G.R. No. 179328, December 23, 2009
RIZALINA P. POSITOS, Petitioner, vs. JACOB M. CHUA, Respondent.

FACTS

Petitioner Rizalina Positos had been occupying a portion of land in Davao City since 1980. The registered owner, Ansuico, Inc., transferred its rights to respondent Jacob Chua on December 26, 1994. The Sto. Tomas de Villanueva Settlers Association, of which petitioner was a member, filed a complaint against respondent. A compromise agreement was approved by the trial court, wherein the Association agreed to vacate in exchange for financial assistance. Petitioner refused to abide by this agreement. Respondent sent a demand letter to vacate. The conflict was referred for conciliation before the Lupon under the Local Government Code. Respondent did not appear personally but sent a representative. No settlement was reached, and respondent filed an unlawful detainer complaint before the MTCC. The MTCC ruled in favor of respondent, ordering petitioner to vacate and pay rentals and fees. Petitioner appealed to the RTC, which affirmed the MTCC decision. Petitioner elevated the case to the Court of Appeals, which reversed and dismissed the complaint without prejudice on the ground that respondent failed to comply with the barangay conciliation procedure by not appearing personally. During the pendency of the appeal, petitioner alleged she was dispossessed of the premises. She filed a motion for reconsideration, praying for restoration, but the appellate court denied it, stating her cause should be ventilated in a separate action. Hence, this petition.

ISSUE

Whether the Court of Appeals erred in dismissing the unlawful detainer complaint without prejudice for non-compliance with barangay conciliation and in not ordering the restoration of possession to petitioner.

RULING

The petition is denied. The dismissal without prejudice by the Court of Appeals was proper. Under Section 1, Rule 41 of the Rules of Court, an order dismissing an action without prejudice is not appealable. The proper remedy is a special civil action for certiorari under Rule 65, which petitioner did not avail of, and her allegations do not constitute grave abuse of discretion. Procedurally, the petition under Rule 45 is improper. On the merits, non-compliance with the conciliation process affected the sufficiency of the cause of action and rendered the complaint premature. A dismissal without prejudice is not a judgment on the merits. Regarding petitioner’s claim of dispossession during the appeal, this is a question of fact not proper for review, and she presented no convincing circumstances to warrant an exception to the general rule.