MARIA VDA. DE TOLENTINO AND GEORGE TOLENTINO, PETITIONERS, VS. HON. FELIZARDO S. M. DE GUZMAN JUDGE, COURT OF FIRST INSTANCE OF SURIGAO DEL NORTE AND RICARDO GEE, RESPONDENTS.

This is a petition for certiorari and prohibition with
preliminary injunction seeking the annulment of the March 19, 1982 and August 2, 1982 Orders of respondent Judge denying
petitioners’ motion to dismiss and motion for reconsideration, respectively.

Herein petitioners were the plaintiffs in Civil Case No. 15080,
of the then Court of First Instance of Cebu, 14th
Judicial District, Branch IV entitled George Tolentino, et al. vs. George Yama,
et al., for recovery of sum of money and damages with preliminary attachment
and garnishment.  Herein respondent
Ricardo Gee, on the other hand, was one of the defendants in the said case, and
his properties, including two (2) pump boats, were levied on attachment.  After
trial of the said case, respondent Gee was absolved from any civil liability in
a decision dated June 30, 1980 (Record, pp. 68-79), and in an order dated March
31, 1981 (Ibid.,p. 39),
the then Court of First Instance of Cebu, acting on
Gee’s Ex-Parte Motion for the issuance of a
Special Order (Ibid., p. 38), directed the Provincial Sheriff of Surigao del Norte to release respondent Gee’s attached
properties.  On April 14, 1981,
respondent Gee filed a Motion to Condemn the Plaintiff and the Provincial
Sheriff of Surigao del Norte for Damages (Record, pp.
42-43), alleging therein, among others, that the sheriff could not comply with
the Court Order to release the two (2) pump boats because earlier, said sheriff
without authority from the trial court and in conspiracy with the plaintiffs
(herein petitioners), released subject properties to the latter, in violation
of his duties as custodian of the properties under litiga­tion, and as a result
of which, said properties can no longer be found to his great damage and
prejudice.  On March 14, 1981, Deputy Sheriff of Surigao del Norte, Mr. Leopoldo B. Risma, filed his
explanation and answer to the motion (Ibid.,
pp. 46-47).  In an order dated August 14, 1981 (ibid., p.
49), said motion was held in abeyance until the trial court is clarified on the
matter since it appears that Sheriff Risma had
delivered respondent Gee’s one (1) 9-horsepower WISCONSIN
engine with Engine No. P-319-E 91A, and one (1)
10-horse power BRIDGESTATION engine to a certain Valeriano
Estorpe for petitioner Maria Vda.
de Tolentino for safekeeping
on April 21, 1976.  Sheriff Risma was
ordered to inform the Court in writing within ten (10) days from notice whether
or not all the items belonging to respondent Gee and
previously attached by him have been returned by him to respondent Gee.  On August 15, 1981, Sheriff Risma filed a Manifestation (Ibid., pp. 50-51) that
the said engines were all stored in the Office of the Clerk of Court of the
then Court of First Instance of Surigao del Norte for
safekeeping, and that he had already informed respondent Gee that he could get
the same any time during office hours. 
He prayed that respondent Gee be ordered to get said engines.  In an Order dated September 16, 1981 (Rollo,
p. 52), respondent Gee was authorized to take delivery of the said engines, and
Sheriff Risma was directed to inform the Court of the
delivery of the same to respondent Gee.

On October 20, 1981, respondent Gee filed with the then Court of
First Instance of Surigao del Norte, 15th Judicial
District, presided by herein respondent Judge, a complaint for damages and
attorney’s fees against petitioners and Deputy Sheriff Leopoldo
B. Risma, docketed therein as Civil Case No. 3022 (Ibid., pp. 17-19).  In the same, respondent Gee alleged, among
others, that he is the owner of two (2) pump boats levied on attachment by
Sheriff Risma by virtue of the Order of Attachment
and Garnishment issued by the then Court of First Instance of Cebu in Civil Case No. R-15080, that on March 13, 1981, the
then Court of First Instance of Cebu issued an Order
directing the Provincial Sheriff of Surigao del Norte
to release respondent Gee’s attached properties to him (respondent Gee); and
that despite the said order, his pump boats could not be released to him for
the reason that Sheriff Risma had earlier delivered
the same to the petitioners and the
same could nowhere be located.

