Forum Shopping

When forum shopping exists.

Forum shopping exists when, as a result of an adverse
judgment in one forum, a party seeks another and possibly
favorable judgment in another forum other than by appeal or
special civil action for certiorari. There is also forum shopping
when a party institutes two or more actions or proceedings
grounded on the same cause, on the gamble that one or the other
court would make a favorable disposition. (Mun. of Taguig v. CA,
G.R. No. 142619, September 13, 2005, 469 SCRA 588; Fels
Energy, Inc. v. The Province of Batangas, et al., G.R. No. 168557,
February 16, 2007).

Factor that determines the

existence of forum shopping.
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. The rationale against forum shopping is that a party
should not be allowed to pursue simultaneous remedies in two
different fora. Filing multiple petitions or complaints constitutes
abuse of court processes, which tends to degrade the
administration of justice, wreaks havoc upon orderly judicial
procedure, and adds to the congestion of the heavily burdened
dockets of the courts. (Wee v. Galvez, G.R. No. 147394, August
11, 2004, 436 SCRA 96; Fels Energy Inc. v. Province of
Batangas, et al., G.R. No. 168557, February 16, 2007).
There is forum shopping when there exist: (a) identity of
parties, or at least such parties as represent the same interests in
both actions, (b) identity of rights asserted and relief prayed for,
the relief being founded on the same facts, and (c) the identity of
the two preceding particulars is such that any judgment rendered
in the pending case, regardless of which party is successful,
would amount to res judicata in the other. (Fels Energy, Inc. v.
The Province of Batangas, et al.).
 THIRD DIVISION

SPS. ISIDRO ABEL G.R. No. 138208

*
CRUZ and
LEA CRUZ,
Petitioners, Present:

- versus - YNARES-SANTIAGO, J.
Chairperson,
SPS. FLORENCIO and AUSTRIA-MARTINEZ,
AMPARO CARAOS, CALLEJO, SR.,
NATIVIDAD CARAOS, SPS. CHICO-NAZARIO, and
MAXIMO and LUISA NACHURA, JJ.
BANGONON, SPS.
FEDERICO and SUSAN
GARCIA, SPS. ENRIQUE
and AURORA LOPEZ, SPS.
BENJAMIN and VIOLETA
PEPITO, SPS. DIOPANES
and JOSEFINA SUCGANG,
SPS. JELMER and
MARYRISH SUCGANG, Promulgated:
TERESITA MURCHANTE,
LITA JOSE, BRENDA April 23, 2007
MAMARIL and ROBERTO
SU,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
x

DECISION
CHICO-NAZARIO, J.:

In the instant Petition for Review on Certiorari under Rule 45 of

the Rules of Court, petitioners Sps. Isidro Cruz and Lea Cruz assail the
Decision[1] dated 6 January 1999 and Resolution[2] dated 24 March 1999
of the Court of Appeals in CA-G.R. SP No. 41978, which annulled and
set aside the Order,[3] dated 28 June 1996 of the Regional Trial Court
(RTC), Branch 118, Pasay City, in Civil Case No. 96-0225, dismissing
respondents Complaint for Specific Performance, Declaration of Nullity
of Contract and Damages.

The antecedents follow:

On 7 February 1996, respondents

Sps. Florencio and Amparo Caraos, Natividad Caraos, Sps. Maximo and
Luisa Bangonon, Sps. Federico and Susan Garcia, Sps. Enrique and
Aurora Lopez Garcia, Sps. Benjamin and Violeta Pepito,
Sps. Diopanes and Josefina Sucgang,
Sps. Jelmer and Maryrish Sucgang, Teresita Murchante, Lita Lopez,
Brenda Mamaril, and Roberto Su filed with the RTC, Branch 118, Pasay
City, a Complaint[4] for Specific Performance, Declaration of Nullity of
Contract and Damages against petitioners, Sps. Isidro and Lea Cruz
(petitioners). The case was docketed as Civil Case No. 96-0225.

In their Complaint, respondent averred, inter alia: that the parties

are occupants of a parcel of land located at No. 95 Sporting
Club, P. Villanueva St., Pasay City (subject lot) which was then covered
by TCT No. 5609, and registered under the name of Bill Brothers,
Inc. Sometime in December 1972, petitioner Isidro Cruz (Isidro)
initiated the formation of the Sporting Club Multi-purpose
Home/Merchandising Cooperative for the purpose of acquiring the lots
where the houses are built, and distributing the same among its
members. He was likewise elected president of the cooperative with
respondents as members thereof. In the process, Isidro required the
members of the cooperative to contribute the amount of twenty pesos
(P20.00) daily for operational expenses, as well as the amount of five
thousand pesos (P5,000.00) each to serve as downpayment to Bill
Brothers, Inc. in the acquisition of the subject lot. Isidro collected the
total amount of P131,981.45, which funds were deposited in the name of
the cooperative with the Development Bank of the Philippines
(DBP). On 12 September 1994, Isidro called a special meeting where he
declared that a resolution be passed authorizing the treasurer to
withdraw the amount of P110,000.00 to be used as downpayment in the
purchase of the subject lot. During the meeting, it was agreed upon that
the subject lot should be distributed among themselves. On 11 October
1994, petitioners approached the members of the cooperative, asking
them to affix their signatures over their typewritten names on a blank
piece of paper on the assurance that the same will be used in securing a
financing scheme in the payment of the lot to finance the housing project
of the cooperative. However, contrary thereto, the sheet of paper
containing respondents signatures was attached by the petitioners to a
Contract of Lease. It appears that the former, without the knowledge and
consent of the members of the cooperative had entered into a Contract of
Sale with Bill Brothers, Inc., using the funds of the cooperative which
they were able to withdraw from the DBP.

Respondents alleged further that on 17 October 1994, they

received demand letters from petitioners counsel, obliging them to pay
rentals in arrears amounting to P27,000.00 each and to vacate the subject
lot. Respondents attempted to settle and negotiate with the petitioners
but the latter refused to cooperate. Instead, petitioners filed a case for
ejectment against respondents with the Metropolitan Trial Court
(MeTC), Branch 47, Pasay City, which case was docketed as Civil Case
No. 173-95. Subsequently, the Lupong Tagapamayapa issued a
Certification to File Action for failure of the parties to settle the matters
contested herein. Likewise, respondents filed a Criminal Complaint for
Estafa against petitioners for their deceit, fraud, and manipulation in
obtaining the subject lot, pending with the RTC, Branch 108, Pasay City,
and docketed as Criminal Case No. 95-7724. Finally, respondents
prayed that petitioners be ordered to sell the subject lot in favor of
respondents on installment basis pursuant to the original intention of the
parties; that the Contract of Lease between the parties be declared null
and void; that petitioners be ordered to pay respondents moral and
exemplary damages, attorneys fees, and other reliefs just and equitable
under the premises.

On 5 March 1996, petitioners filed a Motion to Dismiss the

Complaint in Civil Case No. 96-0225, RTC, Branch 118, Pasay City, on
the ground of forum shopping.[5] In the main, they asserted that Civil
Case No. 96-0225 is but a reiteration of a previous complaint, docketed
as Civil Case No. 95-1387 filed by respondents against petitioners with
the RTC, Branch 117, Pasay City, for Specific Performance, Declaration
of Nullity of Contract and Damages, which involved identical issues
which had been dismissed on 20 November 1995, by the RTC, Branch
117, Pasay City[6] on the ground of forum shopping. The RTC, Branch
117, in Civil Case No. 95-1387, said that there is a pending ejectment
case between the parties before the MeTC, Branch 47, and also a
pending case between the parties before the Lupong Tagapagkasundo for
specific performance.Respondents Motion for Reconsideration of the
dismissal of the case was similarly denied.[7] In fine, petitioners
asseverated that as respondents complaint in Civil Case No. 95-1387 had
long been dismissed, respondents Complaint in Civil Case No. 96-0225,
containing the same allegations as in the former case must necessarily be
dismissed on the ground of forum shopping.

Resolving petitioners Motion to Dismiss in Civil Case No. 96-

0225, the RTC rendered an Order[8] dated 28 June 1996, granting the
dismissal sought. The RTC rationalized that even a mere perusal of the
respondents Complaint in Civil Case No. 96-0225 and their Complaint
against petitioners in Civil Case No. 95-1387 filed with the RTC, Branch
117, Pasay City, would reveal that both pleadings contain similar
allegations and causes of action. It likewise ruled that there was forum
shopping as the said Complaint was filed apparently to obtain a
favorable action for the respondents.[9] According to the RTC:
 A perusal of the records of this case, particularly the
present Complaint and Annex A of the [petitioners] [] Motion
to Dismiss which is another Complaint filed in Branch 117
presided by Honorable Judge Leonardo M. Rivera, reveal
that both contain similar allegations and causes of action, as
if two Complaints were filed one after another, in two (2)
courts.

The records also show that the Complaint filed in Branch 117
was dismissed on November 20, 1995 based on the courts
finding of forum-shopping and a motion for reconsideration
filed by the [respondents], dated November 28, 1995 was
denied by the same Court (Branch 117) in its ORDER,
dated January 25, 1996.

The present Complaint dismissal of which is being

sought is dated February 5, 1996, or barely eleven (11) days
after the denial of the said Motion for Reconsideration, and
was filed with this Court on February 7, 1996.

Re: ground number one (1) of [respondents][]

Opposition [to the Motion to Dismiss]

A careful examination of the pleadings filed by both parties

reveal that the [respondents] allegations, arguments and
evidence in support of this ground are similar to those alleged
and argued in the motion for reconsideration,
dated November 28, 1995 filed by the [respondents] in
Branch 117. As the latter had been denied by Branch 117 on
January 25, 1996, with the filing of the present Complaint in
this court and then alleging the same ground in its opposition
to [petitioners] motion to dismiss, [respondents] has (sic)
thereby placed this court in a position wherein it would have
 to pass upon a case which was taken cognizant (sic) of and in
fact has been dismissed by another court.

There is really forum-shopping here as the present

Complaint was filed apparently to obtain a favorable action
in this Court.

Moreover, it is improper for this Court to act, much less

reverse, the findings of Branch 117, a court of coordinate and
concurrent jurisdiction.[10]

The RTC disposed:

WHEREFORE, based on the foregoing considerations,

this case is, as it is, hereby DISMISSED.[11]

Aggrieved by the dismissal of their Complaint, respondents

assailed the Order of 28 June 1996 of the RTC via a Petition
for Certiorari with the Court of Appeals, which reversed the ruling of
the court a quo.

According to the appellate court, the dismissal by the RTC, Branch

117, of respondents Complaint in Civil Case No. 95-1387 did not bar the
respondents from refiling their claim before Branch 118 of the same
court docketed as Civil Case No. 96-0225,[12] and subject of the instant
Petition. The Court of Appeals theorized that the dismissal by the RTC,
Branch 117, of Civil Case No. 95-1387 did not operate as an
adjudication on the merits. It held that even though hearings were
conducted in the said case, the hearings were solely for the purpose of
resolving respondents application therein for a writ of preliminary
injunction, which was merely an incident to the main action. Moreover,
the appellate court also held that respondents did not commit forum
shopping in filing the Complaint in Civil Case No. 96-0225 because the
refiling of their action before the RTC, Branch 118, is allowed under the
Rules of Court. It held that the grant of a motion to dismiss shall bar the
refiling of the action only if the dismissal is based on Section 1 (f), (h),
and (i), Rule 16[13] of the Rules of Court, which grounds do not exist in
the said Complaint. It further held that the dismissal by the RTC, Branch
117, of the Complaint in Civil Case No. 95-1387 was a dismissal
without prejudice; hence, the refiling thereof in a subsequent action was
not barred.

The Court of Appeals explained in this wise, viz:

The petitioners could not be accused of forum-shopping

because the refiling of their action before the respondent
court is allowed under the Rules of Court. Evident it is from
the 1997 Rules of Civil Procedure that the grant of a motion
to dismiss shall bar the refiling of the action only if the
dismissal is on certain specified grounds. This is the clear
import of Sections 1 and 5, Rule 16 of the Rules, which
respectively provides:

SECTION 1. Grounds. - Within the time for but before

filing the answer to the complaint or pleading asserting
a claim, a motion to dismiss may be made on any of the
following grounds:

xxxx

(f) That the cause of action is barred by a prior

judgment or by the statute of limitations;

xxxx

(h) That the claim or demand set forth in the plaintiffs

pleading has been paid, waived, abandoned, or
otherwise extinguished;
 (i) That the claim on which the action is founded is
unenforceable under the provisions of the statute of
frauds; x x x

SEC. 5. Effect of dismissal. Subject to the right of

appeal, an order granting a motion to dismiss based on
paragraphs (f), (h) and(i) of Section 1 hereof shall bar
the refiling of the same action or claim.

