rules 6 and 7 of rules of court reviewer

[CIVIL PROCEDURE NOTES AND JURISPRUDENCE RULE 6 - 14] KARLY | 2 SR 2014-2015 1

FOR EXCLUSIVE USE OF LAKAS ATENISTA and FRIENDS of KARLY

SUMMARY OF RULE 6

Section 1. Pleadings defined. written statements of the respective claims and defenses of the parties submitted to the court Motions are not pleadings

Section 2. Allowed pleadings: a. Complaint b. Answer c. Counterclaim d. Compulsory counterclaim e. Cross-claim f. Counter-counterclaims and counter-crossclaims g. Reply h. Third-party complaints and subsequent i. Answers to (h) j. Complaint-in-intervention Section 3. Complaint defined. Pleading alleging plaintiffs cause/s of action. Must contain plaintiff and defendants name and address. A complaint should not be dismissed for insufficiency of cause of action unless it appears clearly from the face of the complaint that the plaintiff is not entitled to any relief under any state of facts which could be proved within the facts alleged therein. (Alberto v CA)

In some cases, the court considers the documents attached to the complaint to truly determine sufficiency of cause of action. (Daniel v Villarosa) Section 4. Answer defined. Pleading in which the defendant sets forth his defenses Section 5. Affirmative and negative defenses. Negative defense specific denial of material facts alleged in the pleading Affirmative defense allegation of a new matter which while hypothetically admitting the material allegations in the claimants pleading, would nonetheless prevent recovery by him. The Court in this case said that Ds denial of its liability cannot be considered a negative defense, because a negative defense as defined must be a specific denial of facts alleged in the pleading. The denial here was based on an external document, a Board Resolution.

(Tropical Homes v CA)

Section 6. Counterclaims defined. any claim a defending party may have against an opposing party. Counterclaims may: Be dissimilar in nature, does not have to arise out of the same occurrence or transaction as the original action Involve reliefs exceeding in amount or of different kinds

Purpose: avoid multiplicity of suits. Note: CC must be filed against the plaintiff in the same capacity that the plaintiff is suing the defendant. Section 7. Compulsory counterclaims. Elements: 1. cognizable by the regular courts 2. arises out of or connected to the occurrence constituting the subject matter of the opposing partys claim / logical relationship between compaint and CC 3. does not require for its adjudication the presence of third persons over whom the court cannot acquire jurisdiction 4. must be within the jurisdiction of the court (both as to amount or nature) 5. the defendant has a cause of action for the counterclaim at the time he files his answer NOTES FROM CASES

If one of the elements is missing, the counterclaim is merely permissive. Complusory counterclaims cannot be made the subject of a separate action but should be asserted in the same suit involving the same transaction or occurrence giving rise to it. There are no counterclaims in criminal cases.

Cabaero v Cantos, Rule 111 Effective August 16, 2004, docket fees are now required to be paid in all complusory counterclaims and cross-claims. AM 04-2-04-SC

Examples of compulsory counterclaims: 1. counterclaims in vehicular collisions 2. recovery of property v reimbursement for expenses 3. in reciprocal contracts such as lease: The two actions are but the consequences of the reciprocal obligations imposed by law upon and assumed by the parties under their aforesaid lease contract. Meliton v CA



Tests to determine WON counterclaim is permissive or compulsory (1) Are the issues of fact and law raised by the claim and counterclaim largely the same? (2) Would res judicata bar a subsequent suit on defendants claim absent the compulsory counterclaim rule? (3) Will substantially the same evidence support or refute plaintiffs claim as well as defendants counterclaim? (4) Is there any logical relation between the claim and the counterclaim? Test of compulsoriness The compelling test of compulsoriness characterizes a counterclaim as compulsory if there should exist a logical relationship between the main claim and the counterclaim. There exists such a relationship:

when conducting separate trials of the respective claims of the parties would entail substantial duplication of time and effort by the parties and the court; when the multiple claims involve the same factual and legal issues; or when the claims are offshoots of the same basic controversy between the parties. Quintanilla v CA

