"x x x.
Petitioners’ appeal before the Court of Appeals is the appropriate and adequate remedy, and the certiorari petition, subject matter of this case, constitutes forum shopping.
As stated earlier, while this case was pending review before the Court of Appeals or on February 2, 2004, the trial court rendered a Decision in the main case (i.e., Civil Case No. 02-103160). From this judgment, petitioners, except petitioner Westmont Investment Corporation, filed a notice of appeal. This case was docketed as CA-G.R. CV No. 83161 and is now pending resolution before the appellate court. For its part, petitioner Westmont Investment Corporation filed an Ex Abundanti Ad Cautelam Notice Of Appeal and a Petition for Certiorari and Mandamus.
With these developments, the instant petition should be denied because (1) petitioners’ appeal before the appellate court is the appropriate and adequate remedy, and (2) the certiorari petition, subject matter of this case, constitutes forum shopping. This is in consonance with our ruling in Ley Construction & Development Corporation v. Hyatt Industrial Manufacturing Corporation.[21]
In Ley Construction & Development Corporation, petitioner filed a complaint for specific performance and damages against respondent. Subsequently, petitioner served notices to take the depositions of several individuals. Initially, the trial court issued an order allowing the petitioner to take the subject depositions. However, it later issued another order canceling all the depositions set for hearing in order not to delay the prompt disposition of the case. Petitioner filed a petition for certiorari before the Court of Appeals questioning the trial court’s order canceling the deposition-taking which allegedly deprived it of its due process right to discovery. While this certiorari petition was pending before the appellate court, the trial court issued a resolution in the main case which dismissed the complaint for specific performance and damages. Subsequently, the Court of Appeals dismissed the certiorari petition. On appeal to this Court by petitioner from the dismissal of its certiorari petition, we ruled that –
Second, the Petition for Certiorari was superseded by the filing, before the Court of Appeals, of a subsequent appeal docketed as CA-GR CV No. 57119, questioning the Resolution and the two Orders.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.” A petition for certiorari cannot co-exist 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. As the Court has held, these two remedies are “mutually exclusive.”
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.” 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.” 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.[22]
In the same vein, petitioners’ certiorari petition, questioning the three interlocutory orders which denied their resort to discovery procedure, has been superseded by the filing of their subsequent appeal before the Court of Appeals (i.e., CA-G.R. CV No. 83161). As explained above, a certiorari petition may only be availed of if “there is no appeal, or any plain, speedy and adequate remedy in the ordinary course of law.”[23] We find that petitioners’ appeal from the February 2, 2004 Decision of the trial court in the main case is the appropriate and adequate remedy in this case as it challenges the aforesaid interlocutory orders and the decision in the main case.
Moreover, petitioners’ appeal and certiorari petition effectively seek to annul the February 2, 2004 Decision of the trial court. In their pending appeal before the appellate court, petitioners argued, among others, that they were unduly deprived of their right to avail of modes of discovery, specifically, the deposition taking subject matter of this case.[24] This is one of their arguments in their appeal which prays for the annulment of the February 2, 2004 Decision on due process grounds.[25] On the other hand, petitioners argued in their certiorari petition that the disallowance of the taking of the subject depositions deprived them of the opportunity to bring to fore crucial evidence determinative of this case. According to petitioners, this brought about the erroneous February 2, 2004 Decision issued by the trial court.[26] In fine, the appeal and certiorari petition raise similar arguments and effectively seek to achieve the same purpose of annulling the
February 2, 2004 Decision which petitioners perceive to be in gross error. Thus, as in Ley Construction & Development Corporation, the certiorari petition must perforce be dismissed on the ground of forum shopping.
x x x."