Given the fact that the dismissal of Civil Case No. 95-
1387 by Branch 117 was not for any of the grounds
mentioned in Section 5 of the 1997 Rules of Civil Procedure,
We take it that the petitioners cannot be prevented from
prosecuting their claim anew. It matters not that the new rules
on procedure took effect only on July 1, 1997, or after the
assailed order was promulgated. In this connection, familiar
is the rule that procedural laws may be given retroactive
effect since there are no vested rights on rules of procedure
(Asset Privatization Trust vs. Court of Appeals, 229 SCRA
627).

In any event, it must be recalled that even prior to the

amendment of the Rules on Civil Procedure, an order
dismissing an action is deemed to be without prejudice unless
otherwise stated in the order (See Section 2, Rule 17 of the
old Rules of Civil Procedure). A perusal of the order of
Branch 117 dismissing Civil Case No. 95-1387 contains no
indication that the suit was being dismissed with prejudice.[14]

Petitioners Motion for Reconsideration of the foregoing Decision

was denied by the appellate court in the Order of 24 March 1999.

Hence, the instant Petition.

 On 9 June 1999, this Court issued a Resolution[15] denying the
Petition on the ground that it lacks the affidavit and proof of service of a
copy thereof on the Court of Appeals. On 18 August 1999, this Court
granted petitioners Motion for Reconsideration, thus, reinstating the
Petition.[16]

The crux of the instant controversy revolves on whether the filing

of the Complaint in Civil Case No. 96-0225 with the RTC, Branch 118,
constituted forum shopping.Otherwise stated, we are confronted with the
question of whether the refiling by the respondents of their Complaint
for Specific Performance, Declaration of Nullity of Contracts and
Damages with the RTC, Branch 118 (Civil Case No. 96-0225), which
Complaint was earlier dismissed by RTC, Branch 117 (Civil Case No.
95-1387), amounted to forum shopping.

Forum shopping[17] is an act of a party, against whom an

adverse judgment or order has been rendered in one forum, of
seeking and possibly getting a favorable opinion in another forum,
other than by appeal or special civil action for certiorari.[18] It may
also be the institution of two or more actions or proceedings
grounded on the same cause on the supposition that one or the other
court would make a favorable disposition.[19]

The established rule is that for forum shopping to exist, both

actions must involve the same transactions, same essential facts and
circumstances and must raise identical causes of actions, subject
matter, and issues.[20] Forum shopping unnecessarily burdens our
courts with heavy caseloads, unduly taxes the manpower and
financial resources of the judiciary and trifles with and mocks our
judicial processes, thereby adversely affecting the efficient
administration of justice.[21] Forum shopping is contumacious, as
well as an act of malpractice that is proscribed and condemned as
trifling with the courts and abusive of their processes.[22] A violation
of the rule against forum shopping warrants prosecution for
contempt of court and constitutes a ground for summary dismissal
of the actions involved, without prejudice to appropriate
administrative action against the counsel.[23]

Forum shopping exists where the elements of litis pendentia are

present, and where a final judgment in one case will amount to res
judicata in the other.[24] The elements of forum shopping are: (a)
identity of parties, or at least such parties as would 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)
identity of the two preceding particulars such that any judgment
rendered in the other action will, regardless of which party is
successful, amount to res judicata in the action under
consideration.[25]

It is not controverted that the allegations of the respective

complaints in both Civil Case No. 95-1387 and Civil Case No. 96-
0225 are similarly worded, and are identical in all relevant details,
including typographical errors, except for the additional allegations in
support of respondents prayer for the issuance of preliminary injunction
in Civil Case No. 95-1387. It is similarly not disputed that both actions
involve the same transactions; same essential facts and circumstances;
and raise identical causes of actions, subject matter, and issues.

To the mind of the Court of Appeals, the refiling by respondents of

their Complaint in Civil Case No. 95-1387 as Civil Case No. 96-
0225 does not constitute forum shopping because the grounds relied
upon by the RTC, Branch 117, dismissing Civil Case No. 95-1387 do
not bar the refiling of the action. To recapitulate, the Court of Appeals
ruled that the dismissal of Civil Case No. 95-1387 was not based on
Section 1 (f), (h), and (i) of Rule 16[26] of the Rules of Court, which
grounds would have prevented the respondents from prosecuting their
suit anew.[27] It held that the dismissal was not an adjudication on the
merits that would have barred the refiling of the action. Moreover, the
appellate court reasoned that the dismissal of Civil Case No. 95-
1387 was without prejudice. It held that the Order dismissing Civil Case
No. 95-1387 did not state therein that the dismissal was with prejudice;
hence, the same should be deemed otherwise. Proceeding therefrom, the
appellate court continued to rule that the parties can so proceed to
litigate the matter in a subsequent action.[28]

We agree. The dismissal of Civil Case No. 95-1387 was without

prejudice. Indeed, the Order dated 20 November 1995, dismissing Civil
Case No. 95-1387 was an unqualified dismissal. More significantly, its
dismissal was not based on grounds under paragraphs (f), (h), and (i) of
Section 1 of Rule 16[29] of the Rules of Court,[30] which dismissal shall
bar the refiling of the same action or claim as crystallized in Section 5 of
Rule 16 thereof, thus:

SEC. 5. Effect of dismissal. Subject to the right of

appeal, an order granting a motion to dismiss based on
paragraphs (f), (h), and (i) of section 1 hereof shall bar the
refiling of the same action or claim.
From the foregoing, it is clear that dismissals under paragraphs (f),
(h), and (i) of Section 1 of Rule 16 of the Rules of Court constitute res
judicata, to wit:

(f) That the cause of action is barred by a prior judgment or

by the statute of limitations;

xxxx

(h) That the claim or demand set forth in the plaintiffs

pleading has been paid, waived, abandoned, or otherwise
extinguished;

(i) That the claim on which the action is founded is

unenforceable under the provisions of the statute of frauds.
 Res judicata or bar by prior judgment is a doctrine which holds
that a matter that has been adjudicated by a court of competent
jurisdiction must be deemed to have been finally and conclusively
settled if it arises in any subsequent litigation between the same
parties and for the same cause.[31] Res judicata exists when the
following elements are present: (a) the former judgment must be
final; (b) the court which rendered judgment had jurisdiction over
the parties and the subject matter; (3) it must be a judgment on the
merits; and (d) and there must be, between the first and second
actions, identity of parties, subject matter, and cause of action.[32]

The judgment of dismissal in Civil Case No. 95-1387 does not

constitute res judicata to sufficiently bar the refiling thereof in Civil
Case No. 96-0225. As earlier underscored, the dismissal was one
without prejudice. Verily, it was not a judgment on the merits. It bears
reiterating that a judgment on the merits is one rendered after a
determination of which party is right, as distinguished from a judgment
rendered upon some preliminary or formal or merely technical
point.[33] The dismissal of the case without prejudice indicates the
absence of a decision on the merits and leaves the parties free to litigate
the matter in a subsequent action as though the dismissed action had not
been commenced.[34]

WHEREFORE, the Petition is DENIED. The Decision dated 6

January 1999 and Resolution dated 24 March 1999 of the Court of
Appeals in CA-G.R. SP No. 41978 are hereby AFFIRMED.
SO ORDERED.

MINITA V. CHICO-
NAZARIO
Associate Justice
WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the opinion of
the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

*
It is manifested in Petitioners Petition for Review on Certiorari that
during the pendency of their appeal to the Court of
Appeals, petitioner Isidro Cruz was gunned down in broad
daylight, which case remains unresolved. Rollo, p. 9.
[1]
Penned by Associate Justice (now Associate Justice of the Supreme
Court) Cancio C. Garcia
with Associate Justices Omar U. Amin and Teodoro P. Regino,
concurring; rollo, pp. 38-48.
[2]
Id. at 50.
[3]
Penned by Judge Nelson B. Bayot; records, pp. 175-176.
[4]
Id. at 1-6.
[5]
Id. at 140-142.
[6]
Penned by Judge Leonardo M. Rivera; id. at 150-151.
[7]
Id. at 153.
[8]
Id. at 175-176.
[9]
Id. at 176.
[10]
Id. at 150-151.
[11]
Ibid.
[12]
Erroneously referred to by the Court of Appeals in the assailed
Decision of 6 January 1999 as Civil Case No. 95-0225.
[13]
SECTION 1. Grounds. Within the time for but before filing the
answer to the complaint or pleading asserting a claim, a motion to
dismiss may be made on any of the following grounds:
xxxx
(f) That the cause of action is barred by a prior judgment or
by the statute of limitations;
xxxx
(h) That the claim or demand set forth in the plaintiffs
pleading has been paid, waived, abandoned, or otherwise
extinguished;
(i) That the claim on which the action is founded is unenforceable
under the provisions of the statute of frauds.
[14]
Rollo, pp. 45-46.
[15]
Id. at 51-52.
[16]
Id. at 83.
[17]
In First Philippine International Bank v. Court of Appeals, 322 Phil.
280, 303 (1996), this Court traced the history of forum-shopping,
thus: [F]orum-shopping originated as a concept in private
international law, where non-resident litigants are given the option
to choose the forum or place wherein to bring their suit for various
reasons or excuses, including to secure procedural advantages, to
annoy and harass the defendant, to avoid overcrowded dockets, or
to select a more friendly venue. To combat these less than
honorable excuses, the principle of forum non conveniens was
 developed whereby a court, in conflicts of law cases, may refuse
impositions on its jurisdiction where it is not the most convenient
or available forum and the parties are not precluded from seeking
remedies elsewhere.
[18]
Government Service Insurance System v. Bengson Commercial
Buildings, Inc., 426 Phil. 111, 125 (2002).
[19]
Id.
[20]
Valencia v. Court of Appeals, 331 Phil. 590, 604-605 (1996),
citing International Container Terminal Services, Inc. v. Court of
Appeals, 319 Phil. 510, 515-516 (1995); Government Service
Insurance System v. Sandiganbayan, G.R. No. 83385, 26
November 1990, 191 SCRA 655, 660; Silahis International Hotel,
Inc. v. National Labor Relations Commission, G.R. No. 104513, 4
August 1993, 225 SCRA 94, 100.
[21]
Progressive Development Corporation, Inc. v. Court of Appeals, 361
Phil. 566, 584 (1999).
[22]
Ortigas & Company Limited Partnership v. Velasco, G.R. No.
109645, 25 July 1994, 234 SCRA 455, 500.
[23]
Id.
[24]
Saura v. Saura, Jr., 372 Phil. 337, 349 (1999).
[25]
Government Service Insurance System v.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 159691 February 17, 2014

HEIRS OF MARCELO SOTTO, REPRESENTED BY: LOLIBETH

SOTTO NOBLE, DANILO C. SOTTO, CRISTINA C. SOTTO,
EMMANUEL C. SOTTO and FILEMON C. SOTTO; and
SALVACION BARCELONA, AS HEIR OF DECEASED MIGUEL
BARCELONA, Petitioners,
vs.
MATILDE S. PALICTE, Respondent.

RESOLUTION

BERSAMIN, J.:

We now determine whether or not the petitioners' counsel, Atty.

Makilito B. Mahinay, committed forum shopping.

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."1 Forum shopping is an act of malpractice that is
prohibited and condemned because it trifles with the courts
and abuses their processes. It degrades the administration of
justice and adds to the already congested court dockets.2

An important factor in determining its existence is the

vexation caused to the courts and the parties-litigants by the
filing of similar cases to claim substantially the same reliefs.3

The test to determine the existence of forum shopping is

whether the elements of litis pendentia are present, or
whether a final judgment in one case amounts to res judicata
in the other. Thus, there is forum shopping when the
following elements are present, namely: (a) identity of
parties, or at least such parties as represent the same
interests in both actions; (b) identity of rights asserted and
reliefs prayed for, the relief being founded on the same facts;
and (c) the identity of the two preceding particulars, such
that any judgment rendered in the other action will,
regardless of which party is successful, amounts to res
judicata in the action under consideration.

In our June 13, 2013 decision in this case,4 we directed Atty.

Mahinay to show cause "why he should not be sanctioned as a
member of the Integrated Bar of the Philippines for committing a
clear violation of the rule prohibiting forum-shopping by aiding his
clients in asserting the same claims at least twice." The directive
was called for by the following observations made in the decision,
to wit:

We start this decision by expressing our alarm that this case is

the fifth suit to reach the Court dividing the several heirs of the
late Don Filemon Y. Sotto (Filemon) respecting four real
properties that had belonged to Filemon’s estate (Estate of Sotto).

The first case (Matilde S. Palicte v. Hon. Jose O. Ramolete, et al.,

No. L-55076, September 21, 1987, 154 SCRA 132) held that
herein respondent Matilde S. Palicte (Matilde), one of four
declared heirs of Filemon, had validly redeemed the four
properties pursuant to the assailed deed of redemption, and was
entitled to have the title over the four properties transferred to her
name, subject to the right of the three other declared heirs to join
her in the redemption of the four properties within a period of six
months.

The second was the civil case filed by Pascuala against Matilde
(Civil Case No. CEB-19338) to annul the former’s waiver of rights,
and to restore her as a co-redemptioner of Matilde with respect to
the four properties (G.R. No. 131722, February 4, 1998).

