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FIRST DIVISION

A.M. No. RTJ-96-217 February 17, 1997

ATTY. MANUEL F. CONCEPCION, Petitioner, v. ATTY. JESUS V. AGANA and HON. JUDGE ERASTO SALCEDO RTC Branch 31, Tagum Davao del Norte (Atty. Salcedo), Respondents.

HERMOSISIMA, JR., J.:

The complaint, filed on August 5, 1996, seeks the dismissal from the service of respondent judge on account of his dishonest and deceitful conduct when he was a practicing lawyer.

The complainant alleged, among others, that the respondent judge, then Atty. Salcedo, connived with his co-respondent, Atty. Agana, to cause the cancellation of a notice of lis pendens to the prejudice of his clients who had discharged him by then and replaced him with the complainant.

In its report dated September 6, 1996, the Office of the Court Administrator (OCA), made the observation that the instant complaint is a mere rehash of the complaint for disbarment docketed as AM. No. RTJ-95-1312 entitled, "Landless Farmers Tribal Development, Inc. represented by Helen Balani vs. Atty. Jesus Agana and Atty. Erasto Salcedo, now a Judge (of) RTC, Branch 31, Tagum Davao del Norte," which We resolved to dismiss for utter lack of merit on May 15, 1995. AM. No. RTJ-95-1312, when endorsed to the Office of the Bar Confidant by OCA was recommended for dismissal on the ground of res judicata, with respect to Atty. Agana, considering that it involved the same subject matter, issues, and parties in Administrative Case No. 4040 which We already dismissed in our resolution dated October 13, 1993. As regards Atty. Salcedo, he had ceased to be under the jurisdiction of the Office of the Bar Confidant upon his appointment as Presiding Judge of RTC, Tagum, Davao del Norte, Branch 31. After OCA submitted its Memorandum relative to the complaint for disbarment against respondents Atty. Agana and Judge Salcedo, We dismissed AM. RTJ-95-1312 as aforementioned.

For a clearer picture, We restate the pertinent antecedents.

Administrative Case No. 4040 captioned "Helen C. Balani et. al. vs. Atty. Jesus V. Agana" was dismissed after respondent lawyer filed his comment since this Court found no prima facie case against him. Administrative Matter No. RTJ-95-1312, filed against Atty. Agana anew, with the respondent judge included as co-respondent, was dismissed in 1995 for utter lack of merit. Before us now is a complaint basically echoing the allegations in A.M. No. RTJ-95-1312 and filed against the same parties. However, unlike in the previous cases, Atty. Manuel Concepcion, who is Helen Balani's counsel, appears to be the complainant in this case, not Helen Balani herself.

Applying the principle: "bar by former judgment", We rule, once again, to dismiss the instant complaint. Quoted hereunder is the comparative study presented by the Office of the Court Administrator anent the complaint in AM. G.R. No. RTJ-95-1312 and the complaint under consideration:

Complaint in A.M. No. Instant complaint.
RTJ-95-1312.

xxx xxx

2. That Respondents Atty. JESUS 2. Respondent, Atty. Jesus Agana
AGANA has his law office at R & T has his law office at R&T Building, Taal-Building, Taal-Capistrano Sts., Cagayan Capistrano Sts., Cagayan de Oro City;
de Oro City; Atty. Erasto no a Atty. Erasto Salcedo Hon. Judge has his
Judge, has his office in the Regional office in the Regional Trial Court, Br. 31,
Trial Court, Br. 31, Tagum, Davao Tagum, Davao del Norte, where
del Norte, where summons and summons and processes of the
processes of the Court may Commission may be served;
be served;

3. That complainant is the President 3. Complainant is counsel for Helen of the Landless Farmers Tribal Balani, President of the Landless Farmers
Development, Inc., a duly organized Tribal Development, Inc. a duly
and registered non-stock corporation organized and registered non-stock corpo-
under the laws of the Republic of the ration under the laws of the Republic of
Philippines, whose members are the Philippines, whose members and
farmers of the national cultural farmers of the national cultural
minorities, who have occupied minorities, who have occupied, cultivated
and cultivated a public land, Lot 3047 and planted a public land, Lot 3047,
covering an area of two hundred (200) covering an area of 200 hundred hectares,
hectares, more or less, since early more or less, since early 1950s, pursuant
1950's pursuant to Section 44 to Section 44 of the Public Land ACT;
of the Public Land Act;