NOTES FROM CASES: A compulsory counterclaim is auxiliary to the proceeding in the original suit and derives its jurisdictional support therefrom. A counterclaim presupposes the existence of a claim against the party filing the counterclaim. Hence, where there is no claim against the counterclaimant, the counterclaim is improper and it must dismissed, more so where the complaint is dismissed at the instance of the counterclaimant. In other words, if the dismissal of the main action results in the dismissal of the counterclaim already filed, it stands to reason that the filing of a motion to dismiss the complaint is an implied waiver of the compulsory counterclaim because the grant of the motion ultimately results in the dismissal of the counterclaim. Thus, the filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible remedies. In the event that a defending party has a ground for dismissal and a compulsory counterclaim at the same time, he must choose only one remedy. If he decides to file a motion to dismiss, he will lose his

compulsory counterclaim. But if he opts to set up his compulsory counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer. The latter option is obviously more favorable to the defendant although such fact was lost on Forbes Park. (Financial Building v Forbes Park) As the rule now stands, the nature of the counterclaim notwithstanding, the dismissal of the complaint does not ipso jure result in the dismissal of the counterclaim, and the latter may remain for independent adjudication of the court, provided that such counterclaim, states a sufficient cause of action and does not labor under any infirmity that may warrant its outright dismissal. Stated differently, the jurisdiction of the court over the counterclaim that appears to be valid on its face, including the grant of any relief thereunder, is not abated by the dismissal of the main action. The courts authority to proceed with the disposition of the counterclaim independent of the main action is premised on the fact that the counterclaim, on its own, raises a novel question which may be aptly adjudicated by the court based on its own merits and evidentiary support. In this case: original suit was dismissed for being unfounded. Compulsory counterclaim for damages + attorneys fees was allowed to prosper independently because at this point the defendants claims were valid as they had already spent for litigation. Dio v Subic Bay Marine Exploration, 2014 A counterclaim must also be filed against the real party-in-interest. Thus, in this case, the Court held that unpaid benefits by a subsidiary company cannot be raised as a counterclaim as against a parent company. (Velarde v Lopez)

A Counterclaim consisting of compensatory, moral and exemplary damages based on the plaintiffs suit is compulsory. Tiu v Bautista If a counterclaim is merely permissive, then the counterclaim is considered an initiatory pleading, which requires the respondents to append thereto a certificate of non-forum shopping. Their failure to do so results to the dismissal of their counterclaim without prejudice. Korea Exchange Bank v Gonzales A counterclaim based on er-ee relationship may be properly dismissed by the regular courts, as this is under the jurisdiction of the NLRC. (UST v CA) If the defendant dies, his counterclaim should not automatically be dismissed under R3 S21 as this



provision only applies to a defendant who dies. The defendant is the plaintiff in his counterclaim. (UST v CA) Section 8. Cross-claims. claim by one party against a co-party arising out of the transaction that is the subject matter either of the original action or counterclaim A cross-claim is in effect, a complaint against the other defendants. If a defendant in his cross-claim sides with the plaintiff, the Court must look beyond the form, to the substance, of their pleading. In the interest of justice and orderly procedure, the trial court should have treated their answer as a complaint and should have ordered them to disassociate themselves from the other defendants and be joined as additional plaintiffs. Ruiz v CA A cross-claim MUST be answered, otherwise, the party who fails to answer may be declared in default. However, a cross-claim cannot proceed ahead of the original case. The answer then to the cross-claim is meant to join the subsidiary issues between the co-parties in relation to the opposing partys claim against the cross-claimant. Needless to state, until the principal issue between the plaintiff and the defendant cross-claimant shall have been heard and determined, it would be premature to decide the cross-claim. (Ligon v CA) The dismissal of a cross-claim in the lower courts which is not appealed bars the cross-claimants recovery, indemnification or subrogation against his cross-defendants. (Petron v Cudilla)

Section 9. Counter-counterclaims and counter-cross-claims. A counter-claim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original cross-claimant. Section 10. Reply. A pleading which: 1. denies or alleges facts in denial or avoidance of new matters alleged in the answer 2. thereby joins and makes issue as to such new matters Effect if no reply filed: the new matters alleged answer are deemed to have been denied by the plaintiff, thus, a Reply is optional.

