-070110-1355, respectively, and set aside the HLURB
Board of Commissioners' Decision dated 18 December 2018.
Antecedents
The case stems from a complaint for collection of annual and monthly
membership dues with interest filed by petitioner North Susana Homeowners
Association, Inc. (North Susana) against respondent Chedita V. Montenegro
(Montenegro) before HLURB-Expanded National Capital Regional Field Office
(HLURB-ENCRFO) docketed as HLURB Case No. NCRHOA-070110-1355. 4
In their Amended Complaint dated 18 March 2011, 5 North Susana
claimed that Montenegro has not paid her annual and monthly membership
dues, plus interest of 12% compounded annually, amounting to
PhP76,292.83 as of 28 February 2010. 6 On the other hand, Montenegro
asserted that the amount of PhP76,292.83 is erroneous because the by-laws
of North Susana only authorizes PhP300.00 monthly dues and not PhP600.00.
7

On 12 August 2015, HLURB-ENCRFO, through Arbiter Foronda,

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 promulgated a decision ordering Montenegro to update her membership fee
and monthly dues but based on the amount of PhP300.00 and not the
increased amount of PhP600.00, which was only imposed by mere resolution
of the Board of Directors. Arbiter Foronda ruled that " [c]onsidering that
monthly dues is expressly provided in the association's by-laws, th[e] Office
holds that [the] manner of increasing the same is by way of amendment of
the by-laws duly ratified by the general membership rather than a simple
passage of aboard resolution.'' 8
No appeal was filed from the decision of HLURB-ENCRFO. The decision
became final, and a writ of execution was issued on 20 January 2016. 9 The
writ issued on 20 January 2016 was returned unsatisfied, prompting
Montenegro to file a motion for issuance of an alias writ. North Susana
opposed the motion, citing the decision of the CA in North Susana
Homeowners Association, Inc. v. Bonafide Members of North Susana
Homeowners Association, Inc., et al. 10 In that case, the CA ruled that North
Susana members are supposed to pay monthly dues at the rate of
PhP600.00 effective July 2005, with interest at 12% compounded annually. 11
On 09 January 2017, an alias writ of execution was issued by HLURB-
ENCRFO, but North Susana failed to comply and opted to file an urgent
motion to quash alias writ of execution. Montenegro then filed a motion to
cite North Susana in contempt. 12
HLURB-ENCRFO, now through Arbiter Doblada, denied North Susana's
urgent motion to quash alias writ of execution. Further it cited North Susana
for indirect contempt for failure or refusal to comply with or obey with
justifiable reason the orders of HLURB-ENCRFO. 13 Thus, North Susana filed
an appeal before HLURB-BOC. CAIHTE

Ruling of the HLURB-BOC

The HLURB-BOC denied North Susana's appeal in its Decision dated 18
December 2018. 14 HLURB-BOC found that the decision of HLURB-ENCRFO
had become final and executory and thus, as a rule, it can no longer be
modified.
HLURB-BOC noted that the CA's decision in North Susana Homeowners
Association, Inc. v. Bonafide Members of North Susana Homeowners
Association, Inc., et al., 15 cannot be considered a supervening event that
will alter or modify HLURB-ENCRFO's decision because it was rendered on 04
April 2014, or before the decision of Arbiter Foronda dated 12 August 2015
was handed down. According to HLURB-BOC, North Susana should have
invoked the CA decision in the proceedings before HLURB-ENCRFO before
the decision was promulgated.
Moreover, since North Susana did not appeal said decision, it cannot
now assail the HLURB-ENCRFO's decision that has become final and
executory. Finally, HLURB-BOC noted that Montenegro was not a party in the
case before the CA, and therefore, the pronouncements therein do not apply
ipso facto against her. It is only from the date of finality of said CA decision
that the increased monthly rate of PhP600.00 can be imposed against
Montenegro. 16
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 Aggrieved, North Susana immediately filed a petition for certiorari
dated 10 April 2019 before the CA seeking to declare that the HLURB-BOC
and HLURB Arbiters Foronda and Doblada acted with grave abuse of
discretion in HLURB Case No. HOA-A-180831-01080 and HLURB Case No.
NCRHOA-070110-1355, respectively. Likewise, it prayed that the HLURB-BOC
Decision denying its appeal be set aside.
Ruling of the CA
The CA in its Resolution 17 dated 23 May 2019 dismissed North
Susana's petition for certiorari for failure to exhaust all administrative
remedies. The CA cited Section 2, Rule XXI of HLURB Resolution No. 765,
Series of 2004, which provides:
SECTION 2. Appeal. — Any party may, upon notice to the
Board and the other party, appeal a decision rendered by the Board of
Commissioners to the Office of the President within fifteen (15) days
from receipt thereof, in accordance with P.D. No. 1344 and A.O. No.
18, Series of 1987. [. . .] 18
The CA also cited this Court's pronouncement in Lefebre v. A Brown
Co., Inc., 19 citing Teotico v. Baer , 20 in ruling that an appeal before the
Office of the President was necessary before resorting to Rule 65 of the
Rules of Court. The CA held, " [i]t is clear that the failure to file an appeal on
the decision of the HLURB before the Office of the President, prior to the
filing of Petition for Certiorari, constitutes a violation of the doctrine of
exhaustion of administrative remedies and warrants the dismissal of said
Petition." 21
North Susana filed a motion for reconsideration on 07 June 2019. It
argued that the CA erred in invoking the doctrine of exhaustion of
administrative remedies because under Section 20 (d), Chapter IV of
Republic Act No. 9904 (RA 9904) or the Magna Carta for Homeowners and
Homeowners' Associations, which was approved on 07 January 2010, all
decisions of the HLURB are appealable directly to the CA. North Susana also
claims that Section 2, Rule XXI of HLURB Resolution No. 765, Series of 2004
has already been modified by HLURB Resolution No. 877 dated 24 June
2011, or the Implementing Rules and Regulations of RA 9904, which
provides that "[a]ll decisions of the HLURB are appealable directly to the
Court of Appeals." 22 Moreover, North Susana argued that Lefebre v. A
Brown Co., Inc. and Teotico v. Baer , do not apply here because the matters
in those cases arose before the passage of RA 9904. 23
On 07 October 2019, North Susana filed the present Petition for Review
on Certiorari. 24
On 13 August 2020, Montenegro filed her Comment where she posits
that the CA correctly dismissed North Susana's petition for certiorari. She
argues that North Susana availed of the wrong remedy in filing a petition for
certiorari under Rule 65 of the Rules of Court instead of a petition for review
under Rule 43. 25 In any event, the HLURB-BOC Decision was correct and
there is no need to remand the case to the CA. 26
Issue
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 The sole issue for this Court's resolution is whether the CA erred in
dismissing North Susana's Petition for Certiorari under Rule 65 of the Rules
of Court.
Ruling of the Court
The petition has no merit. We find no basis to reverse the CA's
dismissal of North Susana's Petition for Certiorari. DETACa

