Riano Says These Will Be Asked Reviewer
Riano Says These Will Be Asked Reviewer
Section 12. Class suit. — When the subject matter of the There can be other causes, provided all 3 requisites are
controversy is one of common or general interest to present.
many persons so numerous that it is impracticable to join
all as parties, a number of them which the court finds to
be sufficiently numerous and representative as to fully
protect the interests of all concerned may sue or defend INTERVENTION
for the benefit of all. Any party in interest shall have the
right to intervene to protect his individual interest. (12a) (INVOLVING CORPORATIONS)
Moreover, the court must take into consideration 5. The sanctions for non-appearance in a pre-trial are
whether or not the intervention will unduly delay or imposed upon the plaintiff or the defendant in a civil
prejudice the adjudication of the rights of the original case (Sec. 4, Rule 18, Rules of Court). The sanctions in a
parties, and whether or not the intervenor’s right or criminal case are imposed upon the counsel for the
interest can be adequately pursued and protected in a accused or the prosecutor (Sec. 3, Rule 118, Rules of
separate proceeding. (Mactan Cebu International Airport Court).
VS. Heirs of Estanislao Minoza,)
GDE Bar Exam Notes 2018
judicata in another. Otherwise stated, to determine forum
shopping, the test is to see whether in the two or more cases
pending, there is: (a) identity of parties, (b) identity of
rights or causes of action, and (c) identity of reliefs sought.
OF FINAL JUDGEMENT R3,S20 Litis pendentia requires the concurrence of the following
requisites:
I. Law
(1) identity of parties, or at least such parties as those
Section 20. Action and contractual money claims. — When representing the same interests in both actions;
the action is for recovery of money arising from contract,
express or implied, and the defendant dies before entry of (2) identity of rights asserted and reliefs prayed for, the
final judgment in the court in which the action was pending reliefs being founded on the same facts; and
at the time of such death, it shall not be dismissed but shall
instead be allowed to continue until entry of final judgment. (3) identity with respect to the two preceding particulars in
A favorable judgment obtained by the plaintiff therein shall the two cases, such that any judgment that may be rendered
be enforced in the manner especially provided in these in the pending case, regardless of which party is successful
Rules for prosecuting claims against the estate of a would amount to res adjudicata in the other case.
deceased person. (21
3. What is pivotal in determining whether forum shopping
exists or not is the vexation caused the courts and parties-
litigants by a party who asks different courts and/or
FORUM SHOPPING R7,S5 administrative agencies to rule on the same or related
causes and/or grant the same or substantially the same
reliefs, in the process creating possibility of conflicting
I. Law
decisions being rendered by the different courts and/or
administrative agencies upon the same issues.
Section 5. Certification against forum shopping. — The
plaintiff or principal party shall certify under oath in the
4. Where the reliefs sought in the two actions are different,
complaint or other initiatory pleading asserting a claim for
there is no forum shopping even if the parties in the actions
relief, or in a sworn certification annexed thereto and
are the same. Where one action is for a permanent
simultaneously filed therewith: (a) that he has not
injunction and the other is a petition for certiorari, there is
theretofore commenced any action or filed any claim
no identity of reliefs.
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 5. Where the reliefs sought in two courts involving the
other pending action or claim, a complete statement of the same parties is to restrain a government official from
present status thereof; and (c) if he should thereafter learn implementing the same order, there is forum shopping
that the same or similar action or claim has been filed or is because there is identity of reliefs.
pending, he shall report that fact within five (5) days
therefrom to the court wherein his aforesaid complaint or 6. The filing of six appeals, complaints or petitions to
initiatory pleading has been filed. frustrate the execution of as judgment is a clear case of
forum shopping.
Failure to comply with the foregoing requirements shall not
be curable by mere amendment of the complaint or other 7. The concept of forum shopping applies not only with
initiatory pleading but shall be cause for the dismissal of respect to suits filed in the courts but also in connection
the case without prejudice, unless otherwise provided, upon with litigations commenced in the courts while an
motion and after hearing. The submission of a false administrative proceeding is pending in order to defeat
certification or non-compliance with any of the administrative processes and in anticipation of an
undertakings therein shall constitute indirect contempt of unfavorable administrative ruling.
court, without prejudice to the corresponding
administrative and criminal actions. If the acts of the party Who executes the certification against forum shopping
or his counsel clearly constitute willful and deliberate (Bar 2000)
forum shopping, the same shall be ground for summary
dismissal with prejudice and shall constitute direct 1. It is the plaintiff or principal party who executes the
contempt, as well as a cause for administrative sanctions. (n certification under oath (Sec. 5, Rule 7, Rules of Court).
