No forum shopping because purposes of appeal and certiorari, although successive, are different - G.R. No. 158239

G.R. No. 158239

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No forum shopping was committed

Priscilla claims that Javellana engaged in forum shopping by filing a notice of appeal and a petition for certiorari against the same orders. As earlier noted, he denies that his doing so violated the policy against forum shopping.

The Court expounded on the nature and purpose of forum shopping in In Re: Reconstitution of Transfer Certificates of Title Nos. 303168 and 303169 and Issuance of Owner’s Duplicate Certificates of Title In Lieu of Those Lost, Rolando Edward G. Lim, Petitioner:[30]

Forum shopping is the act of a party litigant against whom an adverse judgment has been rendered in one forum seeking and possibly getting a favorable opinion in another forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the same cause or supposition that one or the other court would make a favorable disposition. Forum shopping happens when, in the two or more pending cases, there is identity of parties, identity of rights or causes of action, and identity of reliefs sought. 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 forum shopping. For litis pendentia to be a ground for the dismissal of an action, there must be: (a) identity of the parties or at least such as to represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same acts; and (c) the identity in the two cases should be such that the judgment which may be rendered in one would, regardless of which party is successful, amount to res judicata in the other.

For forum shopping to exist, both actions must involve the same transaction, same essential facts and circumstances and must raise identical causes of action, subject matter and issues. Clearly, it does not exist where different orders were questioned, two distinct causes of action and issues were raised, and two objectives were sought.

Should Javellana’s present appeal now be held barred by his filing of the petition for certiorari in the CA when his appeal in that court was yet pending?

We are aware that in Young v. Sy,[31] in which the petitioner filed a notice of appeal to elevate the orders concerning the dismissal of her case due to non-suit to the CA and a petition for certiorari in the CA assailing the same orders four months later, the Court ruled that the successive filings of the notice of appeal and the petition for certiorari to attain the same objective of nullifying the trial court’s dismissal orders constituted forum shopping that warranted the dismissal of both cases. The Court said:

Ineluctably, the petitioner, by filing an ordinary appeal and a petition for certiorari with the CA, engaged in forum shopping. When the petitioner commenced the appeal, only four months had elapsed prior to her filing with the CA the Petition for Certiorari under Rule 65 and which eventually came up to this Court by way of the instant Petition (re: Non-Suit). The elements of litis pendentia are present between the two suits. As the CA, through its Thirteenth Division, correctly noted, both suits are founded on exactly the same facts and refer to the same subject matter—the RTC Orders which dismissed Civil Case No. SP-5703 (2000) for

failure to prosecute. In both cases, the petitioner is seeking the reversal of the RTC orders. The parties, the rights asserted, the issues professed, and the reliefs prayed for, are all the same. It is evident that the judgment of one forum may amount to res judicata in the other.
The remedies of appeal and certiorari under Rule 65 are mutually exclusive and not alternative or cumulative. This is a firm judicial policy. The petitioner cannot hedge her case by wagering two or more appeals, and, in the event that the ordinary appeal lags significantly behind the others, she cannot post facto validate this circumstance as a demonstration that the ordinary appeal had not been speedy or adequate enough, in order to justify the recourse to Rule 65. This practice, if adopted, would sanction the filing of multiple suits in multiple fora, where each one, as the petitioner couches it, becomes a “precautionary measure” for the rest, thereby increasing the chances of a favorable decision. This is the very evil that the proscription on forum shopping seeks to put right. In Guaranteed Hotels, Inc. v. Baltao, the Court stated that the grave evil sought to be avoided by the rule against forum shopping is the rendition by two competent tribunals of two separate and contradictory decisions. Unscrupulous party litigants, taking advantage of a variety of competent tribunals, may repeatedly try their luck in several different fora until a favorable result is reached. To avoid the resultant confusion, the Court adheres strictly to the rules against forum shopping, and any violation of these rules results in the dismissal of the case.[32]

The same result was reached in Zosa v. Estrella,[33] which likewise involved the successive filing of a notice of appeal and a petition for certiorari to challenge the same orders, with the Court upholding the CA’s dismissals of the appeal and the petition for certiorari through separate decisions.

Yet, the outcome in Young v. Sy and Zosa v. Estrella is unjust here even if the orders of the RTC being challenged through appeal and the petition for certiorari were the same. The unjustness exists because the appeal and the petition for certiorari actually sought different objectives. In his appeal in C.A.-G.R. CV No. 68259, Javellana aimed to undo the RTC’s erroneous dismissal of Civil Case No. 79-M-97 to clear the way for his judicial demand for specific performance to be tried and determined in due course by the RTC; but his petition for certiorari had the ostensible objective “to prevent (Priscilla) from developing the subject property and from proceeding with the ejectment case until his appeal is finally resolved,” as the CA explicitly determined in its decision in C.A.-G.R. SP No. 60455.[34]

Nor were the dangers that the adoption of the judicial policy against forum shopping designed to prevent or to eliminate attendant. The first danger, i.e., the multiplicity of suits upon one and the same cause of action, would not materialize considering that the appeal was a continuity of Civil Case No. 79-M-97, whereas C.A.-G.R. SP No. 60455 dealt with an independent ground of alleged grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the RTC. The second danger, i.e., the unethical malpractice of shopping for a friendly court or judge to ensure a favorable ruling or judgment after not getting it in the appeal, would not arise because the CA had not yet decided C.A.-G.R. CV No. 68259 as of the filing of the petition for certiorari.

Instead, we see the situation of resorting to two inconsistent remedial approaches to be the result of the tactical misjudgment by Javellana’s counsel on the efficacy of the appeal to stave off his caretaker’s eviction from the parcels of land and to prevent the development of them into a residential or commercial subdivision pending the appeal. In the petition for certiorari, Javellana explicitly averred that his appeal was “inadequate and not speedy to prevent private respondent Alma Jose and her transferee/assignee xxx from developing and disposing of the subject property to other parties to the total deprivation of petitioner’s rights of possession and ownership over the subject property,” and that the dismissal by the RTC had “emboldened private respondents to fully develop the property and for respondent Alma Jose to file an ejectment case against petitioner’s overseer xxx.”[35] Thereby, it became far-fetched that Javellana brought the petition for certiorari in violation of the policy against forum shopping.

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