The third was an incident in Civil Case No. R-10027 (that is, the
suit brought by the heirs of Carmen Rallos against the Estate of
Sotto) wherein the heirs of Miguel belatedly filed in November
1998 a motion for reconsideration praying that the order issued on
October 5, 1989 be set aside, and that they be still included as
Matilde’s co-redemptioners. After the trial court denied their
motion for reconsideration for its lack of merit, the heirs of Miguel
elevated the denial to the CA on certiorari and prohibition, but the
CA dismissed their petition and upheld the order issued on
October 5, 1989. Thence, the heirs of Miguel came to the Court
on certiorari (G.R. No. 154585), but the Court dismissed their
petition for being filed out of time and for lack of merit on
September 23, 2002.

The fourth was The Estate of Don Filemon Y. Sotto, represented

by its duly designated Administrator, Sixto Sotto Pahang, Jr. v.
Matilde S. Palicte, et al. (G.R. No. 158642, September 22, 2008,
566 SCRA 142), whereby the Court expressly affirmed the ruling
rendered by the probate court in Cebu City in Special
Proceedings No. 2706-R entitled Intestate Estate of the Deceased
Don Filemon Sotto denying the administrator’s motion to require
Matilde to turn over the four real properties to the Estate of Sotto.

The fifth is this case. It seems that the disposition by the Court of
the previous cases did not yet satisfy herein petitioners despite
their being the successors-in-interest of two of the declared heirs
of Filemon who had been parties in the previous cases either
directly or in privity. They now pray that the Court undo the
decision promulgated on November 29, 2002, whereby the Court
of Appeals (CA) declared their action for the partition of the four
properties as already barred by the judgments previously
rendered, and the resolution promulgated on August 5, 2003
denying their motion for reconsideration.

The principal concern here is whether this action for partition

should still prosper notwithstanding the earlier rulings favoring
Matilde’s exclusive right over the four properties.

xxxx
What we have seen here is a clear demonstration of unmitigated
forum shopping on the part of petitioners and their counsel. It
should not be enough for us to just express our alarm at
petitioners’ disregard of the doctrine of res judicata. We do not
justly conclude this decision unless we perform one last
unpleasant task, which is to demand from petitioners’ counsel,
Atty. Makilito B. Mahinay, an explanation of his role in this
pernicious attempt to relitigate the already settled issue regarding
Matilde’s exclusive right in the four properties. He was not
unaware of the other cases in which the issue had been definitely
settled considering that his clients were the heirs themselves of
Marcelo and Miguel. Moreover, he had represented the Estate of
Sotto in G.R. No. 158642 (The Estate of Don Filemon Y. Sotto v.
Palicte). (Bold underscoring added for emphasis only)

On July 22, 2013, Atty. Mahinay submitted a so-called

Compliance (With Humble Motion for Reconsideration) containing
his explanations, praying that he not be sanctioned for violating
the rule against forum shopping, as follows:

1. The first three cases did not resolve the issues raised in
Civil Case No. CEB-24393;

2. Marcelo Sotto’s cause of action arose only when

respondent Palicte violated her "hypothetically admitted"
agreement with Marcelo Sotto;

3. He (Atty. Mahinay) was not the one who had prepared

and signed the complaint in Civil Case No. CEB-24393,
although he assumed the responsibility as to its filing;

4. He (Atty. Mahinay) had filed a motion for referral or

consolidation of Civil Case No. CEB-24293 with the intestate
proceedings of the Estate of Filemon Y. Sotto, and
 5. He (Atty. Mahinay) had acted in good faith in assisting the
administrator of the Estate of Filemon Y. Sotto in filing the
Motion to Require Matilde Palicte To Turn Over And/or
Account Properties Owned by the Estate in Her Possession.5

The Court considers Atty. Mahinay’s explanations

unsatisfactory.

First of all, Atty. Mahinay claims that he could not be deemed

guilty of forum shopping because the previous cases did not
involve the issues raised in Civil Case No. CEB-24293; hence, res
judicata would not apply. He maintains that Civil Case No. CEB-
24293 was based on the agreement between Palicte and Marcelo
Sotto (as the then Administrator of the Estate) to the effect that
Palicte would redeem the properties under her name using the
funds of the Estate, and she would thereafter share the same
properties equally with the Estate.

To establish the agreement between Palicte and Marcelo Sotto,

Atty. Mahinay cites Palicte’s filing of a motion to dismiss in Civil
Case No. CEB-24293 on the ground, among others, of the
complaint failing to state a cause of action whereby Palicte
hypothetically admitted the complaint’s averment of the
agreement. He submits that a constructive trust between Palicte
and the Estate was thereby created; and argues that the issues in
Civil Case No. CEB-24293 could not have been raised in the
earlier cases because the plaintiffs’ cause of action in Civil Case
No. CEB-24293 arose only after Palicte violated her agreement
with Marcelo Sotto.

Atty. Mahinay’s reliance on Palicte’s hypothetical admission of her

agreement with Marcelo Sotto to buttress his explanation here is
unjustified. Such hypothetical admission is only for the purpose of
resolving the merits of the ground of insufficiency of the
complaint. This is because the test of the sufficiency of the
statement of the cause of action is whether or not, accepting the
veracity of the facts alleged, the court could render a valid
judgment upon the same in accordance with the prayer of the
complaint.6 Even so, the filing of the motion to dismiss assailing
the sufficiency of the complaint does not hypothetically admit
allegations of which the court will take judicial notice of to be not
true, nor does the rule of hypothetical admission apply to legally
impossible facts, or to facts inadmissible in evidence, or to facts
that appear to be unfounded by record or document included in
the pleadings.7

For the ground to be effective, the insufficiency of the complaint

must appear on the face of the complaint, and nowhere else. It
will be unfair to the plaintiff, indeed, to determine the sufficiency of
his cause of action from facts outside of those pleaded in the
complaint. According to Moran: "A complaint should not be
dismissed for insufficiency unless it appears to a certainty, from
the face of the complaint, that plaintiff would be entitled to no
relief under any state of facts which could be proved within the
facts alleged therein."8 Thus, in Heirs of Juliana Clavano v. Judge
Genato,9 the Court disapproved the act the trial judge of setting a
preliminary hearing on the motion to dismiss based on the
insufficiency of the complaint, viz:

x x x We believe that the respondent Judge committed an error in

conducting a preliminary hearing on the private respondent's
affirmative defenses. It is a well-settled rule that in a motion to
dismiss based on the ground that the complaint fails to state a
cause of action, the question submitted to the court for
determination is the sufficiency of the allegations in the complaint
itself. Whether those allegations are true or not is beside the
point, for their truth is hypothetically admitted by the motion. The
issue rather is: admitting them to be true, may the court render a
valid judgment in accordance with the prayer of the complaint?
Stated otherwise, the sufficiency of the cause of action must
appear on the face of the complaint in order to sustain a dismissal
on this ground. No extraneous matter may be considered nor
facts not alleged, which would require evidence and therefore
must be raised as defenses and await the trial. In other words, to
determine the sufficiency of the cause of action, only the facts
alleged in the complaint, and no others should be considered.10

Should the trial court find that the statement of the cause of action
in the complaint cannot support a valid judgment in accordance
with the prayer of the complaint, the motion to dismiss is granted
and the complaint is dismissed. But if the motion to dismiss is
denied, the defending party who has moved to dismiss is then
called upon to file an answer or other proper responsive pleading
allowed by the rules of procedure, and through such responsive
pleading join issues by either admitting or denying the factual
averments of the complaint or initiatory pleading. The case then
proceeds upon the issues thus raised and joined by the exchange
of pleadings.

To stress, the admission of the veracity of the facts alleged in the

complaint, being only hypothetical, does not extend beyond the
resolution of the motion to dismiss, because a defending party
may effectively traverse the factual averments of the complaint or
other initiatory pleading only through the authorized responsive
pleadings like the answer. Clearly, Atty. Mahinay cannot bind
Palicte to her hypothetical admission of the agreement between
her and Marcelo Sotto as the Administrator of the Estate.

Given the foregoing, the complaint was properly dismissed

because of res judicata. There is no question that the ultimate
objective of each of the actions was the return of the properties to
the Estate in order that such properties would be partitioned
among the heirs. In the other cases, the petitioners failed to attain
the objective because Palicte’s right in the properties had been
declared exclusive. There was between Civil Case No. CEB-
24293 and the other cases a clear identity of the parties, of
subject matter, of evidence, and of the factual and legal issues
raised. The Court saw through the petitioners’ "ploy to
countermand the previous decisions’ sustaining Palicte’s rights
over the properties."

Secondly, Atty. Mahinay asserts good faith in the filing Civil Case
No. CEB-24293.1âwphi1 He points out that an associate lawyer in
his law office prepared and filed the complaint without his law firm
being yet familiar with the incidents in the intestate proceedings
involving the Estate, or with those of the previous three cases
mentioned in the decision of June 13, 2013.11 He posits that such
lack of knowledge of the previous cases shows his good faith, and
rules out deliberate forum shopping on his part and on the part of
his law firm.

Rather than prove good faith, the filing of the complaint, "simply
guided by the facts as narrated and the documentary evidence
submitted by petitioners,"12 smacked of professional
irresponsibility. It is axiomatic that a lawyer shall not handle any
legal matter without adequate preparation.13 He is expected to
make a thorough study and an independent assessment of the
case he is about to commence. As such, his claim of good faith
was utterly baseless and unfounded.

Moreover, laying the blame on the associate lawyer is not

plausible. Any client who employs a law firm undeniably engages
the entire law firm,14 not a particular member of it. Consequently,
it was not only the associate lawyer but the entire law firm, Atty.
Mahinay included, who had presumably prepared the complaint.
For Atty. Mahinay to insist the contrary is the height of
professional irresponsibility.

Even assuming that Atty. Mahinay did not himself prepare the
complaint, it remains that he subsequently personally handled the
case. In so doing, he had sufficient time to still become fully
acquainted with the previous cases and their incidents, and
thereby learn in the due course of his professional service to the
petitioners that the complaint in Civil Case No. CEB-24293 was
nothing but a replication of the other cases. Under the
circumstances, the Rules of Court and the canons of professional
ethics bound him to have his clients desist from pursuing the
case. Instead, he opted to re-litigate the same issues all the way
up to this Court.

Thirdly, Atty. Mahinay states that his filing of the Motion To Refer
Or Consolidate The Instant Case With The Proceedings In The
Intestate Estate Of Filemon Sotto Before RTC Branch XVI In SP
Proc. No. 2706-R15 disproved deliberate forum shopping on his
part.

The Court disagrees. Atty. Mahinay’s filing of the Motion To Refer

Or Consolidate The Instant Case With The Proceedings In The
Intestate Estate Of Filemon Sotto Before RTC Branch XVI In SP
Proc. No. 2706-R indicated that he relentlessly pursued the goal
of taking away the properties from Palicte in disregard of the
rulings in the earlier cases. We note that the dismissal of the
complaint in Civil Case No. CEB-24293 on November 15,
199916prompted Atty. Mahinay to file a motion for reconsideration
on December 3, 1999.17 But he did not await the resolution of the
motion for reconsideration, and instead filed the Motion To Refer
Or Consolidate The Instant Case With The Proceedings In The
Intestate Estate Of Filemon Sotto Before RTC Branch XVI In SP
Proc. No. 2706-R on May 9, 2000 obviously to pre-empt the trial
court’s denial of the motion.18 His actuations did not manifest
good faith on his part. Instead, they indicated an obsession to
transfer the case to another court to enable his clients to have
another chance to obtain a favorable resolution, and still
constituted deliberate forum shopping.

And, lastly, Atty. Mahinay argues that his assisting the

Administrator of the Estate in filing the Motion to Require Matilde
Palicte To Turn Over And/or Account Properties Owned by the
Estate in Her Possession, wherein he disclosed the
commencement of Civil Case No. CEB-24293, and extensively
quoted the allegations of the complaint, disproved any forum
shopping. He insists that his disclosure of the pendency of Civil
Case No. CEB-24293 proved that forum shopping was not in his
mind at all.

