EN BANC
[ G.R. Nos. 138336-37, February 16, 2004 ]ATTY. BIENVENIDO P. JABAN v. CITY OF CEBU +
ATTY. BIENVENIDO P. JABAN AND ATTY. BIENVENIDO DOUGLAS LUKE B. JABAN, PETITIONERS, VS. CITY OF CEBU, CITY MAYOR ALVIN GARCIA, SANGGUNIANG PANGLUNGSOD OF THE CITY OF CEBU, HON. RENATO OSMEÑA, AS PRESIDING OFFICER OF SANGGUNIANG PANG-LUNGSOD AND CITOM CHAIRMAN, ALAN GAVIOLA,
AS CITOM CHIEF, CITOM TRAFFIC ENFORCER E.A. ROMEO AND CITOM TRAFFIC ENFORCER LITO GILBUENA, RESPONDENTS.
D E C I S I O N
ATTY. BIENVENIDO P. JABAN v. CITY OF CEBU +
ATTY. BIENVENIDO P. JABAN AND ATTY. BIENVENIDO DOUGLAS LUKE B. JABAN, PETITIONERS, VS. CITY OF CEBU, CITY MAYOR ALVIN GARCIA, SANGGUNIANG PANGLUNGSOD OF THE CITY OF CEBU, HON. RENATO OSMEÑA, AS PRESIDING OFFICER OF SANGGUNIANG PANG-LUNGSOD AND CITOM CHAIRMAN, ALAN GAVIOLA,
AS CITOM CHIEF, CITOM TRAFFIC ENFORCER E.A. ROMEO AND CITOM TRAFFIC ENFORCER LITO GILBUENA, RESPONDENTS.
D E C I S I O N
CALLEJO, SR., J.:
This is a petition for review on certiorari, under Rule 45 of the 1997 Rules on Civil Procedure, of the Decision[1] of the Regional Trial Court of Cebu City, Branch 58 in Civil Case No. CEB-20629, and its April 8, 1999 Joint Order which
denied the petitioners' Omnibus Motion for the reconsideration of the decision of the court.
The Antecedents
The petitioners Atty. Bienvenido P. Jaban, Sr. and Atty. Bienvenido Douglas Luke B. Jaban are practicing lawyers in Cebu City and holders of non-professional drivers' licenses. They are the respective owners of a Daewoo Sedan Car Racer Model 1995 with Plate No. GEU-992 and a Ford Telstar 5 Speed with Plate No. GOF-758.[2]
In the afternoon of June 23, 1997, the petitioner Atty. Bienvenido P. Jaban, Sr. went to his office at F. Macaraya Building, Colon Street, Cebu City to pick up some important court records. He parked his car at Gullas Street, formerly known as Manalili Street, just near the back portion of the GAW Department Store. When he went back to his car after a few minutes, he found that a denver boat immobilizer had clamped it. There was also a notice posted on the front windshield that it would be a criminal offense to break the clamp. The car was later brought to the office of the Cebu City Traffic Operations Management (CITOM) where Atty. Jaban, Sr. obtained the release of his car, but only after being compelled to pay a fine amounting to P4,200.00.[3]
A similar episode of clamping and immobilization was encountered by the petitioner Atty. Bienvenido Douglas Luke Jaban, Jr. on May 19, 1997. He had parked his car in a secluded area which did not have a "No Parking Sign" therein. He, too, was compelled to pay a fine amounting to P1,400.00 to obtain the release of his car from impoundment.[4]
On July 29, 1997, the petitioners filed a Civil Complaint for Damages and to declare Cebu City Traffic Code Ordinance No. 801, as amended by Ordinance No. 1642 and 1664, as unconstitutional and contrary to law, with a plea for injunctive relief. The petitioners alleged in their complaint that Cebu City Traffic Code Ordinance No. 801, as amended by Ordinance No. 1642 and Ordinance No. 1664, is oppressive, arbitrary and discriminatory; it is not commensurate with the objective of general and public welfare and public order, and is even contrary to statutes. According to the petitioners, the clamping of vehicles was used to compel drivers to pay fines and other alleged previous fines imposed under the aforesaid ordinances without the benefit of a prior court hearing.[5] The complaint, which was docketed as Civil Case No. CEB-20629, was subsequently consolidated with a similar complaint docketed as Civil Case No. CEB-20700, filed on August 11, 1997 by one Atty. Valentino Legaspi whose car was, to the same extent, clamped and immobilized by the traffic enforcers on an alleged traffic infraction pursuant to the aforementioned city ordinances. The trial court did not issue any temporary restraining order or writ of preliminary injunction.
