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[A.C. No. 4373.January 29, 2001]

PUYO vs. ATTY. ZAMORA, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 29 2001.

A.C. No. 4373(Angel Puyo vs. Attys. Honesto H. Zamora, Zacarias P. Joven and Romero A. Boniel.)

This is an administrative complaint against Atty. Honesto H. Zamora, Atty. Zacarias P. Joven and Atty. Romero A. Boniel filed by Angel Puyo before this Court on January 30, 1995, praying that the respondents be disbarred or suspended from the practice of law in the Philippines for their malice and willful intent, as lawyers of PICOP to engage as they did engage in forum-shopping.

Gathered from the Complaint 1 Rollo , pp. 5-10.and annexes thereof are the following facts:

Complainant Angel Puyo was one of the plaintiffs in Civil Case No. 489 2 Complaint, Annex "A.," Rollo, pp. 11-20.filed before the Regional Trial Court (Branch 7) of Baganga, Davao Oriental, against Paper Industries Corporation of the Philippines (PICOP), Good Earth Mineral Corporation (GEMCOR), Evaristo Narvaez, Jr., Ricardo G. Santiago, Roberto A. Dormendo and Reydande D. Azucena, for injunction with prayer for restraining order, damages and attorney's fees, to enjoin the defendants from harassing the plaintiffs and preventing the latter's vehicles, tools and other mining paraphernalia from entering, and traveling into the mining site at Boston, Davao Oriental and using and passing the most accessible concession roads of defendants.

On May 8, 1993, the Regional Trial Court of Baganga, Davao Oriental issued a temporary restraining order 3 Complaint, Annex "B," Rollo, pp. 21-22.in favor of the plaintiffs. Copies of said temporary restraining order together with the complaint and summons were served on the following defendants, through their respective secretaries: Mr. Evaristo Narvaez, President of PICOP, on May 11, 1993; Mr. Ricardo Santiago, Senior Vice President of PICOP, on May 11, 1993; Mr. Roberto Dormendo, in his personal capacity, on May 11, 1993; and Mr. Reydande Azucena, on May 10, 1993, per Sheriff's Return of Service. 4 Complaint, Annex "C," Rollo, p. 23.

Meanwhile, PICOP filed on May 11, 1993 before the Regional Trial Court, Branch 29, Bislig, Surigao del Sur, a Petition for Injunction and Prohibition with Preliminary Injunction, Restraining Order, Damages and Attorney's Fees, docketed as Special Proc. No. 388, against the plaintiffs in Civil Case No. 489 with Benigno Monteveros, Virgilio Nuete, Elmer Garcero, Alberto Puyo, and Sgt. Remir Bagaipo as additional plaintiffs. In said petition, PICOP alleged among others, that assuming that defendants have mining permits, they still cannot enter the area due to an agreement in a dialogue called by the Regional Director of the Bureau of Mines and Geophysical Services, Region XI, to observe the status quo pending resolution of the boundary dispute over the "gold rush area" between the Province of Surigao del Sur and Davao Oriental.

On May 12, 1993, the RTC of Bislig, Surigao del Sur also issued a temporary restraining order in Spec. Proc. No. 388 in favor of PICOP and against therein defendants who are the plaintiffs in Civil Case No. 489.

Defendants PICOP, et al. in Civil Case No. 489 filed their Answer 5 Complaint, Annex "F," Rollo, pp.41-51.dated May 24, 1993.

Meantime, in a Motion to Dismiss 6 Complaint, Annex "H," Rollo, pp. 69-75.dated May 28, 1993, defendants Angel Puyo, et al. prayed for the dismissal of Spec. Proc. No. 388 on the ground, among others, that there is another action pending between the same parties for the same cause. In an Order dated May 31, 1993, the RTC of Bislig, Surigao del Sur issued a Writ of Preliminary Injunction 7 Complaint, Annex "I," Rollo, pp. 76-81.in Spec. Proc. No. 388, in favor of PICOP, stating among others that the respondents (herein complainant Angel Puyo, et. al.) were seasonably served with notice of hearing of the petition, but not one of them appeared, not even their counsel, to argue (their) motion to dissolve restraining order.

On November 26, 1993, the RTC of Baganga, Davao Oriental rendered its Judgment, 8 Complaint, Annex "G," Rollo, pp. 52-68.in favor of plaintiff Angel Puyo, et al.