At the outset, We emphasize that the facts in this case are not in issue
and the only matter raised before Us is whether or not the CA erred in
dismissing North Susana's petition for certiorari for violating the rule on
exhaustion of administrative remedies. 27
To recall, the CA dismissed North Susana's Petition for Certiorari for
failure to exhaust all administrative remedies. The CA cited Section 2, Rule
XXI of HLURB Resolution No. 765, Series of 2004, which provides that an
adverse decision rendered by the HLURB-BOC may be appealed to the Office
of the President within fifteen (15) days from receipt thereof. The CA also
referred to Lefebre v. A Brown Co., Inc., 28 citing Teotico v. Baer , 29 where
the rule applied by this Court therein was HLURB Resolution No. 765, Series
of 2004. 30
However, North Susana correctly pointed out that at the time the
HLURB-BOC denied its appeal on 18 December 2018, 31 RA 9904 or the
Magna Carta for Homeowners and Homeowners' Associations, which was
approved on 07 January 2010, was already in effect. 32 Section 20 (d),
Chapter IV of RA 9904 expressly provides that "all decisions of the HLURB
are appealable directly to the Court of Appeals." Pursuant to this, HLURB
issued Resolution No. 877 dated 24 June 2011 or the Implementing Rules
and Regulations of RA 9904 which provides that "[a]ll decisions of the HLURB
are appealable directly to the Court of Appeals" that modified Section 2,
Rule XXI of HLURB Resolution No. 765, Series of 2004. 33
Be that as it may, North Susana's petition forcertiorari before the CA
was still correctly dismissed. The extraordinary remedy of certiorari is a
prerogative writ and never issues as a matter of right. 34 A petition for
certiorari under Rule 65 of the Rules of Court is a special civil action that
may be resorted to only in the absence of appeal or any plain, speedy, and
adequate remedy in the ordinary course of law. It is availed of to correct
errors of jurisdiction committed by the lower court or quasi-judicial agency,
or when there is grave abuse of discretion on the part of such court or
agency amounting to lack or excess of jurisdiction. 35
The term "grave abuse of discretion" has been held to have a specific
meaning. An act of a court or tribunal can only be considered as with grave
abuse of discretion when such act is done in a capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be so patent and gross as to amount to an evasion of a
positive duty or to 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. 36
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 As an extraordinary remedy, a petition for certiorari may be
filed only if appeal is not available. If appeal is available, an appeal
must be taken even if the ground relied upon is grave abuse of
discretion. 37
In this case, an appeal to the CA under Rule 43 of the Rules of Court
was available and the proper remedy from the decision of the HLURB-BOC. 38
North Susana, however, filed an original action for certiorari under Rule 65 of
the Rules of Court instead of a Rule 43 petition for review. Nonetheless, even
if the ground relied upon by North Susana was grave abuse of discretion on
the part of the HLURB Board of Commissioners and the HLURB-ENCRFO
Arbiters, an appeal, which was available, must be taken before resorting to a
Rule 65 Petition, an extraordinary remedy.
Further, it appears from the records that what North Susana essentially
assails is the HLURB-BOC Decision denying its appeal where it claims that
the basis for the payment of Montenegro's monthly dues for the period
subject of the HLURB-ENCRFO Decision dated 12 August 2015 should be
increased from PhP300.00 to PhP600.00 per month. 39 In other words, what
North Susana really sought to correct was an error of judgment and not an
error of jurisdiction. More importantly, North Susana did not file an appeal
from this decision. Thus, the HLURB-BOC's ruling in favor of Montenegro had
already attained finality. This Court will not permit North Susana to unduly
prolong the resolution of issues which have already been settled.
This Court has previously held that "the perfection of an appeal in the
manner and within the period laid down by law is not only mandatory but
also jurisdictional. The failure to perfect an appeal as required by the rules
has the effect of defeating the right to appeal of a party and precluding the
appellate court from acquiring jurisdiction over the case." 40
Notably, "[t]he right to appeal is not a natural right nor a part of due
process; it is merely a statutory privilege, and may be exercised only in the
manner and in accordance with the provisions of the law. The party who
seeks to avail of the same must comply with the requirements of the Rules.
Failing to do so, the right to appeal is lost." 41 Consequently, the well-settled
rule is that certiorari cannot be allowed when a party to a case fails to
appeal a judgment despite the availability of that remedy. In turn, certiorari
is not a substitute for a lost appeal. 42
WHEREFORE, premises considered, the instant Petition is hereby
DENIED. Accordingly, the Resolutions dated 23 May 2019 and 04 September
2019 are AFFIRMED. aDSIHc

