SPOUSES FRANCISCO DE GUZMAN, JR. AND AMPARO O. DE GUZMAN, PETITIONERS, VS.

CESAR
OCHOA AND SYLVIA A. OCHOA, REPRESENTED BY ARACELI S. AZORES, AS THEIR ATTORNEY-INFACT, RESPONDENTS.

On February 12, 2004, the respondent RTC Judge issued her first assailed order, denying the
second motion to dismiss, disposing thus:
xxx

DECISION
MENDOZA, J.:
This is a petition for review on certiorari assailing the August 11, 2005 Decision [1] of the Court of
Appeals (CA), in CA-GR. SP No. 89329, filed by petitioners, Spouses Francisco De Guzman, Jr. and
Amparo O. De Guzman (petitioners). In the assailed decision, the CA found no commission of grave
abuse of discretion when the public respondent therein, Judge Amelia A. Fabros (Judge Fabros),
Presiding Judge of the Regional Trial Court, Pasig City, Branch 160 (RTC), denied petitioners' second
motion to dismiss, in Civil Case No. 68896, an action for annulment of contract and damages.
The facts of the case have been succinctly summarized by the CA as follows:
On March 25, 2002, respondent spouses Cesar Ochoa and Sylvia Ochoa, through respondent Araceli
Azores, ostensibly acting as attorney-in-fact, commenced in the Regional Trial Court (RTC) in Pasig
City an action seeking the annulment of contract of mortgage, foreclosure sale, certificate of sale and
damages. The action, docketed as Civil Case No. 68896 and entitled Cesar Ochoa and Sylvia A. Ochoa,
etc. v. Josefa M. Guevarra, et al., was raffled to Branch 160, presided by the respondent RTC Judge.
On May 22, 2002, the petitioners, as defendants in Civil Case No. 68896, filed a motion to dismiss,
alleging the sole ground that the complaint did not state a cause of action. The petitioners' motion to
dismiss was formally opposed by the private respondents.
On December 16, 2002, the respondent RTC Judge denied petitioners' motion to dismissand at the
same time set Civil Case No. 68896 for pre-trial conference, directing the parties to submit their
respective pre-trial briefs.
On March 31, 2003, the petitioners filed a second motion to dismiss, alleging that the certification
against forum shopping attached to the complaint was not executed by the principal parties
(plaintiffs) in violation of Sec. 5, Rule 7, 1997 Rules of Civil Procedure, rendering the complaint fatally
defective and thus dismissible.
The private respondents opposed the second motion to dismiss.

Inasmuch as the records show that the pending incident is the second motion to dismiss filed by the
defendants, the same is hereby Denied for lack of merit.
SO ORDERED.
On May 25, 2004. the petitioners filed their motion for reconsideration, but the respondent RTC
Judge denied the motion through her second assailed order dated December 29, 2004, to wit:
Acting on the Motion for Reconsideration (of the Order dated February 12, 2004, filed by the
defendant Spouses Francisco and Amparo De Guzman, through counsel, on May 25, 2004, and after
considering the grounds stated therein in support of their motion, and finding no cogent reason to
warrant the reconsideration sought for, the motion is DENIED.
SO ORDERED.[2]
Aggrieved, petitioners elevated the order of denial to the CA via a petition for certiorari contending
that the RTC should have dismissed the complaint motu proprio since it was fatally defective. They
pointed out that the Verification and Certification of Non-Forum Shopping attached to the complaint
was not signed by Cesar Ochoa or Sylvia Ochoa but by Araceli S. Azores (Azores), who was acting as
the attorney-in-fact of Cesar Ochoa only. They invited the attention of the RTC to the fact that the
powers delegated to Azores did not include the authority to institute an action in court. Thus,
according to the petitioners, the denial by the RTC of their motion to dismiss was capricious,
whimsical and arbitrary, amounting to lack or excess of jurisdiction and should be struck down as null
and void.
On August 11, 2005, the CA denied the petition for lack' of merit. The CA, in its decision, agreed with
the RTC that following the omnibus motion rule, the defects of the complaint pointed out by the
petitioners were deemed waived when they failed to raise it in their first motion to dismiss.
Not in conformity, the petitioners filed this petition for review under Rule 45, anchored on this:
GROUND

of Judge Fabros. Absent such showing of arbitrariness, capriciousness, or ill motive, the Court cannot
but sustain the ruling of the CA.
THE COURT A QUO DECIDED A QUESTION OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH
LAW AND JURISPRUDENCE WHEN IT REFUSED TO DISMISS, THE COMPLAINT DESPITE THE FACT
THAT IT WAS INDUBITABLY SHOWN AND ESTABLISHED THAT THE ESSENTIAL REQUIREMENT OF
CERTIFICATION OF NON-FORUM SHOPPING PURSUANT TO SECTION 5, RULE 7 OF THE RULES OF
COURT WAS NOT OBSERVED AND COMPLIED WITH SINCE THE SAME WAS NOT ACCOMPLISHED
PERSONALLY BY THE PURPORTED PLAINTIFFS THEREIN.
It is the position of the petitioners that the second motion to dismiss does not violate the Omnibus
Motion Rule under Section 8, Rule 15 of the Rules of Court because the issue raised in the second
motion was a question of jurisdiction. For said reason, the matter of the defective verification and
certification cannot be considered to have been waived when it was not interposed at the first
instance. Considering that the issue is jurisdictional, the RTC should have dismissed the
complaint motu proprio.
The Court disagrees with the petitioners.
An order denying a motion to dismiss is an interlocutory order which neither terminates the case nor
finally disposes of it, as it leaves something to be done by the court before the case is finally decided
on the merits. As such, the general rule is that the denial of a motion to dismiss cannot be questioned
in a special civil action for certiorari which is a remedy designed to correct errors of jurisdiction and
[3]
not errors of judgment.
Therefore, an order denying a motion to dismiss may only be reviewed in the ordinary course of law
by an appeal from the judgment after trial. The ordinary procedure to be followed in such cases is to
file an answer, go to trial, and if the decision is adverse, reiterate the issue on appeal from the final
judgment.[4]
Only in exceptional cases where the denial of the motion to dismiss is tainted with grave abuse of
discretion that the Court allows the extraordinary remedy of certiorari. By "grave abuse of
discretion," we mean such capricious and whimsical exercise of judgment that is equivalent to lack of
jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal-to perform the duty enjoined by or to .act
all in contemplation of law.[5]
In this case, the petitioners failed to convincingly substantiate its charge of arbitrariness on the part

Section 8, Rule 15 of the Rules of Court defines an omnibus motion as a motion attacking a pleading,
judgment or proceeding. A motion to dismiss is an omnibus motion because it attacks a pleading, that
is, the complaint. For this reason, a motion to dismiss, like any other omnibus motion, must raise and
include all objections available at the time of the filing of the motion because under Section 8, "all
objections not so included shall be deemed waived." As inferred from the provision, only the
following defenses under Section 1, Rule 9, are excepted from its application: [a] lack of jurisdiction
over the subject matter; [b] there is another action pending between the same parties for the same
cause (litis pendentia); [c] the action is barred by prior judgment (res judicata); and [d] the action is
barred by the statute of limitations or prescription.
In the case at bench, the petitioners raised the ground of defective verification and certification of
forum shopping only when they filed their second motion to dismiss, despite the fact that this ground
was existent and available to them at the time of the filing of their first motion to dismiss. Absent any
justifiable reason to explain this fatal omission, the ground of defective verification and certification
of forum shopping was deemed waived and could no longer be questioned by the petitioners in their
second motion to dismiss.
Moreover, contrary to petitioners' assertion, the requirement regarding verification of a pleading is
formal, not jurisdictional. Such requirement is simply a condition affecting the form of the pleading,
and non-compliance with which does not necessarily render the pleading fatally defective.
Verification is simply intended to secure an assurance that the allegations in the pleading are true
and correct and not the product of the imagination or a matter of speculation, and that the pleading
is filed in good faith. In fact, the court may order the correction of the pleading if verification is
lacking or act on the pleading although it is not verified, if the attending circumstances are such that
strict compliance with the rules may be dispensed with in order that the ends of justice may thereby
be served.[6]
Similarly, the rule requiring the submission of such certification of non-forum shopping, although
obligatory, is not jurisdictional.[7] The certification requirement is rooted in the principle that a partylitigant shall
not be allowed to pursue simultaneous remedies in different fora, as this Q practice is detrimental to
an orderly judicial procedure.[8]
As to whether the trial court should have dismissed the complaint motu proprio, the Court rules in
the negative. Section 5, Rule 7 of the Rules of Court is clear that failure to comply with the

requirements on the rule against forum shopping shall be cause for the dismissal of the case "upon
motion and after hearing."
VELASCO, JR., J.:

WHEREFORE, the petition is DENIED.

SO ORDERED.