The certification must be executed by the party, not the
II. Discussions
cannot be signed by his counsels. - It is the petitioner and
How to determine existence of forum shopping not the counsel who is in the best position to know whether
he or it actually filed or caused the filing of a petition. A
1. To determine whether a party violated the rule against certification signed by counsel is a defective certification
forum shopping, the most important question to ask is and is a valid cause for dismissal. This is the general rule
whether the elements of litis pendentia are present or and the prevailing rule.
whether a final judgment in one case will result to res
GDE Bar Exam Notes 2018
2. Thus, in a fairly recent case, Go vs. Rico, petitioners
admitted that neither of them signed the certification
against forum shopping. Only their counsel did. The Court SUBSTITUTED SERVICE
in this case emphatically stressed that a certification by
counsel and not by the principal party himself is no
certification at all. The reason for requiring that it must be I. Law
signed by the principal party himself is that he has actual
knowledge, or knows better than anyone else, whether he Section 7. Substituted service. — If, for justifiable causes,
has initiated similar action/s in other courts, agencies or the defendant cannot be served within a reasonable time as
tribunals. Their lawyer's explanation that they were out-of- provided in the preceding section, service may be effected
town at the time their petition was filed with the Court of (a) by leaving copies of the summons at the defendant's
Appeals is bereft of basis. That explanation is an residence with some person of suitable age and discretion
afterthought as it was not alleged by counsel in her then residing therein, or (b) by leaving the copies at
certification against forum shopping. defendant's office or regular place of business with some
competent person in charge thereof. (8a)
II.Case Law
DEFAULT
The statutory requirements of substituted service must
be followed strictly, faithfully, and fully and any
Section 3. Default; declaration of. — If the defending party
fails to answer within the time allowed therefor, the court substituted service other than that authorized by the
shall, upon motion of the claiming party with notice to the Rules is considered ineffective. However, we frown
defending party, and proof of such failure, declare the upon an overly strict application of the Rules. It is the
defending party in default. Thereupon, the court shall spirit, rather than the letter of the procedural rules, that
proceed to render judgment granting the claimant such
governs.
relief as his pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence. Such
reception of evidence may be delegated to the clerk of In his Return, Sheriff Potente declared that he was
court. (1a, R18) refused entry by the security guard in Alabang Hills
twice. The latter informed him that petitioner prohibits
(a) Effect of order of default. — A party in default him from allowing anybody to proceed to her residence
shall be entitled to notice of subsequent
whenever she is out. Obviously, it was impossible for
proceedings but not to take part in the trial. (2a,
R18) the sheriff to effect personal or substituted service of
summons upon petitioner. We note that she failed to
(b) Relief from order of default. — A party controvert the sheriff’s declaration. Nor did she deny
declared in default may at any time after notice having received the summons through the security
thereof and before judgment file a motion under guard. Considering her strict instruction to the security
oath to set aside the order of default upon proper
showing that his failure to answer was due to guard, she must bear its consequences. Thus, we agree
fraud, accident, mistake or excusable negligence with the trial court that summons has been properly
and that he has a meritorious defense. In such case, served upon petitioner and that it has acquired
the order of default may be set aside on such terms jurisdiction over her. (Remelita Robinson vs. Celita
and conditions as the judge may impose in the Miralles, G.R. No. 163584, December 12, 2006)
interest of justice. (3a, R18)
Demurrer to evidence in civil vs. criminal cases Section 1. Institution of criminal and civil actions. When
a criminal action is instituted, the civil action for the
1. Leave of court. In a civil case, leave of court is not recovery of civil liability is impliedly instituted with the
required before filing a demurrer. In a criminal case, criminal action, unless the offended party waives the
leave of court may be filed with or without leave of action, reserves his right to institute it separately, or
court. institutes the civil action prior to the criminal action.
2. Effect if granted. In a civil case, if the demurrer is
granted the order of dismissal is appealable. In a Such civil action includes recovery of indemnity under
the Revised Penal Code, and damages under Articles
criminal case, if the demurrer is granted, the order of
32, 33, 34 and 2176 of the Civil Code of the Philippines
dismissal is not appealable because it will constitute arising from the same act or omission of the accused.
double jeopardy.
3. Effect if denied. In a civil case, if a demurrer is A waiver of any of the civil actions extinguishes the
denied, the defendant may proceed to present his others. The institution of, or the reservation of the right
evidence. In a criminal case, if the demurrer is denied, to file, any of said civil actions separately waives the
the accused may adduce his evidence only if the others.
demurrer is field with leave of court.
The reservation of the right to institute the separate civil
4. Motu proprio. In a civil case, the court cannot render
actions shall be made before the prosecution starts to
a demurrer to evidence motu proprio. In a criminal case, present its evidence and under circumstances affording
the court can render a demurrer to evidence the offended party a reasonable opportunity to make
on its own initiative after giving the prosecution the such reservation.
opportunity to be heard.
GDE Bar Exam Notes 2018
In no case may the offended party recover damages III.Suspension of the Separate Civil Action
twice for the same act or omission of the accused.