On December 8, 1981, petitioners moved for the dismissal of the
complaint on the ground that: (1) there was no valid cause of action (2) there
is an application for damages still pending between the same parties for the
same cause in the sala of Judge Mario M. Dizon of the then Court of First Instance of Cebu, Branch IV, (3) the cause of action is barred by a prior judgment; and (4) claim for
recovery of damages on account of the issuance of a writ of attachment cannot
be the subject of a separate action (Record, pp. 209-28).  After respondent Gee filed his opposition (Ibid., pp. 54-55) and petitioners
filed their reply thereto, respondent judge, in an Order dated March 19, 1982 (Ibid.,
pp., 62-64), denied petitioners’ motion to dismiss.  A Motion for Reconsideration was filed (Ibid.,
pp. 65-66), but the same was denied in an Order
dated August 2, 1982
(Ibid., p. 67). 
Hence, the instant petition.

The First Division of this Court, in a Resolution dated October 4, 1982, resolved to require
the respon­dents to comment, and
to let a temporary restraining order be issued (Ibid., p. 80). 
Pursuant thereto, a temporary restraining order was issued on the same
date (Ibid., pp. 81-82), and respondent Gee filed his comment on November 24, 1982 (Ibid., pp. 93-98).

In a Resolution dated December
8, 1982, the First Division of this Court resolved to require the
petitioners to file their reply (Ibid., but in
the resolution of February 21, 1983,
petitioners’ reply was dispensed
with; the petition was given due course and the case was submitted  for decision without need for the parties to file memoranda.

Nonetheless, on March 9,
1983, petitioners filed their Reply to Respondents’ Comment
(Record, pp. 105-108) which was noted in the resolution of March 23, 1983.

Considering, however, the length of time that this case has been
pending and to determine whether supervening events may have rendered this case
moot and academic, this Court required the parties to move in the premises, in
the resolution of June 13, 1988.

Both counsels for the petitioners and for private respondent
manifested that no supervening events have tranpired
which would render the case moot and academic (Rollo,
pp. 126-129).

Petitioners
submit three (3) grounds for the allow­ance of their petition, to wit:

I

THAT RESPONDENT JUDGE ABUSED HIS DISCRE­TION WHEN HE DENIED THE
MOTION TO DISMISS ON THE ISSUE OF THE PENDENCY OF ANOTHER CASE IN ANOTHER
COURT.

II

THE RESPONDENT JUDGE ABUSED HIS DISCRETION WHEN HE REFUSED TO
DISMISS THE COMPLAINT BECAUSE THE CAUSE OF ACTION IS BARRED BY PRIOR JUDGMENT.

III

THAT THE RESPONDENT JUDGE ABUSED HIS DISCRETION IN NOT
DISMISSING THE PRIVATE RESPONDENT’S COMPLAINT FOR THE CLAIM OR RECOVERY OF
DAMAGES ON ACCOUNT OF THE IS SUANCE OF A WRIT OF ATTACHMENT CANNOT BE THE SUB­JECT
OF A SEPARATE ACTION.

The instant petition is impressed with merit.

One of the grounds upon which a motion to dismiss may be made under
Section 1, Rule 16 of the Rules of Court, is that there is another action
pending between the same parties for the same cause (par. e).  In order that this ground may be invoked,
there must be: (1) identity of ties; or at least such representing the same
interest in both actions; (2) identity of rights asserted and relief prayed
for, the relief being founded on the same facts; and (3) the identity on the
two preceding particulars should be such that any judgment which may be
rendered on the other action will, regardless of which party is successful,
amount to res adjudicata in the action under consideration (Surigao Development Bank vs. Buslon,
48 SCRA 308 /1972/; and Quiapo vs. Dela Victoria, 46 SCRA 139 /1972/).

