An appeal and a petition for certiorari are mutually exclusive. A petition for certiorari is available only when there is no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. Hence, a petition for certiorari is rendered moot by an appeal challenging not only the trial court resolution dismissing the complaint, but also the two interlocutory orders earlier assailed in the petition.

The Case

Before us is a Petition for Review on Certiorari assailing the July 24, 1997 and March 4, 1998 Resolutions^[1] of the Court of Appeals (CA) in CA-GR SP No. 42512. The decretal portion of the first CA Resolution reads as follows:^[2]

"WHEREFORE, the Petition is hereby DENIED DUE COURSE for having become MOOT AND ACADEMIC."

The second assailed Resolution, on the other hand, denied petitioner's Motion for Reconsideration.^[3]

The Petition for Certiorari, which was denied by the appellate court, assailed two Orders^[4] of the Regional Trial Court (RTC) of Makati.^[5] In its September 17, 1996 Order, the RTC had ruled as follows:

"WHEREFORE, in order not to delay the early termination of this case, all depositions set for hearing are hereby cancelled[;] set this case for pre-trial on November 14, 1996 at 2:00 o'clock in the afternoon."^[6]

In its October 14, 1996 Order, the RTC denied reconsideration in this wise:

"WHEREFORE, [petitioner's] Motion for Partial Reconsideration of the Order of this Court dated September 17, 1996 is DENIED.

"The pre-trial conference set on November 14, 1996 at 2:00 o'clock in the afternoon shall proceed as scheduled."^[7]

The Facts

The undisputed facts are summarized by the Court of Appeals as follows:^[8]

"On 1 April 1994, the petitioner filed a complaint for specific performance and damages against respondent Hyatt Industrial Manufacturing Corporation (Hyatt, for brevity), docketed as Civil Case No. 94-1429 of the respondent court. The Complaint was subsequently amended twice, to implead respondents Princeton Development Corporation (Princeton, for brevity) and Yu He Ching (Yu, for brevity) as defendants.

After some skirmishes over the admission of the second amended complaint, culminating in the decision of this Court in CA-G.R. SP No. 36206 dated 15 May 1995, the private respondents filed their answers to the said second amended complaint.

On 2 April 1996, the petitioner served notices to take the depositions of respondent Yu, Elena Sy and Pacita Tan Go. On 17 July 1996, the respondent court issued an Order allowing the petitioner to take the depositions of Elena Sy on 17 September 1996, respondent Yu on 26 September 1996, and Pacita Tan Go on 3 October 1996.

However, on 15 August 1996, respondent Hyatt filed a manifestation stating that Elena Sy had resigned from the company effective 1 July 1996. On 17 September 1996, Elena Sy failed to appear at her scheduled deposition-taking. The respondent court then issued its first questioned Order cancelling all depositions set for hearing, in order not to delay the early termination of the case, and setting the case for pre-trial on 14 November 1996, at 2:00 p.m.

On 24 September 1996, petitioner filed a Motion for Partial Reconsideration of the said Order insofar as it cancelled the scheduled taking of depositions.

On 14 October 1996, the respondent court issued the second questioned order.

Hence, this petition for certiorari, in which the petitioner accuses the respondent court of having acted with grave abuse of discretion in depriving it of 'the due process right to discovery.'

The petition was raffled to Justice Pacita Cañezares-Nye, who was then terminally ill. After her untimely death on February 28, 1997, the petition was re-raffled to the undersigned ponente on April 3, 1997.

In the meantime, the respondent court went ahead with the pre-trial of Civil Case No. 94-1429 on 14 November 1996.^[9] Petitioner moved for its suspension, and when (the) said motion was denied, refused to enter into the pre-trial conference. On motion of the private respondents, petitioner was declared non-suited and its complaint was dismissed.

On 23 December 1996, petitioner filed a Conditional Notice of Appeal (conditioned on its failure to file a motion for reconsideration within the reglementary period). Thereafter, it filed a motion for reconsideration, which the respondent court denied. Hence, its appeal is now pending before this Court."

Ruling of the Court of Appeals

The Petition for Certiorari was deemed moot and academic by the appellate court, which ratiocinated as follows:

"We agree with the private respondents that the petition in this case has already become moot and academic. Any decision of ours will not produce any practical legal effect. According to the petitioner, if we annul the questioned Orders, the dismissal of its Complaint by the trial [court] will have to be set aside in its pending appeal. That assumes that the division handling the appeal will agree with Our decision. On the other hand, it may not. Also other issues may be involved therein than the validity of the herein questioned orders.