The insistence cannot command belief. The disclosure alone of

the pendency of a similar case does not negate actual forum
shopping. Had Atty. Mahinay been sincere, the least he could
have done was to cause the dismissal of the action that replicated
those already ruled against his clients. The records show
otherwise. The filing of the Motion to Require Matilde Palicte To
Turn Over And/or Account Properties Owned by the Estate in Her
Possession on June 7, 2000, a day after the trial court denied his
motion for reconsideration in Civil Case No. CEB-24293, was
undeniably another attempt of the petitioners and Atty. Mahinay to
obtain a different resolution of the same claim. Needless to
observe, the motion reiterated the allegations in Civil Case No.
CEB-24293, and was the subject of the petition in The Estate of
Don Filemon Y. Sotto vs. Palicte.19

The acts of a party or his counsel clearly constituting willful and

deliberate forum shopping shall be ground for the summary
dismissal of the case with prejudice, and shall constitute direct
contempt, as well as be a cause for administrative sanctions
against the lawyer.20 Forum shopping can be committed in
either of three ways, namely: (1) filing multiple cases based
on the same cause of action and with the same prayer, the
previous case not having been resolved yet (litis pendentia);
(2) filing multiple cases based on the same cause of action
and the same prayer, the previous case having been finally
resolved (res judicata); or (3) filing multiple cases based on
the same cause of action but with different prayers (splitting
of causes of action, where the ground for dismissal is also
either litis pendentia or res judicata). If the forum shopping is
not willful and deliberate, the subsequent cases shall be
dismissed without prejudice on one of the two grounds
mentioned above. But if the forum shopping is willful and
deliberate, both (or all, if there are more than two) actions
shall be dismissed with prejudice.21

In view of the foregoing, Atty. Mahinay was guilty of forum

shopping. Under Revised Circular No. 28-91,22 any willful and
deliberate forum shopping by any party and his counsel through
the filing of multiple petitions or complaints to ensure favorable
action shall constitute direct contempt of court. Direct contempt of
court is meted the summary penalty of fine not exceeding
₱2,000.00.23

WHEREFORE, the Court FINDS and PRONOUNCES ATTY.

MAKILITO B. MAHIN A Y guilty of forum shopping; and ORDERS
him to pay to this Court, through the Office of the Clerk of Court, a
FINE of ₱2,000.00 within fifteen (15) days from notice hereof.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

TERESITA J. LEONARDO- MARTIN S. VILLARAMA,

DE CASTRO JR.
Associate Justice Associate Justice
 JOSE CATRAL MENDOZA*
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify

that the conclusions in the above Resolution had been reached in
consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* Vice Associate Justice Bienvenido L. Reyes, who penned

the decision under review, pursuant to the raffle of May 8,
2013.
1
Chua v. Metropolitan Bank & Trust Company, G.R. No.
182311, August 19, 2009, 596 SCRA 524, 535.
2
Executive Secretary v. Gordon, G.R. No. 134171,
November 18, 1998, 298 SCRA 736, 741.
3
Foronda v. Guerrero, A.C. No. 5469, August 10, 2004, 436
SCRA 9, 23.
4
698 SCRA 294.
5
Rollo, pp. 235-248.
6
1 Moran, Comments on the Rules of Court, 1995 Edition, p.
605.
7
Tan v. Director of Forestry, No. L-24548, October 27, 1983,
125 SCRA 302, 315.
8
Moran, note 6.
9
G.R. No. L-45837, October 28, 1977, 80 SCRA 217.
10
Id. at 222.
11
Rollo, p. 245.
12
Id.
13
Canon 18, Rule 18.02.
14
Rilloraza, Africa, De Ocampo and Africa v. Eastern
Telecommunication Philippines, Inc., G.R. No. 104600, July
2, 1999, 309 SCRA 566, 574.
15
Rollo, p. 249.
16
Id. at 97.
17
Id. at 114.
18
Id. at 251; the Order denying the motion for
reconsideration was issued on June 6, 2000 (Id. at 124).
19
G.R. No. 158642, September 22, 2008, 566 SCRA 142.
20
Section 5, Rule 7, Rules of Court.
21
Ao-as v. Court of Appeals, G.R. No. 128464, June 20,
2006, 491 SCRA 339, 354-355.
22
Additional Requisites For Petitions Filed With The
Supreme Court And The Court Of Appeals To Prevent
Forum Shopping Or Appeals To Prevent Forum Shopping Or
 Multiple Filing Of Petitions And Complaints (February 8,
1994).
23
Section 1, Rule 71.

SECOND DIVISION

OFFICE OF THE OMBUDSMAN, G.R. No. 172700

Petitioner,

CARPIO, J., Chairperson,

NACHURA,

PERALTA,

- versus - ABAD, and

MENDOZA, JJ.

ROLSON RODRIGUEZ, Promulgated:

Respondent. July 23, 2010

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
 DECISION

CARPIO, J.:

The Case

This is a petition for review[1] of the 8 May 2006 Decision[2] of the Court
of Appeals in CA-G.R. SP No. 00528 setting aside for lack of jurisdiction
the 21 September 2004 Decision[3] of the Ombudsman (Visayas) in
OMB-V-A-03-0511-H.

The Antecedent Facts

On 26 August 2003, the Ombudsman in Visayas received a

complaint[4] for abuse of authority, dishonesty, oppression, misconduct
in office, and neglect of duty against Rolson Rodriguez, punong
barangay in Brgy. Sto. Rosario, Binalbagan, Negros Occidental. On 1
September 2003, the sangguniang bayan of Binalbagan, Negros
Occidental, through vice-mayor Jose G. Yulo, received a similar
complaint[5] against Rodriguez for abuse of authority, dishonesty,
oppression, misconduct in office, and neglect of duty.

In its 8 September 2003 notice,[6] the municipal vice-mayor required

Rodriguez to submit his answer within 15 days from receipt of the
notice. On 23 September 2003, Rodriguez filed a motion to
dismiss[7] the case filed in the sangguniang bayan on the ground that
the allegations in the complaint were without factual basis and did not
constitute any violation of law. In a compliance[8] dated 22 October
2003, Rodriguez alleged complainants violated the rule against forum
shopping.

Meanwhile, in its 10 September 2003 order,[9] the Ombudsman

required Rodriguez to file his answer. Rodriguez filed on 24 October
2003 a motion to dismiss[10] the case filed in the Ombudsman on the
grounds of litis pendentia and forum shopping. He alleged that
the sangguniang bayan had already acquired jurisdiction over his
person as early as 8 September 2003.

The municipal vice-mayor set the case for hearing on 3 October

2003.[11] Since complainants had no counsel, the hearing was reset to a
later date. When the case was called again for hearing, complainants
counsel manifested that complainants would like to withdraw the
administrative complaint filed in the sangguniang bayan. On 29
October 2003, complainants filed a motion[12] to withdraw the
complaint lodged in the sangguniang bayan on the ground that they
wanted to prioritize the complaint filed in the Ombudsman. Rodriguez
filed a comment[13] praying that the complaint be dismissed on the
ground of forum shopping, not on the ground complainants stated. In
their opposition,[14]complainants admitted they violated the rule
against forum shopping and claimed they filed the complaint in
the sangguniang bayan without the assistance of counsel. In his 4
November 2003 Resolution,[15] the municipal vice-mayor dismissed the
case filed in the sangguniang bayan.

In its 29 January 2004 order,[16] the Ombudsman directed both parties

to file their respective verified position papers. Rodriguez moved for
reconsideration of the order citing the pendency of his motion to
dismiss.[17] In its 11 March 2004 order,[18] the Ombudsman stated that a
motion to dismiss was a prohibited pleading under Section 5 (g) Rule III
of Administrative Order No. 17. The Ombudsman reiterated its order
for Rodriguez to file his position paper.

In his position paper, Rodriguez insisted that the sangguniang

bayan still continued to exercise jurisdiction over the complaint filed
against him. He claimed he had not received any resolution or decision
dismissing the complaint filed in the sangguniang bayan. In
reply,[19] complainants maintained there was no more complaint
pending in the sangguniang bayan since the latter had granted their
motion to withdraw the complaint. In a rejoinder,[20] Rodriguez averred
that the sangguniang bayan resolution dismissing the case filed against
him was not valid because only the vice-mayor signed it.

The Ruling of the Ombudsman

In its 21 September 2004 Decision,[21] the Ombudsman found Rodriguez
guilty of dishonesty and oppression. It imposed on Rodriguez the
penalty of dismissal from the service with forfeiture of all benefits,
disqualification to hold public office, and forfeiture of civil service
eligibilities. Rodriguez filed a motion for reconsideration. [22] In its 12
January 2005 Order,[23] the Ombudsman denied the motion for
reconsideration. In its 8 March 2005 Order,[24] the Ombudsman
directed the mayor of Binalbagan, Negros Occidental to implement the
penalty of dismissal against Rodriguez.

Rodriguez filed in the Court of Appeals a petition for review with prayer
for the issuance of a temporary restraining order.

The Ruling of the Court of Appeals

In its 8 May 2006 Decision,[25] the Court of Appeals set aside for lack of
jurisdiction the Decision of the Ombudsman and directed
the sangguniang bayan to proceed with the hearing on the
administrative case. The appellate court reasoned that the sangguniang
bayan had acquired primary jurisdiction over the person of Rodriguez
to the exclusion of the Ombudsman. The Court of Appeals relied on
Section 4, Rule 46 of the Rules of Court, to wit:

Sec. 4. Jurisdiction over person of respondent, how acquired.

The court shall acquire jurisdiction over the person of the
respondent by the service on him of its order or resolution
indicating its initial action on the petition or by his voluntary
submission to such jurisdiction.
The appellate court noted that the sangguniang bayan served on
Rodriguez a notice, requiring the latter to file an answer, on 8
September 2003 while the Ombudsman did so two days later or on 10
September 2003.

Petitioner Ombudsman contends that upon the filing of a complaint

before a body vested with jurisdiction, that body has taken cognizance
of the complaint. Petitioner cites Blacks Law Dictionary in defining what
to take cognizance means to wit, to acknowledge or exercise
jurisdiction. Petitioner points out it had taken cognizance of the
complaint against Rodriguez before a similar complaint was filed in
the sangguniang bayan against the same respondent. Petitioner
maintains summons or notices do not operate to vest in the disciplining
body jurisdiction over the person of the respondent in an
administrative case. Petitioner concludes that consistent with the rule
on concurrent jurisdiction, the Ombudsmans exercise of jurisdiction
should be to the exclusion of the sangguniang bayan.

Private respondent Rolson Rodriguez counters that when a competent

body has acquired jurisdiction over a complaint and the person of the
respondent, other bodies are excluded from exercising jurisdiction over
the same complaint. He cites Article 124 of the Implementing Rules and
Regulations of Republic Act No. 7160,[26] which provides that an elective
official may be removed from office by order of the proper court or the
disciplining authority whichever first acquires jurisdiction to the
exclusion of the other. Private respondent insists the sangguniang
bayan first acquired jurisdiction over the complaint and his person. He
argues jurisdiction over the person of a respondent in an administrative
complaint is acquired by the service of summons or other compulsory
processes. Private respondent stresses complainants violated the rule
against forum shopping when they filed identical complaints in two
disciplining authorities exercising concurrent jurisdiction.

The Issues

The issues submitted for resolution are (1) whether complainants

violated the rule against forum shopping when they filed in the
Ombudsman and the sangguniang bayan identical complaints against
Rodriguez; and (2) whether it was the sangguniang bayan or
the Ombudsman that first acquired jurisdiction.

The Courts Ruling

The petition has merit.

Paragraph 1, Section 13 of Article XI of the Constitution

provides:

Sec. 13. The Ombudsman shall have the following

powers, functions, and duties:

(1) Investigate on its own, or on complaint by any

person, any act or omission of any public official,
employee, office, or agency, when such act or
 omission appears to be illegal, unjust, improper,
or inefficient.
Section 15 of Republic Act No. 6770, otherwise known as
the Ombudsman Act of 1989, states:

Sec. 15. Powers, Functions, and Duties. The

Ombudsman shall have the following powers,
functions, and duties:

(1) Investigate and prosecute on its own or on

complaint by any person, any act or omission of
any public officer or employee, office or agency,
when such act or omission appears to be illegal,
unjust, improper, or inefficient. It has primary
jurisdiction over cases cognizable by
the Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at any
stage, from any investigatory agency of
Government, the investigations of such cases.
The primary jurisdiction of the Ombudsman to investigate
any act or omission of a public officer or employee applies
only in cases cognizable by the Sandiganbayan. In cases
cognizable by regular courts, the Ombudsman has
concurrent jurisdiction with other investigative agencies of
government.[27] Republic Act No. 8249, otherwise known as
An Act Further Defining the Jurisdiction of
the Sandiganbayan, limits the cases that are cognizable by
the Sandiganbayan to public officials occupying positions
corresponding to salary grade 27 and
higher. The Sandiganbayanhas no jurisdiction over private
respondent who, as punong barangay, is occupying a
position corresponding to salary grade 14 under Republic
Act No. 6758, otherwise known as the Compensation and
Position Classification Act of 1989.[28]

Under Republic Act No. 7160, otherwise known as the

Local Government Code, the sangguniang
panlungsod or sangguniang bayan has disciplinary
authority over any elective barangay official, to wit:

SEC. 61. Form and Filing of Administrative

Complaints. A verified complaint against any
erring elective official shall be prepared as follows:

xxxx

(c) A complaint against any

elective barangay official shall be filed before
the sangguniang panlungsod or sangguniang
bayan concerned whose decision shall be final
and executory.
Clearly, the Ombudsman has concurrent jurisdiction with
the sangguniang bayan over administrative cases against
elective barangay officials occupying positions below salary
grade 27, such as private respondent in this case.