On February 12, 1998, the trial court issued a Pre-Trial Order limiting the issues as follows:
After trial, the trial court promulgated its Decision on January 22, 1999, in favor of the petitioners declaring Ordinance No. 1664 unconstitutional and ordering the respondents to pay damages. The dispositive portion of the decision reads:
Acting on the foregoing motions, the trial court, on April 8, 1999, issued a Joint Order,[10] denying both the respondents' motion for reconsideration and the petitioners' Omnibus Motion. The trial court justified the denial of the petitioners' motion on the parties' failure to agree during the pre-trial to litigate the issue of the unconstitutionality of Ordinance No. 801, the only issues to be resolved by the court being those defined in the Pre-Trial Order. Furthermore, it was inappropriate for it to issue a permanent injunction since it did not issue any writ of preliminary injunction in the first place. The respondents appealed the decision.
The respondents filed their Notice of Appeal on April 19, 1999. The trial court issued an Order on April 26, 1999 giving due course to the appeal[11] and ordered the Branch Clerk of Court to elevate the records to the Court of Appeals (CA). The petitioners filed a motion to dismiss the appeal on the following grounds: (a) the respondents did not indicate in their notice of appeal to which court the appeal was made; and, (b) the appeal should be to the Supreme Court which has appellate jurisdiction to review decisions of the RTC involving the constitutionality of ordinances under Article VIII, Section 5(2) of the Constitution. On May 25, 1999, the Court issued an Order denying the said motion.[12] The appeal of the respondents was docketed in the CA as CA-G.R. CV No. 63566.
The petitioners filed a motion to dismiss the respondents' appeal on the ground that their remedy from the decision of the trial court was via a petition for review to this Court under Rule 45 of the Rules of Court, as amended, considering that under Article VIII, Section 5(2)(a) of the Constitution, the Court is vested with jurisdiction to review, revise, modify or affirm a decision of the trial court on the constitutionality of an ordinance. On October 19, 1999, the CA issued a Resolution denying the motion to dismiss on the following grounds: (a) the appeal of the respondents to the CA via a writ of error was proper, considering that both questions of facts and law were raised therein; (b) the Constitution does not vest exclusive appellate jurisdiction to the Supreme Court to review, reverse or affirm decisions of the trial court involving the constitutionality of laws and ordinances;[13] and (c) the CA has appellate jurisdiction to review a decision of the trial court on the constitutionality of an ordinance. The petitioners filed a motion for the reconsideration of the resolution but the CA issued a resolution denying the same.[14] The petitioners filed a petition for review on certiorari with this Court for the reversal of the said resolutions, docketed as G.R. No. 142512. This Court denied the petition with finality.
Instead of appealing the decision of the trial court to the CA, the petitioners filed their Petition for Review on Certiorari with this Court on May 11, 1999 under Rule 45 of the Rules of Court, contending that the decision of the trial court involves the constitutionality of Ordinance No. 801 and under Article VIII, Section 5(2)(a) of the Constitution, this Court is vested with appellate jurisdiction to review, reverse or affirm decisions of trial courts involving the constitutionality of ordinances.
The petitioners contend that the trial court erred in failing to delve into and resolve the issue of the constitutionality of Ordinance No. 801 and to issue a writ of permanent injunction to enjoin the respondents, pending final resolution of their appeal, from enforcing Ordinance No. 1664 which it had already declared unconstitutional. The petitioners aver that although the issue of the unconstitutionality of the said ordinance is not included in the Pre-Trial Order of the court, the parties, nonetheless, raised the said issue in their pleadings. Hence, the issue should have been resolved by the trial court. Moreover, as gleaned from the trial court's Pre-Trial Order, the petitioners asserted that Ordinance No. 801 amended Republic Act No. 4136 and was in conflict with the said law. According to the petitioners, the trial court erred in issuing its April 8, 1999 Order denying their Omnibus Motion, in refusing to amend its decision and declare Ordinance No. 801 unconstitutional and to issue a permanent writ of injunction.
The petitioners prayed that the Court not only declare Ordinance No. 801 unconstitutional and issue a writ of final injunction, but also affirm the trial court's decision declaring Ordinance No. 1664 unconstitutional, thus:
On June 16, 2003, the CA rendered a decision in CA-G.R. CV No. 63566 reversing the decision of the RTC. The CA ruled that Ordinance No. 1664 is constitutional. The petitioners filed a motion for the reconsideration of the decision but the CA denied the motion on August 4, 2003. On November 7, 2003, the petitioners filed their Petition for Review on Certiorari under Rule 45 of the Rules of Court, docketed as G.R. No. 159110.