The Case
OFFICE OF THE OMBUDSMAN,

G.R. No. 185954

Petitioner,

Before us is a Petition for Review on Certiorari under Rule 45 assailing and seeking to set
[1]

Present:

aside the Resolution dated December 18, 2008 of the Court of Appeals (CA) in CA-G.R. SP No.
96611, entitled Maximo D. Sison v. Fr. Noel Labendia for Himself and in Representation of Isog Han
Samar Movement, Diocese of Calbayog, Catbalogan, Samar. The CA Resolution denied petitioner

- versus CORONA, J., Chairperson,

VELASCO, JR.,

Office of the Ombudsmans Omnibus Motion for Intervention and to Admit Attached Motion for
Reconsideration of the CAs June 26, 2008 Decision.[2]

NACHURA,
MAXIMO D. SISON,
PERALTA, and
Respondent.
MENDOZA, JJ.
The Facts
Promulgated:
February 16, 2010

On October 11, 2004, the Isog Han Samar Movement, represented by Fr. Noel Labendia of
the Diocese of Calbayog, Catbalogan, Samar, filed a letter-complaint addressed to then Ombudsman,

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

[3]

Hon. Simeon Marcelo, accusing Governor Milagrosa T. Tan and other local public officials of the
Province of Samar, including respondent Maximo D. Sison, of highly anomalous transactions entered

DECISIO N

into by them amounting to several millions of pesos. Sison was the Provincial Budget Officer.

Management in Local Governments (RRSPMLG). Moreover, the

purchases were charged against the calamity fund, despite absence of
any declaration from the President that Samar was under a state of
calamity, in violation of Sec. 324(d) of R.A. 7160.

The letter-complaint stemmed from the audit investigation dated August 13, 2004
conducted by the Legal and Adjudication Office (LAO), Commission on Audit (COA), which found,
among others, that various purchases totaling PhP 29.34 million went without proper bidding
procedures and documentations; that calamity funds were expended without a State of Calamity

2.

Inconsistencies in the dates of supporting documents relating to the purchases

discussed in finding No. 1 were so glaring that they raised doubts on the
validity of the transactions per se;

3.

The use of the 5% budgetary reserves for calamity as funding source of

emergency purchases was not legally established, there being no declaration
from the Office of the President that Samar was under a state of calamity, as
required under Sec. 324(d) of R.A. 7160;

4.

Splitting of requisitions and purchase orders was resorted to in violation of

COA Circular No. 76-41 dated July 30, 1976;

5.

There was overpricing in the purchase of rice, medicines, electric fans and
cement in the amount of PhP 580,000.00, PhP 322,760.00, PhP 341,040.00, and
PhP 3.6 million, respectively. An overpayment was also committed in the
payments of cement in the amount of PhP 96,364.09;

6.

Other observations gathered corollary to the purchases made are the

following:

having been declared by the President; and that purchases for rice, medicines, electric fans, and
cement were substantially overpriced.

The Special Audit Team, which was created under LAO Office Order No. 2003-059 dated July
7, 2003, summarized the corresponding COA audit findings and observations, to wit:

1.

Rules and regulations pertaining to procurement of supplies and materials

were consciously and continually violated as disclosed in the verification of
selected purchases of the Province. Below were the findings and observations:

a.

Purchases of various items, totaling at least PhP 29.34 million and

allegedly procured through public bidding, were found highly irregular
for lack of proper bidding procedures and documentation;

b.

At least PhP 28.165 million worth of purchases through repeat orders

were made by the Province without observing the pertinent law, rules
and regulations governing this mode of procurement; and

c.

Emergency purchases of medicines and assorted goods totaling PhP

14.67 million were found not complying with the requirements set
forth under the Rules and Regulations on Supplies and Property

a.

b.

c.

Purchase Orders were not duly accomplished to include a complete

description of the items to be purchased, the delivery date and the
terms of payment, in violation of the provisions of Section 74 and
other corollary provisions of RRSPMLG. Some were even
acknowledged by suppliers;
At least 36 vouchers/claims were not supported with an official
receipt, in violation of the provisions of Section 4 of PD 1445 that all
disbursements must be supported with complete documentation; and
Advanced deliveries of medicines and assorted goods were made on
some purchases even before the purchase orders were prepared and
before the public biddings were conducted.

of Samar, docketed as OMB-C-A-05-0051-B. The latter were then required to file their counteraffidavits and countervailing evidence against the complaint.

In his counter-affidavit, Sison vehemently denied the accusations contained in the lettercomplaint and claimed his innocence on the charges. He asserted that his function is limited to the
issuance of a certification that an appropriation for the requisition exists, that the corresponding
amount has been obligated, and that funds are available. He did not, in any way, vouch for the
truthfulness of the certification issued by the requesting parties. In addition, he averred that he never
participated in the alleged irregularities as shown in the minutes and attendance sheet of the
bidding.

7.

The necessity and veracity of the distribution of t-shirts/caps, medicines,

assorted goods and cement purchased by the Province of Samar could not be
established due to rampant inconsistencies in dates, quantities, as well as the
signatures of the alleged recipients in the Requisition and Issue Slip; and,

Further, he alleged that not one of the documentary evidences so far attached in the lettercomplaint bore his signature and that he was neither factually connected nor directly implicated in
the complaint.

8.

Financial Assistance (FA)/Assistance to Individuals in Crisis Situation (AICS)

totaling at least PhP 5.4 million in 2002 and PhP 2.78 million as of April 2003
were granted to various applicant-recipients without subjecting them to the
guidelines set forth by the Department of Social Welfare and Development
[4]
(DSWD). x x x

On May 6, 2005, Sison submitted his Position Paper to the Office of the Ombudsman and
reiterated that he had not participated in the alleged anomalous purchases and use of public funds by
the Province of Samar.

On January 24, 2005, the Office of the Ombudsman, through Director Jose T. De Jesus, Jr.,
found basis to proceed with the administrative case against the impleaded provincial officials

On August 22, 2006, the Office of the Ombudsman rendered a Decision, finding Sison and
several other local officials of the Province of Samar guilty of grave misconduct, dishonesty, and

conduct prejudicial to the best interest of the service and dismissing him from service. The dispositive

3.

The administrative complaint against ERNESTO CARCILLAR ARCALES,

FELIX T. BABALCON, JR., JIMMY R. DY, JUAN COLINARES LATORRE, JR.,
MARIA LOURDES CORTEZ UY, BIENVENIDA P. REPOL and RAMON P.
DEAN, JR., who are no longer public officials, is DISMISSED.

4.

For insufficiency of evidence, the administrative complaint against

ANAMIE P. MANATAD-NUNEZ and ROSIE AMARO VILLACORTE is
DISMISSED.

5.

The Fact-Finding and Intelligence Office is DIRECTED to conduct

further fact-finding investigations on the following:

portion of the Decision reads:

VIEWED IN THE FOREGOING LIGHT, DECISION is hereby rendered as

follows:

1.

Respondents ROLANDO B. MONTEJO, DAMIANO Z. CONDE, JR.,

ROMEO C. REALES, MAXIMO D. SISON, AURELIO A. BARDAJE and
NUMERIANO C. LEGASPI are FOUND GUILTY of GRAVE MISCONDUCT,
DISHONESTY and CONDUCT PREJUDICIAL TO THE BEST INTEREST OF
THE SERVICE, and are METED the penalty of DISMISSAL FROM
SERVICE, and shall carry with it the cancellation of eligibility, forfeiture
of retirement benefits, and the perpetual disqualification for reemployment in the government service.

Accordingly, Governor Milagrosa T. Tan and Executive Director

Presentacion R. Montesa of the Bureau of Local Government Finance, Department
of Finance, are respectfully directed to implement this Order upon receipt hereof
and to forthwith inform the Office of compliance herewith.

2.

The administrative complaint against respondents MILAGROSA T.

TAN, FE ORTEGA TAN ARCALES, SUSANO DIMAKILING SALURIO,
BARTOLOME P. FIGUEROA, ANTONIO DE LEON BOLASTIG, III,
ROSENAIDA A. ROSALES and BARTOLOME R. CASTILLO III is DISMISSED
in view of their re-election in May 2004;

a.

On DV Nos. 221-2002-12-083 and 221-2002-11-065: (a) to

DETERMINE the other public officials who may be held
administratively liable; and (b) to FILE, if necessary, the
corresponding Complaint;

b.

On Bid Nos. 079-2002, 442-2002, 554-2002, 861-2002, 9372002, 947-2002, 1221-2002, 1375-2002, 1411-2002, 0072003, 014-2003, 023-2003, 047-2003 and 082-2002: (a) to
VERIFY whether actual public biddings took place relative to
the transactions covered by these bids; (b) to CHECK the
veracity of the documents relative to the repeat orders made;
(c) to DETERMINE the other public officials who may appear
to be administratively liable therefor; and (d) to FILE, if
warranted, the corresponding Complaint; and

c.