The facts in the present case are analogous to those in Laxina, Sr. v.
Ombudsman,[29] which likewise involved identical administrative
complaints filed in both the Ombudsman and the sangguniang
panlungsod against a punong barangay for grave misconduct. The
Court held therein that the rule against forum shopping applied only to
judicial cases or proceedings, not to administrative cases.[30] Thus, even
if complainants filed in the Ombudsman and the sangguniang
bayan identical complaints against private respondent, they did not
violate the rule against forum shopping because their complaint was in
the nature of an administrative case.

In administrative cases involving the concurrent jurisdiction of two or

more disciplining authorities, the body in which the complaint is filed
first, and which opts to take cognizance of the case, acquires
jurisdiction to the exclusion of other tribunals exercising concurrent
jurisdiction.[31] In this case, since the complaint was filed first in the
Ombudsman, and the Ombudsman opted to assume jurisdiction over
the complaint, the Ombudsmans exercise of jurisdiction is to the
exclusion of the sangguniang bayan exercising concurrent
jurisdiction.

It is a hornbook rule that jurisdiction is a matter of law. Jurisdiction,

once acquired, is not lost upon the instance of the parties but
continues until the case is terminated.[32] When herein complainants
first filed the complaint in the Ombudsman, jurisdiction was already
vested on the latter. Jurisdiction could no longer be transferred to
the sangguniang bayan by virtue of a subsequent complaint filed by
the same complainants.

As a final note, under Section 60 of the Local Government Code,

the sangguniang bayan has no power to remove an
elective barangay official. Apart from the Ombudsman, only a proper
court may do so.[33] Unlike the sangguniang bayan, the powers of the
Ombudsman are not merely recommendatory. The Ombudsman is
clothed with authority to directly remove[34] an erring public official
other than members of Congress and the Judiciary who may be
removed only by impeachment.[35]

WHEREFORE, we GRANT the petition. We SET ASIDE the 8 May 2006

Decision of the Court of Appeals in CA-G.R. SP No. 00528.
We AFFIRM the 21 September 2004 Decision of the Ombudsman
(Visayas) in OMB-V-A-03-0511-H.

No pronouncement as to costs.

SO ORDERED.

ANTONIO T. CARPIO
 Associate Justice
WE CONCUR:

ANTONIO EDUARDO B. NACHURA

Associate Justice

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

JOSE C. MENDOZA
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion
of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson
 CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the
Division Chairpersons Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

[1]
Under Rule 45 of the Rules of Court.
[2]
Rollo, pp. 33-43. Penned by Associate Justice Vicente L. Yap, with
Executive Justice Arsenio J. Magpale and Associate Justice Apolinario
D. Bruselas, Jr., concurring.
[3]
Id. at 44-50.
[4]
Records, pp. 2-60.
[5]
CA rollo, p. 53.
[6]
Records, p. 69.
[7]
CA rollo, pp. 60-63.
[8]
Id. at 74-75.
[9]
Records, p. 65.
[10]
Id. at 66-68.
[11]
Id. at 74.
[12]
CA rollo, pp. 76-77.
[13]
Id. at 78-79.
[14]
Id. at 80-82.
[15]
Id. at 102-103.
[16]
Records, p. 81.
[17]
CA rollo, pp. 86-87.
[18]
Id. at 88-89.
[19]
Id. at 99-101.
[20]
Id. at 106-107.
[21]
Id. at 26-33.
[22]
Id. at 34-48.
[23]
Id. at 122-124.
[24]
Id. at 144-145.
[25]
Rollo, pp. 33-43.
[26]
Otherwise known as the Local Government Code of 1991.
[27] Uy v. Sandiganbayan, 407 Phil. 154 (2001).
[28] As implemented by the Department of Budget and Management.

DBM Manual on Position Classification and Compensation Scheme in

Local Government Units.
[29]
G.R. No. 153155, 30 September 2005, 471 SCRA 542.
[30]
Id.
[31]
Civil Service Commission v. Alfonso, G.R. No. 179452, 11 June
2009, 589 SCRA 88; Enrique v. Court of Appeals, G.R. No. 79072, 10
January 1994, 229 SCRA 180.
[32]
Office of the Ombudsman v. Estandarte, G.R. No. 168670, 13 April
2007, 521 SCRA 155.
[33]
The Sangguniang Barangay of Barangay Don Mariano Marcos v.
Martinez, G.R. No. 170626, 3 March 2008, 547 SCRA 416.
[34]
Office of the Ombudsman v. Santiago, G.R. No. 161098, 13
September 2007, 533 SCRA 305.
[35]
Section 21, R.A. No. 6770.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 159691 February 17, 2014

HEIRS OF MARCELO SOTTO, REPRESENTED BY: LOLIBETH

SOTTO NOBLE, DANILO C. SOTTO, CRISTINA C. SOTTO,
EMMANUEL C. SOTTO and FILEMON C. SOTTO; and
SALVACION BARCELONA, AS HEIR OF DECEASED MIGUEL
BARCELONA, Petitioners,
vs.
MATILDE S. PALICTE, Respondent.

RESOLUTION

BERSAMIN, J.:

We now determine whether or not the petitioners' counsel, Atty.

Makilito B. Mahinay, committed forum shopping.

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."1 Forum shopping is an
act of malpractice that is prohibited and condemned because it
trifles with the courts and abuses their processes. It degrades the
administration of justice and adds to the already congested court
dockets.2

An important factor in determining its existence is the vexation

caused to the courts and the parties-litigants by the filing of similar
cases to claim substantially the same reliefs.3

The test to determine the existence of forum shopping is whether

the elements of litis pendentia are present, or whether a final
judgment in one case amounts to res judicata in the other. Thus,
there is forum shopping when the following elements are present,
namely: (a) identity of parties, or at least such parties as
represent the same interests in both actions; (b) identity of rights
asserted and reliefs prayed for, the relief being founded on the
same facts; and (c) the identity of the two preceding particulars,
such that any judgment rendered in the other action will,
regardless of which party is successful, amounts to res judicata in
the action under consideration.

In our June 13, 2013 decision in this case,4 we directed Atty.

Mahinay to show cause "why he should not be sanctioned as a
member of the Integrated Bar of the Philippines for committing a
clear violation of the rule prohibiting forum-shopping by aiding his
clients in asserting the same claims at least twice." The directive
was called for by the following observations made in the decision,
to wit:

We start this decision by expressing our alarm that this case is

the fifth suit to reach the Court dividing the several heirs of the
late Don Filemon Y. Sotto (Filemon) respecting four real
properties that had belonged to Filemon’s estate (Estate of Sotto).

The first case (Matilde S. Palicte v. Hon. Jose O. Ramolete, et al.,

No. L-55076, September 21, 1987, 154 SCRA 132) held that
herein respondent Matilde S. Palicte (Matilde), one of four
declared heirs of Filemon, had validly redeemed the four
properties pursuant to the assailed deed of redemption, and was
entitled to have the title over the four properties transferred to her
name, subject to the right of the three other declared heirs to join
her in the redemption of the four properties within a period of six
months.

The second was the civil case filed by Pascuala against Matilde
(Civil Case No. CEB-19338) to annul the former’s waiver of rights,
and to restore her as a co-redemptioner of Matilde with respect to
the four properties (G.R. No. 131722, February 4, 1998).

The third was an incident in Civil Case No. R-10027 (that is, the
suit brought by the heirs of Carmen Rallos against the Estate of
Sotto) wherein the heirs of Miguel belatedly filed in November
1998 a motion for reconsideration praying that the order issued on
October 5, 1989 be set aside, and that they be still included as
Matilde’s co-redemptioners. After the trial court denied their
motion for reconsideration for its lack of merit, the heirs of Miguel
elevated the denial to the CA on certiorari and prohibition, but the
CA dismissed their petition and upheld the order issued on
October 5, 1989. Thence, the heirs of Miguel came to the Court
on certiorari (G.R. No. 154585), but the Court dismissed their
petition for being filed out of time and for lack of merit on
September 23, 2002.

The fourth was The Estate of Don Filemon Y. Sotto, represented

by its duly designated Administrator, Sixto Sotto Pahang, Jr. v.
Matilde S. Palicte, et al. (G.R. No. 158642, September 22, 2008,
566 SCRA 142), whereby the Court expressly affirmed the ruling
rendered by the probate court in Cebu City in Special
Proceedings No. 2706-R entitled Intestate Estate of the Deceased
Don Filemon Sotto denying the administrator’s motion to require
Matilde to turn over the four real properties to the Estate of Sotto.

The fifth is this case. It seems that the disposition by the Court of
the previous cases did not yet satisfy herein petitioners despite
their being the successors-in-interest of two of the declared heirs
of Filemon who had been parties in the previous cases either
directly or in privity. They now pray that the Court undo the
decision promulgated on November 29, 2002, whereby the Court
of Appeals (CA) declared their action for the partition of the four
properties as already barred by the judgments previously
rendered, and the resolution promulgated on August 5, 2003
denying their motion for reconsideration.

The principal concern here is whether this action for partition

should still prosper notwithstanding the earlier rulings favoring
Matilde’s exclusive right over the four properties.

xxxx

What we have seen here is a clear demonstration of unmitigated

forum shopping on the part of petitioners and their counsel. It
should not be enough for us to just express our alarm at
petitioners’ disregard of the doctrine of res judicata. We do not
justly conclude this decision unless we perform one last
unpleasant task, which is to demand from petitioners’ counsel,
Atty. Makilito B. Mahinay, an explanation of his role in this
pernicious attempt to relitigate the already settled issue regarding
Matilde’s exclusive right in the four properties. He was not
unaware of the other cases in which the issue had been definitely
settled considering that his clients were the heirs themselves of
Marcelo and Miguel. Moreover, he had represented the Estate of
Sotto in G.R. No. 158642 (The Estate of Don Filemon Y. Sotto v.
Palicte). (Bold underscoring added for emphasis only)

On July 22, 2013, Atty. Mahinay submitted a so-called

Compliance (With Humble Motion for Reconsideration) containing
his explanations, praying that he not be sanctioned for violating
the rule against forum shopping, as follows:
 1. The first three cases did not resolve the issues raised in
Civil Case No. CEB-24393;

2. Marcelo Sotto’s cause of action arose only when

respondent Palicte violated her "hypothetically admitted"
agreement with Marcelo Sotto;

3. He (Atty. Mahinay) was not the one who had prepared

and signed the complaint in Civil Case No. CEB-24393,
although he assumed the responsibility as to its filing;

4. He (Atty. Mahinay) had filed a motion for referral or

consolidation of Civil Case No. CEB-24293 with the intestate
proceedings of the Estate of Filemon Y. Sotto, and

5. He (Atty. Mahinay) had acted in good faith in assisting the

administrator of the Estate of Filemon Y. Sotto in filing the
Motion to Require Matilde Palicte To Turn Over And/or
Account Properties Owned by the Estate in Her Possession.5

The Court considers Atty. Mahinay’s explanations

unsatisfactory.

First of all, Atty. Mahinay claims that he could not be deemed

guilty of forum shopping because the previous cases did not
involve the issues raised in Civil Case No. CEB-24293; hence, res
judicata would not apply. He maintains that Civil Case No. CEB-
24293 was based on the agreement between Palicte and Marcelo
Sotto (as the then Administrator of the Estate) to the effect that
Palicte would redeem the properties under her name using the
funds of the Estate, and she would thereafter share the same
properties equally with the Estate.

To establish the agreement between Palicte and Marcelo Sotto,

Atty. Mahinay cites Palicte’s filing of a motion to dismiss in Civil
Case No. CEB-24293 on the ground, among others, of the
complaint failing to state a cause of action whereby Palicte
hypothetically admitted the complaint’s averment of the
agreement. He submits that a constructive trust between Palicte
and the Estate was thereby created; and argues that the issues in
Civil Case No. CEB-24293 could not have been raised in the
earlier cases because the plaintiffs’ cause of action in Civil Case
No. CEB-24293 arose only after Palicte violated her agreement
with Marcelo Sotto.