In light of the pleadings of the parties, the threshold issues for resolution of the Court are the following: (a) whether or not the petition for review on certiorari under Rule 45 of the Rules of Court, as amended, is the appropriate remedy of the petitioners for the nullification of the April 8, 1999 Joint Order of the trial court denying their Omnibus Motion; (b) whether or not this Court has appellate jurisdiction to declare Ordinance No. 801 unconstitutional; and, (c) whether the petitioners are guilty of forum shopping.
Anent the first issue, the petitioners faulted the trial court for not resolving the issue of the constitutionality of Ordinance No. 801 because the same was not listed in its Pre-Trial Order as one of the issues to be litigated by the parties and to be resolved therefor. According to the petitioners, the trial court should have ordered the execution of its decision pending appeal. The respondents, on the other hand, aver that the Joint Order of the trial court is a final order which is, however, not appealable under Section 9, Rule 37, in relation to Rule 41, Section 1(a) of the Rules of Court. The respondents argue that the proper recourse of the petitioner was to appeal from the decision of the trial court to the Court of Appeals via a petition for certiorari under Rule 65 of the Rules of Court, as provided for in the last paragraph of Rule 41, Section 1 of the said Rules. The respondents aver that as gleaned from the material averments of the petition, the petitioners seek the nullification of the trial court's April 8, 1999 Joint Order denying their Omnibus Motion.
We agree with the respondents. The Omnibus Motion of the petitioners was a motion for the trial court to reconsider its decision by resolving the issue of the constitutionality of Ordinance No. 801, and whether the trial court should issue a permanent injunction pending appeal to enjoin the enforcement of Ordinance No. 1664, considering that it had already declared the said ordinance unconstitutional in its decision.
In view of the respondents' appeal to the Court of Appeals, the decision of the trial court had not yet become final. The recourse of the petitioners was to appeal the Decision, not the Joint Order, to the Court of Appeals by ordinary appeal under Rule 41, Section 1 of the Rules of Court, or to file a petition for review on certiorari to this Court under Rule 45 of the Rules of Court on questions of law. Appeal by writ of error from the said Joint Order is proscribed by Rule 37, Section 9[16] of the Rules of Court in relation to Section 1(a) Rule 41.[17] The petitioners may, however, file a petition for certiorari under Rule 65 to the Court of Appeals to nullify the said Joint Order, conformably to the last paragraph of Section 1, Rule 41 of the Rules of Court, as amended.[18] In this case, the petitioners filed a Petition for Review on Certiorari under Rule 45 before this Court from the Joint Order of the trial court denying their Omnibus Motion.
On the second issue, the petitioners pray that the Court delve into and resolve in this case, the issue of whether or not Ordinance No. 801 is unconstitutional since the trial court refused to amend its decision and resolve the same. The petitioners assert that this Court, under Article VIII, Section 5(2)(a) of the Constitution, has jurisdiction to review, revise, reverse, modify or affirm on appeal or certiorari as the law or Rules of Court may provide, final judgments and orders of lower courts in those cases involving the constitutionality of an ordinance.
The contention of the petitioners has no merit.
First. The petitioners did not assail the decision of the RTC in their petition. What they assailed was the Joint Order of the trial court denying their Omnibus Motion.
Second. As ruled by the trial court, Civil Case (SP) No. 20629 does not involve the constitutionality of Ordinance No. 801 but those of Ordinance Nos. 1662 and 1664.
Third. The remedy available to the petitioners in assailing the constitutionality of Ordinance No. 801 was either (1) to appeal from the decision of the RTC to the CA; or (2) to file another complaint in the Regional Trial Court questioning the constitutionality of Ordinance No. 801, with damages.
On the third issue, the respondents aver that the petitioners engaged in forum shopping because despite the pendency of the respondents' appeal before the appellate court in CA-G.R. CV No. 63566, the latter filed their petition for review in this case praying that the Court affirm (a) the decision of the RTC declaring Ordinance No. 1664 unconstitutional; and (b) the award by the RTC of damages in their favor.
