Consing v. Solidum, Jr.

THIRD DIVISION

[A.C. No. 7586. August 2, 2017.]

SOLEDAD T. CONSING, complainant,vs. ATTY. IVAN M. SOLIDUM, JR., respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution dated August 2, 2017, which reads as follows:

"A.C. No. 7586 (Soledad T. Consing v. Atty. Ivan M. Solidum, Jr.) — Through this administrative complaint, complainant Soledad Consing seeks to disbar respondent Atty. Ivan Solidum, Jr., for alleged forum shopping when the latter filed a petition for injunction to restrain the release of payments while complainant's earlier-filed action for rescission and damages was still pending.

The Factual Antecedents

Complainant and her late spouse Antonio were the owners of a tract of land measuring 73 hectares, divided into four parcels, 1 known as Hacienda Sol and located in Cadiz City, Negros Occidental. The property was mortgaged by the Spouses Consing to the Philippine National Bank (PNB) as security for their loan. 2

Finding it difficult to keep up-to-date with the interest payments for their loan, complainant, as administrator of the estate of her late husband, sold the property to the Spouses Meritus Rey and Elsa Medado in 1996. The Spouses Medado agreed to assume the mortgage obligation to the PNB. For this purpose, the parties executed four separate Deeds of Sale with Assumption of Mortgage covering the property. These deeds were annotated on the titles of the property. The sale was approved by the intestate court and in 1997, PNB released the titles to the Spouses Medado. The Spouses Medado then caused the transfer to their names a portion of the property measuring 18 hectares covered by four titles. 3 SDAaTC

However, on account of the Spouses Medado's alleged failure to comply with some of the conditions required by PNB for the approval of the sale with assumption of mortgage, complainant sold the same property to the Department of Agrarian Reform (DAR) by way of Voluntary Offer to Sell (VOS). The DAR, under the Comprehensive Agrarian Reform Program (CARP), agreed to acquire 47 hectares of the property 4 for PhP3,779,578.96. Consequently, titles over the 47 hectares were placed in the name of the Republic of the Philippines while the remaining 27 hectares were registered in the name of the Spouses Medado.

In 2000, complainant filed an action for rescission of the four Deeds of Sale with Assumption of Mortgage (rescission case) against the Spouses Medado. 5 Respondent represented the Spouses Medado in this case. 6 The Spouses Medado moved 7 for the issuance of an order for the Land Bank of the Philippines (LBP) not to release to any party the amount of PhP3,779,578.96 until after the case has been decided. 8

On the other hand, complainant moved to cancel the annotation of the Deeds of Sale with Assumption of Mortgage on the titles covered by the CARP because LBP would not release the payment until after said cancellation was made. The RTC, as later on affirmed by the Court of Appeals in its Decision dated December 14, 2005, ordered the cancellation of the annotation. 9

In 2006 and while the rescission case was still pending, the Spouses Medado, through respondent, filed a petition 10 for injunction (injunction case) against LBP and the heirs of Antonio, as represented by complainant, praying that the LBP be restrained from releasing the proceeds of the lots and that complainant be likewise restrained from receiving the said payment. 11 The Spouses Medado, through respondent, also prayed that LBP be compelled to release the proceeds of the VOS to the Spouses Medado instead. 12 Presented in evidence were certain Deeds of Absolute Sale dated September 14, 1998 allegedly executed by complainant in favor of the Spouses Medado.

Meanwhile, in the rescission case, the RTC rendered its judgment 13 rescinding the Deed of Sale with Assumption of Obligation dated July 11, 1996 and Deed of Sale with Assumption of Mortgage dated September 14, 1998 and ordering the Spouses Medado to turn over the possession of the subject property.

However, it appears that a writ of preliminary prohibitory and mandatory injunction was issued by the RTC in the injunction case wherein the Spouses Medado succeeded in securing the release of the proceeds of the VOS from the LBP in the total amount of PhP4,316,183.17. 14

Because of these turn of events, complainant filed the present administrative complaint charging respondent of engaging in forum shopping and for violation of Canon 1, 15 Rule 1.02, 16 Rule 1.03, 17 Canon 10, 18 Rule 10.03, 19 Canon 12, 20 Rule 12.02 21 and Rule 12.04 22 of the Code of Professional Responsibility (CPR). In her Supplemental Complaint, 23 complainant additionally charges respondent of using nine allegedly falsified Deeds of Absolute Sale dated September 14, 1998 in the injunction case in violation of Canon 15, 24 Rule 15.07 25 of the CPR.

