HEIRS OF SOTTO V.

PALICTE,
G.R. NO. 159691, FEBRUARY 17, 2014

FACTS:
This case determines whether or not the petitioners' counsel, Atty. Makilito B.
Mahinay, committed forum shopping.
The present case originated when the fifth suit reached the Supreme Court
dividing the several heirs of the late Don Filemon Y. Sotto (Filemon)
respecting four real properties that had belonged to Filemons estate (Estate
of Sotto).
Filemon had four children, namely: Marcelo Sotto (Marcelo), Pascuala SottoPahang (Pascuala), Miguel Barcelona (Miguel), and Matilde. Marcelo was the
administrator of the Estate of Sotto. Marcelo and Miguel were the
predecessors-in-interest of petitioners.
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 formers 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 Matildes co-redemptioners. 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 administrators 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.
In the fifth case, the Court ruled: what we have seen here is a clear
demonstration of unmitigated forum shopping on the part of petitioners and
their counsel. It demanded from petitioners counsel, Atty. Makilito B.
Mahinay, an explanation of his role in this pernicious attempt to relitigate the
already settled issue regarding Matildes exclusive right in the four
properties.

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.
Issue:
Whether or not Atty. Mahinay committed forum-shopping.
Ruling:
The Court considers Atty. Mahinays explanations unsatisfactory.
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 Palictes 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 complaints averment of the
agreement.
Atty. Mahinays reliance on Palictes hypothetical admission of her agreement
with Marcelo Sotto to buttress his explanation here is unjustified. 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. 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. 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 Palictes
right in the properties had been declared exclusive.
Secondly, Atty. Mahinay asserts good faith in the filing Civil Case No. CEB24293.1He 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.
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.
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.

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-R 15 disproved
deliberate forum shopping on his part.
The Court disagrees. The dismissal of the complaint in Civil Case No. CEB24293 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 courts 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 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 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.
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.