We agree with the respondents. Forum shopping is a deplorable practice of litigants in resorting to two different fora for the purpose of obtaining the same relief, to increase his or her chances of obtaining a favorable judgment. What is pivotal to consider in determining whether forum shopping exists or not is the vexation caused to the courts and the parties-litigants by a person who asks appellate courts and/or administrative entities to rule on the same related causes and/or to grant the same or substantially the same relief, in the process creating the possibility of conflicting decisions by the different courts or fora upon the same issues.[19] There is forum shopping where the elements of litis pendentia are present and where a final judgment in one case will amount to res judicata in the other. There is litis pendentia or another action pendente lite if the following requisites are present:
The issues in CA-G.R. CV No. 63566 and some of the issues in this case are identical. In CA-G.R. CV No. 63566, the issues are as follows: (a) whether Ordinance No. 1664 is constitutional; and (b) whether the appellees therein are entitled to damages, and, if so, how much. The appellees therein (the petitioners in this case) contend that (a) Ordinance No. 1664 is constitutional; and (b) they are entitled to damages. In this case, the petitioners contend that, as held by the trial court, Ordinance No. 1664 is unconstitutional; and that they are entitled to the damages awarded by the trial court.
There is identity of reliefs prayed for in CA-G.R. CV No. 63566 and in this case. The petitioners (the appellees in CA-G.R. CV No. 63566) pray that this Court affirm the decision of the RTC during the pendency of the respondents' appeal in CA-G.R. CV No. 63566. Thus, the petitioners prayed as follows:
Resultantly then, the Petition is denied, conformably to Section 9, Rule 7 of the Rules of Court, as amended.[22]
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.
[1] Penned by Judge Jose P. Soberano, Jr.
[2] Rollo, pp. 41-42.
[3] Id. at 42.
[4] Id.
[5] Id. at 42-43.
[6] Id. at 71.
[7] Id. at 407.
[8] Id. at 438.
[9] Id. at 73.
[10] Annex "C" of the petition; Rollo, pp. 71-72.
[11] Comment, Annex "A," Rollo, p. 124.
[12] Annex "B," Id. at 125-126.
[13] Annex "D;" Respondents' Memorandum, Rollo, pp. 242-243.
[14] Annex "E;" Id. at 244-245.
[15] Rollo, pp. 17-18.
[16] Sec. 9. Remedy against order denying a motion for new trial or reconsideration. An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order.(n)
[17] Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
[18] In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.
[19] Gocham v. Gocham, 372 SCRA 256 (2001).
[20] Antiporda, Jr. v. Sandiganbayan, 358 SCRA 348 (2001).
[21] Records, p. 20.
[22] Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.
The petitioners Atty. Bienvenido P. Jaban, Sr. and Atty. Bienvenido Douglas Luke B. Jaban are practicing lawyers in Cebu City and holders of non-professional drivers' licenses. They are the respective owners of a Daewoo Sedan Car Racer Model 1995 with Plate No. GEU-992 and a Ford Telstar 5 Speed with Plate No. GOF-758.[2]
In the afternoon of June 23, 1997, the petitioner Atty. Bienvenido P. Jaban, Sr. went to his office at F. Macaraya Building, Colon Street, Cebu City to pick up some important court records. He parked his car at Gullas Street, formerly known as Manalili Street, just near the back portion of the GAW Department Store. When he went back to his car after a few minutes, he found that a denver boat immobilizer had clamped it. There was also a notice posted on the front windshield that it would be a criminal offense to break the clamp. The car was later brought to the office of the Cebu City Traffic Operations Management (CITOM) where Atty. Jaban, Sr. obtained the release of his car, but only after being compelled to pay a fine amounting to P4,200.00.[3]
A similar episode of clamping and immobilization was encountered by the petitioner Atty. Bienvenido Douglas Luke Jaban, Jr. on May 19, 1997. He had parked his car in a secluded area which did not have a "No Parking Sign" therein. He, too, was compelled to pay a fine amounting to P1,400.00 to obtain the release of his car from impoundment.[4]
On July 29, 1997, the petitioners filed a Civil Complaint for Damages and to declare Cebu City Traffic Code Ordinance No. 801, as amended by Ordinance No. 1642 and 1664, as unconstitutional and contrary to law, with a plea for injunctive relief. The petitioners alleged in their complaint that Cebu City Traffic Code Ordinance No. 801, as amended by Ordinance No. 1642 and Ordinance No. 1664, is oppressive, arbitrary and discriminatory; it is not commensurate with the objective of general and public welfare and public order, and is even contrary to statutes. According to the petitioners, the clamping of vehicles was used to compel drivers to pay fines and other alleged previous fines imposed under the aforesaid ordinances without the benefit of a prior court hearing.[5] The complaint, which was docketed as Civil Case No. CEB-20629, was subsequently consolidated with a similar complaint docketed as Civil Case No. CEB-20700, filed on August 11, 1997 by one Atty. Valentino Legaspi whose car was, to the same extent, clamped and immobilized by the traffic enforcers on an alleged traffic infraction pursuant to the aforementioned city ordinances. The trial court did not issue any temporary restraining order or writ of preliminary injunction.