Atty. Mahinay’s reliance on Palicte’s hypothetical admission of her

agreement with Marcelo Sotto to buttress his explanation here is
unjustified. Such hypothetical admission is only for the purpose of
resolving the merits of the ground of insufficiency of the
complaint. This is because the test of the sufficiency of the
statement of the cause of action is whether or not, accepting the
veracity of the facts alleged, the court could render a valid
judgment upon the same in accordance with the prayer of the
complaint.6 Even so, the filing of the motion to dismiss assailing
the sufficiency of the complaint does not hypothetically admit
allegations of which the court will take judicial notice of to be not
true, nor does the rule of hypothetical admission apply to legally
impossible facts, or to facts inadmissible in evidence, or to facts
that appear to be unfounded by record or document included in
the pleadings.7

For the ground to be effective, the insufficiency of the complaint

must appear on the face of the complaint, and nowhere else. It
will be unfair to the plaintiff, indeed, to determine the sufficiency of
his cause of action from facts outside of those pleaded in the
complaint. According to Moran: "A complaint should not be
dismissed for insufficiency unless it appears to a certainty, from
the face of the complaint, that plaintiff would be entitled to no
relief under any state of facts which could be proved within the
facts alleged therein."8 Thus, in Heirs of Juliana Clavano v. Judge
Genato,9 the Court disapproved the act the trial judge of setting a
preliminary hearing on the motion to dismiss based on the
insufficiency of the complaint, viz:

x x x We believe that the respondent Judge committed an error in

conducting a preliminary hearing on the private respondent's
affirmative defenses. It is a well-settled rule that in a motion to
dismiss based on the ground that the complaint fails to state a
cause of action, the question submitted to the court for
determination is the sufficiency of the allegations in the complaint
itself. Whether those allegations are true or not is beside the
point, for their truth is hypothetically admitted by the motion. The
issue rather is: admitting them to be true, may the court render a
valid judgment in accordance with the prayer of the complaint?
Stated otherwise, the sufficiency of the cause of action must
appear on the face of the complaint in order to sustain a dismissal
on this ground. No extraneous matter may be considered nor
facts not alleged, which would require evidence and therefore
must be raised as defenses and await the trial. In other words, to
determine the sufficiency of the cause of action, only the facts
alleged in the complaint, and no others should be considered.10

Should the trial court find that the statement of the cause of action
in the complaint cannot support a valid judgment in accordance
with the prayer of the complaint, the motion to dismiss is granted
and the complaint is dismissed. But if the motion to dismiss is
denied, the defending party who has moved to dismiss is then
called upon to file an answer or other proper responsive pleading
allowed by the rules of procedure, and through such responsive
pleading join issues by either admitting or denying the factual
averments of the complaint or initiatory pleading. The case then
proceeds upon the issues thus raised and joined by the exchange
of pleadings.

To stress, the admission of the veracity of the facts alleged in the

complaint, being only hypothetical, does not extend beyond the
resolution of the motion to dismiss, because a defending party
may effectively traverse the factual averments of the complaint or
other initiatory pleading only through the authorized responsive
pleadings like the answer. Clearly, Atty. Mahinay cannot bind
Palicte to her hypothetical admission of the agreement between
her and Marcelo Sotto as the Administrator of the Estate.

Given the foregoing, the complaint was properly dismissed

because of res judicata. There is no question that the ultimate
objective of each of the actions was the return of the properties to
the Estate in order that such properties would be partitioned
among the heirs. In the other cases, the petitioners failed to attain
the objective because Palicte’s right in the properties had been
declared exclusive. There was between Civil Case No. CEB-
24293 and the other cases a clear identity of the parties, of
subject matter, of evidence, and of the factual and legal issues
raised. The Court saw through the petitioners’ "ploy to
countermand the previous decisions’ sustaining Palicte’s rights
over the properties."

Secondly, Atty. Mahinay asserts good faith in the filing Civil Case
No. CEB-24293.1âwphi1 He points out that an associate lawyer in
his law office prepared and filed the complaint without his law firm
being yet familiar with the incidents in the intestate proceedings
involving the Estate, or with those of the previous three cases
mentioned in the decision of June 13, 2013.11 He posits that such
lack of knowledge of the previous cases shows his good faith, and
rules out deliberate forum shopping on his part and on the part of
his law firm.

Rather than prove good faith, the filing of the complaint, "simply
guided by the facts as narrated and the documentary evidence
submitted by petitioners,"12 smacked of professional
irresponsibility. It is axiomatic that a lawyer shall not handle any
legal matter without adequate preparation.13 He is expected to
make a thorough study and an independent assessment of the
case he is about to commence. As such, his claim of good faith
was utterly baseless and unfounded.

Moreover, laying the blame on the associate lawyer is not

plausible. Any client who employs a law firm undeniably engages
the entire law firm,14 not a particular member of it. Consequently,
it was not only the associate lawyer but the entire law firm, Atty.
Mahinay included, who had presumably prepared the complaint.
For Atty. Mahinay to insist the contrary is the height of
professional irresponsibility.

Even assuming that Atty. Mahinay did not himself prepare the
complaint, it remains that he subsequently personally handled the
case. In so doing, he had sufficient time to still become fully
acquainted with the previous cases and their incidents, and
thereby learn in the due course of his professional service to the
petitioners that the complaint in Civil Case No. CEB-24293 was
nothing but a replication of the other cases. Under the
circumstances, the Rules of Court and the canons of professional
ethics bound him to have his clients desist from pursuing the
case. Instead, he opted to re-litigate the same issues all the way
up to this Court.

Thirdly, Atty. Mahinay states that his filing of the Motion To Refer
Or Consolidate The Instant Case With The Proceedings In The
Intestate Estate Of Filemon Sotto Before RTC Branch XVI In SP
Proc. No. 2706-R15 disproved deliberate forum shopping on his
part.

The Court disagrees. Atty. Mahinay’s filing of the Motion To Refer

Or Consolidate The Instant Case With The Proceedings In The
Intestate Estate Of Filemon Sotto Before RTC Branch XVI In SP
Proc. No. 2706-R indicated that he relentlessly pursued the goal
of taking away the properties from Palicte in disregard of the
rulings in the earlier cases. We note that the dismissal of the
complaint in Civil Case No. CEB-24293 on November 15,
199916prompted Atty. Mahinay to file a motion for reconsideration
on December 3, 1999.17 But he did not await the resolution of the
motion for reconsideration, and instead filed the Motion To Refer
Or Consolidate The Instant Case With The Proceedings In The
Intestate Estate Of Filemon Sotto Before RTC Branch XVI In SP
Proc. No. 2706-R on May 9, 2000 obviously to pre-empt the trial
court’s denial of the motion.18 His actuations did not manifest
good faith on his part. Instead, they indicated an obsession to
transfer the case to another court to enable his clients to have
another chance to obtain a favorable resolution, and still
constituted deliberate forum shopping.

And, lastly, Atty. Mahinay argues that his assisting the

Administrator of the Estate in filing the Motion to Require Matilde
Palicte To Turn Over And/or Account Properties Owned by the
Estate in Her Possession, wherein he disclosed the
commencement of Civil Case No. CEB-24293, and extensively
quoted the allegations of the complaint, disproved any forum
shopping. He insists that his disclosure of the pendency of Civil
Case No. CEB-24293 proved that forum shopping was not in his
mind at all.

The insistence cannot command belief. The disclosure alone of

the pendency of a similar case does not negate actual forum
shopping. Had Atty. Mahinay been sincere, the least he could
have done was to cause the dismissal of the action that replicated
those already ruled against his clients. The records show
otherwise. The filing of the Motion to Require Matilde Palicte To
Turn Over And/or Account Properties Owned by the Estate in Her
Possession on June 7, 2000, a day after the trial court denied his
motion for reconsideration in Civil Case No. CEB-24293, was
undeniably another attempt of the petitioners and Atty. Mahinay to
obtain a different resolution of the same claim. Needless to
observe, the motion reiterated the allegations in Civil Case No.
CEB-24293, and was the subject of the petition in The Estate of
Don Filemon Y. Sotto vs. Palicte.19

The acts of a party or his counsel clearly constituting willful and

deliberate forum shopping shall be ground for the summary
dismissal of the case with prejudice, and shall constitute direct
contempt, as well as be a cause for administrative sanctions
against the lawyer.20 Forum shopping can be committed in either
of three ways, namely: (1) filing multiple cases based on the same
cause of action and with the same prayer, the previous case not
having been resolved yet (litis pendentia); (2) filing multiple cases
based on the same cause of action and the same prayer, the
previous case having been finally resolved (res judicata); or (3)
filing multiple cases based on the same cause of action but with
different prayers (splitting of causes of action, where the ground
for dismissal is also either litis pendentia or res judicata). If the
forum shopping is not willful and deliberate, the subsequent cases
shall be dismissed without prejudice on one of the two grounds
mentioned above. But if the forum shopping is willful and
deliberate, both (or all, if there are more than two) actions shall be
dismissed with prejudice.21

In view of the foregoing, Atty. Mahinay was guilty of forum

shopping. Under Revised Circular No. 28-91,22 any willful and
deliberate forum shopping by any party and his counsel through
the filing of multiple petitions or complaints to ensure favorable
action shall constitute direct contempt of court. Direct contempt of
court is meted the summary penalty of fine not exceeding
₱2,000.00.23

WHEREFORE, the Court FINDS and PRONOUNCES ATTY.

MAKILITO B. MAHIN A Y guilty of forum shopping; and ORDERS
him to pay to this Court, through the Office of the Clerk of Court, a
FINE of ₱2,000.00 within fifteen (15) days from notice hereof.

SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

TERESITA J. LEONARDO- MARTIN S. VILLARAMA,

DE CASTRO JR.
Associate Justice Associate Justice

JOSE CATRAL MENDOZA*

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify

that the conclusions in the above Resolution had been reached in
consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* Vice Associate Justice Bienvenido L. Reyes, who penned

the decision under review, pursuant to the raffle of May 8,
2013.
1
Chua v. Metropolitan Bank & Trust Company, G.R. No.
182311, August 19, 2009, 596 SCRA 524, 535.
2
Executive Secretary v. Gordon, G.R. No. 134171,
November 18, 1998, 298 SCRA 736, 741.
3
Foronda v. Guerrero, A.C. No. 5469, August 10, 2004, 436
SCRA 9, 23.
4
698 SCRA 294.
5
Rollo, pp. 235-248.
6
1 Moran, Comments on the Rules of Court, 1995 Edition, p.
605.
7
Tan v. Director of Forestry, No. L-24548, October 27, 1983,
125 SCRA 302, 315.
8
Moran, note 6.
9
G.R. No. L-45837, October 28, 1977, 80 SCRA 217.
10
Id. at 222.
11
Rollo, p. 245.
12
Id.
13
Canon 18, Rule 18.02.
14
Rilloraza, Africa, De Ocampo and Africa v. Eastern
Telecommunication Philippines, Inc., G.R. No. 104600, July
2, 1999, 309 SCRA 566, 574.
15
Rollo, p. 249.
16
Id. at 97.
17
Id. at 114.
18
Id. at 251; the Order denying the motion for
reconsideration was issued on June 6, 2000 (Id. at 124).
19
G.R. No. 158642, September 22, 2008, 566 SCRA 142.
20
Section 5, Rule 7, Rules of Court.
21
Ao-as v. Court of Appeals, G.R. No. 128464, June 20,
2006, 491 SCRA 339, 354-355.
22
Additional Requisites For Petitions Filed With The
Supreme Court And The Court Of Appeals To Prevent
Forum Shopping Or Appeals To Prevent Forum Shopping Or
Multiple Filing Of Petitions And Complaints (February 8,
1994).
23
Section 1, Rule 71.
 SECOND DIVISION

OFFICE OF THE G.R. No. 177580

OMBUDSMAN,
Petitioner, Present:

QUISUMBING, J., Chairperson,

- versus - CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.
VICTORIO N. MEDRANO,
Respondent. Promulgated:
October 17, 2008

x--------------------------------------------------x

DECISION

CARPIO MORALES, J.:

Challenged via Petition for Review on Certiorari are the Decision[1] dated June 29,
2006 and Resolution dated April 2, 2007 of the Court of Appeals in CA-G.R. SP
No. 93165[2] which nullified the Decision dated July 19, 2004 of the Office of the
Ombudsman (petitioner), as modified, finding Victorio N. Medrano (respondent)
guilty of sexual harassment in the administrative complaint against him
and dismissed the said complaint for lack of jurisdiction.

Sometime in May 2003, Ma. Ruby A. Dumalaog (Ma. Ruby), a teacher at Jacobo
Z. Gonzales Memorial National High School in Bian, Laguna (the school), filed a
sworn letter-complaint[3] before the Office of the Ombudsman (for Luzon)
charging her superiorherein respondent, Officer-In-Charge (OIC) of the school and
concurrently the principal of San Pedro Relocation Center National High School in
San Pedro, Laguna, with (1) violation of Republic Act (R.A.) No. 7877 (Anti-
Sexual Harassment Act of 1995), docketed as OMB-L-C-03-0613-E (criminal
case), and (2) grave misconduct, docketed as OMB-L-A-03-0488-E (administrative
case).
 The administrative complaint, in essence, alleged that in the afternoon
of March 28, 2003, respondent made sexual advances on Ma. Ruby and abused her
sexually.

In his Counter-Affidavit,[4] respondent denied the charge, claiming that it

was maliciously designed to harass and threaten him to succumb to Ma. Rubys
demand that she be given a regular teaching post. He thus prayed for the dismissal
of the complaint.

While the administrative case was pending investigation, Ma. Ruby filed an Urgent
Ex-Parte Motion for Preventive Suspension,[5] alleging that respondent was using
the powers of his office by utilizing his subordinates in harassing her. By
Order[6] of July 29, 2003, petitioner granted the motion and ordered the preventive
suspension of respondent for six (6) months without pay.