On Bid Nos. 078-2002, 448-2002, 931-2002, 1230-2001, 4112002, 944-2002, 1244-2002, 1407-2001, 198-2002, 316-2002

and 431-2002: (a) to DETERMINE whether actual public

biddings were held relative to the above-mentioned
transactions; (b) to CHECK the veracity of the documents
relative to the repeat orders made; (c) to ASCERTAIN the
other public officials who may be held administratively liable
therefor; and (d) to FILE the corresponding Complaint, if
warranted.

Accordingly, let a copy of this Memorandum be furnished the Fact- Finding

and Intelligence Office for its appropriate action.

the best interest of service is hereby REVERSED and SET ASIDE for insufficiency of
evidence. Accordingly, he is absolved from administrative liability as charged.

SO ORDERED.[6]

In ruling thus, the CA held that the Office of the Ombudsman failed to adduce substantial
evidence in order to convict Sison. Moreover, it reasoned that Sisons responsibility as Provincial
Budget Officer was to ensure that appropriations exist in relation to the emergency purchase being

[5]

SO ORDERED. (Emphasis supplied.)

made and that he had no hand or discretion in characterizing a particular purchase as emergency in
nature. Hence, he cannot be held administratively liable for simply attesting to the existence of
appropriations for a certain purpose, save if such certification is proved to be false.
On July 22, 2008, the Office of the Ombudsman filed an Omnibus Motion for Intervention

Aggrieved, Sison appealed to the CA via a Petition for Review under Rule 43, docketed as CAG.R. SP No. 96611.

On June 26, 2008, the CA rendered a decision reversing and setting aside the decision of the

and to Admit Attached Motion for Reconsideration, which was subsequently denied by the CA in its
assailed resolution of December 18, 2008.

Hence, we have this petition.

Office of the Ombudsman against Sison. The fallo of the CA decision reads:

WHEREFORE, the decision of the Ombudsman dated 22 August 2006 in

OMB-C-A-05-0051-B in so far as it finds the herein petitioner MAXIMO D. SISON
administratively liable for grave misconduct, dishonesty and conduct prejudicial to

The Issues

Whether the [CA] gravely erred in denying petitioners right to intervene in the
proceedings, considering that (a) the Office of the Ombudsman has sufficient legal
interest warranting its intervention in the proceedings before the [CA] since it
rendered the subject decision pursuant to its administrative authority over public
officials and employees; and (b) contrary to the appellate court a quos ruling,
petitioner Office of the Ombudsman filed its Omnibus Motion to Intervene and to
Admit Attached Motion for Reconsideration on a patently erroneous decision of the
[CA] which has not yet attained finality.

II
Whether the [CA] erred in ruling that the finding of the Office of the Ombudsman
was not supported by substantial evidence.

Intervention Is Discretionary upon the Court

The pivotal issue in this case is whether the Office of the Ombudsman may be allowed to
intervene and seek reconsideration of the adverse decision rendered by the CA.

In its Decision, the CA did not allow the Office of the Ombudsman to intervene, because (1)
the Office of the Ombudsman is not a third party who has a legal interest in the administrative case
against petitioner; (2) the Omnibus Motion for Intervention was filed after the CA rendered its
Decision; and (3) the Office of the Ombudsman was the quasi-judicial body which rendered the

III
Whether the [CA] erred in giving due course to respondents petition for review
when this was prematurely filed as it disregarded the well-entrenched
jurisprudential doctrine of exhaustion of administrative remedies.

impugned decision.

In its Petition, however, the Office of the Ombudsman asserts that it has sufficient legal
interest to warrant its intervention in the proceedings, since it rendered the subject decision
pursuant to its administrative authority over public officials and employees. Further, it contends that
the Omnibus Motion to Intervene was timely filed, since, at the time of its filing, the decision of the
CA had not yet attained finality.

Our Ruling

The appeal lacks merit.

We are not persuaded.

It is fundamental that the allowance or disallowance of a Motion to Intervene is addressed

[7]

to the sound discretion of the court. The permissive tenor of the rules shows the intention to give
to the court the full measure of discretion in permitting or disallowing the intervention,

[8]

thus:

To warrant intervention under Rule 19 of the Rules of Court, two requisites must concur: (1)
the movant has a legal interest in the matter in litigation; and (2) intervention must not unduly delay
or prejudice the adjudication of the rights of the parties, nor should the claim of the intervenor be
capable of being properly decided in a separate proceeding. The interest, which entitles one to

SECTION 1. Who may intervene. A person who has a legal interest in the
matter in litigation, or in the success of either of the parties, or an interest against
both, or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof may, with
leave of court, be allowed to intervene in the action. The court shall consider
whether or not the intervention will unduly delay or prejudice the adjudication of
the rights of the original parties, and whether or not the intervenors rights may be
fully protected in a separate proceeding.

intervene, must involve the matter in litigation and of such direct and immediate character that the
intervenor will either gain or lose by the direct legal operation and effect of the judgment. [12]

In support of its argument that it has legal interest, the Office of the Ombudsman
cites Philippine National Bank v. Garcia, Jr. (Garcia).

[13]

In the said case, the Philippine National Bank

(PNB) imposed upon its employee, Garcia, the penalty of forced resignation for gross neglect of duty.
On appeal, the Civil Service Commission (CSC) exonerated Garcia from the administrative charges
against him. In accordance with the ruling in Civil Service Commission v. Dacoycoy,[14] this Court

SECTION 2. Time to intervene. The motion to intervene may be filed at any

time before rendition of judgment by the trial court. A copy of the pleading-inintervention shall be attached to the motion and served on the original
parties.[9] (Emphasis supplied.)

affirmed the standing of the PNB to appeal to the CA the CSC resolution exonerating Garcia. After all,
PNB was the aggrieved party which complained of Garcias acts of dishonesty. Should Garcia be finally
exonerated, it might then be incumbent upon PNB to take him back into its fold. PNB should,
therefore, be allowed to appeal a decision that, in its view, hampered its right to select honest and
trustworthy employees, so that it can protect and preserve its name as a premier banking institution
in the country.

Simply, intervention is a procedure by which third persons, not originally parties to the suit
but claiming an interest in the subject matter, come into the case in order to protect their right or
interpose their claim.

[10]

Its main purpose is to settle in one action and by a single judgment all

conflicting claims of, or the whole controversy among, the persons involved. [11]

Based on the facts above, the Office of the Ombudsman cannot use Garcia to support its
intervention in the appellate court for the following reasons:

First, Sison was not exonerated from the administrative charges against him, and was, in
fact, dismissed for grave misconduct, dishonesty, and conduct prejudicial to the best interest of the
service by the Office of the Ombudsman in the administrative case, OMB-C-A-05-0051-B. Thus, it was
Sison who appealed to the CA being, unquestionably, the party aggrieved by the judgment on appeal.

Second, the issue here is the right of the Office of the Ombudsman to intervene in the appeal
of its decision, not its right to appeal.

And third, Garcia should be read along with Mathay, Jr. v. Court of Appeals

[15]

the one that is prosecuting the administrative case against the respondent.
Otherwise, an anomalous situation will result where the disciplining authority or
tribunal hearing the case, instead of being impartial and detached, becomes an
active participant in prosecuting the respondent. Thus, in Mathay, Jr. v. Court of
Appeals, decided after Dacoycoy, the Court declared:

To be sure when the resolutions of the Civil Service Commission

were brought to the Court of Appeals, the Civil Service Commission was
included only as a nominal party. As a quasi-judicial body, the Civil Service
Commission can be likened to a judge who should detach himself from
cases where his decision is appealed to a higher court for review.

and National

Appellate Board of the National Police Commission v. Mamauag(Mamauag),[16] in which this Court
qualified and clarified the exercise of the right of a government agency to actively participate in the
appeal of decisions in administrative cases. In Mamauag, this Court ruled:

RA 6975 itself does not authorize a private complainant to appeal a

decision of the disciplining authority. Sections 43 and 45 of RA 6975 authorize
either party to appeal in the instances that the law allows appeal. One party is the
PNP member-respondent when the disciplining authority imposes the penalty of
demotion or dismissal from the service. The other party is the government when
the disciplining authority imposes the penalty of demotion but the government
believes that dismissal from the service is the proper penalty.

In instituting G.R. No. 126354, the Civil Service Commission

dangerously departed from its role as adjudicator and became an
advocate. Its mandated function is to hear and decide administrative cases
instituted by or brought before it directly or on appeal, including contested
appointments and to review decisions and actions of its offices and
agencies, not to litigate.

Clearly, the Office of the Ombudsman is not an appropriate party to intervene in the instant
case. It must remain partial and detached. More importantly, it must be mindful of its role as an
adjudicator, not an advocate.