On February 12, 1998, the trial court issued a Pre-Trial Order limiting the issues as follows:
a) Whether or not Ordinance No. 1664 is valid and constitutional and, if so, whether or not plaintiffs violated the ordinance; andThe trial court also stated that any matter to be corrected in the Pre-Trial Order shall be brought to the attention of the court within five days from receipt thereof. Thereafter, no correction would be entertained. The petitioner did not file any motion for the revision or correction of the Order. Both parties commenced adducing testimonial and documentary evidence. In their Memorandum, the petitioners submitted that Ordinance No. 801 is unconstitutional and void for the added reason that it conflicts with Section 62 of Republic Act No. 4163, the Traffic Code of the Philippines.
b) Whether or not the plaintiffs are entitled to damages in accordance with their complaints and the defendants in accordance with their counterclaims.[6]
After trial, the trial court promulgated its Decision on January 22, 1999, in favor of the petitioners declaring Ordinance No. 1664 unconstitutional and ordering the respondents to pay damages. The dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered declaring Ordinance No. 1664 unconstitutional and directing the defendant City of Cebu to pay the plaintiff Valentino L. Legaspi the sum of P110,000.00 representing the value of his car, and to all the plaintiffs, Valentino L. Legaspi, Bienvenido P. Jaban and Bienvenido Douglas Luke Bradbury Jaban, the sum of P100,000.00 each or P300,000.00 all as nominal damages and another P100,000.00 each or P300,000.00 all as temperate or moderate damages. With costs against defendant City of Cebu.[7]The respondents filed a motion for the reconsideration of the decision of the trial court. For their part, the petitioners filed on March 26, 1999, an Omnibus Motion praying that the trial court partially reconsider its decision on the following grounds:
The petitioners prayed that the trial court also declare as void and unconstitutional City Ordinance No. 801, and for that it issue a permanent injunction restraining the enforcement of Ordinance No. 1664.[9] The respondents opposed the motion, contending that the issue of the unconstitutionality of Ordinance No. 801 was not included in the Pre-Trial Order of the court; hence, the court was proscribed from delving into and resolving its unconstitutionality.1.- The DECISION of this Honorable Court only declares CITY ORDINANCE NO. 1664 as UNCONSTITUTIONAL and NOT the also (sic) CITY ORDINANCE NO. 801, the Cebu City TRAFFIC CODE as AMENDED BY CITY ORDINANCE NO. 1664 and with all other amendments, as PRAYED for in the COMPLAINT.
2.- The DECISION in the above entitled case did not issue a PERMANENT INJUNCTION prayed for in the COMPLAINT.[8]
Acting on the foregoing motions, the trial court, on April 8, 1999, issued a Joint Order,[10] denying both the respondents' motion for reconsideration and the petitioners' Omnibus Motion. The trial court justified the denial of the petitioners' motion on the parties' failure to agree during the pre-trial to litigate the issue of the unconstitutionality of Ordinance No. 801, the only issues to be resolved by the court being those defined in the Pre-Trial Order. Furthermore, it was inappropriate for it to issue a permanent injunction since it did not issue any writ of preliminary injunction in the first place. The respondents appealed the decision.
The respondents filed their Notice of Appeal on April 19, 1999. The trial court issued an Order on April 26, 1999 giving due course to the appeal[11] and ordered the Branch Clerk of Court to elevate the records to the Court of Appeals (CA). The petitioners filed a motion to dismiss the appeal on the following grounds: (a) the respondents did not indicate in their notice of appeal to which court the appeal was made; and, (b) the appeal should be to the Supreme Court which has appellate jurisdiction to review decisions of the RTC involving the constitutionality of ordinances under Article VIII, Section 5(2) of the Constitution. On May 25, 1999, the Court issued an Order denying the said motion.[12] The appeal of the respondents was docketed in the CA as CA-G.R. CV No. 63566.