Exception: if the Answer is based on an actionable document and the plaintiff does not Reply, he is deemed to have admitted the genuineness and due execution of the document Section 11. 3rd, 4th etc party complaints. A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant for contribution, indemnity, subrogation or any other relief, in respect of his opponents claim. Essential requisite: There must be a substantive basis based on the following:

Contribution Indemnity Subrogation Any other relief such as breaches of implied warranties

3rd party complaint definition A third-party complaint is actually a complaint independent of, and separate and distinct from the plaintiffs complaint. Were it not for Rule 6, Section 11 of the Rules of Court, such third-party complaint would have to be filed independently and separately from the original complaint by the defendant against the third-party defendant. Purpose of 3rd party complaints The purpose is to avoid circuitry of action and unnecessary proliferation of law suits and of disposing expeditiously in one litigation all the matters arising from one particular set of facts. The trial court is vested with discretion whether or not to allow the defendant to file a third-party complaint. As such, the defendant has no vested right to file a third-party complaint. Tayao v Mendoza Tests for propriety of X-complaint (only one will do): 1. arises out of the same transaction as the plaintiffs COA 2. although it arises from another transaction, is connected with the plaintiffs claim such as a 3rd party complaint against the insurer 3. if the 3rd party defendant will be liable to the claim even though the liability arises from another transaction like in cases of sublease / subrogation 4. if third party defendant may asser any defense which 3rd party defendant may have



NOTES FROM CASES A prerequisite to the exercise of such right is that some substantive basis for a third-party claim be found to exist, whether the basis be one of indemnity, subrogation, contribution or other substantive right. The third-party complaint does not have to show with certainty that there will be recovery against the third-party defendant, and it is sufficient that pleadings show possibility of recovery. ACDC v CA The 3rd party complaint need not be within the jurisdiction of the court where the original action is commenced. The is firmly entrenched in our law that jurisdiction once acquired continues until the case is finally terminated. Republic v Central Surety

It has to be remembered that a third-party complaint is but ancillary to the main action and is a procedural device to avoid multiplicity of suits. Because of its nature the prescriptions on jurisdiction and venue applicable to ordinary suits may not apply. Thus a third-party complaint has to yield to the jurisdiction and venue of the main action. Eastern Assurance v CFI When leave to file the third-party complaint is properly granted, the Court renders in effect two judgments in the same case, one on the plaintiffs complaint and the other on the third-party complaint. When he finds favorably on both complaints, as in this case, he renders judgment on the principal complaint in favor of plaintiff against defendant and renders another judgment on the third-party complaint in favor of defendant as third-party plaintiff, ordering the third-party defendant to reimburse the defendant whatever amount said defendant is ordered to pay plaintiff in the case. Failure of any of said parties in such a case to appeal the judgment as against him makes such judgment final and executory. CDCP v Cuenca A trial court, which has jurisdiction over the main action, also has jurisdiction over the third-party complaint, even if the said court would have had no jurisdiction over it had it been filed as an independent action. Allied Banking v CA A third-party complaint may be validly instituted in order to hold the third party defendant wholly liable as to the plaintiff in the original action. In an action for breach of contract of carriage commenced by a passenger against his common carrier, the plaintiff can recover damages from a third-party defendant

brought into the suit by the common carrier upon a claim based on tort or quasi-delict. The liability of the third-party defendant is independent from the liability of the common carrier to the passenger. Philtranco v Paras A third party defendant may be held liable on a theory different from that asserted by the plaintiff against the defendant. Samala v Victor The third-party claim need not be based on the same theory as the main claim. Similarly, there need not be any legal relationship between the third-party defendant and any of the other parties to the action. Philtranco v Paras A third party defendant is not directly liable to the plaintiff. Their liability commences only when the defendants are adjudged liable and not when they are absolved from liability as in the case at bar. (Samala v Victor) While the third-party defendant would benefit from a victory by the third-party plaintiff against the plaintiff, this is true only when the third-party plaintiff and third-party defendant have non-contradictory defenses. Thus, a third party defendant may still be held liable to the plaintiff notwithstanding the favorable resolution of the case against the defendant. Singapore Airlines v CA A third party complaint must also observe the rule on indispensable parties. Thus, a 3rd party complaint for reconveyance of co-owned property must fail for failure to implead the other co-owners. Tayao v Mendoza Since third party complaints are considered independent and separate, they cannot be used to collaterally attack a Torrens title. This also applies to counterclaims. Ex. Original case recovery of possession by registered owner. Counterclaim claim of ownership + damages Amancio v CA

Section 12. Bringing new parties. Bringing new parties. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained.