4. That on July 22, 1981, a certain 4. On July 22, 1981, a certain
TIMOTEO QUIP without the TIMOTEO QUIP, without the
knowledge of the occupants in Lot knowledge of the occupants on said
3047, secured the decree of regis- public land, Lot 3047, secured the decree
tration on same, for which OCT of registration on same, for which the
No. 0-792 was issued and registered Register of Deeds, Cagayan de Oro City,
with the Register of Deeds, Cagayan issued OCT No. 0-792, copy of which
de Oro City, copy of which is attached is attached, hereto as ANNEX "A" on its
hereto as ANNEX "A;" application for Registration of Title is
attached hereto as ANNEX "B;"

5. That on May 11, 1982, respondent 5. On May 11, 1982, Helen
Atty. Erasto Salcedo, as counsel for Balani, head and leader of the
occupants in Lot 3047, seasonably cultural minority farmers, hired
caused the annotation of the notice Atty. Erasto Salcedo to cause the
of lis pendens, Petition for Review annotation of the notice of lis
on the decree of registration of OCT pendens, Entry No. 98909,
No. 0-792, pursuant to Section 332, Petition for Review on the decree
PD 1529, which appear encircled on of registration of OCT No. 0-792,
ANNEX "A" as ANNEX "A-1;" pursuant to Sec. 32, PD 1529,
which appear encircled as
ANNEX "A-1;"

6. That pursuant to an alleged Barter- 6. Despite the "notice of lis
Agreement Xavier University, Inc. pendens" Xavier University, Inc.
and TIMOTEO QUIP, TCT acquired the property, Lot 3047,
No. T-51944 was issued by the from Timoteo Quimpo, for which
Register of Deeds, Cagayan de Oro on March 25, 1988 TCT NO. T-
City on March 25, 1988, copy of 51944 and TCT No. T-51945 was
which is "B," and the lis pendens issued by the Register of Deeds,
carried over, appear on ANNEX Cagayan de Oro City, copy of
"b-1;" TCT No. T-51944 is attached hereto as ANNEX "C;"

7. That respondent Atty. Erasto 7. On February 27, 1992,
Salcedo was discharged as counsel Helen Balani, et al., discontented
for occupants in Lot 3047, by and suspicious of Atty. Erasto
HELEN BALANI (Complainant) Salcedo, filed with the Court of
on February 27, 1992; Appeals a Motion to Discharge him, which the Court of Appeals granted pursuant to
Resolution dated 18 March 1992, copy of which is attached hereto as ANNEX "D;"

8. That on April 27, 1992, Xavier 8. On April 27, 1992, Atty.
University, Agana filed in Regional Jesus Agana, as counsel for
Trial Court, Br. 23, Cagayan de Xavier University, Inc., filed in
Oro City, a Petition for Cancellation the Regional Trial Court, Br. 23,
of Notice of Lis pendens annotated Cagayan de Oro City, a
on TCT No. T-51944, supported by PETITION for cancellation of the
a "PETITION" executed by praying notice of the lis pendens annotated
that said annotation on OCT No. on Xavier University, Inc. TCT
0-792 and subsequent TCT No. No. T-51944 and TCT No. 51945,
51944 and TCT No. 51945 be supported by a PETITION,
canceled, copy of which is attached executed by Atty. Erasto Salcedo
hereto as ANNEX "C;" without the knowledge of Helen Balani, Abundio Caballero, et al.
and not verified by them who cause(d) the annotation of the
notice of lis pendens on May 11,
1982. Copy of PETITION for
cancellation is attached hereto as
ANNEX "E," unverified
PETITION executed by Atty.
Salcedo, as ANNEX "F"

9. That as a result on the strength 9. On the strength of the
of said "PETITION," Regional unverified "PETITION", its is
Trial Court, Br. 23 issued Order strange that the Regional Trial
dated June 11, 1992, copy of Court, Br. 23, granted the
which is attached hereto as ANNEX cancellation of the notice of lis
"D," quoted hereunder; pendens, EX-PARTE, manifest in
the Order dated June 11, 1992,
copy of which is attached hereto
as ANNEX "G;"

". . . . Hence, the entry of notice
of lis pendens on OCT No. 0-792,
under Entry No. 98909, which was
carried over to Transfer Certificate of
Title No. T-51944 and T-51945, with
latter titles being the products from the
old title, Original Certificate of Title No. 0-792, the same are hereby ordered
canceled. . . .