The petitioners filed a motion to dismiss the respondents' appeal on the ground that their remedy from the decision of the trial court was via a petition for review to this Court under Rule 45 of the Rules of Court, as amended, considering that under Article VIII, Section 5(2)(a) of the Constitution, the Court is vested with jurisdiction to review, revise, modify or affirm a decision of the trial court on the constitutionality of an ordinance. On October 19, 1999, the CA issued a Resolution denying the motion to dismiss on the following grounds: (a) the appeal of the respondents to the CA via a writ of error was proper, considering that both questions of facts and law were raised therein; (b) the Constitution does not vest exclusive appellate jurisdiction to the Supreme Court to review, reverse or affirm decisions of the trial court involving the constitutionality of laws and ordinances;[13] and (c) the CA has appellate jurisdiction to review a decision of the trial court on the constitutionality of an ordinance. The petitioners filed a motion for the reconsideration of the resolution but the CA issued a resolution denying the same.[14] The petitioners filed a petition for review on certiorari with this Court for the reversal of the said resolutions, docketed as G.R. No. 142512. This Court denied the petition with finality.
Instead of appealing the decision of the trial court to the CA, the petitioners filed their Petition for Review on Certiorari with this Court on May 11, 1999 under Rule 45 of the Rules of Court, contending that the decision of the trial court involves the constitutionality of Ordinance No. 801 and under Article VIII, Section 5(2)(a) of the Constitution, this Court is vested with appellate jurisdiction to review, reverse or affirm decisions of trial courts involving the constitutionality of ordinances.
The petitioners contend that the trial court erred in failing to delve into and resolve the issue of the constitutionality of Ordinance No. 801 and to issue a writ of permanent injunction to enjoin the respondents, pending final resolution of their appeal, from enforcing Ordinance No. 1664 which it had already declared unconstitutional. The petitioners aver that although the issue of the unconstitutionality of the said ordinance is not included in the Pre-Trial Order of the court, the parties, nonetheless, raised the said issue in their pleadings. Hence, the issue should have been resolved by the trial court. Moreover, as gleaned from the trial court's Pre-Trial Order, the petitioners asserted that Ordinance No. 801 amended Republic Act No. 4136 and was in conflict with the said law. According to the petitioners, the trial court erred in issuing its April 8, 1999 Order denying their Omnibus Motion, in refusing to amend its decision and declare Ordinance No. 801 unconstitutional and to issue a permanent writ of injunction.
The petitioners prayed that the Court not only declare Ordinance No. 801 unconstitutional and issue a writ of final injunction, but also affirm the trial court's decision declaring Ordinance No. 1664 unconstitutional, thus:
In its Comment on the petition, the Office of the Solicitor General asserts that the trial court did not commit any error in not resolving the issue of the unconstitutionality of Ordinance No. 801 since the said issue was not included in the Pre-Trial Order of the trial court. Furthermore, it is superfluous for the trial court to issue a final writ of injunction since it did not issue a writ of preliminary injunction in the first place. The respondents, for their part, aver that the petitioners are guilty of forum shopping because the appeal of the respondents in CA-G.R. CV No. 63566 from the decision of the trial court involved questions of facts and law, and that the legal issues raised by the petitioners in this case are the same issues raised in the said appeal. They also contend that the issue of whether or not the CA has appellate jurisdiction to delve into and resolve the constitutionality of ordinances has already been upheld by this Court in G.R. No. 142512. The petitioner's recourse to this Court under Rule 45 of the Rules of Court, as amended, is proscribed by Section 9, Rule 37, and Section 1, Rule 41 of the Rules of Court. Finally, the respondents assert, it is inappropriate for the trial court to issue a final writ of injunction because there has been no final and executory judgment declaring Ordinance No. 1664 unconstitutional. The respondents appended to their Memorandum a copy of their Brief as appellants in CA-G.R. CV No. 63566 filed with the Court of Appeals on September 9, 2000.PRAYER
WHEREFORE, inview (sic) of the foregoing, it is most respectfully prayed:
(a) That upon the filing of this PETITION, a preliminary mandatory injunction be issued enjoining the respondents not to implement Cebu City Ordinance No. 1664 which was declared by the lower court void and UNCONSTITUTIONAL until final orders of this Court, and praying also that petitioners herein be exempted from he (sic) filing of a bond for the issuance of said preliminary injunction for they may not have the financial capacity to put up said bond especially the amount is so big unless it (sic) so nominal and affordable.
(b) That the Cebu City ORDINANCE NO. 801, as amended, be declared VOID and UNCONSTITUTIONAL.
(c) That the DECISION of the trial court declaring Cebu City ORDINANCE NO. 1664 to be VOID and UNCONSTITUTIONAL be AFFIRMED.
(d) That a PERMANENT INJUNCTION be issued enjoining the respondents not to enforce and implement the said Cebu City Ordinance No. 801, as amended, and the Cebu City ORDINANCE NO. 1664 declared by this Court to be VOID and UNCONSTITUTIONAL.
