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EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 20 2004 .

G.R. No. 164046 (Spouses Cesar and Agnes de Leon v. The Hon. Third Division of the Supreme Court, and Ernest Cuna.)

Before the Court is a Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure assailing the Resolutions dated January 12 and March 29, 2004 of the Third Division of this Court in G.R. No. 1603531.

On March 3, 1995, private respondent Ernest Cuna (Cuna) filed a complaint for annulment of sale and reconveyance with damages against petitioners Cesar and Agnes de Leon (petitioners) with the Regional Trial Court of Quezon City.

Cuna claimed that on May 17, 1993, his deceased wife, Ellen Alcantara-Cuna,- fraudulently sold two parcels of land (the "lots") in Payatas, Quezon City covered by Transfer Certificate of Title (TCT) Nos. 280780 and 280781. Cuna averred that the lots formed part of their conjugal partnership of gains. Petitioners, on the other hand, contended that the lots were the paraphernal property of Ellen Alcantara-Cuna and could thus be alienated by her without Cuna's consent.

After the lots were sold to petitioners, they proceeded to subdivide them into four lots. Subsequently, new TCTs for each of the resulting eight lots were issued in their name.2

In its Decision dated January 28, 1999, the Regional Trial Court of Quezon City, Branch 224 (RTC), nullified the sale of the lots to petitioners and ordered the Register of Deeds of Quezon City to issue new titles in Cuna's name over the lots covered by TCT Nos. 119328-119331 and to retain TCT Nos. 119332-119335 in the name of petitioners.

Petitioners appealed the RTC Decision to the Court of Appeals.

On July 23, 2003, the Court of Appeals promulgated its Decision denying petitioners' appeal. Petitioners filed a Motion for Reconsideration thereof, and included therein a prayer for the cancellation of the notice of Us pendens and adverse claim annotated on TCT Nos. 119328-119335. Their motion was denied by the appellate court in its Resolution dated October 9, 2003.

On December 4, 2003, petitioners filed a Petition for Review with this Court. The case was docketed as G.R. No. 160353 and raffled to the Court's Third Division.3

On January 12, 2004, the Court's Third Division issued a Resolution in G.R. No. 160353 denying petitioners Petition for Review on the following grounds: (1) lack of proper verification; and (2) no reversible error on the part of the Court of Appeals in issuing the assailed Decision.4

Petitioners thereafter filed a Motion for Reconsideration and Cancellation of the Notice of Lis Pendens and Adverse Claim, 5 but the motion was denied for lack of merit in its Resolution dated March 29, 2004.6

Hence, petitioners filed the instant Petition for Certiorari.

Petitioners contend that the Verification attached to their Petition for Review in G.R. No. 160353, which states that the contents thereof are "of [his] own personal knowledge, and based on the authentic facts" substantially complies with Section 4, Rule 7 of the Revised Rules of Court, as amended by A.M. No. 00-2-10-SC which requires that the verification state that the allegations in the pleading be "of [the party's] personal knowledge or based on authentic records".7

They also argue that the February 9, 2004 Resolution of this Court's Third Division violates due process because it does not state the facts and the law on which it is based.8

The instant petition must be dismissed outright for being an inappropriate remedy and on the ground of forum-shopping, apart from lack of merit.

In the present case, petitioners assert that the Court's Third Division acted with grave abuse of discretion when it denied the Petition for Review in G.R. No. 160353 for failure to show that a reversible error had been committed by the Court of Appeals in promulgating the Decision and the Resolution assailed therein. They pray that the Court En Banc resolve their Petition for Review in G.R. No. 1&0353 and cancel the notices of lis pendens and adverse claims on TCT Nos. 119328-119335. Evidently, the instant petition is being used as substitute for an appeal.

The Court will not countenance petitioners' attempt to obtain another appeal of the Court of Appeals' decision in CA-G.R. CV No. 64264 in the guise of the present Petition for Certiorari. A second appeal is not allowed under the rules of procedure. Neither is a petition for certiorari available as a remedy under the Rules for assailing the decision of the Court itself.9

What petitioners could have done, assuming the recourse has merit, was to file with the Third Division a motion to elevate the matter to the Court En Banc before the assailed decision or resolution becomes final and executory. If at least three (3) members of the Third Division are convinced that the case merits the attention of the Court en banc, they may refer the case en consulta thereto. The Court En Banc will then consider the reasons cited by the Division for the referral and, by a majority vote of its actual membership, will either accept the case for decision or resolution or return the case to the Division.10

The direct filing of the present petition with the Court En Banc by itself constitutes forum-shopping.

Forum-shopping is "the filing of repetitious suits in different courts".11 It is committed when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another,12 or when a party "repetitively avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely, by some other court".13

The present petition undeniably involves the same transactions, facts and circumstances which gave rise to the controversy in G.R. No. 160353 and raises substantially the same issues already passed upon by the Court in that case. Moreover, the vexation of the Court and the parties to this case as well as the unnecessary clogging of the Court's dockets caused by the filing of the instant Petition are clear indications that petitioners are indeed guilty of forum-shopping.14

Petitioner's counsel should have known that the filing of the present petition constitutes forum-shopping which is prohibited because it is an abuse of judicial processes and effectively degrades the administration of justice.15

The second paragraph of Section 5, Rule 7 of the 1997 Rules of Civil Procedure expressly states that the acts of a party or his counsel clearly constituting willful and deliberate forum-shopping shall be ground for summary dismissal of the case with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

Petitioners and their counsel are therefore required to show cause in writing why they should not be punished for contempt for filing the instant petition in violation of the rule against forum-shopping.

The dismissal of the present petition on the aforementioned grounds does not amount to a denial of justice and of petitioners' right to due process. Petitioners have been afforded the opportunity to discuss the perceived errors of the Court of Appeals in G.R. No. 160353. The Court, through its Third Division, already considered the arguments in their Petition for Review and ruled that the no reversible error was committed by the Court of Appeals in denying their appeal.16 The Court again looked into the matter in resolving petitioners' Motion for Reconsideration and Cancellation of the Notice of Lis Pendens and Adverse Claim. Unfortunately for petitioners, the Court found that said motion "merely reiterates the same arguments earlier raised [in their - Petition for Review] and does not present any substantial reason not previously invoked nor any matter not already considered and passed upon by the Court".17 The motion was thus denied for lack of merit and the denial of the Petition for Review was made final.

Even if the matters raised in the present petition were properly referred to the Court En Banc, the Court would have returned the case to the Third Division since the same has no merit.

WHEREFORE, the instant Petition for Certiorari is hereby DISMISSED for being an improper remedy, for violating the prohibition against forum-shopping and for lack of merit.

Petitioners and their counsel-of-record are also required to SHOW CAUSE why they should not be punished for contempt for engaging in forum-shopping within ten (10) days from receipt hereof. Costs against the petitioners.

em>Corona , J., on leave.

Very truly yours,

(Sgd.) MA. LUISA D. VILLARAMA

Acting Clerk of Court