10. That on August 28, 1992, complainants [Note: This could not be re-
through counsel filed a Petition for alleged as said Petition for
Certiorari, docketed (as) CA-G.R. SP Certiorari was dismissed on
No. 28776, which presently is still August 14, 1994. A motion for
pending resolution with the COURT reconsideration of said decision
OF APPEALS, Ninth Division; dismissing the petition was denied
on February 24, 1995 as it was filed 33 days late. (Footnote No. 3, page 2, OCA Memorandum, Rollo, A.M. No. RTJ-95-13120]

11. That under the foregoing parag- 10. Based on the foregoing
raphs 5 and 8, Complainant paragraphs 5, 6, 7, 8 and 9,
charges Atty. Jesus Agana and Complainant charges: -
Atty. Erasto Salcedo of wanton
falsehood, (and that they) connived, "Atty. Jesus Agana and Atty.
schemed and confederated to secure Erasto Salcedo connived, schemed
by deceitful means the cancellation of and collaborated to engage in
the notice of lis pendens on OCT 0-792, dishonest and deceitful conduct,
TCT No. T-51944 and TCT No. did not observe the rules of
T-51945, in absolute violation of the procedure and misuse them to
Code of Professional Responsibility, defeat the ends of justice, for
Rule 1.01, Rule 1.03, Rule 10.01, corrupt motive or interest
Rule 10.03, Rule 10.01, Rule 10.03, encourage the suit of proceeding,
and, their Oath of Office as attorney in violation of Rule 1.01, Rule
and member of the Bar, under the 1.03, Rule 10.01, Rule 10.03 of
following facts and circumstances: the Code of the Professional
Responsibility and their oath of office as attorney and member of the BAR, committed under the
following facts and circumstances:

11a. That Atty. Agana filed the Petition 10a. That Atty. Jesus Agana filed
for Cancellation of Notice of Lis the Petition for cancellation of
Pendens, fully aware that Xavier Notice of lis pendens, fully aware
University, Inc. has absolutely no the Xavier University, Inc. has no
legal capacity to sue knowing legal capacity to sue, knowing the
fully well the applicable Sec. 24 well-known Sec. 24 of Rule 14
of Rule 14 and Sec. 77 of PD 1529, of the Rules of Court, and Sec.
on the matter of cancellation of lis 77 of PD 1529, on the matter of
pendens, to wit: [sections copied cancellation of notice of lis
verbatim] pendens [sections copied verbatim]

111. (first part) That Atty. Erasto Salcedo
deceived and mislead the Court
that the Petition was in conformity
with Sec. 24, Rule 14 and Sec. 77,
PD 1529; knowingly did not observed
and (did) misuse the rule . . .

11b. That Atty. Jesus Agana knew that the 10b. Atty. Agana knew that the
adverse party contemplated in said adverse party contemplated in
Sec. 24 and Sec. 77 is TIMOTEO Sec. 24 and Sec. 77 is TIMOTEO
QUIMPO, who has the legal capacity QUIMPO, who has the legal
to sue and file the Petition for capacity to use (sic) and file the
Cancellation of Lis pendens; Petition for Cancellation of the
notice of lis pendens annotated on its OCT 0-792;

11c. That Atty. Jesus Agana knew that 10c. Atty. Jesus Agana knew the
Xavier University, Inc. who acquired well-known jurisprudence, that
the property aware of the notice of lis Xavier University, Inc., who
pendens annotated on OCT No. 0-792, acquired the property aware of
subjects its acquisition to the outcome the notice of lis pendens annotated
of the lis pendens; on OCT No. 0-792, a mere purchaser pendente lite, subjects
its acquisition to the eventuality of the Petition for Review (lis pendens), Xavier University, Inc. is not only estopped to file the
petition but also has no legal capacity to file the PETITION;