When required to comment, 26 respondent insisted that he did not commit forum shopping as the cause of action in the rescission case is different from the cause of action in the injunction case. He likewise denied having violated the CPR and reasoned that it should instead be the complainant and her lawyer who should be reprimanded for having sold the same property to the DAR after the sale in favor of the Spouses Medado. As to the charge of falsification, respondent avers that the same lacks basis considering that he became counsel for the Spouses Medado only in 2006 when the documents were already notarized as early as 1998. 27

Subsequently, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. 28

Report and Recommendation

On July 1, 2009, Investigating Commissioner Eduardo V. De Mesa submitted his Report and Recommendation 29 dismissing the charge of falsification but finding sufficient basis to hold respondent guilty of forum shopping. The Investigating Commissioner reasoned that the root issue in the rescission case and the injunction case is who between complainant and the Spouses Medado is the owner of the property and hence, entitled to the proceeds of the VOS. He held that there is identity of issues in the two cases such that a final decision in one case will amount to resjudicata in the other. acEHCD

Further, the Investigating Commissioner observed that respondent could not have feigned ignorance of the pendency of the rescission case. Despite such knowledge, respondent chose not to file a motion for the issuance of an injunctive writ in the rescission case which should have been the proper course of action instead of filing a separate complaint for injunction. The Investigating Commissioner also noted that respondent failed to divulge the pendency of the rescission case in the injunctive writ in violation of the requirements of the certification of non-forum shopping. 30 For these reasons, the Investigating Commissioner recommended that respondent be meted the penalty of three months suspension, thus:

Premises considered, it is respectfully recommended that respondent be imposed the penalty of three (3) months suspension for engaging in forum shopping.

SO ORDERED. 31

Resolution of the Board of Governors

On December 29, 2012, the IBP Board of Governors, issued a Resolution 32 adopting and approving with modification the Report and Recommendation of the Investigating Commissioner such that the penalty imposed upon respondent is reduced from three months suspension to one month suspension. The Resolution reads:

RESOLUTION NO. XX-2012-580

RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and APPROVED, withmodification, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution as Annex "A", and finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that Respondent is guilty of engaging in Forum Shopping, Atty. Ivan Solidum, Jr. is hereby SUSPENDED from the practice of law for one (1) month.33

From this Resolution, no motion for reconsideration 34 was interposed by either party. Pursuant to Rule 139-B the whole record of the case was transmitted to the Court.

The Issue

For resolution is whether respondent should be held administratively liable for violating the rule against forum shopping.

The Ruling of the Court

The Court adopts and approves the Resolution of the IBP Board of Governors finding respondent guilty of forum shopping and consequently imposes upon him the penalty of one month suspension from the practice of law.

The instances where forum shopping takes place are as follows:

There is forum shopping "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." The different ways by which forum shopping may be committed were explained in Chuav. Metropolitan Bank & Trust Company:

Forum shopping can be committed in three ways: (1) filing multiple cases based on the same cause of action and with the same prayer, the previous case not having been resolved yet (where the ground for dismissal is litispendentia); (2) filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally resolved (where the ground for dismissal is resjudicata); and (3) filing multiple cases based on the same cause of action, but with different prayers (splitting causes of action, where the ground for dismissal is also either litispendentia or resjudicata). 35 (Citations omitted)

In other words, forum shopping exists 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. 36 The consistent test for determining forum shopping is whether in the two or more cases that are pending, there is an identity of parties, rights or causes of action, and relief sought. 37 A party violates the rule against forum-shopping where the elements of litispendentia 38 are present or where a final judgment in one case will amount to resjudicata in another. 39

Plainly, the above elements are present in this case. There is identity of parties in the rescission case and the injunction case. The reliefs sought in the rescission case are the rescission of the Deeds of Sale with Assumption of Mortgage and cancellation of titles issued in favor of the Spouses Medado. In turn, the relief sought in the injunction case is the issuance of a prohibitory and mandatory injunction to restrain LBP from releasing the proceeds of the VOS to complainant and instead, to release the same to the Spouses Medado as owners of the property. In plain terms, the rescission case seeks to cancel the Spouses Medado's title or ownership over the property while the injunction case seeks that the Spouses Medado's title or ownership over the property be recognized. Undoubtedly, a judgment in the rescission case (either upholding or canceling the Spouses Medado's title over the property) would constitute resjudicata in the injunction case.