However, the government party that can appeal is not the disciplining
authority or tribunal which previously heard the case and imposed the penalty of
demotion or dismissal from the service. The government party appealing must be

It is an established doctrine that judges should detach themselves from cases where their
decisions are appealed to a higher court for review. The raison detre for such a doctrine is the fact
that judges are not active combatants in such proceeding and must leave the opposing parties to
contend their individual positions and the appellate court to decide the issues without the judges
active participation.

[17]

When judges actively participate in the appeal of their judgment, they, in a

way, cease to be judicial and have become adversarial instead. [18]

Likewise, the facts reveal that this case was elevated to the CA via a verified Petition for
Review under Rule 43 of the Rules of Court and Supreme Court Administrative Circular No. 1-95 dated
May 16, 1995, which govern appeals to the CA from judgments or final orders of quasi-judicial
agencies.

Rule 43, as well as Administrative Circular No. 1-95, provides that the petition for review
In Pleyto v. Philippine National Police Criminal Investigation and Detection Group (PNPCIDG),

[19]

the Court applied this doctrine when it held that the CA erred in granting the Motion to

Intervene filed by the Office of the Ombudsman, to wit:

shall state the full names of the parties to the case without impleading the court or agencies either
[20]

as petitioners or respondents.

Thus, the only parties in such an appeal are the appellant as

petitioner and appellee as respondent. The court or, in this case, the administrative agency that
rendered the judgment appealed from, is not a party in the said appeal.

The court or the quasi-judicial agency must be detached and impartial, not
only when hearing and resolving the case before it, but even when its judgment is
brought on appeal before a higher court. The judge of a court or the officer of a
quasi-judicial agency must keep in mind that he is an adjudicator who must settle
the controversies between parties in accordance with the evidence and applicable
laws, regulations and/or jurisprudence. His judgment should already clearly and
completely state his findings of fact and law. There must be no more need for him
to justify further his judgment when it is appealed before appellate courts. When
the court judge or the quasi-judicial officer intervenes as a party in the appealed
case, he inevitably forsakes his detachment and impartiality, and his interest in the
case becomes personal since his objective now is no longer only to settle the
controversy between the original parties (which he had already accomplished by
rendering his judgment), but more significantly, to refute the appellants assignment
of errors, defend his judgment, and prevent it from being overturned on appeal.

Therefore, the Office of the Ombudsman does not have the legal interest to intervene. As
the CA held correctly:

The Office of the Ombudsman is not a third party who has a legal interest
in the administrative case against the petitioner such that it would be directly
affected by the judgment that this Court had rendered. It must be remembered
that the legal interest required for an intervention must be direct and immediate in
character. Lest it be forgotten, what was brought on appeal before this Court is the
very Decision by the Office of the Ombudsman. Plainly, the Office of the
Ombudsman, as an adjudicator, and not an advocate, has no legal interest at stake
[21]
in the outcome of this Rule 43 Petition.

so should not now be countenanced. The Office of the Ombudsman is expected to be an activist
[24]

watchman, not merely a passive onlooker.

In this case, it cannot be denied that the Omnibus Motion for Intervention was belatedly
Motion for Intervention Was Not Filed on Time

filed. As we held in Rockland Construction Co., Inc. v. Singzon, Jr., no intervention is permitted after a
[25]

decision has already been rendered.

Furthermore, the Rules provides explicitly that a motion to intervene may be filed at any
time before rendition of judgment by the trial court. In the instant case, the Omnibus Motion for
Intervention was filed only on July 22, 2008, after the Decision of the CA was promulgated on June
26, 2008.

In support of its position, petitioner cites Office of the Ombudsman v. Samaniego.[22] That
case, however, is not applicable here, since the Office of the Ombudsman filed the motion for

In light of the foregoing considerations, all other issues raised in the petition are rendered
moot and academic and no further discussion is necessary.

intervention during the pendency of the proceedings before the CA.

WHEREFORE, the petition is DENIED. The CA Resolution dated December 18, 2008 in CA-G.R.
It should be noted that the Office of the Ombudsman was aware of the appeal filed by Sison.

SP No. 96611 is AFFIRMED.

The Rules of Court provides that the appeal shall be taken by filing a verified petition for review with
the CA, with proof of service of a copy on the court or agency a quo.[23] Clearly, the Office of the
Ombudsman had sufficient time within which to file a motion to intervene. As such, its failure to do

SO ORDERED.

JULIETA PANOLINO,
Petitioner,

G.R. No. 183616

[6]

On September 19, 2007, petitioner filed a Notice of Appeal before

the

Office

of

RD

Sampulna, stating that she was appealing the decision and order to the Office of the DENR

Present:

[7]

Secretary. By Order of October 16, 2007, RD Sampulna denied the notice of appeal, holding that it

CARPIO MORALES, J.,Chairperson,

BRION,
BERSAMIN,
*
ABAD, and
VILLARAMA, JR., JJ.

versus

was filed beyond the reglementary period. The RD explained that petitioner should have filed her
appeal on September 13, 2007 as she had only one day left of the 15-day reglementary period for the
purpose, pursuant to DENR Administrative Order No. 87, Series of 1990,

JOSEPHINE L. TAJALA,
Respondent.[1]

SECTION 1. Perfection of Appeals.

DECISION
CARPIO MORALES, J.:

The Department of Environment and Natural Resources (DENR) Regional Executive Director
Jim O. Sampulna (RD Sampulna), by Decision [2] of June 19, 2007, (1) denied for lack merit the

(a) Unless otherwise provided by law or executive order, appeals from the
decisions/orders of the DENR Regional Offices shall be perfected within
fifteen (15) days after receipt of a copy of the decision/order complained
of by the party adversely affected, by filing with the Regional Office which
adjudicated the case a notice of appeal, serving copies thereof upon the
prevailing party and the Office of the Secretary, and paying the required
fees.
(b)

If a motion for reconsideration of the decision/order of the Regional

Office is filed and such motion for reconsideration is denied, the movant
shall
have
the
right
to perfect hisappeal during the remainder of the period for appeal, recko
ned from receipt of the resolution of denial. If the decision is reversed on
reconsideration, the aggrieved party shall have fifteen (15) days from
receipt of the resolution of reversal within which to perfect his appeal.

(c)

The Regional office shall, upon perfection of the appeal, transmit the
records of the case to the Office of the Secretary with each page
numbered consecutively and initialed by the custodian of the records.

application[3] of Julieta Panolino (petitioner), which was opposed by herein respondent Josephine L.
Tajala, for a free patent over a parcel of land located in Kinayao, Bagumbayan, Sultan Kudarat, (2)
directed petitioner to vacate the contested property and remove at her expense whatever
improvements she may have introduced thereon, and (3) advised respondent to file her free patent
application over the contested property within sixty days. [4]

Petitioner received a copy of the decision on June 27, 2007, of which she filed a motion for
on July

11,

2007. Her

motion

2007, copy of which she received on September 12, 2007.

was denied by

the pertinent portions of

which provide:

Promulgated:
June 29, 2010
x--------------------------------------------------x

reconsideration

[8]

Order[5] ofSeptember

6,

xxxx
SECTION 6. Applicability of the Rules of Court. The Rules of Court shall
apply when not inconsistent with the provisions hereof. (emphasis and
underscoring supplied)

Invoking the rule enunciated by this Court in the 2005 case of Neypes, et al. v. Court of
[9]

Appeals, et al., petitioner argued in her motion for reconsideration of RD Sampulnas October 16,
2007 Order that she still had a fresh period of fifteen days from her receipt on September 12, 2007 of
copy of the September 6, 2007 Order denying her motion for reconsideration of the June 19, 2007
Decision of the RD or until September 27, 2007. Her motion was denied by Order

[10]

of November 28,

2007.

Petitioner elevated the matter via certiorari before the Court of Appeals which, by
Resolution

[11]

of January 25, 2008, dismissed it on the ground that petitioner failed to exhaust

administrative remedies, she having bypassed the Office of the DENR Secretary and the Office of the
President before resorting to judicial action.

Petitioner

moved

for

reconsideration,

arguing

that

her

petition

for

certiorari raised a purely legal issue. By Resolution of June 25, 2008, the appellate court, holding that
the issue raised is clearly a question of fact,[12] denied petitioners motion. Hence, the present petition
for review on certiorari.

The issue before the Court of Appeals was whether the fresh period rule laid down
in Neypes applies to petitioners case, i.e., that he had a fresh period of 15 days to appeal RD
Sampulnas October 16, 2007 Order to the DENR Secretary, counted from her notice on September
12, 2007 of the RDs Order of September 6, 2007 denying her motion for reconsideration of the
decision.