In  the instant case, after
a careful study of petitioners’ Motion to
Dismiss (Record, pp. 20-29) and respondent Gee’s opposition thereto (Ibid., pp. 54-55), the pre­sence
of the above-enumerated requisites of lis pendens or auter action pendant is readily apparent (Buan v. Lopez, Jr., 145 SCRA, pp. 37-38 /1986/).

There is no dispute that petitioners
and respondent Gee are the parties in both Civil Case No. 15080 in the then
Court of First Instance of Cebu and Civil Case No.
3022 in the then Court of First Instance of Surigao
del Norte, and that in Civil Case No. 15080, respondent Gee’s Motion to Condemn
the plaintiffs (herein petitioners) and the Provincial Sheriff of Surigao del Norte for damages (Record, pp. 42-43), is
grounded on exactly the same facts as in Civil Case No. 3022 (Rollo, pp. 17-19) which is the inability of the sheriff to
produce the two (2) pump boats of respondent Gee with a similar prayer for
damages against petitioners as defendants.

It is therefore, undeniable that between the two cases there exists identity of parties, or
parties representing the same interests in both actions, identity of rights as­serted
and relief prayed for, the relief being founded on the same facts, and the
identity is such that any judgment that will be rendered in Civil Case No.
15080, regardless of which party is successful, would amount to res judicata in Civil Case No. 3022.  Thus, it has been held that an action
involving the same issue, subject matter and some of the parties in another action
earlier filed by the defendant in the latter suit, shall be dismissed to avoid
multiplicity of suits (Orellano vs. Alvestir, 76 SCRA 536 [1977]).

On the other hand, respondent Gee’s argument that when he filed
the complaint in the then Court of First Instance of Surigao
del Norte, he is deemed to have abandoned his motion with the Court of First
Instance of Cebu, is untenable.

More recently, this Court had on several occasions condemned and
penalized “forum shopping” or the act of litigants of filing the same
suit in different courts (Buan v. Lopez, Jr., supra).  It was held to be an
improper con­duct that tends to degrade the administration of justice.  Citing Section 17 of the Interim Rules and
Guidelines, this court held that a violation thereof shall constitute contempt
of court and shall be a cause for summary dismissal of all actions pendinng in the different courts (E. Razon,
Inc. et al. v. Philippine Port
Authority et al., G.R. No. 75197, Resolution, July 31, 1986; People v. C.A.,
101 SCRA 450 [1980]; Buan v. Lopez, supra.).

More than that, this Court laid down the rule that the litigant’s
resort to forum shopping “not only furnishes ground for giving their
present action short shrift, but also lays the foundation for an inquiry into
their liability for constructive contempt for having abused the processes of
the courts, and their counsel’s own liability for the same sanction and such
other administrative responsibility as might be proper in the premises”
(Minister of Natural Resources v. Heirs of Orval
Hughes 155 SCRA, pp. 567-568 [1987]).

It will be recalled that in Civil Case No. 15080, the trial court
has already issued an Order dated September
16, 1981 authorizing respondent Gee to take delivery of the engines
in question which reportedly were in the Office of the Clerk of Court for
safekeeping and directing Sheriff Risma to inform the
court of aforesaid delivery.

However, respondent Gee, instead of complying with said order,
filed Civil Case No. 3022 in another court for the same cause.

WHEREFORE the: a) subject Orders of respondent judge dated
March 19, 1982 and August 2, 1982 are hereby Reversed and Set Aside; (b) Court
of First Instance of Surigao del Norte, 15th Judicial
District now Regional Trial Court, is ordered to dismiss Civil Case No. 3022
and to conduct no proceedings in connection therewith save in accordance with
and in im­plementation of this decision; (c) respondent Gee, as well as his
counsel Atty. Gabriel J. Canete, are warned against
abuse of the processes of the
Court and that a repetition of similar actions on their part as in the case at
bar, shall be dealt with more severely by this Court.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr.,
Feliciano, and Cortes, JJ., concur.