Evidently, respondent abused his right of recourse to the courts. "An important factor in determining the existence of forum-shopping is the vexation caused to the courts and the parties-litigants by the filing of similar cases to claim substantially the same reliefs." 40 "Indeed, while a lawyer owes fidelity to the cause of his client, it should not be at the expense of truth and administration of justice." 41The lawyer who files such multiple or repetitious petitions subjects himself to disciplinary action for incompetence or for willful violation of his duties as an attorney to act with all good fidelity to the courts, and to maintain only such actions as appear to him to be just and are consistent with truth and honor. 42

Respondent also failed to exercise candor and courtesy when he failed to inform the court where he filed the injunction case despite the pendency of the complaint for rescission. For these acts, the Court finds respondent liable under Canon 12, Rule 12.02 which proscribes a lawyer from filing multiple actions arising from the same cause, and Canon 10 of the CPR for violating the lawyer's duty to observe candor and fairness in his dealings with the court. Considering that this is respondent's first offense, the penalty of one month suspension from the practice of law is sufficient. SDHTEC

WHEREFORE, respondent Atty. Ivan M. Solidum, Jr. is hereby SUSPENDED from the practice of law for one (1) month, effective upon receipt of this Resolution. Let a copy of this Resolution be entered in the personal records of respondent as a member of the Bar, and copies furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines, and the Office of the Court Administrator for circulation to all courts in the country.

SOORDERED."

 

Very truly yours,

(SGD.) WILFREDO V. LAPITANDivison Clerk of Court

 

 

Footnotes

1. Covered by OCT P-498, TCT T-31275 (906), TCT T-31276 (907), TCT T-31277 (908).

2.Rollo, p. 458.

3.Id.

4.Id. at 460.

5. Docketed as Civil Case No. 00-11320 and filed before the Regional Trial Court, Branch 44 of Bacolod City; id. at pp. 15-25.

6.Id. at 459.

7.Id. at 31-35.

8.Id. at 461.

9.Id.

10. Docketed as Civil Case No. 797-C and filed before the Regional Trial Court, 6th Judicial Region, Branch 60 of Cadiz City; id. at 9-14.

11.Id. at 12.

12.Id.

13. Dated September 25, 2008.

14. Order dated March 9, 2007; rollo, pp. 47-54.

15. CANON 1 — A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW OF AND LEGAL PROCESSES.

16. Rule 1.02 — A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.

17. Rule 1.03 — A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause.

18. CANON 10 — A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT.

19. Rule 10.03 — A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.

20. CANON 12 — A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE.

21. Rule 12.02 — A lawyer shall not file multiple actions arising from the same cause.

22. Rule 12.04 — A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse Court processes.

23.Rollo, pp. 56-62.

24. CANON 15 — A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.

25. Rule 15.07 — A lawyer shall impress upon his client compliance with the laws and the principles of fairness.

26.Rollo, pp. 88-94.

27.Id. at 127-129.

28.See Resolution dated July 21, 2008; id. at 140.

29.Id. at 456-464.

30.Id. at 464.

31.Id.

32.Id. at 455.

33.Id.

34.Id. at 454.

35.Asia United Bank v. Goodland Company, Inc., 660 Phil. 504 (2011).

36.Paredes, Jr. v. Hon. Sandiganbayan, 322 Phil. 709, 728 (1996), citing Crisostomo v. Securities and Exchange Commission, 258-A Phil. 725, 735 (1989).

37.Citibank N.A. v. Sabeniano, 535 Phil. 384, 408 (2006).

38. The requisites for the existence of litispendentia as a ground for dismissal of an action are:

(a) identity of parties, or at least such parties as represent the same interest in both actions;

(b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and

(c) the identity with respect to the two preceding particulars in the two cases is such that any judgment that may be rendered in the pending case, regardless of which party is successful, would amount to resjudicata in the other case. (Atienza v. Court of Appeals, 232 SCRA 737, 741, June 2, 1994).

39.Calo v. Spouses Tan, et al., G.R. No. 151266, November 29, 2005.

40.Foronda v. Guerrero, A.C. No. 5469, August 10, 2004, 436 SCRA 9, 23.

41.Id.

42.Alonso v. Relamida, Jr., 640 Phil. 325 (2010).