11d. That Atty. Jesus Agana served 10d. Atty. Jesus Agana served a
copy of the Petition for Cancellation copy of the petition for
on Atty. Erasto Salcedo, who, he cancellation on Atty. Erasto
very well knew was no longer counsel Salcedo, who, he very well knew
Abundio Caballero, et al., occupants was no longer counsel for Helen
of Lot 3047, having been discharged Balani Abundio Caballero, et al.,
by Complainant, the leader and the based on the Motion to Discharge
president of the Association; filed with the Court of Appeals
and granted pursuant to Resolution, copy of which is
attached hereto as ANNEX "D;"

11e. That Atty. Jesus Agana Jesus 10e. Atty. Jesus Agana knew that
Agana knew that the undersigned Complainant substituted Atty.
substituted Atty. Erasto Salcedo; Erasto Salcedo as counsel for Helen Balani, Abundio Caballero,
et al. (Pls. see ANNEX "E") Regional Trial Court, Br. 23;

11f. That Atty. Jesus Agana, knowing 10f. Atty. Agana knew fully well
fully well that the lis pendens was that the petition for review (lis
on trial in Regional Trial court, Br. pendens) was on trial in Regional
18, filed surreptitiously the Petition Trial Court, Br. 18, yet
for Cancellation in Regional Trial surreptitiously filed the Petition in
Court, Br. 23, which he knew has Regional Trial Court, Br. 23,
no jurisdiction over the case; which he knew has no jurisdiction
over the case, in violation of Sec. 108 PD 1529, i.e., the petition
should be filed in the original case
in which the decree of registration was entered;

11g. That Atty. Jesus Agana, with corrupt 10g. Atty. Jesus Agana and Atty.
motive, deceitfully saw it that the Erasto Salcedo with corrupt
undersigned was not furnished with motive connived, schemed and
copy of the Petition for Cancellation; collaborated to see it that the herein Complainant would not be served copy of this PETITION (ANNEX "E");

11h. That Atty. Jesus Agana and Atty. 10h. Atty. Jesus Agana and Atty.
Erasto Salcedo deceived and Erasto Salcedo deceived and
mislead the Regional Trial Court, mislead the Regional Trial Court,
Br. 23, to issue Order, ANNEX "D", Br. 23, to issue Order (ANNEX
on the strength of the unverified "G"), on the strength of the null
PETITION; and void unverified PETITION
(ANNEX "F");

11i. That Atty. Erasto Salcedo's knowing 10j. Atty. Erasto Salcedo, by
fully well that he was already executing the PETITION
discharged by Complainant on (ANNEX "G") misrepresented
February 27, 1992 and no longer that he was the counsel for Helen
counsel for Abundio Caballero et al., Balani et al., knowing fully
executed the PETITION, ANNEX well that he was already
"D" on June 1, 1992 discharged as counsel

11j. That Atty. Erasto Salcedo's allegation 10i. The allegation in the
in the said PETITION is wanton PETITION is (sic) wanton
falsehood, without factual and falsehood, knowing for a fact that
legal basis, knowing for a fact, that, the Petition of Review Helen
lis pendens, he caused to be Balani, Abundio Caballero, et al.
registered on May 11, 1982 was caused to be registered in May 11,
on trial in Regional Trial Court, Br. 1982 was on trial in Regional
18. Trial Court, Br. 18, which copy of
pleadings and order are attached
hereto as ANNEXES "H", "H-1," H-2," (and) "G-3 (sic);

11k. That Atty. Erasto Salcedo in executing 101. Atty. Erasto Salcedo,
the PETITION misrepresented that discharged by Helen Balani,
he was still the counsel for Abundio Abundio Caballero, et al. in
Caballero, et al.; retaliation, connived, schemed
and confederated with Atty. Jesus
Agana that he execute the PETITION (ANNEX "F") unverified by Helen Balani, et al.
and submit the same to him (Atty.
Agana) as supporting document to his PETITION (ANNEX "E") -
when in good fidelity and loyalty
to his former clients he should
have refrained;

111. (second part) That Atty. Erasto 10k. (first part) . . . Atty. Erasto
Salcedo . . . submitt(ed) the Salcedo, as counsel for Helen
Petition unverified by Abundio Balani, Abundio Caballero, et al.
Caballero, et al., the party who (who) seasonably cause(d) the
caused the lis pendens to be annotation of the notice of lis
registered; pendens . . .