Exception to the general rule, thus bringing in strangers to the original complaint by counterclaim is sanctioned by the Rules.



General rule: a defendant cannot by a counterclaim bring into the action any claim against persons other than the plaintiff Exception: Section 14, Rule 6 when the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained. Sabugay v CA

Broadened the scope of the exception in Sabugay case: even corporate officers may be brought in as defendants because trial may prove their bad faith, thus effectively piercing the corporate veil and assigns liability accordingly. Lafarge v CCC Section 13. Answer to third (fourth, etc.)party complaint. A third (fourth, etc.) party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.) party plaintiff may have against the original plaintiffs claim. In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latters claim against the third-party plaintiff.

SUMMARY OF RULE 7 Section 1. Caption: 1. Name of the Court 2. Title of the action:

Names of the parties and respective participation in the case must be indicated. All parties should be named in the original, but in subsequent, if the name of the first party on each side be stated with an appropriate indication when there are other parties. 3. Docket number if assigned

Section 2. Body: 1. Designation 2. Allegations of claims/defenses 3. Relief prayed for 4. Pleading date Section 2, Rule 7 of the Rules of Court provides that a pleading shall specify the relief sought, but may add a general prayer for such further or other reliefs as may be deemed just and equitable. Under this rule, a court can grant the relief warranted by the allegation and the proof even if it is not specifically sought by the injured party; the inclusion of a general prayer may justify the grant of a remedy different from or together with the specific remedy sought, if the facts alleged in the complaint and the evidence introduced so warrant. (PCIC v PNCC) Section 3. Signature. Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. Who may sign? - party himself - counsel representing the party



Signature of counsel certifies that: - counsel has read the pleading; - that to the best of his Knowledge, Information, and Belief there is Good Ground to support it; - and that it is not interposed for delay. Effects of unsigned pleading:

no effect, as if it had not been filed court may allow defect to be remedied

Punishable acts by counsel: - deliberately files an unsigned pleading - alleges scandalous or indecent matters - signs a pleading in violation of Rule 7 - fails to promptly report a change of his address NOTES FROM CASES: A complaint where a labor union is a petitioner, its President may sign the pleading in compliance with S3 R7. Bukluran v CA In the same manner, a corporate President authorized by the Board may sign a pleading in behalf of the corporation. SOMA v Santos All indispensable parties must sign the complaint; otherwise, the counsels signature will suffice. The mandatory requirement of impleading all indispensable parties applies only to the filing of an original action, but not to an appeal, since it is the partys choice whether to appeal or not, and he or she cannot be compelled to do so. Dadizon v Bernadas In this case, there were 2 co-plaintiffs with their respective counsels. Only one of the counsels signed the MFR and in behalf of the other counsel. The Court said this was a vioaltion of S3 R7, and the petition was deemed to have produced no effect. However, it is implied that the other counsel may so sign if authorized by the other plaintiff/counsel. Jocson v CA

Section 4. Verification. Section 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit .(5a) A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his PERSONAL KNOWLEDGE and or based on AUTHENTIC RECORDS. (As amended) A pleading required to be verified which contains a verification based on information and belief, or upon

knowledge, information and belief, or lacks a proper verification, shall be treated as an unsigned pleading. Purpose of verification Verification is intended to assure that the allegations therein have been prepared in good faith or are true and correct, not mere speculations. Generally, lack of verification is merely a formal defect that is neither jurisdictional nor fatal. Its absence does not divest the trial court of jurisdiction. The trial court may order the correction of the pleading or act on the unverified pleading, if the attending circumstances are such that strict compliance with the rule may be dispensed with in order to serve the ends of justice. Robern Devt Corp v Judge Quitain This requirement is simply a condition affecting the form of pleadings, and noncompliance therewith does not necessarily render it fatally defective. Indeed, verification is only a formal, not a jurisdictional, requirement. Torres v Specialized

Distinction between failure of verification vs failure of certification Effect of failure to properly verify a pleading: pleading is treated as unsigned. Unsigned pleadings, according to Section 3, produces no legal effect but may be subject to the discretion of the court to allow the deficiency to be remedied. Meanwhile, failure to comply with certificate of non-forum shopping requirements is not curable by amendment of the complaint or other initiatory pleading. NOPA v Presiding Judge Modes of verification A pleading may be verified under: 1. personal knowledge 2. authentic records 3. both The choice is not left to the pleaders liking, but is dependent on the surrounding nature of the allegations which may warrant that a verification be based either purely on personal knowledge, or entirely on authentic records, or on both sources. Authentic records as a basis for verification bear significance in petitions wherein the greater portions of the allegations are based on the records of the proceedings in the court of origin and/or the court a quo, and not solely on the personal knowledge of the petitioner. Marohomsalic v Cole The verification alleged that it was true and correct of his own personal knowledge and belief.



