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. R…

Jaban versus City of Cebu

The Case

This is a petition for review on certiorari brought by two Cebu City lawyers, Atty. Bienvenido P. Jaban and Atty. Bienvenido Douglas Luke B. Jaban, against the City of Cebu, its City Mayor, its Sangguniang Panglungsod, and the presiding judge of the Regional Trial Court that heard their complaint. The petitioners' cars were clamped and impounded by city traffic enforcers, and they were compelled to pay fines before their vehicles were released. They sued to have the city traffic ordinances declared unconstitutional and to recover damages. The case matters because it teaches the bar candidate two enduring lessons: the proper remedy against an order denying a motion for reconsideration, and the strict prohibition against forum shopping.

Procedural History

The petitioners filed a civil complaint for damages and for the declaration of Cebu City Traffic Code Ordinance No. 801, as amended by Ordinance No. 1642 and Ordinance No. 1664, as unconstitutional, with a plea for injunctive relief. The complaint was consolidated with a similar complaint filed by Atty. Valentino Legaspi. The trial court did not issue any temporary restraining order or writ of preliminary injunction. After trial, the trial court rendered judgment in favor of the petitioners, declaring Ordinance No. 1664 unconstitutional and awarding damages.

The respondents moved for reconsideration. The petitioners, for their part, filed an Omnibus Motion praying that the trial court also declare Ordinance No. 801 unconstitutional and issue a permanent injunction. The trial court issued a Joint Order denying both motions, holding that the constitutionality of Ordinance No. 801 was not among the issues defined in the Pre-Trial Order, and that a permanent injunction was inappropriate since no preliminary injunction had been issued. The respondents appealed to the Court of Appeals. The petitioners instead filed a petition for review on certiorari with the Supreme Court under Rule 45, assailing the Joint Order. Meanwhile, the Court of Appeals rendered its decision reversing the trial court and ruling that Ordinance No. 1664 is constitutional. The petitioners then filed another petition for review on certiorari, docketed as a separate case now before the Court En Banc.

Facts

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 respectively own a Daewoo Sedan Car Racer Model 1995 and a Ford Telstar 5 Speed.

In the afternoon of June 23, 1997, Atty. Jaban, Sr. parked his car at Gullas Street near the back portion of a department store while he picked up court records from his office. When he returned after a few minutes, he found that a denver boat immobilizer had clamped his car, with a notice posted on the windshield warning that breaking the clamp would be a criminal offense. The car was brought to the office of the Cebu City Traffic Operations Management, where he obtained its release only after paying a fine of 4,200 pesos. A similar episode happened to Atty. Jaban on May 19, 1997, when he parked in a secluded area without a No Parking Sign and was compelled to pay a fine of 1,400 pesos to obtain the release of his car from impoundment.

On July 29, 1997, the petitioners filed their complaint, alleging that the ordinances were oppressive, arbitrary, and discriminatory, and that the clamping of vehicles was used to compel drivers to pay fines without the benefit of a prior court hearing. The trial court limited the issues in its Pre-Trial Order to the validity and constitutionality of Ordinance No. 1664 and the parties' entitlement to damages. The petitioners did not move to correct the Pre-Trial Order. Only in their Memorandum did they raise the additional argument that Ordinance No. 801 conflicts with the national traffic law.

Issues

• Whether or not a petition for review on certiorari under Rule 45 is the appropriate remedy to nullify the Joint Order denying the petitioners' Omnibus Motion.
• Whether or not the Supreme Court has appellate jurisdiction to declare Ordinance No. 801 unconstitutional in this proceeding.
• Whether or not the petitioners are guilty of forum shopping.

Applicable Provisions

Section 9 of Rule 37 of the Rules of Court provides:

Section 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.

This provision bars the petitioners from appealing the Joint Order denying their Omnibus Motion, and points them instead to an appeal from the judgment itself.

Section 1 of Rule 41 of the Rules of Court provides:

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.

This provision defines what may be appealed, and its last paragraph directs the aggrieved party to a special civil action under Rule 65 when the judgment or final order is not appealable.

Ruling

On the first issue, the Court agreed with the respondents. The petitioners' Omnibus Motion asked the trial court to reconsider its decision by resolving the constitutionality of Ordinance No. 801 and by issuing a permanent injunction. Since the respondents had appealed, the trial court's decision had not yet become final. The proper recourse was to appeal the decision, not the Joint Order, to the Court of Appeals by ordinary appeal, or to file a petition for review on certiorari on questions of law. An appeal by writ of error from the Joint Order is proscribed by Section 9 of Rule 37 in relation to Section 1 of Rule 41. The petitioners could instead have filed a petition for certiorari under Rule 65 to nullify the Joint Order.

On the second issue, the Court held that the petitioners' contention had no merit. First, the petitioners did not assail the decision of the trial court but only the Joint Order. Second, the case did not involve the constitutionality of Ordinance No. 801 but that of Ordinance Nos. 1662 and 1664. Third, the remedy available to the petitioners was either to appeal from the decision of the trial court to the Court of Appeals, or to file another complaint in the Regional Trial Court questioning the constitutionality of Ordinance No. 801, with damages.

On the third issue, the Court agreed with the respondents. Forum shopping exists where the elements of litis pendentia are present and where a final judgment in one case will amount to res judicata in the other. The elements of litis pendentia are identity of parties, identity of rights asserted and relief prayed for founded on the same facts, and the identity of the two preceding particulars such that any judgment rendered in the other action will amount to res judicata. The Court found identity of parties, identity of issues, and identity of reliefs between the appeal before the Court of Appeals and this petition. The petitioners' ploy was to inveigle the Court to preempt the decision of the Court of Appeals, creating the possibility of conflicting decisions. The Court warned that a repetition would merit the appropriate sanction.

Doctrine

An order denying a motion for reconsideration is not appealable; the remedy is an appeal from the judgment or final order, as Section 9 of Rule 37 declares. Where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. Forum shopping is a deplorable practice of litigants resorting to two different fora to obtain the same relief and increase their chances of a favorable judgment. Its test is the presence of the elements of litis pendentia, and where a final judgment in one case will amount to res judicata in the other, forum shopping exists. Failure to comply with the certification against forum shopping is cause for dismissal under Section 9 of Rule 7.

Disposition

The petition was denied, and the Court warned the petitioners that a repetition of the same practice would merit the appropriate sanction.

Remember This

Memorize this line: an order denying a motion for reconsideration is not appealable, the remedy being an appeal from the judgment or final order. Examiners use this case to test the proper remedy against a denial of a motion for reconsideration and the elements of forum shopping through litis pendentia.