(e) To issue other just and equitable relief and to order respondents to pay the costs.[15]
On June 16, 2003, the CA rendered a decision in CA-G.R. CV No. 63566 reversing the decision of the RTC. The CA ruled that Ordinance No. 1664 is constitutional. The petitioners filed a motion for the reconsideration of the decision but the CA denied the motion on August 4, 2003. On November 7, 2003, the petitioners filed their Petition for Review on Certiorari under Rule 45 of the Rules of Court, docketed as G.R. No. 159110.
In light of the pleadings of the parties, the threshold issues for resolution of the Court are the following: (a) whether or not the petition for review on certiorari under Rule 45 of the Rules of Court, as amended, is the appropriate remedy of the petitioners for the nullification of the April 8, 1999 Joint Order of the trial court denying their Omnibus Motion; (b) whether or not this Court has appellate jurisdiction to declare Ordinance No. 801 unconstitutional; and, (c) whether the petitioners are guilty of forum shopping.
Anent the first issue, the petitioners faulted the trial court for not resolving the issue of the constitutionality of Ordinance No. 801 because the same was not listed in its Pre-Trial Order as one of the issues to be litigated by the parties and to be resolved therefor. According to the petitioners, the trial court should have ordered the execution of its decision pending appeal. The respondents, on the other hand, aver that the Joint Order of the trial court is a final order which is, however, not appealable under Section 9, Rule 37, in relation to Rule 41, Section 1(a) of the Rules of Court. The respondents argue that the proper recourse of the petitioner was to appeal from the decision of the trial court to the Court of Appeals via a petition for certiorari under Rule 65 of the Rules of Court, as provided for in the last paragraph of Rule 41, Section 1 of the said Rules. The respondents aver that as gleaned from the material averments of the petition, the petitioners seek the nullification of the trial court's April 8, 1999 Joint Order denying their Omnibus Motion.
We agree with the respondents. The Omnibus Motion of the petitioners was a motion for the trial court to reconsider its decision by resolving the issue of the constitutionality of Ordinance No. 801, and whether the trial court should issue a permanent injunction pending appeal to enjoin the enforcement of Ordinance No. 1664, considering that it had already declared the said ordinance unconstitutional in its decision.
In view of the respondents' appeal to the Court of Appeals, the decision of the trial court had not yet become final. The recourse of the petitioners was to appeal the Decision, not the Joint Order, to the Court of Appeals by ordinary appeal under Rule 41, Section 1 of the Rules of Court, or to file a petition for review on certiorari to this Court under Rule 45 of the Rules of Court on questions of law. Appeal by writ of error from the said Joint Order is proscribed by Rule 37, Section 9[16] of the Rules of Court in relation to Section 1(a) Rule 41.[17] The petitioners may, however, file a petition for certiorari under Rule 65 to the Court of Appeals to nullify the said Joint Order, conformably to the last paragraph of Section 1, Rule 41 of the Rules of Court, as amended.[18] In this case, the petitioners filed a Petition for Review on Certiorari under Rule 45 before this Court from the Joint Order of the trial court denying their Omnibus Motion.
On the second issue, the petitioners pray that the Court delve into and resolve in this case, the issue of whether or not Ordinance No. 801 is unconstitutional since the trial court refused to amend its decision and resolve the same. The petitioners assert that this Court, under Article VIII, Section 5(2)(a) of the Constitution, has jurisdiction to review, revise, reverse, modify or affirm on appeal or certiorari as the law or Rules of Court may provide, final judgments and orders of lower courts in those cases involving the constitutionality of an ordinance.
The contention of the petitioners has no merit.
First. The petitioners did not assail the decision of the RTC in their petition. What they assailed was the Joint Order of the trial court denying their Omnibus Motion.
Second. As ruled by the trial court, Civil Case (SP) No. 20629 does not involve the constitutionality of Ordinance No. 801 but those of Ordinance Nos. 1662 and 1664.
Third. The remedy available to the petitioners in assailing the constitutionality of Ordinance No. 801 was either (1) to appeal from the decision of the RTC to the CA; or (2) to file another complaint in the Regional Trial Court questioning the constitutionality of Ordinance No. 801, with damages.
On the third issue, the respondents aver that the petitioners engaged in forum shopping because despite the pendency of the respondents' appeal before the appellate court in CA-G.R. CV No. 63566, the latter filed their petition for review in this case praying that the Court affirm (a) the decision of the RTC declaring Ordinance No. 1664 unconstitutional; and (b) the award by the RTC of damages in their favor.