Under Section 4, Rule 7 of the Rules of Court, a pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. Mere belief is insufficient basis and negates the verification which should be on the basis of personal knowledge or authentic records. Go v CA, Clavecilla v Quitain

Who must/may sign the verification? As to juridical persons: 1. President 2. General Manager 3. Officer specifically authorized 4. In-house counsel of a corporation (best position to verify the truthfulness and correctness of the allegations in the Complaint) Robern v Quitain As to natural persons: A verification by the wife of the plaintiff as attorney-in-fact is substantial compliance with the rules on verification. Hipol v NLRC The party need not sign the verification. A partys representative, lawyer or any person who personally knows the truth of the facts alleged in the pleading may sign the verification. Vallacar v Catubig, 2011

How many must sign the verification?

2 out of 25 signatories is enough. Torres v Specialized

NOTES FROM CASES: The signature of a misjoined party is not required in the verification/certificate of non-forum shopping and the absence thereof is not a valid ground for the dismissal of the complaint. Chua v Torres A [pleading] with a defective verification may be cured a properly verified MFR. Pagadora v Ilao Verification is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct. Altres v Empleo

What pleadings require verification? 1. pleadings under Summary Procedure

2. Petition for Review from RTC to SC, question of law, R41 S2 3. Petition for Review from RTC to CA, R42 S1 4. Petition for Review from QJ body to CA, R43 S5 5. Petition for Review before the SC, R45 S1 6. Petition for annulment of judgment or final orders and resolutions R47 S4 7. Complaint for Injunction, R58 S4 8. Application for Injunction & TRO R58 S4 9. Application for appointment of reciever R59 S1 10. Application for support pendente lite R61 S1 11. Petition for certiorari against ConComs R64 S2 12. Petitions for certiorari, prohibition, and mandamus R65 S1-3 13. Petition for quo warranto R66 S1 14. Complaint for expropriation R67 S1 15. Petition for Indirect Contempt R71 S4 16. All complaints involving intra-corporate disputes 17. Petition for declaration of absolute nullity of void marriages 18. Petition for annulment of voidable marriages 19. Petitions for summary proceedings under the FC Section 5. Certificate against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary



dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. Q: Who signs the certification? A: The plaintiff or the principal party. Natural persons:

In the case of natural persons, the Rule requires the parties themselves to sign the certificate of non-forum shopping. Arquiza v CA If, for any reason, the principal party cannot sign the petition, the one signing on his behalf must have been duly authorized. Arquiza v CA A petition involving two or more petitioners must be accompanied by a certification of non-forum shopping accomplished by ALL petitioners, or by one who is authorized to represent them; otherwise, the petition shall be considered as defective and, under the terms of Section 3, Rule 46 of the Rules of Court, may be dismissed.

Loquias v Ombudsman The certificate of non-forum shopping should be signed by all the petitioners or plaintiffs in a case, and that the signing by only one of them is insufficient. The lone signing petitioner cannot be presumed to have personal knowledge of the filing or non-filing by his co-petitioners of any action or claim the same as similar to the current petition.