"We cannot pre-empt the decision that might be rendered in such appeal. The division to [which] it has been assigned should be left free to resolve the same. On the other hand, it is better that this Court speak with one voice."

Hence, this Petition.^[10]

The Issues

In its Memorandum, petitioner submits the following issues for our consideration:

"(a) Whether or not the Honorable Court of Appeals committed reversible error in dismissing the petition for certiorari in CA-GR SP No. 42512 below as being supposedly moot and academic; and

(b) Whether or not the Honorable Court of Appeals committed reversible error in not nullifying the Orders dated 17 September and 14 October 1996 of the RTC, which arbitrarily deprived petitioner of the right to discovery."^[11]

In the main, the Court will determine whether the Court of Appeals erred in denying due course to the Petition for Certiorari on the ground of mootness.

The Court's Ruling

The Petition before us has no merit.

Main Issue: Mootness of the Petition for Certiorari

Petitioner contends that the appellate court erred in holding that the Petition for Certiorari, which had assailed the two interlocutory RTC Orders, was moot, academic and devoid of any practical legal effect. It insists that a ruling on the merits on the said Petition "would have a practical legal effect since it would likely result in the setting aside of the dismissal of petitioner's amended complaint."^[12]

We disagree. First, it should be stressed that the said Petition sought to set aside only the two interlocutory RTC Orders, not the December 3, 1996 Resolution^[13] dismissing the Complaint. Verily, the Petition could not have assailed the Resolution, which was issued after the filing of the former.

Under the circumstances, granting the Petition for Certiorari and setting aside the two Orders are manifestly pointless, considering that the Complaint itself had already been dismissed. Indeed, the reversal of the assailed Orders would have practical effect only if the dismissal were also set aside and the Complaint reinstated. In other words, the dismissal of the Complaint rendered the Petition for Certiorari devoid of any practical value.

Second, the Petition for Certiorari was superseded by the filing, before the Court of Appeals, of a subsequent appeal docketed as CA-GR CV No. 57119, questioning the Resolution and the two Orders. In this light, there was no more reason for the CA to resolve the Petition for Certiorari.

Section 1, Rule 65 of the Rules of Court, clearly provides that a petition for certiorari is available only when "there is no appeal, or any plain, speedy and adequate remedy in the ordinary course of law."^[14] A petition for certiorari cannot coexist with an appeal or any other adequate remedy. The existence and the availability of the right to appeal are antithetical to the availment of the special civil action for certiorari.^[15] As the Court has held, these two remedies are "mutually exclusive."^[16]

In this case, the subsequent appeal constitutes an adequate remedy. In fact it is the appropriate remedy because it assails not only the Resolution but also the two Orders.

It has been held that "what is determinative of the propriety of certiorari is the danger of failure of justice without the writ, not the mere absence of all other legal remedies."^[17] The Court is satisfied that the denial of the Petition for Certiorari by the Court of Appeals will not result in a failure of justice, for petitioner's rights are adequately and, in fact, more appropriately addressed in the appeal.

Third, petitioner's submission that the Petition for Certiorari has a practical legal effect is in fact an admission that the two actions are one and the same. Thus, in arguing that the reversal of the two interlocutory Orders "would likely result in the setting aside of the dismissal of petitioner's amended complaint," petitioner effectively contends that its Petition for Certiorari, like the appeal, seeks to set aside the Resolution and the two Orders.

Such argument unwittingly discloses a recourse to forum shopping, which has been held as "the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition."^[18] Clearly, by its own submission, petitioner seeks to accomplish the same thing in its Petition for Certiorari and in its appeal: both assail the two interlocutory Orders and both seek to set aside the RTC Resolution.

Hence, even assuming that the Petition for Certiorari has a practical legal effect because it would lead to the reversal of the Resolution dismissing the Complaint, it would still be denied on the ground of forum shopping.

Alleged Distinction Between the Two Actions

Contending that the two actions are different, petitioner argues that the Court of Appeals should have resolved the Petition for Certiorari, notwithstanding the pendency of the appeal. It alleges that "the issue in the petition for certiorari the due process right of petitioner to avail of discovery procedures before pre-trial is not directly at issue in petitioner's appeal of the dismissal of Civil Case No. 94-1429." It distinguishes the two as follows:

"12.1 The petition for certiorari assailed the orders of the RTC denying the petitioner its right to discovery before pre-trial. It presented an issue which is of great significance and should have been resolved by the Honorable Court of Appeals in light of the rulings of the Honorable Supreme Court in Republic v. Sandiganbayan x x x and Fortune Corporation v. Court of Appeals x x x, which prove beyond any doubt petitioner's due process right to discovery before pre-trial.