Complainant alleges that the issuance by the Bislig Court of the said Writ of Preliminary Injunction rendered the Judgment handed down by the Baganga Court nugatory, inutile and unavailing because the writ of execution pending appeal issued by the Baganga Court in their (plaintiffs/mining permittees) favor could not be enforced against PICOP and, in fact, PICOP forcibly drove away the mining permittees from the mining site using its private army the SCAA (Special CAFGU Active Auxiliary) upon the pretext of implementing also the "Writ of Preliminary Injunction" issued by the Bislig Court. 9 Return, Complaint, Annex "J," Rollo, pp. 80-81.

Complainant further alleges that instead of resolving defendants' Motion to Stay and/or Dissolve the Writ of Preliminary Injunction in Spec. Proc. No. 388, the presiding Judge of the RTC of Bislig, Hon. Francisco Joven issued an Order inhibiting himself from the case without any legal grounds to delay the dispensation of justice in favor of herein complainant and his co-defendants therein, because their mining permit will be expiring by December 1994 and by that time the Resolution of the said motion will become moot and academic.

In their Answer/Comment, respondents denied complainant's allegation that the filing of Spec. Proc. No. 388 was a shameless legal maneuver designed to mock the administration and dispensation of justice with avowed intent of rendering inutile/nugatory the TRO issued by the Baganga RTC, the truth of the matter being that respondents filed special proceedings No. 388 with the RTC of Bislig, Surigao del Sur in all good faith because at the time Atty. Boniel filed the complaint for injunction (Spec. Proc. 388) against the miners, he had no knowledge of any complaint filed by the miners against the company (PICOP) and its officers before the RTC of Baganga, Davao Oriental.

Respondents submit that they are not guilty of forum shopping when they filed Special Proceedings No. 388 because at that time, there was no other court yet which had earlier rendered a judgment in a case involving the same parties, issues and cause of action. Respondents also explained that the reason why the resolution of the motion to dismiss filed by the defendants in Spec. Proc. No. 388 was delayed was that the latter filed an administrative case against Judge Joven of the Bislig Court so that the judge voluntarily inhibited himself from further proceedings until after the Supreme Court dismissed the administrative case for lack of merit.

On June 19, 1995, this court referred this case to the Integrated Bar of the Philippines for investigation, report and recommendation. On October 2, 2000, the IBP Commission on Bar Discipline transmitted to this Court a Notice of Resolution, and the records of this case. The Resolution reads:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as annex "A"; and finding the recommendation fully supported by the evidence on record and the applicable laws and rules, Respondents are SUSPENDED for THREE (3) MONTHS from the practice of law for violating the prohibition against forum-shopping while the charges against Judge Francisco Joven is DISMISSED for lack of merit."

Before ruling on whether or not respondents herein engaged in forum shopping as charged by complainant, it is necessary to first determine whether or not Civil Case No. 489 and Special Proceedings No. 388 involved the same parties and issues.

The Complaint and the annexes and the respondents' Answer/Comment show that the two cases involved the same parties, rights asserted and issues so that all the requirements of litis pendentia exist.

Forum-shopping exists, as in this case, where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other. 10 Alejandrino vs. Court of Appeals, 295 SCRA 536 [1998], Philippine Woman's Christian Temperance Union, Inc. vs. Abiertas House of Friendship Inc., 292 SCRA 785 [1998].

Respondents admitted in their Answer/Comment that there is identity of parties in the two cases. 11 Par. 2.f, Answer/Comment, p. 4, Rollo, p. 134.Respondents also admitted that the temporary restraining orders issued by both courts were opposed/contradictory to each other 12 Par. 2g, Answer/Comment, p. 4. Rollo, pp. 134-135.as alleged in paragraph 12 of the complaint, but they take exception to the allegation that the TRO issued by the Court of Bislig rendered inutile, useless, and ineffective the TRO issued by the Baganga Court because the issuance of TRO by the Baganga Court had allegedly disturbed the status quo since some of the miners had effectively forced their way inside the concession because of the said TRO, claiming that it is the other way around. To rule on said argument is not proper in this case because it calls for a ruling on the merits of the case for the injunction. What is material in this administrative case for forum shopping is the fact that the issues brought by respondents before the Bislig court could have been raised in their Answer and fully determined and resolved in Civil Case No. 489, in the Baganga Court, which had already acquired jurisdiction over the subject matter of the case.