11m. That Atty. Salcedo's Petition, 10m. It is understood, the Order
in its entirely, is a wanton falsehood, (ANNEX "G") granting the cance-
deceitful and mislead the Court to llation, was anchored on Atty. E.
to admit it as its key evidence in Salcedo's null and void petition,
issuing the Order, ANNEX E,", ANNEX "F;"
to cancel the notice of lis pendens;

11n. That Atty. Erasto Salcedo, for corrupt 10k. (second part On May 11,
motive forestalled and delayed 1992, Atty. Erasto Salcedo . . . for
the enforcement of the lis pendens corrupt motive delayed and
(Petition for Review) for duration of forestalled its prosecution for the
almost ten (10) years;" duration of ten (10) years, and
instead on June 1, 1992 executed
the PETITION for its cancellation."

In the case of Nabus v. Court of Appeals (193 SCRA 732, 739 [1991), we have succinctly defined "bar by former judgment", to wit:

. . . (T)here is "bar by former judgment' when between the first case where the judgment was rendered, and the second case where such judgment is invoked, there is identity of parties, subject matter and cause of action. When the three identities are present, the judgment on the merits rendered in the first constitutes an absolute bar to the subsequent action. It is final as to the claim or demand in controversy, including the parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. . . .

There is no question that the instant complaint presents the same subject matter regarding the alleged misconduct of the respondent judge when he was a practicing lawyer which We already dismissed in 1995. The fact that the present complaint is filed by Atty. Concepcion, not Helen Balani, does not remove it from the ambit of the legal concept "bar by former judgment" inasmuch as the requirement of identity of parties is satisfied even if the parties are not physically identical as long as they are substantially the same, i.e., there is privity between the parties (see Sunflower Umbrella Manufacturing Co. Inc. v. De Leon, 237 SCRA 153, 165 [1994]). Neither does the fact that the mode of the complaint now seeks a dismissal rather than disbarment of the respondent judge preclude the application of the said rule inasmuch as "the test of identity of causes of action is not in the form of an action but on whether the same evidence would support and establish the former and the present causes of action." (see Gutierrez v. Court of Appeals, 193 SCRA 437, 446 [1991] citing Sangalang v. Caparas, 151 SCRA 53 [1987]). Considering that in A.M. No. RTJ-95-1312 and in this complaint, there is identity of parties, subject matter and causes of action, it is clear that our dismissal of the former case for utter lack of merit in 1995 bars another adjudication as regards the instant complaint. The complainant, being a lawyer, ought to remember that:

xxx xxx xxx

The general rule precluding the litigation of material facts or questions which were in issue and adjudicated in former action are commonly applied to all matters essentially connected with the subject matter of the litigation. Thus, it extends to questions "necessarily involved in an issue, and necessarily adjudicated, or necessarily implied in the final judgment, although no specific finding may have been made in reference thereto and although such matters were directly referred to in the pleadings and were not actually or formally presented. Under this rule, if the record of the former trial shows that the judgment could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties, and if a judgment necessarily presupposes certain premises, they are as conclusive as the judgment itself. Reasons for the rule are that a judgment is an adjudication on all the matters which are essential to support it, and that every proposition assumed or decide by the court leading up to the final conclusion and upon which such conclusion is based is effectually passed upon as the ultimate question which is finally solved." (Lopez v. Reyes, 76 SCRA 179, 186-187 [1977]) (Citations omitted) (Emphases supplied). (Smith Bell and Company (Phils.), Inc. v. Court of Appeals, 197 SCRA 201, 210 [1991]).

WHEREFORE, in view of all the foregoing, the instant complaint is DISMISSED for LACK OF MERIT and Atty. Manuel F. Concepcion is advised to be more solicitous in filing complaints of this nature to avoid a waste of this Court's time and effort.

SO ORDERED.

Padilla, Bellosillo, Vitug and Kapunan, JJ., concur.