Respondent, this time assisted by counsel, Atty. Alan P. Cabaero, moved for
the lifting of the preventive suspension Order on the ground that the evidence of
his guilt is not strong.[7] It was denied.

Undaunted, respondent filed a Supplemental Motion for

[8]
Reconsideration alleging that the Schools Division Superintendent Lilia T. Reyes
had already designated Hereberto Jose D. Miranda as the new OIC of the school in
his stead, effective September 1, 2003. By Order[9] of October 16, 2003, petitioner
lifted the preventive suspension Order.

By Decision[10] of July 19, 2004 rendered in the administrative case,

petitioner adjudged respondent guilty of grave misconduct and imposed upon him
the penalty of dismissal from the service.

With respect to the criminal case, petitioner, by Resolution[11] of July 19,

2004, found probable cause to indict respondent for violation of the Anti-Sexual
Harassment Act of 1995. An information for violation of said Act, docketed as
Criminal Case No. 29190 before the Metropolitan Trial Court (MeTC) of Bian,
Laguna, was in fact filed.
Respondent moved for reconsideration of petitioners issuances in both
cases. Respecting the administrative case,[12] he assailed not only the factual
findings and conclusions of petitioner, but, for the first time, he challenged its
jurisdiction over the case. He argued that under Section 9 of R.A. No. 4670
(the Magna Carta for Public School Teachers), an administrative complaint
against a public school teacher should be heard by an investigating committee of
the Department of Education Culture & Sports, now Department of Education
(DepEd), composed of the school superintendent of the division where the teacher
belongs, a representative from a teachers organization, and a supervisor of the
division. He thus prayed for the dismissal of the administrative case as petitioner
has no jurisdiction over it.

By Joint Order[13] of April 8, 2005, petitioner affirmed its Resolution in the

criminal case but modified its Decision in the administrative case by finding
respondent guilty of sexual harassment, instead of grave misconduct, and meted on
him the penalty of suspension from the service for one (1) year, without pay.

Dissatisfied, respondent filed a Petition for Review (with prayer for the
issuance of a Temporary Restraining Order and/or Writ of Preliminary
Injunction)[14] before the Court of Appeals, assailing petitioners decision in the
administrative case, attributing to it grave abuse of discretion amounting to lack or
excess of jurisdiction when it

. . . assumed jurisdiction over the administrative case against

petitioner, although under R.A. 4670, otherwise known as the Magna Carta for
Public School
Teachers, only the appropriatecommittee of the Department of Education has
exclusive jurisdiction to hear and try administrative complaints against public sc
hool teachers.

II

. . . denied him his right to present before the Graft Investigation Officer the text
messages sent by complainant which would have established the fact that the
sexual harassment charge did not actually happen. x x x

III
 . . . totally ignored his overwhelming evidence positively establishing his presence
in another place at the time the alleged acts of sexual harassment were committed
against complainant.

IV

. . . found him guilty of sexual harassment and imposed upon him the penalty of
one (1) year suspension from the service.[15] (Underscoring supplied)

By the now assailed Decision of June 29, 2006, the appellate court annulled
petitioners July 19, 2004 Decision, as modified, in the administrative case
and dismissed the complaint on the sole ground that petitioner has no jurisdiction
over it. It held that although respondent raised the issue of jurisdiction only after
petitioner rendered an adverse decision, the rule on estoppel will not apply against
[Medrano] because such jurisdictional issue was raised when the case was still
before the Ombudsman.[16] It thus found no need to address the other issues raised
by respondent.

Petitioners Motion for Reconsideration[17] of the appellate courts Decision was

denied by Resolution[18] of April 2, 2007, hence, the present Petition for Review
on Certiorari.

Petitioner contends that the Court of Appeals erred in not ruling that it (petitioner)
has concurrent jurisdiction with the DepEd over the administrative complaint
against respondent.[19]

Instead of filing a comment on the present petition as directed, respondent

filed a Manifestation With Motion In Lieu Of Comment[20] praying that the instant
petition be dismissed for being moot and academic in view of the execution of an
Affidavit of Desistance[21] by Ma. Ruby on September 17, 2007 before Assistant
Provincial Prosecutor Ramonito Delfin of Bian, Laguna, as well as the Order[22] of
even date issued by the MeTC of Bian dismissing the criminal case [23] against him
due to her lack of interest to prosecute the case.

In her Affidavit of Desistance, Ma. Ruby stated, inter alia:

2. That in retrospect and after an objective and sincere review of the

events that led to the filing of the instant cases [referring to the criminal and
administrative cases], I am now fully enlightened that said incident was just
a product of mistake of fact and clear misunderstanding between me and the
accused/respondent, who after all,
 was not actually criminally nor immorallymotivated to do any form of offense/har
m to my person. Thus, I
am now retracting everything I said against the accused/respondent in my letter-
complaint with the Office of the Ombudsman dated May 13, 2003, which became
the basis for the filing of the criminal and administrative cases against him;

3. That x x x, I am no longer interested in pursuing the criminal and

administrative cases I filed against Mr. Victorio N. Medrano, and is now
requesting the Honorable Court [referring to the trial court in the criminal case],
the Office of the Ombudsman or the Honorable Supreme Court with whom the
administrative case is pending, to dismiss the said cases. (Underscoring supplied)

Petitioner opposes respondents move, contending that Ma. Rubys Affidavit

of Desistance and the dismissal of the criminal case do not constitute legal bases
for dismissing the present petition and the administrative complaint.

The issues for resolution are:

1. Whether the petition has become moot and academic, Ma. Ruby
having executed an affidavit of desistance and the criminal case having been
dismissed due to her lack of interest to prosecute the same;
2. Whether petitioner has jurisdiction over the administrative
complaint against respondent; and

3. Whether respondent is estopped to question

petitioners assumption of jurisdiction over the administrative complaint.

With respect to the first issue, the Court holds in the negative.

The flaw in respondents argument that the execution of Ma. Rubys Affidavit
of Desistance and the dismissal of the criminal case must result in the dismissal of
the administrative case is that it ignores the whale of a difference between those
two remedies. In Gerardo R. Villaseor and Rodel A. Mesa v. Sandiganbayan and
Louella Mae Oco-Pesquerra (Office of the Special Prosecutor,
Ombudsman),[24] the Court stressed the distinct and independent character of the
remedies available to an offended party against any impropriety or wrongdoing
committed by a public officer, thus:

Significantly, there are three kinds of remedies available against a public officer
for impropriety in the performance of his powers and the discharge of his duties:
(1) civil, (2) criminal, and
 (3) administrative. These remedies may be invoked separately, alternately, simulta
neously or successively. Sometimes, the same offense may be the subject of all
three kinds of remedies.

Defeat of any of the three remedies will not necessarily preclude resort to other re
medies or affect decisions reached thereat, as different degrees of evidence are req
uired in these severalactions. In criminal cases, proof beyond reasonable doubt is
needed, whereas a mere preponderance of evidence will suffice in civil cases. In
administrative cases, only substantial evidence is required.

It is clear, then, that criminal and administrative cases are distinct from each
other. The settled rule is that criminal and civil cases are altogether different
from administrative matters,such that the first two will not inevitably govern
or affect the third and vice versa. Verily, administrative cases may proceed i
ndependently of the criminal proceedings. (Underscoring supplied)

At any rate, an affidavit of desistance (or recantation) is, as a rule, viewed

with suspicion and reservation because it can easily be secured from a poor and
ignorant witness, usually through intimidation or for monetary
consideration.[25] And there is always the probability that it would later be
repudiated, and criminal prosecution would thus be interminable.[26] Hence, such
desistance, by itself, is not usually a ground for the dismissal of an action once it
has been instituted in court.[27]

The suspicious and unreliable nature of Ma. Rubys Affidavit of

Desistance is evident. Firstly, her affidavit was executed only on September 17,
2007 or more than three (3) years after petitioner had rendered its July 19,
2004 Decision, as modified by its Joint Order of April 8, 2005 finding respondent
guilty of sexual harassment. Secondly, unlike her six-page sworn letter-complaint
of May 13, 2003 wherein she narrated in her own Pilipino
dialect the factual details of respondents acts complained of, Ma. Rubys one-page
Affidavit of Desistance is couched in English with legal terms
and conclusions only one with a trained legal mind can formulate, e.g., I am now
fully enlightened that said incident was just a product of mistake of fact and clear
misunderstanding between me and the accused/respondent, who after all,
was not actually criminally nor immorallymotivated to
do any form of offense/harm to my person. Thirdly, Ma. Rubys Affidavit is bereft
of any factual particulars, engendering more questions that bolster its unreliability,
e.g.: What was the misunderstanding between her and respondent? How was she
fully enlightened about the whole incident? How did she arrive at her conclusion
that he was not actually criminally nor immorally motivated to do any form of
offense/harm against her person?
 In fine, the bases of respondents plea to have the present petition dismissed
do not obliterate his liability in the administrative case subject of the present
petition.
In resolving the second issue whether petitioner has jurisdiction over the
administrative complaint against respondent it is necessary to examine the source,
nature and extent of the power and authority of the Ombudsman vis--vis the
provisions of the Magna Carta for Public School Teachers.
Section 5, Article XI of the Constitution created the independent Office of
the Ombudsman. Hailed as the protectors of the people, the Ombudsman and his
Deputies are bestowed with overreaching authority, powers, functions, and duties
to act on complaints against public officials and employees, as provided in
Sections 12 and 13 thereof, thus:

Sec. 12. The Ombudsman and his Deputies, as protectors of the people,
shall act promptly on complaints filed in any form or manner against public offici
als or employees of theGovernment, or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and shall, in
appropriate cases, notify the complainants of the action taken and the result
thereof.

Sec. 13. The Office of the Ombudsman shall have the

following powers, functions, and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of a
ny public official, employee, office or agency, when such act or omission appears
to be illegal, unjust, improper, or inefficient;

(2) Direct, upon complaint or at its own instance, any public official or employee
of the Government, or any subdivision, agency or instrumentality thereof, as well
as of any government-owned or controlled corporation with original charter, to
perform and expedite any act or duty required by law, or to stop, prevent, and
correct any abuse or impropriety in the performance of duties;

(3) Direct the officer concerned to take appropriate action against a public official
or employee at fault, and recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance therewith;

(4) Direct the officer concerned, in any appropriate case, and subject to such
limitations as may be provided by law, to furnish it with copies of documents
relating to contracts or transactions entered into by his office involving the
disbursement or use of public funds or properties, and report any irregularity to
the Commission on Audit for appropriate action;
 (5) Request any government agency for assistance and information necessary in
the discharge of its responsibilities, and to examine, if necessary, pertinent records
and documents;

(6) Publicize matters covered by its investigation when circumstances so warrant

and with due prudence;

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and
corruption in the Government and make recommendations for their elimination
and the observance of high standards of ethics and efficiency; and

(8) Promulgate its rules of procedure

and exercise such other powers or perform such functions or duties as may be pro
vided by law. (Underscoring supplied)

The above enumeration of the Ombudsmans far-reaching powers is not

exclusive as the framers of the Constitution gave Congress the leeway to prescribe,
by subsequent legislation, additional powers, functions or duties to the
Ombudsman, as mandated in Section 13(8), quoted above.

Pursuant to the constitutional command, Congress enacted R.A. No. 6770

(The Ombudsman Act of 1989) providing for the functional, structural organization,
and the extent of the administrative disciplinary authority of the petitioner. [28] The
provisions of this law apply
to all kinds of malfeasance, misfeasance, and nonfeasance committed by any officer
or employee of the Government, or of any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, during his tenure
in office.[29] The acts or omissions which the petitioner may investigate are
quite extensive:

SEC. 19. Administrative Complaints. The Ombudsman shall act

on all complaints relating, but not limited, to acts or omissions which:

(1) Are contrary to law or regulation;

(2) Are unreasonable, unfair, oppressive or discriminatory;

(3) Are inconsistent with the general course of an agencys functions,

though in accordance with law;
(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;
 (5) Are in the exercise of discretionary powers but for an improper
purpose; or

(6) Are otherwise irregular, immoral or devoid of justification.

Its mandate is not only to act promptly on complaints against such public officers or
employees, but also to enforce their administrative, civil and
criminal liability in every casewhere the evidence warrants in order to promote effic
ient service by the Government to the people.[30]

R.A. No. 6770, however, restrains the petitioner from exercising its
disciplinary authority over
officials who may be removed only by impeachment or over Members ofCongress a
nd the Judiciary, thus:

SEC. 21. Officials Subject to Disciplinary Authority; Exceptions. The

Office of the Ombudsman shall
have disciplinary authority over all elective and appointive officials of theGovern
ment and its subdivisions, instrumentalities and agencies, including Members of
the Cabinet, local government, government-owned or controlled corporations and
their
subsidiaries, except over officials who may be removed only by impeachment
or over Members of Congress and the Judiciary.

SEC. 22. Investigatory Power. The Office of the Ombudsman shall have
the power to investigate any serious misconduct in office allegedly committed by
officials removable by
impeachment, for the purpose of filing a verified complaint for impeachment, if w
arranted.