The fresh period rule in Neypes declares:

To standardize the appeal periods provided in the Rules and to afford

litigants fair opportunity to appeal their cases, the Court deems it practical to allow
a fresh period of 15 days within which to file the notice of appeal in the Regional
[13]
Trial Court, counted from receipt of the order dismissing a motion for a new trial
or motion for reconsideration.
Henceforth, this fresh period rule shall also apply to Rule 40 governing
appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on
petitions for review from the Regional Trial Courts to the Court of
Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals;
and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule
aims to regiment or make the appeal period uniform, to be counted from receipt of
the order denying the motion for new trial, motion for reconsideration (whether
full or partial) or any final order or resolution.
x
x
x. This
pronouncement
is
not
inconsistent
with Rule 41,[14] Section 3 of the Rules which states that the appeal shall be taken
within 15 days from notice of judgment orfinal order appealed from. The use of
the disjunctive word or signifies disassociation and independence of one thing from
another. It should, as a rule, be construed in the sense in which it ordinarily
implies. Hence, the use of or in the above provision supposes that the notice of
appeal may be filed within 15 days from notice of judgment or within 15 days from
notice of the final order, which we already determined to refer to the x x x order
denying the motion for a new trial or reconsideration.
Neither does this new rule run counter to the spirit
of Section 39 of BP 129[15] which shortened the appeal period from 30 days to 15
days to hasten the disposition of cases.The original period of appeal x x x remains
and the requirement for strict compliance still applies. The fresh period of 15 days
becomes significant only when a party opts to file a motion for reconsideration. In
this manner, the trial court which rendered the assailed decision is given another
opportunity to review the case and, in the process, minimize and/or rectify any
error of judgment. While we aim to resolve cases with dispatch and to have
judgments of courts become final at some definite time, we likewise aspire to
deliver justice fairly.

In this case, the new period of 15 days eradicates the confusion as to when
the 15-day appeal period should be countedfrom receipt of notice of judgment x x x
or from receipt of notice of final order appealed from x x x.
To recapitulate, a party litigant may either file his notice of appeal within
15 days from receipt of the Regional Trial Courts decision or file it within 15 days
from receipt of the order (the final order) denying his motion for new trial or
motion for reconsideration. Obviously, the new 15-day period may be availed
of only if either motion is filed; otherwise, the decision becomes final and executory
after the lapse of the original appeal period provided in Rule 41, Section
3.[16] (emphasis and underscoring supplied; italics in the original)

Petitioners present case is administrative in nature involving an appeal from the decision or
order of the DENR regional office to the DENR Secretary. Such appeal is indeed governed by Section 1
of Administrative Order No. 87, Series of 1990. As earlier quoted, Section 1 clearly provides that if the
motion for reconsideration is denied, the movant shall perfect his appeal during the remainder of the
period of appeal, reckoned from receipt of the resolution of denial; whereas if the decision
is reversed, the adverse party has a fresh 15-day period to perfect his appeal.
Rule 41, Section 3 of the Rules of Court, as clarified in Neypes, being inconsistent with
Section 1 of Administrative Order No. 87, Series of 1990, it may not apply to the case of petitioner

The issue raised by petitioner before the appellate court is one of law because it can be
[17]

resolved by merely determining what the law is under the undisputed facts.

The appellate courts

ruling that such issue raises a question of fact which entails an examination of the probative value of
the evidence presented by the parties

[18]

whose motion for reconsideration was denied.

WHEREFORE, the assailed issuances of the Court of Appeals are AFFIRMED, not on the
ground advanced therein but on the ground reflected in the foregoing discussion. No costs.

is thus erroneous.
SO ORDERED.

Instead, however, of remanding this case to the Court of Appeals for it to resolve the legal
issue of whether the fresh period rule in Neypes is applicable to petitioners case, the Court opts to
resolve it to obviate further delay.

As reflected in the above-quoted portion of the decision in Neypes, the fresh period rule
shall apply to Rule 40 (appeals from the Municipal Trial Courts to the Regional Trial

G.R. No. 175507, October 08, 2014

RAMON CHING AND PO WING PROPERTIES, INC., Petitioners, v. JOSEPH CHENG, JAIME CHENG,
MERCEDES IGNE1 AND LUCINA SANTOS, Respondents.
DECISION

Courts); Rule 41 (appeals from the Regional Trial Courts to the Court of Appeals or Supreme
Court); Rule 42 (appeals from the Regional Trial Courts to the Court of Appeals); Rule 43 (appeals
from quasi-judicial agencies to the Court of Appeals); and Rule 45 (appeals by certiorari to the
Supreme Court). Obviously, these Rules cover judicialproceedings under the 1997 Rules of Civil
Procedure.

LEONEN, J.:
Rule 17 of the Rules of Civil Procedure governs dismissals of actions at the instance of the plaintiff.
Hence, the "two-dismissal rule" under Rule 17, Section 1 of the Rules of Civil Procedure will not apply
if the prior dismissal was done at the instance of the defendant.

This is a petition for review on certiorari assailing the decision and resolution of the Court of
Appeals in CA-G.R. SP. No. 86818, which upheld the (1) order4 dated November 22, 2002 dismissing
5
Civil Case No. 02-103319 without prejudice, and (2) the omnibus order dated July 30, 2004, which
denied petitioners' motion for reconsideration. Both orders were issued by the Regional Trial Court of
6
Manila, Branch 6.
The issues before this court are procedural. However, the factual antecedents in this case, which
stemmed from a complicated family feud, must be stated to give context to its procedural
development.
It is alleged that Antonio Ching owned several businesses and properties, among which was Po Wing
7
Properties, Incorporated (Po Wing Properties). His total assets are alleged to have been worth more
8
9
than P380 million. It is also alleged that while he was unmarried, he had children from two women.
Ramon Ching alleged that he was the only child of Antonio Ching with his common-law wife, Lucina
Santos.10 She, however, disputed this. She maintains that even if Ramon Ching's birth certificate
indicates that he was Antonio Ching's illegitimate child, she and Antonio Ching merely adopted him
and treated him like their own.11
Joseph Cheng and Jaime Cheng, on the other hand, claim to be Antonio Ching's illegitimate children
with his housemaid, Mercedes Igne.12 While Ramon Ching disputed this,13 both Mercedes and Lucina
have not.14
Lucina Santos alleged that when Antonio Ching fell ill sometime in 1996, he entrusted her with the
distribution of his estate to his heirs if something were to happen to him. She alleged that she handed
all the property titles and business documents to-Ramon Ching for safekeeping.15 Fortunately,
Antonio Ching recovered from illness and allegedly demanded that Ramon Ching return all the titles
to the properties and business documents.16
17

On July 18, .1996, Antonio Ching was murdered. Ramon Ching allegedly induced Mercedes igne and
her children, Joseph Cheng and Jaime Cheng, to sign an agreement and waiver 18 to Antonio Ching's
estate in consideration of P22.5 million. Mercedes Igne's children alleged that Ramon Ching never
19
paid them. On October 29, 1996, Ramon Ching allegedly executed an affidavit of settlement of
20
estate, naming himself as the sole heir and adjudicating upon himself the entirety of Antonio
Ching's estate.21
Ramon Ching denied these allegations and insisted that when Antonio Ching died, the Ching family
association, headed by Vicente Cheng, unduly influenced him to give Mercedes Igne and her children

financial aid considering that they served Antonio Ching for years. It was for this reason that an
agreement and waiver in consideration of P22.5 million was made. He also alleged that he was
summoned by the family association to execute an affidavit of settlement of estate declaring him to
22
be Antonio Ching's sole heir.
After a year of investigating Antonio Ching's death, the police found Ramon Ching to be its primary
23
24
25
suspect. Information was filed against him, and a warrant of arrest cralawred was issued.
On October 7, 1998, Joseph Cheng, Jaime Cheng, and Mercedes Igne (the Chengs) filed a complaint
for declaration of nullity of titles against Ramon Ching before the Regional Trial Court of Manila. This
case was docketed as Civil Case No. 98-91046 (the first case).26
On March 22, 1999, the complaint was amended, with leave of court, to implead additional
defendants, including Po Wing Properties, of which Ramon Ching was a primary stockholder. The
amended complaint was for "Annulment of Agreement, Waiver, Extra-Judicial Settlement of Estate
and the Certificates of Title Issued by Virtue of Said Documents with Prayer for Temporary Restraining
Order and Writ of Preliminary Injunction."27 Sometime after, Lucina Santos filed a motion for
intervention and was allowed to intervene.28
After the responsive pleadings had been filed, Po Wing Properties filed a motion to dismiss on the
ground of lack of jurisdiction of the subject matter. 29
On November 13, 2001, the Regional Trial Court of Manila, Branch 6, granted the motion to dismiss
on the ground of lack of jurisdiction over the subject matter. 30 Upon motion of the Chengs' counsel,
however, the Chengs and Lucina Santos were given fifteen (15) days to file the appropriate pleading.
They did not do so.31
On April 19, 2002, the Chengs and Lucina Santos filed a complaint for "Annulment of Agreement,
Waiver, Extra-Judicial Settlement of Estate and the Certificates of Title Issued by Virtue of Said
Documents with Prayer for Temporary Restraining Order and Writ of Preliminary Injunction" against
Ramon Ching and Po Wing Properties.32 This case was docketed as Civil Case No. 02-103319 (the
second case) and raffled to Branch 20 of the Regional Trial Court of Manila. 33
When Branch 20 was made aware of the first case, it issued an order transferring the case to Branch
6, considering that the case before it involved substantially the same parties and causes of action. 34
On November 11, 2002, the Chengs and Lucina Santos filed a motion to dismiss their complaint in the
second case, praying that it be dismissed without prejudice. 35