Jocson v CA The wife of a husband who was overseas may sign the certification. After all they share a common interest in the conjugal property, the spouses initiated the original action and for the benefit of the conjugal partnership. Estares v CA In this case, the Court upheld the certification signed by the counsel of 21 of the 25 plaintiffs. The non-signing plaintiffs in this case had executed a SPA in favor of the signing counsel. Torres v Specialized

A certification signed by 142/266 or 47% of the plaintiffs does not substantially comply with the requirement. Aninao v Astrurias Chemicals A certification signed by 2/3 of the plaintiffs is defective. Rural Bankers v Salvana The only person who signed was the mother of the 6 other plaintiffs. This was not substantial compliance and the certification was deemed defective. Gabriel v CA

Juridical persons: The following is a non-exclusive list of employees and officials who can sign the verification and certification without need of a board resolution: - Chairperson of the Board - President - General Manager or Acting General Manager - Personnel Officer - Employment Specialist in a labor case Cebu Metro v Euro-Med An officer of the corporation can sign the certification against forum shopping so long as he has been duly authorized by a resolution of its board of directors. Eslaban v Vda de Onorio The certification need not be signed by the corporations regular officers (Board Chairman, President) because they may not even know the details required to certify such. BA Savings v Sia In-house counsel specifically authorized by a Board Resolution may sign certificate of non-forum shopping because they are in the best position. BA Savings v Sia The ruling in BA Savings v Sia does not mean that any lawyer, acting on behalf of the corporation he is representing, may routinely sign a certification of non-forum shopping. The lawyer must be specifically authorized in order validly to sign the certification. BPI Leasing v CA Even if the person who signed was an in-house counsel, a Board Resolution is still required in order to authorize him to certify on the corporations behalf. Levi Strauss v Vogue This specific authority must also be sufficiently proven. In this case, the Court refused to recognize that the counsel who signed was authorized to do so during a teleconference as there was no proof such conference, and no mention of this conference was made in the complaint. Expertravel v CA Proof of authority to sign in behalf of a corporation must be attached. A petition unaccompanied by proof of signatorys authority may be dismissed. PAL v FASAP Exception: when the signatories were in fact authorized, only the proof of authority was lacking. The SC has allowed subsequent submissions of the proof, holding that this was substantial compliance. The authority to sign must have been existing prior to the signing. General Milling v NLRC, Chinese YMCA v Remington



Q: May the rules as to who must sign the certificate of non-forum shopping be relaxed? A: Yes, provided: 1. petitioners must show justifiable cause for their failure to personally sign the certification; 2. prove that the outright dismissal of the petition would seriously impair the orderly administration of justice. PET Plans v CA

COVERAGE OF R7 S5: A certificate of non-forum shopping is required only in complaints or other initiatory pleadings. If a counterclaim is merely permissive, then the counterclaim is considered an initiatory pleading, which requires the respondents to append thereto a certificate of non-forum shopping. Their failure to do so results to the dismissal of their counterclaim without prejudice. Korea Exchange Bank v Gonzales

An ex-parte petition for the issuance of a writ of possession is not an initiatory pleading, because in reality, it is a motion even though it was denominated as a petition. Thus, a certificate of non-forum shopping is not required. Arquiza v CA, Ancheta v Metrobank

EFFECT OF DEFECTIVE CERTIFICATE OF NON-FORUM SHOPPING = DISMISSIBLE, may be cured by relaxation of rules

Summary of instances where there is defective compliance: 1. Not all plaintiffs signed 2. Authorized signatories but late submission of proof

EFFECT OF NONCOMPLIANCE OF CERTIFICATE OF NON-FORUM SHOPPING = FATAL, may not be cured

Summary of instances where there is non-compliance: 1. when there is no certificate actually attached 2. when the certification is signed by a person without authority

A petition without a certificate of non-forum shopping is defective, and may not be cured by the submission of a MFR with it attached. The rule against forum shopping and the necessity of a certification of non-forum shopping are basic requirements in remedial law. Failure

to comply with them constitutes gross negligence. Eastland v Mortel Under the NLRC Rules, a certificate of non-forum shopping is a requisite for the perfection of an appeal, and non-compliance therewith shall not stop the running of the period for perfecting an appeal. The filing of a certificate of non-forum shopping is mandatory in initiatory pleadings. The subsequent compliance with the requirement does not excuse a partys failure to comply therewith in the first instance. Mandaue Galleon v Isidto Non-compliance with the required certification is fatal. The filing of the same is not waived by failing to immediately assert the defect, and neither is it cured by its belated submission on the ground that the party was not in any way guilty of actual forum shopping. Ong v CA A certificate signed by an person in behalf of a corporation without authority amounts to a pleading without a certification, and may thus be dismissed. PAL v FASAP It bears stressing that a certification by counsel and not by the principal party himself is no certification at all. It is a defective certification which is tantamount to non-compliance with the requirement. Go v Rico The submission of a certificate against forum shopping is thus deemed obligatory, though not jurisdictional. Jurisdiction over the subject or nature of the action is conferred by law. Not being jurisdictional, the requirement has been relaxed under justifiable circumstances under the rule of substantial compliance. Torres v Specialized