"12.2. On the other hand, the issue in petitioner's appeal (CA GR CV No. 57119) is whether or not the dismissal of the amended complaint was in conformity with justice and the principle of liberality under the Rules of Court. This is quite a different issue. Clearly, a resolution of this issue would not resolve the issue in the petition for certiorari."^[19]

We are not persuaded. The tortuous explanation of petitioner cannot refute the clear fact that the relief sought in the Petition for Certiorari is also prayed for in the appeal. In the latter, it questioned not only the propriety of the Resolution dismissing the Complaint, but also the two interlocutory Orders denying its recourse to discovery procedure. As Respondent Princeton points out,^[20] petitioner's assignment of errors in its appeal included the following:

"I. The trial court committed reversible error in cancelling all scheduled depositions that it had previously ordered in violation [of petitioner's] due process right to discovery.

"II. The trial court committed reversible error in not granting plaintiff-appellant's urgent Motion to Suspend Proceedings x x x."

As noted earlier, a petition for certiorari is available only when there is no appeal or any other adequate remedy. Considering that the relief prayed for in the Petition for Certiorari was already included in the subsequent appeal, we hold that the CA did not err in ruling that the Petition for Certiorari had become moot and academic.

WHEREFORE, the Petition is DENIED and the assailed Resolutions AFFIRMED. Costs against petitioner.

SO ORDERED.

Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.

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^[1] Penned by Justice Hector L. Hofileña, with the concurrence of Justices Artemon D. Luna (Division chairman) and Artemio G. Tuquero (member)

^[2] CA Resolution dated July 24, 1997, p. 4; rollo, p. 43.

^[3] Rollo, p. 45.

^[4] Written by Judge Roberto C. Diokno.

^[5] See Petition for Review, p. 2; rollo, p. 10.

^[6] Rollo, p. 108.

^[7] Rollo, p. 123.

^[8] CA Resolution dated July 24, 1997, pp. 1-3; rollo, pp. 40-42.

^[9] Although petitioner moved for the issuance of a temporary restraining order to enjoin the trial court from proceeding with the pretrial, the CA issued one, only on April 24, 1997, well after the scheduled pretrial on November 14, 1996 and the dismissal of the Complaint on December 3, 1996. (Rollo, p. 142.)

^[10] The case was deemed submitted for resolution on January 14, 2000, upon receipt by this Court of Respondent Hyatt's Memorandum, signed by Atty. Allan A. Leynes. Filed earlier were Respondent Princeton's Memorandum signed by Atty. Bienvenido A. Tan Jr. and petitioner's Memorandum signed by Attys. Ramon J. Quisumbing, Laurence B. Arroyo, and Ma. Carolina V. Fuentes of Quisumbing Torres.

^[11] Petitioner's Memorandum, p. 13; rollo, p. 310.

^[12] Ibid., p. 14; rollo, p. 311.

^[13] The Resolution disposed as follows:

"WHEREFORE, for failure of (petitioner) to enter into pre-trial conference without any valid reason, its complaint is dismissed. (Respondents') counterclaims are likewise dismissed." (Resolution, p. 3; rollo, p. 135.)

^[14] See Building Care v. NLRC, 268 SCRA 666, February 26, 1997; Bernardo v. CA, 275 SCRA 413, July 14, 1997.

^[15] Province of Bulacan v. CA, 299 SCRA 442, November 27, 1998; Heirs of Placido Miranda v. CA, 255 SCRA 368, March 29, 1996.

^[16] Ligon v. CA, 294 SCRA 73, August 7, 1998, per Davide Jr., J. (Now CJ). See also Oriental Media v. CA, 250 SCRA 647, December 6, 1995; Malinao v. Reyes, 255 SCRA 616, March 29, 1996.

^[17] Tan v. CA, 275 SCRA 568, July 17, 1997, per Francisco, J. See also Seven Brothers Shipping Corp. v. CA, 246 SCRA 33, July 13, 1995; Lansang v. CA, 184 SCRA 230, April 6, 1990.

^[18] Chemphil Export & Import v. CA, 251 SCRA 257, December 12, 1995, per Kapunan, J. See also Solid Homes v. CA, 271 SCRA 157, April 11, 1997; First Philippine International Bank v. CA, 252 SCRA 259, January 24, 1996; Borromeo v. IAC, 255 SCRA 75, March 15, 1996.

^[19] Petitioner's Memorandum, p. 16; rollo, p. 313.

^[20] Respondent Princeton's Memorandum, pp. 25-26; rollo, pp. 259-260.