On November 22, 2002, Branch 6 issued an order granting the motion to dismiss on the basis that the
summons had not yet been served on Ramon Ching and Po Wing Properties, and they had not yet
36
filed any responsive pleading. The dismissal of the second case was made without prejudice.
On December 9, 2002, Ramon Ching and Po Wing Properties filed a motion for reconsideration of the
order dated November 22, 2002. They argue that the dismissal should have been with prejudice
under the "two-dismissal rule" of Rule 17, Section 1 of the 1997 Rules of Civil Procedure, in view of
the previous dismissal of the first case.37
During the pendency of the motion for reconsideration, the Chengs and Lucina Santos filed a
complaint for "Disinheritance and Declaration of Nullity of Agreement and Waiver, Affidavit of
Extrajudicial Agreement, Deed of Absolute Sale, and Transfer Certificates of Title with Prayer for TRO
and Writ of Preliminary Injunction" against Ramon Ching and Po Wing Properties. This case was
docketed as Civil Case No. 02-105251 (the third case) and was eventually raffled to Branch 6.38
On December 10, 2002, Ramon Ching and Po Wing Properties filed their comment/opposition to the
application for temporary restraining order in the third case. They also filed a motion to dismiss on
the ground of res jiidicata, litis pendencia, forum-shopping, and failure of the complaint to state a
cause of action. A series of responsive pleadings were filed by both parties. 39
On July 30, 2004, Branch 6 issued an omnibus order 40 resolving both the motion for reconsideration
in the second case and the motion to dismiss in the third case. The trial court denied the motion for
reconsideration and the motion to dismiss, holding that the dismissal of the second case was without
prejudice and, hence, would not bar the filing of the third case.41
On October 8, 2004, while their motion for reconsideration in the third case was pending, Ramon
Ching and Po Wing Properties filed a petition for certiorari (the first certiorari case) with the Court of
Appeals, assailing the order dated November 22, 2002 and the portion of the omnibus order dated
42
July 30,.2004, which upheld the dismissal of the second case.
On December 28, 2004, the trial court issued an order denying the motion for reconsideration in the
third case. The denial prompted Ramon Ching and Po Wing Properties to file a petition for certiorari
and prohibition with application for a writ of preliminary injunction or the issuance of a temporary
restraining order (the second certiorari case) with the Court of Appeals.43
44

On March 23, 2006, the Court of Appeals rendered the decision in the first certiorari case dismissing
the petition. The appellate court ruled that Ramon Ching and Po Wing Properties' reliance on the

"two-dismissal rule" was misplaced since the rule involves two motions for dismissals filed by the
plaintiff only. In this case, it found that the dismissal of the first case was upon the motion of the
45
defendants, while the dismissal of the second case was at the instance of the plaintiffs.
46

Upon the denial of their motion for reconsideration, Ramon Ching and Po Wing Properties filed this
47
present petition for review under Rule 45 of the Rules of Civil Procedure.
Ramon Ching and Po Wing Properties argue that the dismissal of the second case was with prejudice
since the non-filing of an amended complaint in the first case operated as a dismissal on the
48
merits. They also argue that the second case should be dismissed on the ground of res judicatasince
there was a previous final judgment of the first case involving the same parties, subject matter, and
49
cause of action.
50

51

Lucina Santos was able to file a comment on the petition within the period required. The Chengs,
however, did not comply.52 Upon the issuance by this court of a show cause order on September 24,
2007,53 they eventually filed a comment with substantially the same allegations and arguments as
that of Lucina Santos'.54
In their comment, respondents allege that when the trial court granted the motion to dismiss, Ramon
Ching's counsel was notified in open court that the dismissal was without prejudice. They argue that
the trial court's order became final and executory when he failed to file his motion for
reconsideration within the reglementary period.55
Respondents argue that the petition for review should be dismissed on the ground of forum shopping
and litis pendencia. since Ramon Ching and Po Wing Properties are seeking relief simultaneously in
two forums by filing the two petitions for certiorari, which involved the same omnibus order by the
trial court.56 They also argue that the "two-dismissal rule" and res judicata did not apply since (1) the
failure to amend a complaint is not a dismissal, and (2) they only moved for dismissal once in the
second case.57
In their reply,58 petitioners argue that they did not commit forum shopping since the actions they
commenced against respondents stemmed from the complaints filed against them in the trial
59
courts. They reiterate that their petition for review is only about the second case; it just so
happened that the assailed omnibus order resolved both the second and third cases. 60
Upon the filing of the parties' respective memoranda,61 the case was submitted for decision.62
For this court's resolution are the following issues:

I.

Whether the trial court's dismissal of the second case operated as a bar to the filing of a
third case, as per the "two-dismissal rule"; and

II.

Whether respondents committed forum shopping when they filed the third case while the
motion for reconsideration of the second case was still pending.

complaint may be dismissed upon motion of the defendant or upon the court's own motion, without
prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate
action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise
declared by the court. (Emphasis supplied)chanroblesvirtuallawlibrary
The first section of the rule contemplates a situation where a plaintiff requests the dismissal of the
case before any responsive pleadings have been filed by the defendant. It is done through notice by
the plaintiff and confirmation by the court. The dismissal is without prejudice unless otherwise
declared by the court.

The petition is denied.

The "two-dismissal rule" vis-a-vis
the Rules of Civil Procedure
Dismissals of actions are governed by Rule 17 of the 1997 Rules of Civil Procedure. The pertinent
provisions state:ChanRoblesVirtualawlibrary
RULE 17
DISMISSAL OF ACTIONS
SEC. 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a
notice of dismissal at any time before service of the answer or of a motion for summary judgment.
Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise
stated in the notice, the dismissal is without prejudice, except that a notice operates as an
adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim.
SEC. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding section, a
complaint shall not be dismissed at the plaintiffs instance save upon approval of the court and upon
such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a
defendant prior to the service upon him of the plaintiffs motion for dismissal, the dismissal shall be
limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the
motion he manifests his preference to have his counterclaim resolved in the same action. Unless
otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class
suit shall not be dismissed or compromised without the approval of the court.
SEC. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails to appear on
the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for
an unreasonable length of time, or to comply with these Rules or any order of the court, the

The second section of the rule contemplates a situation where a counterclaim has been pleaded by
the defendant before the service on him or her of the plaintiffs motion to dismiss. It requires leave of
court, and the dismissal is generally without prejudice unless otherwise declared by the court.
The third section contemplates dismissals due to the fault of the plaintiff such as the failure to
prosecute. The case is dismissed either upon motion of the defendant or by the court motu propio.
Generally, the dismissal is with prejudice unless otherwise declared by the court.
In all instances, Rule 17 governs dismissals at the instance of the plaintiff, not of the defendant.
Dismissals upon the instance of the defendant are generally governed by Rule 16, which covers
motions to dismiss.63
64

In Insular Veneer, Inc. v. Hon. Plan, Consolidated Logging and Lumber Mills filed a complaint against
Insular Veneer to recover some logs the former had delivered to the latter. It also filed ex parte a
motion for issuance of a restraining order. The complaint and motion were filed in a trial court in
Isabela.65
The trial court granted the motion and treated the restraining order as a writ of preliminary
injunction. When Consolidated Logging recovered the logs, it filed a notice of dismissal under Rule 17,
66
Section 1 of the 1964 Rules of Civil Procedure.
While the action on its notice for dismissal was pending, Consolidated Logging filed the same
complaint against Insular Veneer, this time in a trial court in Manila. It did not mention any previous
action pending in the Isabela court.67
The Manila court eventually dismissed the complaint due to the non-appearance of Consolidated
Logging's counsel during pre-trial. Consolidated Logging subsequently returned to the Isabela court to
revive the same complaint. The Isabela court apparently treated the filing of the amended complaint

as a withdrawal of its notice of dismissal.

