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[G.R. No. 165643.� April 13, 2005]
AUSTRIA vs. STA. MARIA
SECOND DIVISION
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this Court dated APR 13 2005.
G.R. No. 165643 (Ernesto C. Austria vs. Atty. Ofelia Abueg Sta. Maria, et al.)
Before us is a Motion for Reconsideration of our Resolution dated January 19, 2005 which denied the petition for review on certiorari for petitioner's failure to submit a valid affidavit of service of the petitioner, the affidavit of service having been subscribed and sworn to on December 1, 2004 prior to actual posting on December 2, 2004 as evidenced by the postal registry receipt.
Petitioner invokes liberal construction of the rules and avers that the office messenger had the affidavit of service notarized on December 1, 2004 near their office certain that he could mail it on the same day. Blaming the heavy traffic because of the holiday season, the messenger was not able to mail the said notices on December 1, 2004 but was able to do it the next day on December 2, 2004. This lapse was allegedly without the knowledge of counsel for petitioner who asserts that said lapse of the messenger could be considered excusable negligence. Counsel for petitioner further claims that the issues raised are substantial which affect the property rights of a person who is not a party to the case.
Lawyers are mandated to see to it that all the requirements, whether procedural or substantial should be complied with. In this case, counsel did not check the compliance of the procedural aspect of filing of pleadings. The mistake is inexcusable negligence and there is no compelling reason presented for the Court to relax the rules.
Even if we do relax the rule on proof of service, the petition is still dismissible.
At the core of petitioner's contentions is his assertion that the levy upon the subject properties was a mistake because he is allegedly not the judgment debtor Ernesto Sy Austria but Ernesto C. Austria.
This case is an offshoot of the action for Sum of Money filed in the RTC of Manila, Branch 37 which rendered a Decision in favor, of respondent State Investment House, Inc. (SIHI) ordering, among others, one Ernesto Sy Austria to pay SIHI. Consequently, the Deputy Sheriff of Manila issued Notices of Levy against the properties of one Ernesto C. Austria which were annotated in the Transfer Certificates of Title (TCTs) of Ernesto C. Austria. Claiming that he is not the judgment debtor Ernesto Sy Austria, petitioner filed a "Petition to Annul Judgment or Quash Writ of Execution and to Lift Levy on Execution" and later, an "Amended Petition to Quash Writ of Execution or to Lift Levy on Execution and for Leave of Court to File Responsive Pleading." In an Order dated June 1, 1994, the RTC Manila denied the aforesaid petition on the ground that petitioner never questioned the court's jurisdiction despite due notice of the scheduled pre-trial on February 17, 1983. A writ of execution was issued. Petitioner did not interpose an appeal from this Order. Hence, its finality on July 1, 1994. An alias writ of execution was thus issued.
Petitioner then filed with the RTC Manila:
1.� an Affidavit of Third Party Claim reiterating that he is not Ernesto Sy Austria but Ernesto C. Austria on July 30, 1994;
2.� Motion to Amend Writ of Execution, Notices of Levy and Sheriff's Sale, etc. on August 6, 1994.
On August 3, 1994, petitioner filed a complaint before the RTC Para�aque, Branch 258 praying for the cancellation of the Notices of Levy on the subject TCT's and of all dispositions, acts or proceedings emanating from the execution sale and all other entries consequent thereto. The RTC Para�aque, Branch 258 issued an Order dated December 19, 1994 dismissing the said case on the ground of forum shopping because there were pending incidents in the RTC Manila which involve the same parties and cause of action. In the same Order, the RTC Para�aque also found that the judgment debtor Ernesto Sy Austria and petitioner Ernesto C. Austria are one and the same person as admitted by the latter's counsel before the RTC of Manila. [1]
On a petition for certiorari, prohibition and mandamus, the Court of Appeals summarily dismissed the same in a Resolution dated January 23, 1995 for petitioner's failure to include in his certification against forum shopping the undertaking to report any similar case filed or pending before any court or administrative agency in violation of Supreme Court Circular No. 28-91. This case became final and executory on February 15, 1995.
On October 7, 1996, petitioner filed a petition with the RTC of Para�aque, Branch 274 (LRC Rec. Case No. N-26345, Cadastral Case No. N-4759 docketed as Civil Case No. 94-0429), praying for the Cancellation of the Notices of Levy and All Acts, Certificates or Dispositions emanating therefrom. Upon motion to dismiss filed by the respondents, the RTC Para�aque, Branch 274 dismissed it on the ground of forum shopping because the issues raised and the reliefs prayed for were the same as those cases in the RTC Manila and RTC Para�aque, Branch 258. On appeal, the Court of Appeals denied the same and affirmed the RTC Para�aque, Branch 274 decision.
The Court agrees with the ruling of the Court of Appeals that this case is dismissible based on forum shopping.
Indeed, all the cases subsequent to petitioner's filing of his "Petition to Annul Judgment or Quash Writ of Execution and to Lift Levy on Execution" and later, an "Amended Petition to Quash Writ of Execution or to Lift Levy on Execution and for Leave of Court to File Responsive Pleading" before the RTC Manila, the same involved the same parties, causes of actions or reliefs prayed for. After all, the essence of forum shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously and successively, for the purpose of obtaining a favorable judgment, [2] cralaw as in this case.
ACCORDINGLY, the motion for reconsideration is DENIED.
Very truly yours,
(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court
Endnotes:
[1] cralaw CA Decision dated September 19, 2003, p. 4, Rollo, p. 47; CA Resolution dated October 12, 2004, p. 3; Rollo, p. 43; Motion for Reconsideration filed by petitioner in the CA, p. 5, Rollo, p. 140.
[2] cralaw Ong vs. CA, 333 SCRA 189.
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