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[A.C. No. 4427.February 21, 2001]

DATOR vs. ATTY. JAVALUYAS

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 21 2001.

A.C. No. 4427(Hobart D. Dator, Jr. vs. Atty. Candido G. Javaluyas, Jr.)

Complainant Hobart D. Dator, Jr. accuses respondent Atty. Candido G. Javaluyas, Jr. of violating Adm. Cir. No. 04-94 of this Court which provides -

1. The plaintiff, petitioner, applicant or principal party seeking relief in the complaint, petition, application or other initiatory pleading shall certify under oath in such original pleading, or in a sworn certification annexed thereto and simultaneously filed therewith, to the truth of the following facts and undertakings: (a) he has not theretofore commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; (b) to the best of his knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; (c) if there is any such action or proceeding which is either pending or may have been terminated, he must state the status thereof; and (d) if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or any other tribunal or agency, he undertakes to report that fact within five (5) days therefrom to the court or agency wherein the original pleading and sworn certification contemplated herein have been filed (underscoring ours). 1 Adm. Cir. No. 04-94 took effect I April 1994.

Specifically, complainant alleges that on 8 May 1992 BPI Family Savings Bank (BPI) filed a complaint for replevin with damages against Sps. Domiciano and Genoveva Conde and a certain John Doe, docketed as Civil Case No. SP-3529 (92) of the Regional Trial Court (RTC), Br. 32, San Pablo City; on 14 February 1994 the case was motu propio dismissed by the judge citing as ground therefor the 'unnecessary delay in the prosecution of this case amounting to lack of interest;" 2 Annex "C;" Rollo, p. 14.respondent Atty. Javaluyas, Jr., as counsel for BPI, neither moved for reconsideration nor appealed the order of dismissal; on 28 November 1994, or after Adm. Cir. No. 04-94 took effect 1 April 1994, respondent again as counsel for BPI filed the same complaint for replevin with damages against the same parties and involving the same issues and subject motor vehicle, docketed as Civil Case No. SP-4125 (94) of the RTC-Br. 30, San Pablo City; a certificate of non-forum shopping was attached to the complaint attesting that "BPI has not commenced any other action or proceeding involving the same issues in the Supreme Court, Court of Appeals or any other tribunal or agency;" and, that the act of respondent in submitting such patently false certificate of non-forum shopping knowing fully well that the first case was already terminated and dismissed, in fact with prejudice pursuant to Sec. 3, Rule 17 of the Rules of Court, constituted malpractice.

In his Comment respondent alleged that he was not guilty of forum shopping because said rule applies only to situations where there are simultaneous pending cases involving the same parties, subject matter and issues, and not where one case was already dismissed while the other was pending. Besides, he insisted that there was no identity of parties since complainant was merely identified as "John Doe" in the first case.

In its Report and Recommendation the IBP Board of Governors adopted the Investigating Commissioners recommendation that this case be dismissed for lack of merit, It reasoned that respondent could not be held administratively liable for forum shopping when he merely exercised his option given by law to file the second case after the first case was dismissed without prejudice.

We disagree. First of all, the IBP recommendation proceeded from an erroneous assumption that the dismissal of the first case on the ground of plaintiff's lack of interest was without prejudice. On the contrary, it is specifically provided in Sec. 3, Rule 17, of the Rules of Court 3 Now Sec. 3, Rule 17, Rules of Civil Procedure. that a dismissal based on plaintiff's failure to appear at the time of trial or to prosecute his action for an unreasonable length of time shall have the effect of an adjudication upon the merits unless otherwise provided by the court. In this case, a careful reading of the Order dated of 14 February 1994 dismissing the first case 4 Ibid . shows that the RTC-Br. 32, San Pablo City, did not indicate that the dismissal was without prejudice; hence, it was obviously with prejudice.

We have repeatedly held that forum shopping exists not only where the elements of litis pendentia are present but also where a final judgment in one case will amount to res judicata in the other. 5 Cruz v . Court of Appeals, G.R. No. 134090, 2 July 1999, 309 SCRA 714; First Philippine International Bank v . Court of Appeals, G.R. No. 115849, 24 January 1996, 252 SCRA 259 .

A party is guilty of forum shopping where he repetitively availed 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. 6 Gatmaytan v . Court of Appeals, G.R. No. 123332, 3 February 1997, 267 SCRA 487.Thus, there is forum shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion other than by appeal or certiorari in another. 7 Progressive Development Corporation, Inc. v . Court of Appeals, G.R. No. 123555, 22 January 1999, 301 SCRA 637; Chemphil Export & Import Corporation v . Court of Appeals, et al ., G.R. Nos. 112438-39, 12 December 1995, 251 SCRA 257.In such a case, there is ground for the imposition of disciplinary action against the erring lawyer 8 First Philippine International Bank v . Court of Appeals. see Note 5.since forum shopping constitutes direct contempt of court and a willful violation of the Code of Professional Responsibility which mandates that counsel owes candor, fairness and good faith to the courts, 9 Canon 10.assist in the speedy and efficient administration of justice, 10 Benguet Electric Cooperative, Inc. v . Flores, Adm. Case No. 4058, 12 March1998, 287 SCRA 449 .and to maintain only such actions as appear to him to be just and are consistent with truth and candor. 11 Gabriel v . Court of Appeals, Nos. L-43757-58, 30 July 1976, 72 SCRA 273.

In one case we imposed a fine of P1,000.00 upon a lawyer guilty of forum shopping. 12 See Philippine National Bank v . Cedo, Adm. Case No. 3701, 28 March 1995, 243 SCRA 1.We believe that the fine to be commensurate with the offense should be increased to P5,000.00 or such amount as may be determined by the Court to be an effective deterrent to forum-shopping.

WHEREFORE, premises considered, respondent Atty. Candido G. Javaluyas, Jr. is FINED P5,000.00 for forum shopping and for violation of the Code of Professional Responsibility, with warning that a repetition of the same or similar offense will be dealt with more severely.

SO ORDERED.

Very truly yours,

(Sgd.)TOMASITA M. DRIS
Clerk of Court


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