SO ORDERED." (Dimaampao, J., designated additional member per

Special Order No. 2839 dated 16 September 2021.)

By authority of the Court:

(SGD.) MISAEL DOMINGO C. BATTUNG III

Division Clerk of Court
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 Footnotes

1. Rollo, pp. 3-172.

2. Id. at 159-161. Penned by Associate Justice Jane Aurora C. Lantion of the Special
Sixteenth Division, with Associate Justices Maria Elisa Sempio Diy and Ruben
Reynaldo G. Roxas, concurring.

3. Id. at 65-67. Penned by Associate Justice Jane Aurora C. Lantion of Former

Special Sixteenth Division, with Associate Justices Maria Elisa Sempio Diy and
Ruben Reynaldo G. Roxas, concurring.

4. Id. at 48-51; 79-83.

5. Id. at 53-58.
6. Id.

7. Id. at 79-83.
8. Id. at 49.
9. Id.
10. CA-G.R. SP No. 124805, 04 April 2014.
11. Rollo, p. 49.

12. Id.
13. Id. at 48.
14. By Commissioner Melzar P. Galicia, and Commissioner and Chief Executive
Officer Lloyd Christopher A. Lao.
15. CA-G.R. SP No. 124805, 04 April 2014.
16. Rollo, pp. 50-51.
17. Id. at 159-161. Penned by Associate Justice Jane Aurora C. Lantion of the
Special Sixteenth Division, with Associate Justices Maria Elisa Sempio Diy and
Ruben Reynaldo G. Roxas, concurring.
18. Id. at 159-160.
19. 818 Phil. 1046 (2017) [Per J. Perlas-Bernabe].

20. 523 Phil. 670 (2006) [Per C.J. Corona].

21. Rollo, pp. 160-161.
22. Id. at 162-163.
23. Id. at 163-164.
24. Id. at 6.

25. Id. at 198-201.

26. Id. at 202.

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 27. Id. at 6.

28. 818 Phil. 1046 (2017) [Per J. Perlas-Bernabe].

29. 523 Phil. 670 (2006) [Per C.J. Corona].
30. Rollo, pp. 160-161.
31. By Commissioner Melzar P. Galicia, and Commissioner and Chief Executive
Officer Lloyd Christopher A. Lao.
32. RA 9904 took effect on March 30, 2010. See RA 9904, Section 29.
33. Rollo, pp. 162-163.

34. Cerilles v. Civil Service Commission, G.R. No. 180845, 22 November 2017 [Per
J. Caguioa].

35. Hilbero v. Morales, Jr., 803 Phil. 220 (2017) [Per C.J. Leornardo-de Castro].
36. Tom v. Rodriguez , 763 Phil. 162 (2015) [Per J. Perlas-Bernabe].
37. Hilbero v. Morales, Jr., 803 Phil. 220 (2017) [Per C.J. Leonardo-De Castro].
38. See Lefebre v. A Brown Co., Inc. , 818 Phil. 1046 (2017) [Per J. Perlas-Bernabe].
39. Rollo, pp. 202-205, 50-51.

40. Lefebre v. A Brown Co., Inc. , 818 Phil. 1046 (2017) [Per J. Perlas-Bernabe],
citing China Banking Corp. v. City Treasurer of Manila, 762 Phil. 509 (2015)
[Per J. Mendoza].
41. Id., citing Villanueva v. Court of Appeals, 282 Phil. 555 (1992) [Per J. Regalado].
42. Id., citing Indoyon, Jr. v. Court of Appeals, 706 Phil. 200 (2013) [Per C.J. Sereno].

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