Under Section 2, Rule 111 of the amended 1985
Rules, a separate civil action, if reserved in the criminal
x x x. (Emphasis supplied)
action, could not be filed until after final judgment was
rendered in the criminal action. If the separate civil
Section 1, Rule 111 of the 1985 Rules was amended action was filed before the commencement of the
on December 1, 2000 and now provides as follows: criminal action, the civil action, if still pending, was
suspended upon the filing of the criminal action until
SECTION 1. Institution of criminal and civil actions. (a) final judgment was rendered in the criminal action. This
When a criminal action is instituted, the civil action rule applied only to the separate civil action filed to
for the recovery of civil liability arising from the recover liability ex-delicto. The rule did not apply to
offense charged shall be deemed instituted with the independent civil actions based on Articles 32, 33, 34
criminal action unless the offended party waives the and 2176 of the Civil Code, which could proceed
civil action, reserves the right to institute it separately or independently regardless of the filing of the criminal
institutes the civil action prior to the criminal action. action.
The reservation of the right to institute separately the The amended provision of Section 2, Rule 111 of
civil action shall be made before the prosecution starts the 2000 Rules continues this procedure, to wit:
presenting its evidence and under circumstances
affording the offended party a reasonable opportunity to SEC. 2. When separate civil action is suspended. After
make such reservation. the criminal action has been commenced, the separate
civil action arising therefrom cannot be instituted until
xxx final judgment has been entered in the criminal action.
(b) x x x If the criminal action is filed after the said civil action
has already been instituted, the latter shall be
Where the civil action has been filed separately and trial suspended in whatever stage it may be found before
thereof has not yet commenced, it may be consolidated judgment on the merits. The suspension shall last until
with the criminal action upon application with the court final judgment is rendered in the criminal
trying the latter case. If the application is granted, the action. Nevertheless, before judgment on the merits is
trial of both actions shall proceed in accordance with rendered in the civil action, the same may, upon motion
section 2 of this rule governing consolidation of the civil of the offended party, be consolidated with the criminal
and criminal actions. (Emphasis supplied) action in the court trying the criminal action. In case of
consolidation, the evidence already adduced in the civil
action shall be deemed automatically reproduced in the
Under Section 1 of the present Rule 111, what is
criminal action without prejudice to the right of the
deemed instituted with the criminal action is only the
prosecution to cross-examine the witnesses presented by
action to recover civil liability arising from the crime
the offended party in the criminal case and of the parties
or ex-delicto. All the other civil actions under Articles
to present additional evidence. The consolidated criminal
32, 33, 34 and 2176 of the Civil Code are no longer
and civil actions shall be tried and decided jointly.
deemed instituted, and may be filed separately and
prosecuted independently even without any reservation
in the criminal action. The failure to make a reservation During the pendency of the criminal action, the running
in the criminal action is not a waiver of the right to file a of the period of prescription of the civil action which
separate and independent civil action based on these cannot be instituted separately or whose proceeding has
articles of the Civil Code. The prescriptive period on the been suspended shall be tolled.
civil actions based on these articles of the Civil Code
continues to run even with the filing of the criminal x x x. (Emphasis supplied)
action. Verily, the civil actions based on these articles of
the Civil Code are separate, distinct and independent of Thus, Section 2, Rule 111 of the present Rules did not
the civil action deemed instituted in the criminal change the rule that the separate civil action, filed to
action.[10] recover damages ex-delicto, is suspended upon the filing
of the criminal action. Section 2 of the present Rule 111
Under the present Rule 111, the offended party is also prohibits the filing, after commencement of the
still given the option to file a separate civil action to criminal action, of a separate civil action to recover
recover civil liability ex-delicto by reserving such right damages ex-delicto.
in the criminal action before the prosecution presents its
evidence. Also, the offended party is deemed to make
such reservation if he files a separate civil action before III. When civil action may proceed independently
filing the criminal action. If the civil action to recover
civil liability ex-delicto is filed separately but its trial has The crucial question now is whether Casupanan and
not yet commenced, the civil action may be consolidated Capitulo, who are not the offended parties in the
with the criminal action. The consolidation under this criminal case, can file a separate civil action against the
Rule does not apply to separate civil actions arising from offended party in the criminal case. Section 3, Rule 111
the same act or omission filed under Articles 32, 33, 34 of the 2000 Rules provides as follows:
and 2176 of the Civil Code.[11]
GDE Bar Exam Notes 2018
SEC 3. When civil action may proceed independently. -
In the cases provided in Articles 32, 33, 34 and 2176 of
the Civil Code of the Philippines, the independent civil
action may be brought by the offended party. It shall
proceed independently of the criminal action and shall
require only a preponderance of evidence. In no case,
however, may the offended party recover damages twice
for the same act or omission charged in the criminal
action. (Emphasis supplied)