THIRD DIVISION
[G.R. Nos. 192714-15. February 27, 2013.]
MUNICIPALITY OF LA TRINIDAD, ET AL., petitioners, vs. LAMTANG COCKPIT ARENA, REPRESENTED BY DWIGHT NICOLAS BELLO III, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated February 27, 2013, which reads as follows:
"G.R. No. 192714-15 (Municipality of La Trinidad, et al. v. Lamtang Cockpit Arena, represented by Dwight Nicolas Bello III). — This Court resolves to DISMISS the Petition for Certiorari under Rule 65 of the Rules of Court filed by petitioners assailing the Resolution 1 dated August 19, 2009 and Resolution 2 dated April 29, 2010 of the Court of Appeals.
First, this Court notes that the petitioners' resort to a petition for Certiorari under Rule 65 of the Rules of Court is not the proper remedy to assail the August 19, 2009 and April 29, 2010 Resolutions of the CA.
It bears stressing that when the Order or Resolution issued by the CA is in the nature of a final order, the remedy of the aggrieved party would be to file a petition for review on certiorari under Rule 45 of the Rules of Court. Otherwise, the appropriate remedy would be to file a petition for certiorari under Rule 65. 3
Here, it is clear that the assailed Resolutions are in the nature of a final order as the same completely disposed of the petitioners' appeal with the CA. In fact, in both Resolutions the CA strictly adhered to procedural rules and considered petitioners' appeal as DISMISSED for its failure to timely file their Appellant's Brief. Thus, petitioners should have filed a petition for review on certiorari under Rule 45 before this Court and not a certiorari petition under Rule 65.
Second, assuming arguendo that we can take cognizance of the instant petition, this Court, however, still upholds the dismissal of the present petition since the CA did not commit grave abuse of discretion in rendering the assailed Resolutions. A petition for certiorari will prosper only if grave abuse of discretion is alleged and proved to exist. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. 4 In this case, no hint of whimsicality or gross and patent abuse of discretion on the part of the CA was shown when it ruled to dismiss petitioners' appeal. cACDaH
Finally, Section 5 (b) of Presidential Decree No. 449 states that "Only one cockpit shall be allowed in each city or municipality, except that in cities and municipalities with a population of over one hundred thousand, two cockpits may be established, maintained and operated." The RTC correctly opined that there already exist a cockpit — LAMTANG COCKPIT ARENA, and there is no dispute nor proof to the contrary that the population of the Municipality of La Trinidad, Benguet is more than 100,000 as to accommodate the formation of another cockpit arena.
Thus, after careful review of the facts and circumstances of the present case, this Court resolves to DISMISS the present petition.
SO ORDERED."
Very truly yours,
(SGD.) LUCITA ABJELINA SORIANODivision Clerk of Court
Footnotes
1.Rollo, pp. 24-26.
2.Id. at 27-43.
3.Spouses David Bergonia and Luzviminda Castillo v. Court of Appeals and Amado Bravo, Jr., G.R. No. 189151, January 25, 2012.
4.Id.