Times when requirements re: certificate was relaxed 1. PHYSICAL IMPOSSIBILITY Certificate signed by counsel upheld because the plaintiff was in the States at the time Donato v CA

Other plaintiffs could no longer be contacted and no longer interested in pursuing the case. Thus the Court upheld a Certificate signed by 11/59 as substantial compliance. The non-signing petitioners were dropped as parties to the case accordingly. Altres v Empleo 2. SUBSTANTIAL JUSTICE There appears to be no intention to circumvent the need for proper verification and certification, which are aimed at assuring the truthfulness and correctness of the allegations in the Petition for Review and at discouraging forum shopping. More important, the



substantial merits of petitioners case and the purely legal question involved in the Petition should be considered special circumstances or compelling reasons that justify an exception to the strict requirements of the verification and the certification of non-forum shopping. Lee Tan v Sycip However, these compelling reasons must be specifically alleged, otherwise, the Court may still dismiss the complaint. Abaigar v Abaigar

The rule was also relaxed when the signatory attached no proof of authority. The Court took into consideration he merits of the case and to avoid a re-litigation of the issues and further delay the administration of justice, since the case had already been decided by the lower courts on the merits. Moreover, the signors authority was ratified by the Board (?) Abaya Investments Corp. v Merit PHL 3. EQUITY some of the plaintiffs went home to the provinces due to the long trial Torres v Specialized

4. COMMON INTEREST A spouse can sign in behalf of the other. Docena v Lapesura The University President may sign in behalf of the institution and its officers. Ateneo de Naga v Manalo Relatives and co-owners in a partition case have a common interest. The Court upheld that only one of them signed the certificate of non-forum shopping. Bautista v Causapin

FALSE CERTIFICATE OF NON-FORUM SHOPPING A certificate of non-forum shopping is false if it does not disclose the pendency of another action or proceedings involving the same issues. Similarity or issues between the first and second case is enough to violate this rule. Rudecon v Singson

EFFECT OF FILING FALSE CERTIFICATE OF NON-FORUM SHOPPING

constitutes indirect contempt of court without prejudice to administrative and criminal actions Counsel who filed a false certificate of non-forum shopping is only liable for indirect contempt of court. In cases of indirect contempt, no matter how palpable the errants bad faith might appear to the court, due process

as laid down in the rules of procedure must be observed before the penalty is imposed. Thus in this case the judge erred in summarily judging and fining the guilty parties. Espinosa v CA

FORUM SHOPPING

Definition Forum shopping is defined as 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. 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. It is expressly prohibited because it trifles with and abuses court processes, degrades the administration of justice, and congests court dockets. A willful and deliberate violation of the rule against forum shopping is a ground for summary dismissal of the case, and may also constitute direct contempt. Orpiano v Tomas Forum shopping is also committed by a party who, having received an adverse judgment in one forum, seeks another opinion in another court, other than by appeal or the special civil action of certiorari. Young v Keng Seng

Q: What if the party admits of another pending case? A: The admission in a certification against forum shopping of the pendency of [another case] will not remove the petition from the effects of res judicata or litis pendentia. These doctrines may not be avoided by varying the form of the action or adopting a different mode of presenting ones case. For being violative of the rule against forum shopping, the [subsequent case] should therefore be dismissed. Paradero v Abragan However, in another case, the absence of bad faith on petitioners' part or any deliberate intention to mislead the courts made the SC relax the rule. Nordic Asia v CA

Test to determine violation against forum shopping: a) whether the elements of litis pendentia are present b) whether a final judgent in one case will amount to res judicata in another c) where, in the two or more cases pending, there is identity of parties, rights or causes of action, and reliefs sought. Land Car v Bachelor



Elements of litis pendentia: 1. Identity of parties or representation in both cases; 2. Identity of rights asserted and relief prayed for; 3. The relief must be founded on the same facts and the same basis; and 4. Identity of the two preceding particulars should be such that any judgment, which may be rendered in the other action, will, regardless of which party is successful, amount to res judicata on the action under consideration. Elements of res judicata: (1) the former judgment or order must be final; (2) it must have been rendered on the merits of the controversy; (3) the court that rendered it must have had jurisdiction over the subject matter and the parties; and (4) there must have been -- between the first and the second actions -- an identity of parties, subject matter and cause of action.