68

Insular Veneer also filed in the Isabela court a motion to dismiss, arguing that the dismissal by the
Manila court constituted res judicata over the case. The Isabela court, presided over by Judge Plan,
denied the motion to dismiss. The dismissal was the subject of the petition for certiorari and
69
mandamus with this court.
This court stated that:ChanRoblesVirtualawlibrary
In resolving that issue, we are confronted with the unarguable fact that Consolidated Logging on its
volition dismissed its action for damages and injunction in the Isabela court and refiled substantially
the same action in the Manila court. Then, when the Manila court dismissed its action for failure to
prosecute, it went hack [sic] to the Isabela court and revived its old action by means of an amended
complaint.
Consolidated Logging would like to forget the Manila case, consign it to oblivion as if it were a bad
dream, and prosecute its amended complaint in the Isabela court as if nothing had transpired in the
Manila court. We hold that it cannot elude the effects of its conduct in junking the Isabela case and in
giving that case a reincarnation in the Manila court. Consolidated Logging' [sic] filed a new case in
Manila at its own risk. Its lawyer at his peril failed to appear at the pretrial.70chanRoblesvirtualLawlibrary

second time that the plaintiff caused its dismissal. Accordingly, for a dismissal to operate as an
adjudication upon the merits, i.e, with prejudice to the re-filing of the same claim, the following
requisites must be present:ChanRoblesVirtualawlibrary
(1) There was a previous case that was dismissed by a competent court;
(2) Both cases were based on or include the same claim;
(3) Both notices for dismissal were filed by the plaintiff; and
(4) When the motion to dismiss filed by the plaintiff was consented to by the defendant on the
ground that the latter paid and satisfied all the claims of the former. 72chanRoblesvirtualLawlibrary
The purpose of the "two-dismissal rule" is "to avoid vexatious litigation."73 When a complaint is
dismissed a second time, the plaintiff is now barred from seeking relief on the same claim.
The dismissal of the second case
was without prejudice in view of the
"two-dismissal rule"
Here, the first case was filed as an ordinary civil action. It was later amended to include not only new
defendants but new causes of action that should have been adjudicated in a special proceeding. A
motion to dismiss was inevitably filed by the defendants on the ground of lack of jurisdiction.
The trial court granted that motion to dismiss, stating that:ChanRoblesVirtualawlibrary

This court ruled that the filing of the amended complaint in the Isabela court was barred by the prior
dismissal of the Manila court, stating that:ChanRoblesVirtualawlibrary
The provision in section 1(e), Rule 16 of the Rules of Court that an action may be dismissed because
"there is another action pending between the same parties for the same cause" presupposes that
two similar actions are simultaneously pending in two different Courts of First Instance. Lis
pendens as a ground for a motion to dismiss has the same requisites as the plea of res judicata.
On the other hand, when a pleading is amended, the original pleading is deemed abandoned. The
original ceases to perform any further function as a pleading. The case stands for trial on the
amended pleading only. So, when Consolidated Logging filed its amended complaint dated March 16,
1970 in Civil Case No. 2158, the prior dismissal order dated January 5, 1970 in the Manila case could
he [sic] interposed in the Isabela court to support the defense of res
judicata.71chanRoblesvirtualLawlibrary
As a general rule, dismissals under Section 1 of Rule 17 are without prejudice except when it is the

A careful perusal of the allegations of the Amended Complaint dated February 10, 1999, filed by
Plaintiff Joseph Cheng, show that additional causes of action were incorporated i.e. extra-judicial
settlement of the intestate estate of Antonio Ching and receivership, subject matters, which should
be threshed out in a special proceedings case. This is a clear departure from the main cause of action
in the original complaint which is for declaration of nullity of certificate of titles with damages. And
the rules of procedure which govern special proceedings case are different and distinct from the rules
of procedure applicable in an ordinary civil action.
In view of the afore-going, the court finds the Motion to Dismiss filed by Atty. Maria Lina Nieva S.
Casals to be meritorious and the Court is left with no alternative but to dismiss as it hereby dismisses
the Amended Complaint.
However, on motion of Atty. Mirardo Arroyo Obias, counsel for the plaintiffs, he is given a period of
fifteen (15) days from today, within which to file an appropriate pleading, copy furnished to all the
parties concerned.

exceptions.
....
SO ORDERED.

74

Petitioners are of the view that when Atty. Mirardo Arroyo Obias failed to file the appropriate
pleading within fifteen (15) days, he violated the order of the court. This, they argue, made the
original dismissal an adjudication upon the merits, in accordance with Rule 17, Section 3, i.e., a
dismissal through the default of the plaintiff. Hence, they argue that when respondents filed the
second case and then caused its dismissal, the dismissal should have been with prejudice according to
Rule 17, Section 1, i.e., two dismissals caused by the plaintiff on the same claim.
Unfortunately, petitioners' theory is erroneous.
The trial court dismissed the first case by granting the motion to dismiss filed by the
defendants. When it allowed Atty. Mirardo Arroyo Obias a period of fifteen (15) days to file an
appropriate pleading, it was merely acquiescing to a request made by the plaintiffs counsel that had
no bearing on the dismissal of the case.
Under Rule 17, Section 3, a defendant may move to dismiss the case if the plaintiff defaults; it does
not contemplate a situation where the dismissal was due to lack of jurisdiction. Since there was
already a dismissal prior to plaintiffs default, the trial court's instruction to file the appropriate
pleading will not reverse the dismissal. If the plaintiff fails to file the appropriate pleading, the trial
court does not dismiss the case anew; the order dismissing the case still stands.
The dismissal of the first case was done at the instance of the defendant under Rule 16, Section 1(b)
of the Rules of Civil Procedure, which states:ChanRoblesVirtualawlibrary
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:
....

Thus, when respondents filed the second case, they were merely refiling the same claim that had
been previously dismissed on the basis of lack of jurisdiction. When they moved to dismiss the second
case, the motion to dismiss can be considered as the first dismissal at the plaintiffs instance.
Petitioners do not deny that the second dismissal was requested by respondents before the service of
any responsive pleadings. Accordingly, the dismissal at this instance is a matter of right that is not
subject to the trial court's discretion. In O.B. Jovenir Construction and Development Corporation v.
76
Macamir Realty and Development Corporation:
[T]he trial court has no discretion or option to deny the motion, since dismissal by the plaintiff under
Section 1, Rule 17 is guaranteed as a matter of right to the plaintiffs. Even if the motion cites the most
ridiculous of grounds for dismissal, the trial court has no choice but to consider the complaint as
dismissed, since the plaintiff may opt for such dismissal as a matter of right, regardless of
ground77 (Emphasis supplied)chanroblesvirtuallawlibrary
For this reason, the trial court issued its order dated November 22, 2002 dismissing the case, without
prejudice. The order states:ChanRoblesVirtualawlibrary
When this Motion was called for hearing, all the plaintiffs namely, Joseph Cheng, Jaime Cheng,
Mercedes Igne and Lucina Santos appeared without their counsels. That they verbally affirmed the
execution of the Motion to Dismiss, as shown by their signatures over their respective names
reflected thereat. Similarly, none of the defendants appeared, except the counsel for defendant,
Ramon Chang [sic], who manifested that they have not yet filed their Answer as there was a defect in
the address of Ramon Cheng [sic] and the latter has not yet been served with summons.
Under the circumstances, and further considering that the defendants herein have not yet filed their
Answers nor any pleading, the plaintiffs has [sic] the right to out rightly [sic] cause the dismissal of the
Complaint pursuant to Section 2, Rule 17 of the 1997 Rules of Civil Procedure without prejudice.
Thereby, and as prayed for, this case is hereby ordered DISMISSED without prejudice.
SO ORDERED.78 (Emphasis supplied)

(b) That the court has no jurisdiction over the subject matter of the claim;chanrobleslaw
....
Under Section 5 of the same rule,75 a party may re-file the same action or claim subject to certain

When respondents filed the third case on substantially the same claim, there was already one prior
dismissal at the instance of the plaintiffs and one prior dismissal at the instance of the defendants.
While it is true that there were two previous dismissals on the same claim, it does not necessarily
follow that the re-filing of the claim was barred by Rule 17, Section 1 of the Rules of Civil Procedure.