In all cases of conspiracy between an officer or employee of the

government and a private person, the Ombudsman and his Deputies shall have
jurisdiction to include such private person in the investigation and proceed against
such private person as the evidence may warrant. The officer or employee and the
private person shall be tried jointly and shall be subject to the same penalties and
liabilities. (Underscoring supplied)

The above constitutional and statutory provisions taken together reveal the
manifest intent of the lawmakers to bestow upon the
petitioner full administrative disciplinarypower over public officials and
employees except those impeachable officials, Members of Congress and of the
Judiciary.
 When an administrative charge is initiated against a public school teacher,
however, Section 9 of the Magna Carta for Public School Teachers specifically
provides that the same shall be heard initially by
an investigating committee composed of the school superintendent of the division,
as chairman, a representative of the local or, in its absence, any existing provincial
or national teachers organization, and a supervisor of the division, as members,
thus:

SEC. 9. Administrative Charges. Administrative charges against

a teacher shall be heard initially by a committee composed of the
corresponding Schools Superintendent of the Divisionor a duly authorized
representative who should at least have the rank of a division supervisor, where
the teacher belongs, as chairman, a representative of the local or, in its absence,
any existing provincial or
national teachers organization and a supervisor of the Division, the last two to be
designated by the Director of Public
Schools. The committee shall submit its findings and
recommendations to the Director of Public Schools within thirty days from
termination of the hearings; Provided, however, That where the school
superintendent is the complainant or an interested party, all the members of the
committee shall be appointed by the Secretary of Education. (Underscoring
supplied)

In Fabella v. Court of Appeals,[31] the Court held:

The legislature enacted a special law, RA 4670 known as the Magna Carta
for Public School Teachers,
which specifically covers administrative proceedings involving publicschoolteac
hers. Section 9 of said law expressly provides that the committee to hear public
schoolteachers administrative cases should be composed of the school
superintendent of the division as chairman, a representative of the local or any
existing provincial or national teachers organization, and a supervisor of the
division. x x x.

xxxx

The
aforementioned Section 9 of RA 4670, therefore, reflects the legislative intent to i
mpose a standard and a separate set of procedural requirements in connectio
n withadministrative proceedings involving public schoolteachers. x x
x. (Emphasis and underscoring supplied)
 Significantly, The Ombudsman Act of 1989 recognizes the existence of some
proper disciplinary authorit[ies], such as the investigating committee of the DepEd
mentioned in Section 9 of the Magna Carta for Public School Teachers. Thus,
Section 23 of The Ombudsman Act of 1989 directs that the
petitioner may refer certain complaints to
the proper disciplinary authority for the institution of appropriate administrative pr
oceedings against erring public officers or employees.[32]

In light of this, the Court holds that the administrative disciplinary

authority of the Ombudsman over a public school teacher
is not an exclusive power but is concurrent with the proper committee of the
DepEd.

In the instant case, respondent, although designated as then OIC of a public

school and concurrently the school principal of another public school, is
undoubtedly covered by the definition of the term teacher under the second
paragraph of Section 2 of the Magna Carta for Public School Teachers which
provides:

SEC 2. Title Definition. This Act shall x x x apply to all public school
teachers except those in the professorial staff of state colleges and universities.

As used in this Act, the term teacher shall mean all persons engaged in the
classroom, in any level of instruction; on full time basis, including guidance
counselors, school librarians, industrial arts or vocational
instructors, and all other persons performing supervisory and/or administrative fu
nctions in all schools, colleges and
universities operated by the Government or itspolitical subdivisions; but shall not
include school nurses, school physicians, school dentists, and other school
employees. (Underscoring supplied)

Thus, the administrative complaint against respondent should have been

referred by petitioner to the proper committee of the DepEd for the institution of
appropriate administrative proceedings, in light of Section 23 of The Ombudsman
Act of 1989.

This brings the Court to the third issue. While petitioner should have
desisted from hearing the administrative complaint against respondent and referred
it to the proper DepEd committee, given that it had already concluded the
proceedings and had rendered a decision thereon, respondent is now barred from
assailing petitioners acts under the principle of estoppel. He had actively
participated in the administrative proceedings before petitioner. In his Counter-
Affidavit, he asked petitioner for affirmative relief by seeking the dismissal of the
administrative complaint allegedly for being baseless.[33] From then on, he was
assisted by counsel in filing several motions. When he was preventively suspended
for six months without pay, he filed a Motion for Reconsideration praying that a
new Order be issued reversing or setting aside the preventive suspension
Order.[34] When this was denied, he again filed a Supplemental Motion for
Reconsideration[35] for the lifting of his suspension since he was already replaced
as OIC, which motion was granted. It was only after petitioner had rendered
an adverse Decision that he, in a Motion for Reconsideration, impugned petitioners
assumption of jurisdiction over his case. Verily, respondent cannot be permitted to
challenge petitioners acts belatedly.
In applying the principle of estoppel in Alcala v. Villar,[36] the Court held:

Respondent Jovencio D. Villar is the School Principal of Lanao National

High School, Pilar, Cebu City. In February 1998, x x x, teachers
of Lanao National High School, x x x, filed with the Office of the Ombudsman an
administrative complaint against respondent for dishonesty.
xxxx

On June 22, 1999, the Office of the Ombudsman issued a resolution

finding respondent guilty of dishonesty and dismissing him from the service. x x
x.

On appeal, the Court of Appeals nullified and set aside the decision of the
Office of the Ombudsman on the ground that the latter was without jurisdiction
over the administrative complaints against public school teachers. It ruled that the
governing law is Republic Act No. 4670, otherwise known as the Magna Carta for
Public School Teachers, and not Republic Act No. 6770, the Ombudsman Act of
1989. x x x.

xxxx

x x x, in Fabella v. Court of Appeals, it was ruled that R.A. No. 4670, the
Magna Carta for Public School Teachers, specifically covers and governs
administrative proceedings involving public school teachers. x x x.

xxxx

The foregoing notwithstanding, the Court of Appeals erred when it

nullified the proceedings before the Office of the Ombudsman. x x x. In Emin v.
De Leon, a public school teacher was administratively charged with and found
 guilty of dishonesty under P.D. No. 807 (Civil Service Law). The Supreme Court
ruled that R.A. No. 4670, the Magna Carta for Public School Teachers, is the
applicable law and that the Civil Service Commission does not have jurisdiction
over the administrative case. Nevertheless, the Court affirmed the dismissal from
the service of the public school teacher as the latter was found to have been
sufficiently afforded due process. x x x. Thus

However, at this late hour, the proceedings

conducted by the public respondent CSC can no longer be
nullified on procedural grounds. Under the principle of estoppel b
ylaches, petitioner is now barred from
impugning the CSCs jurisdiction over his case.

xxxx

As held previously, participation by parties in the administr

ative proceedings without raising any
objection thereto bars them from raising any jurisdictional
infirmityafter an adverse decision is rendered against them. x x
x. Notably, in his Counter-Affidavit, petitioner himself invoked the
jurisdiction of the Civil Service Commission by x x x further
praying for any remedy or judgment which under the premises are
just and equitable. It is an undesirable practice of a party
participating in the proceedings, submittinghis case for
decision and accepting the judgment only if favorable, but attackin
g it for lack of jurisdiction when adverse.

xxxx

In the same vein, respondent in the case should be barred under the prin
ciple of estoppel by laches from assailing the jurisdiction of the Ombudsman.
Therefore, the Court of Appeals should have resolved the appeal on its merits, x x
x. (Emphasis and underscoring supplied)

The ruling by the Court of Appeals that estoppel will not apply against
respondent because he raised the issue of jurisdiction when the case
was still before theOmbudsman[37] is thus bereft of merit.

The appellate courts citation of Duero v. Court of Appeals[38] in which this

Court held that the therein private respondent Duero was not estopped from
questioning the RTC jurisdiction, despite his active participation in the proceedings
before it, is misplaced. For Duero involved lack of jurisdiction. The present case
involves concurrentjurisdiction.
 WHEREFORE, the petition is GRANTED. The assailed Court of Appeals
Decision of June 29, 2006 and Resolution of April 2, 2007 in CA-G.R. SP No.
93165 are REVERSED and SET ASIDE. The case is REMANDED to the Court
of Appeals which is directed to decide the case on the merits.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

DANTE O. TINGA PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice
 ARTURO D. BRION
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice
[1]
Penned by Associate Justice Magdangal M. De Leon and concurred in by Associate Justices Godardo A. Jacinto
and Rosalinda Asuncion-Vicente; CA rollo, pp. 238-246.
[2]
Entitled Victorino N. Medrano v. Ma. Ruby A. Dumalaog and Hon. Dep. Ombudsman for Luzon Victor C.
Fernandez.
[3]
CA rollo, pp. 25-30.
[4]
Id. at 42- 49.
[5]
Id. at 37-38.
[6]
Id. at 40-41.
[7]
Id. at 77-80.
[8]
Id. at 107-109.
[9]
Id. at 117-119.
[10]
Id. at 120-128.
[11]
Id. at 129-138.
[12]
Id. at 139-152.
[13]
In this Joint Order, Atty. Adoracion A. Agbada, Graft Investigation & Protection Officer II, Office of the
Ombudsman, proposed the denial of respondents separate motions for reconsideration of the July 19, 2004
Decision, but the proposal was modified by Deputy Ombudsman for Luzon Victor C. Fernandez as indicated in
his marginal note therein, stating: With modification. Pls. see Memorandum of Dir. Gonzales dated May 27,
2005. (Id. at 192-197) The Memorandum referred to contains the following recommendation:

WHEREFORE, PREMISES CONSIDERED, it most respectfully recommended that the proposed Joint
Order dated 08 April 2005 insofar as the recommendation in the criminal aspect is concerned
be APPROVED. On the other hand, the recommendation with respect to the administrative case
be DISAPPROVED. Respondent Victorio N. Medrano is hereby found guilty of SEXUAL
HARASSMENT under Republic Act No. 7877 and hereby meted the penalty of ONE (1) YEAR
SUSPENSION FROM OFFICE WITHOUT PAY. (Id. at 198-200).
[14]
Id. at 2-24.
[15]
Id. at 10-11.
[16]
Id. at 38, 41.
[17]
Id. at 244.
[18]
Id. at 275-276.
[19]
Petition, rollo, p. 13.
[20]
Id. at 72-73.
[21]
Appended to the Manifestation With Motion In Lieu Of Comment, id. at 74.
[22]
Id. at 75.
[23]
The acts complained of in the criminal case arose from the same incident subject of the instant administrative
case.
[24]
G.R. No. 180700, March 4, 2008. Vide Paredes v. Court of Appeals, G.R. No. 169534, July 30, 2007, 528 SCRA
577, 587-592; Barillo v. Gervacio, G.R. No. 155088, August 31, 2006, 500 SCRA 561, 571-574; Ocampo v.
Office of the Ombudsman, 379 Phil. 21 (2000); Paredes, Jr. v. Sandiganbayan, 322 Phil. 709, 730-731
(1996); Tan v. Commission on Elections, 237 Phil. 353, 359 (1994).
[25]
Victoriano v. People, G.R. Nos. 171322-24, November 30, 2006, 509 SCRA 483, 491-492.
[26]
Id., citing People v. Ramirez, Jr., G.R. Nos. 150079-80, June 10, 2004, 431 SCRA 666, 676.
[27]
Id. at 677.
[28]
Office of the Ombudsman v. Court of Appeals, G.R. No. 160675, June 16, 2006, 491 SCRA 92, 110, citing Acop v.
Office of the Ombudsman, 248 SCRA 566 (1995).
[29]
Section 16 of R.A. No. 6770 provides:
 SEC. 16. Applicability. The provisions shall apply to all kinds of malfeasance, misfeasance, and nonfeasance
that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure in
office.
[30]
Section 13 of R.A. No. 6770 provides:
SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against officers or employees of the Government, or of any subdivision,
agency or instrumentality thereof, including government-owned or controlled
corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warr
ants in order to promote efficient service by the Government tothe people. (Underscoring supplied)
[31]
346 Phil. 940, 953, 955-956 (1997), reiterated later in Emin v. Chairman De Leon, 428 Phil. 172, 184 (2002) and
in Alcala v. Villar, 461 Phil. 617 (2003).
[32]
Section 23 of the law provides:
SEC. 23. Formal Investigation. (1) Administrative investigations conducted by the Office of the
Ombudsman shall be in accordance with its rules of procedure and consistent with due process.
(2) At its option, the Office of the
Ombudsman may refer certain complaints to the proper disciplinary authority for the institution of ap
propriate administrative proceedings against erring public officers or employees, x x x.
x x x x. (Underscoring supplied)
[33]
CA rollo, p. 49.
[34]
Id. at 77, 79.
[35]
Id. at 107-110.
[36]
Supra note 31 at 620-626.
[37]
Assailed CA Decision of June 29, 2006, rollo, p. 41.
[38]
424 Phil. 12 (2002).