It is evident that the temporary restraining orders issued by the Bislig court and the Baganga court can not exist side by side, so much so that the enforcement of one Would mean non-enforcement of the other. This fact was not lost on respondent Atty. Zacarias Joven who utilized the TRO issued by the Bislig court to frustrate the implementation of the Writ of Execution issued by the Baganga Court in Civil Case No. 489 as can be gleaned from the Sheriff's Return 13 Complaint, Annex "J," Rollo, pp. 80-81.dated February 3, 1994, the pertinent portion of which reads:

"We enforced the Writ on 26 January 1994 assisted by Deputy Sheriff George Sanchez of Branch 29, RTC-Bislig, Surigao Sur (sic). We could not proceed to the permit area to place the plaintiffs thereat because we were prevented by PICOP's security men. We went to Atty. Zacarias Joven (PICOP's Legal Department) who informed us that his office has given orders to the SCAA (Special CAFGU Active Auxiliary) and FLED (Forest Law Enforcement Department) to block our entry to the permit area. He showed us an Order by Branch 29 of the Bislig RTC granting a Writ of Preliminary Injunction in favor of PICOP against the Permittees which he said was his basis for giving the order to block us."

Respondents may be given the benefit of the doubt that when they filed Spec. Proc. No. 388, they were not aware that Civil case No. 489 had been filed. Still their subsequent knowledge of this fact, imposed upon them an obligation to so inform the Bislig Court to prevent the situation of contradictory rulings being made by both courts. Respondents' failure to comply with this obligation has allowed the situation which Supreme Court Circular No. 28-91 has sought to prevent, to come to pass.

It is also clear from the following excerpts from the Inter Office Memorandum dated January 10, 1994, from Atty. Joven to a certain Mr. M. L. Garcia of PICOP that the TRO in Spec. Proc. No. 388 was to be used against the TRO in Civil Case No. 489, thereby negating respondents' claim that they handled the case of their client PICOP in good faith, thus:

"In the meantime, Calanza, et als. thru their counsel, filed a Motion for the execution of the decision pending appeal. We also filed our written opposition to the motion. The court will come out with its resolution whether to grant the same or not.

"In the event that the Baganga Court will grant their motion (meaning Calanza et als. can already enter the area pending appeal of the case to the Court of Appeals), we will also question such order in the Court of Appeals by way of Certiorari with prayer for a Restraining Order. But even if the Baganga Court, by such order, allow Calanza, et als. to enter the area, we still can legally resist their entry by virtue of the preliminary injunction issued by the RTC Bislig in a similar case that PICOP filed against Calanza and Puyo, et als. involving the same Rd. 5M. The said Preliminary Injunction issued by Judge Joven is still enforceable. So that we have the perfect right to bar their entry to the area." 14 Complaint, Annex "K," Rollo, p. 86. (emphasis ours)

Respondents may be correct in saying that the two cases: Civil Case No. 489 and Spec. Proc. No. 388 were filed in May 1993, i.e., a year before the effectivity of Supreme Court Circular No. 04-94 re: Forum Shopping in the Lower Courts/Tribunals which took effect only in April of 1994, so that it cannot be said that they violated the said Supreme Court Circular. However, as held in Benguet Electric Cooperative, Inc. vs. Flores, 287 SCRA 449 [1998], "xxx be that as it may, respondent is still guilty of forum shopping. In Chemphil Export and Import Corporation vs. Court of Appeals, 15 251 SCRA 257, 291 [1995].this Court declared that the rule against forum shopping has long been established and subsequent circulars [1] cralaw 16 Revised Circular No. 28-91 and Administrative Circular No. 04-94.of this Court merely formalized the prohibition and provided the appropriate penalties against transgressors."

WHEREFORE, for trifling with the courts and the judicial processes by resorting to forum shopping, respondents ATTY. HONESTO H. ZAMORA, ATTY. ZACARIAS P. JOVEN AND ATTY. ROMERO A. BONIEL are hereby SUSPENDED from the practice of law for a period of THREE (3) MONTHS, effective upon finality of this Decision. They are WARNED that a repetition of a similar misconduct will be dealt with more severely.

Let a copy of this Decision be included in their personal files at the Office of the Bar Confidant, and circularized to all courts and to the Integrated Bar of the Philippines.

Complainant having failed to substantiate his accusations against Judge Francisco Joven, the prayer that the latter be also investigated for his cooperation and collusion in the perpetration of forum shopping, is denied.

SO ORDERED.

Very truly yours,

(Sgd.) TOMASITA M. DRIS
Clerk of Court



Endnotes:

[1] cralaw


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