The circumstances surrounding each dismissal must first be examined to determine before the rule
may apply, as in this case.
Even assuming for the sake of argument that the failure of Atty. Mirardo Arroyo Obias to file the
appropriate pleading in the first case came under the purview of Rule 17, Section 3 of the Rules of
Civil Procedure, the dismissal in the second case is still considered as one without prejudice. In Gomez
79
v. Alcantara:
The dismissal of a case for failure to prosecute has the effect of adjudication on the merits, and is
necessarily understood to be with prejudice to the filing of another action, unless otherwise provided
in the order of dismissal. Stated differently, the general rule is that dismissal of a case for failure to
prosecute is to be regarded as an adjudication on the merits and with prejudice to the filing of
another action, and the only exception is when the order of dismissal expressly contains a
80
qualification that the dismissal is without prejudice. (Emphasis supplied)
In granting the dismissal of the second case, the trial court specifically orders the dismissal to be
without prejudice. It is only when the trial court's order either is silent on the matter, or states
otherwise, that the dismissal will be considered an adjudication on the merits.
However, while the dismissal of the second case was without prejudice, respondents' act of filing the
third case while petitioners' motion for reconsideration was still pending constituted forum shopping.
The rule against forum shopping
and the "twin-dismissal rule"
In Yap v. Chua:81
Forum shopping is the institution of two or more actions or proceedings involving the same parties for
the same cause of action, either simultaneously or successively, on the supposition that one or the
other court would make a favorable disposition. Forum shopping may be resorted to by any party
against whom an adverse judgment or order has been issued in one forum, in an attempt to seek a
favorable opinion in another, other than by appeal or a special civil action for certiorari. Forum
shopping trifles with the courts, abuses their processes, degrades the administration of justice and
congest court dockets. What is critical is the vexation brought upon the courts and the litigants by a
party who asks different courts to rule on the same or related causes and grant the same or
substantially the same reliefs and in the process creates the possibility of conflicting decisions being
rendered by the different fora upon the same issues. Willful and deliberate violation of the rule
against forum shopping is a ground for summary dismissal of the case; it may also constitute direct

contempt.
To determine whether a party violated the rule against forum shopping, the most important factor to
ask is whether the elements of litis pendentia are present, or whether a final judgment in one case
will amount to res judicata in another; otherwise stated, the test for determining forum shopping is
whether in the two (or more) cases pending, there is identity of parties, rights or causes of action,
82
and reliefs sought. (Emphasis supplied)
When respondents filed the third case, petitioners' motion for reconsideration of the dismissal of the
second case was still pending. Clearly, the order of dismissal was not yet final since it could still be
overturned upon reconsideration, or even on appeal to a higher court.
Moreover, petitioners were not prohibited from filing the motion for reconsideration. This court has
83
already stated in Narciso v. Garcia that a defendant has the right to file a motion for reconsideration
of a trial court's order denying the motion to dismiss since "[n]o rule prohibits the filing of such a
motion for reconsideration."84 The second case, therefore, was still pending when the third case was
filed.
The prudent thing that respondents could have done was to wait until the final disposition of the
second case before filing the third case. As it stands, the dismissal of the second case was without
prejudice to the re-filing of the same claim, in accordance with the Rules of Civil Procedure. In their
haste to file the third case, however, they unfortunately transgressed certain procedural safeguards,
among which are the rules on litis pendentia and res judicata.
In Yap:ChanRoblesVirtualawlibrary
Litis pendentia as a ground for the dismissal of a civil action refers to that situation wherein another
action is pending between the same parties for the same cause of action, such that the second action
becomes unnecessary and vexatious. The underlying principle of litis pendentia is the theory that a
party is not allowed to vex another more than once regarding the same subject matter and for the
same cause of action. This theory is founded on the public policy that the same subject matter should
not be the subject of controversy in courts more than once, in order that possible conflicting
judgments may be avoided for the sake of the stability of the rights and status of persons.
The requisites of litis pendentia are: (a) the identity of parties, or at least such as representing the
same interests in both actions; (b) the identity of rights asserted and relief prayed for, the relief being
founded on the same facts; and (c) the identity of the two cases such that judgment in one,

85

regardless of which party is successful, would amount to res judicata in the other. (Emphasis
supplied)chanroblesvirtuallawlibrary
There is no question that there was an identity of parties, rights, and reliefs in the second and third
cases. While it may be true that the trial court already dismissed the second case when the third case
was filed, it failed to take into account that a motion for reconsideration was filed in the second case
and, thus, was still pending. Considering that the dismissal of the second case was the subject of the
first certiorari case and this present petition for review, it can be reasonably concluded that the
second case, to this day, remains pending.
Hence, when respondents filed the third case, they engaged in forum shopping. Any judgment by this
court on the propriety of the dismissal of the second case will inevitably affect the disposition of the
third case.
This, in fact, is the reason why there were two different petitions for certiorari before the appellate
court. The omnibus order dated July 30, 2004 denied two pending motions by petitioners: (1) the
motion for reconsideration in the second case and (2) the motion to dismiss in the third case. Since
petitioners are barred from filing a second motion for reconsideration of the second case, the first
certiorari case was filed before the appellate court and is now the subject of this review.
The denial of petitioners' motion for reconsideration in the third case, however, could still be the
subject of a separate petition for certiorari. That petition would be based now on the third case, and
not on the second case.
This multiplicity of suits is the very evil sought to be avoided by the rule on forum shopping. In Dy v.
Mandy Commodities Co., Inc.,86 the rule is that:ChanRoblesVirtualawlibrary
Once there is a finding of forum shopping, the penalty is summary dismissal not only of the petition
pending before this Court, but also of the other case that is pending in a lower court. This is so
because twin dismissal is a punitive measure to those who trifle with the orderly administration of
justice.87 (Emphasis supplied)chanroblesvirtuallawlibrary
The rule originated from the 1986 case of Buan v. Lopez, Jr.88 In Buan, petitioners filed a petition for
prohibition with this court while another petition for prohibition with preliminary injunction was
pending before the Regional Trial Court of Manila involving the same parties and based on the same
set of facts. This court, in dismissing both actions, stated:ChanRoblesVirtualawlibrary

Indeed, the petitioners in both actions . . . have incurred not only the sanction of dismissal of their
case before this Court in accordance with Rule 16 of the Rules of Court, but also the punitive measure
of dismissal of both their actions, that in this Court and that in the Regional Trial Court as well. Quite
recently, upon substantially identical factual premises, the Court en banc had occasion to condemn
and penalize the act of litigants of filing the same suit in different courts, aptly described as "forum89
shopping[.]" chanRoblesvirtualLawlibrary
The rule essentially penalizes the forum shopper by dismissing all pending actions on the same claim
filed in any court. Accordingly, the grant of this petition would inevitably result in the summary
dismissal of the third case. Any action, therefore, which originates from the third case pending with
any court would be barred by res judicata.
Because of the severity of the penalty of the rule, an examination must first.be made on the purpose
of the rule. Parties resort to forum shopping when they file several actions of the same claim in
different forums in the hope of obtaining a favorable result. It is prohibited by the courts as it
"trifle[s] with the orderly administration of justice."90
In this case, however, the dismissal of the first case became final and executory upon the failure of
respondents' counsel to file the appropriate pleading. They filed the correct pleading the second time
around but eventually sought its dismissal as they "[suspected] that their counsel is not amply
protecting their interests as the case is not moving for almost three (3) years." 91 The filing of the third
case, therefore, was not precisely for the purpose of obtaining a favorable result but only to get the
case moving, in an attempt to protect their rights.
It appears that the resolution on the merits of the original controversy between the parties has long
been mired in numerous procedural entanglements. While it might be more judicially expedient to
apply the "twin-dismissal rule" and disallow the proceedings in the third case to continue, it would
not serve the ends of substantial justice. Courts of justice must always endeavor to resolve cases on
their merits, rather than summarily dismiss these on technicalities:ChanRoblesVirtualawlibrary
[C]ases should be determined on the merits, after all parties have been given full opportunity to
ventilate their causes and defenses, rather than on technicalities or procedural imperfections. In that
way, the ends of justice would be served better. Rules of procedure are mere tools designed to
expedite the decision or resolution of cases and other matters pending in court. A strict and rigid
application of rules, resulting in technicalities that tend to frustrate rather than promote substantial
justice, must be avoided. In fact, Section 6 of Rule 1 states that the Rules [on Civil Procedure] shall be
liberally construed in order to promote their objective of ensuring the just, speedy and inexpensive
disposition of every action and proceeding.92 (Emphasis supplied)chanroblesvirtuallawlibrary

The rule on forum shopping will not strictly apply when it can be shown that (1) the original case has
been dismissed upon request of the plaintiff for valid procedural reasons; (2) the only pending matter
is a motion for reconsideration; and (3) there are valid procedural reasons that serve the goal of
substantial justice for the fresh new case to proceed.
The motion for reconsideration filed in the second case has since been dismissed and is now the
subject of a petition for certiorari. The third case filed apparently contains the better cause of action
for the plaintiffs and is now being prosecuted by a counsel they are more comfortable with.
Substantial justice will be better served if respondents do not fall victim to the labyrinth in the
procedures that their travails led them. It is for this reason that we deny the petition.
WHEREFORE, the petition is DENIED. The Regional Trial Court of Manila, Branch 6 is ordered to
proceed with Civil Case No. 02-105251 with due and deliberate dispatch.
SO ORDERED.cralawlawlibrary
Carpio, (Chairperson), Del Castillo, Mendoza, and Perlas-Bernabe,* JJ., concur.