We agree with the respondents. Forum shopping is a deplorable practice of litigants in resorting to two different fora for the purpose of obtaining the same relief, to increase his or her chances of obtaining a favorable judgment. What is pivotal to consider in determining whether forum shopping exists or not is the vexation caused to the courts and the parties-litigants by a person who asks appellate courts and/or administrative entities to rule on the same related causes and/or to grant the same or substantially the same relief, in the process creating the possibility of conflicting decisions by the different courts or fora upon the same issues.[19] There is forum shopping where the elements of litis pendentia are present and where a final judgment in one case will amount to res judicata in the other. There is litis pendentia or another action pendente lite if the following requisites are present:
(a) identity of parties, or at least such parties as represent the same interests in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars is such that any judgment rendered in the other action, will, regardless of which party is successful, amount to res judicata in the action under consideration.[20]There is identity of parties in this case and in CA-G.R. CV No. 63566. The petitioners herein are the appellees in the CA, while the private respondents herein are the appellants in CA-G.R. CV No. 63566
The issues in CA-G.R. CV No. 63566 and some of the issues in this case are identical. In CA-G.R. CV No. 63566, the issues are as follows: (a) whether Ordinance No. 1664 is constitutional; and (b) whether the appellees therein are entitled to damages, and, if so, how much. The appellees therein (the petitioners in this case) contend that (a) Ordinance No. 1664 is constitutional; and (b) they are entitled to damages. In this case, the petitioners contend that, as held by the trial court, Ordinance No. 1664 is unconstitutional; and that they are entitled to the damages awarded by the trial court.
There is identity of reliefs prayed for in CA-G.R. CV No. 63566 and in this case. The petitioners (the appellees in CA-G.R. CV No. 63566) pray that this Court affirm the decision of the RTC during the pendency of the respondents' appeal in CA-G.R. CV No. 63566. Thus, the petitioners prayed as follows:
The petitioners' ploy in this case is evident to inveigle the Court to preempt the decision of the CA in CA-G.R. CV No. 63566. They would want this Court to render judgment in their favor. This, however, would create the possibility of the CA rendering a decision in favor of the respondents herein and against the petitioners two different fora rendering two different decisions on the same issues. Such pernicious ploy cannot be countenanced by the Court. The petitioners must be warned that a repetition of the same will merit the appropriate sanction. As it was, the CA rendered a decision in CA-G.R. CV No. 63566 on June 16, 2003, reversing the decision of the RTC and ordering the dismissal of the petitioners' complaint. The CA ruled that Ordinance No. 1664 is constitutional and that consequently, the appellants therein (respondents herein) are not liable to the appellees (petitioners herein) for damages. The case is now before the Court En Banc, docketed as G.R. No. 159110.PRAYER
WHEEFORE, in view of the foregoing, it is most respectfully prayed that during the pendency of the case a preliminary injunction be issued to enjoin the enforcement of said City Ordinance as amended and that after hearing the case on the merits judgment be rendered (a) declaring the City Ordinance No. 801, as amended, of the City of Cebu VOID and enjoining the defendants not to enforce it, and to issue a permanent injunction of the enforcement of said Ordinance; (b) ordering the defendants to pay, jointly and severally, both plaintiffs the sum of P100,000.00 as compensatory damage, the sum of P300,000.00 as moral damage, the sum of P100,000.00 as exemplary damage, the sum of P50,000.00 as attorney's fees, the sum of P20,000.00 as litigation expenses, and to pay the costs.[21]
Resultantly then, the Petition is denied, conformably to Section 9, Rule 7 of the Rules of Court, as amended.[22]
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.
[1] Penned by Judge Jose P. Soberano, Jr.
[2] Rollo, pp. 41-42.
[3] Id. at 42.
[4] Id.
[5] Id. at 42-43.
[6] Id. at 71.
[7] Id. at 407.
[8] Id. at 438.
[9] Id. at 73.
[10] Annex "C" of the petition; Rollo, pp. 71-72.
[11] Comment, Annex "A," Rollo, p. 124.
[12] Annex "B," Id. at 125-126.
[13] Annex "D;" Respondents' Memorandum, Rollo, pp. 242-243.
[14] Annex "E;" Id. at 244-245.
[15] Rollo, pp. 17-18.
[16] Sec. 9. Remedy against order denying a motion for new trial or reconsideration. An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order.(n)
[17] Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
[18] In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.
[19] Gocham v. Gocham, 372 SCRA 256 (2001).
[20] Antiporda, Jr. v. Sandiganbayan, 358 SCRA 348 (2001).
[21] Records, p. 20.
[22] Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.