Examples of cases that violate the rule against forum shopping: 1. DARAB case / subsequent forcible entry case.

Tirona v Alejo 2. Appeal to the OP in an admin case / petition for certiorari with the CA. Land Car v Bachelor 3. Partition case / Declaration of Nullity of COS. De Leon v Delivery Rosario 4. A case filed in Olongapo / another in Manila with the purpose of upholding a JVA. Guaranteed v Baltao 5. Election DQ case / petition for certiorari with the same goal of having opponent DQed Wacnang v COMELEC

Examples of cases that DO NOT violate the rule against forum shopping: 1. There can be no forum-shopping where in one proceeding a party raises a claim for damages based on tort and, in another proceeding a party seeks the allowance of an alleged last will based on ones claim as an heir. The facts or evidence as would support and establish the two causes of action are not the same. HSBC v Catalan 2. A counterclaim based on infringement is compatible with an earlier case for cancellation of trademark. Levi Strauss v Vogue 3. Appealing an RTC case / Petition for certiorari questioning the execution pending appeal of the same RTC case Paradero v Abragan

NOTES FROM CASES: The rule against forum shopping applies not only with respect to suits filed before courts but also in connection with a litigation commenced in court while an administrative proceeding is pending in order to defeat administrative processes in anticipation of an unfavorable administrative ruling and possibly a favorable court ruling. Land Car v Bachelor Express The words agency and any other tribunal in the non-forum shopping certificate required is to advise the court of the possible application of the doctrine of primary jurisdiction. There is thus a violation of the rule when a party fails to inform the court that he has initiated an earlier case with the HLURB. Sadang v CA A party may validly question the decision in a regular appeal and at the same time assail the execution pending appeal via certiorari without violating the anti-forum shopping rule. This is so because the merits of the case would not be addressed in the petition dealing with the execution and vice versa. But if the petition for certiorari also asks for relief from the original decision, the rule is violated, as in this case. Paradero v Abragan The rule on forum shopping applies only to judicial cases or proceedings, and not to administrative cases. (?) If there is already a pending administrative case, the rule on forum shopping applies to initiatory pleadings in a court of law. The rule against forum shopping does not apply to complaint-affidavits filed before the City Council, the DILG, and the Ombudsman. Laxina v Ombudsman

Admin Circular No. 17 2003: certificate of non-forum shopping now required for written complaints filed with the Ombudsman The rule against forum shopping may be violated by filing a civil case which sets forth the same caims and objectives as those made by the same party in a counterclaim. Korea Exchange Bank v Gonzales But if the counterclaim is based on a different cause of action and seeking a different relief than the civil case, the rule is not violated. Levi Strauss v Vogue The allegation that the other party has committed forum shopping on res judicata must be proven with relevant and clear specifications. Mere mention of other civil cases without showing the identity of rights asserted and reliefs sought is not enough basis to claim that respondent is guilty of forum shopping, or that res judicata exists. De la Cruz v Joaquin



There is no forum shopping where the prior complaint was dismissed prior to the filing of the subsequent one. San Juan v Arambulo A subsequent identical case filed after a prior one has been dismissed without prejudice does not violate the rule on forum shopping as such dismissal is not an adjudication on the merits that would have barred the refiling of the action. Cruz v Caraos

Dismissals that would bar a refiling of an action: 1. Cause of action is barred by prior judgment or by Statute of Limitations. R16F 2. Plaintiffs claim has been paid, waived, abandoned or otherwise extinguished. R16H 3. Claim is unenforceable under the Statute of Frauds. R16I A motion for reconsideration cannot be considered as a new petition so as to fit the definition of forum shopping. Furthermore, the divisions of Courts cannot be considered as different fora within the ambit of the prohibition. SOMA

v Santos

rules 6 and 7 of rules of court reviewer

Documents

defenses section

pleadings section

cause of action

compulsory counterclaims

complusory counterclaims

intervention section

negative defenses

original action