Case #15 [G.R. No. 150107. January 28, 2008.

] TOKIO MARINE MALAYAN INSURANCE COMPANY INCORPORATED, ALMA PEALOSA, KIMIO HOSAKA, SUMITOMI NISHIDA, TERESITA H. QUIAMBAO and ANTONIO B. LAPID , petitioners, vs . JORGE VALDEZ , respondent. Topic: What is forum shopping? FORUM SHOPPING: the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively for the purpose of obtaining a favorable judgement. Facts: Respondent Jorge Valdez was a former unit manager of Petitioner Tokio Marine pursuant to a Unit Management Contract entered into August 16, 1977. Oct 15, 1998: Respondent filed a complaint against Petitioner with the RTC for violation of the terms of the Unit Management Contract, stating that he was not paid his commission and bonuses. Thus he prayed for a) actual damages in the total amount of P71,866,205.67 and the corresponding interests; b) moral damages of P10,000,000.00; c) exemplary damages amounting to P10,000,000.00; d) attorney's fees corresponding to 30% of the said amounts; and e) costs of the suit.

Eventually, respondent filed an Urgent Ex Parte Motion for Authority to Litigate as Indigent Plaintiff which was granted. Thus, his complaint was filed without payment of filing fees computed at Php 615,672.83. However, this amount constituted as a lien upon any judgment rendered in his favor.

It should also be noted that the respondent filed various criminal complaints against the petitioners. This fact was manifested before the trial court.

Petitioner now argues, among others, that the respondent engaged in forum shopping.

Issue: DID THE RESPONDENT ENGAGE IN FORUM SHOPPING? Ruling: NO. Forum shopping, as enunciated in Gatmaytan vs CA, is the act of a litigant who repetitively availed of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely by some other court to increase his chances of obtaining a favorable decision if not in one court, then in another

In this case, the respondents certificate of Non Forum Shopping attached to the Civil Case states the ff:
FURTHER, that he has not heretofore commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency, except the criminal case for SWINDLING (ESTAFA) under Art. 315, paragraph 1 (b) and for FALSIFICATION BY PRIVATE INDIVIDUALS OF PRIVATE DOCUMENTS under Art. 172, paragraph 2 of the Revised Penal Code to be filed before the Makati Prosecutor's Office, criminal case for violation of the Insurance Code of the Philippines to be filed before the Makati Prosecutor's Office, and the administrative case for violation of the Insurance Code Commission; that to the best of his knowledge no such other action is pending in the Supreme Court and Court of Appeals. HISAET

This is considered SUBSTANTIAL COMPLIANCE with Section 5 of Rule 7 as follows: Section 5, Rule 7 of the 1997 Rules of Civil Procedure, as amended, provides: STcEIC

SEC. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirement shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or noncompliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.
It should be noted that the fact that he has commenced criminal cases was manifested before the trial court (Office of the City Prosecutor of Makati)

Case #16

TOPIC: Certification against forum-shopping in initiatory pleading. Counsel cannot sign certification. DIGITAL MICROWAVE CORPORATION , petitioner, vs . COURT OF APPEALS and ASIAN HIGH TECHNOLOGY CORPORATION , respondents.

FACTS:

December 14, 1994: Private respondent Asian High Technology Corp. filed a complaint against petitioner Digital Microwave Corp. for a sum of money and damages before the Regional Trial Court of Pasig City. Petitioner moved for the dismissal of the complaint. RTC: Denied the motion, as well as petitioner's subsequent motion for reconsideration. Petitioner then initiated a special civil action for certiorari before the Court of Appeals, alleging grave abuse of discretion on the part of the trial court. Court of Appeals: Dismissed the petition for failure to comply with Revised Circular No. 28-91, as amended by Administrative Circular No. 04-94. o Requires the petition filed before the Court of Appeals to be accompanied by a sworn certification against forum shopping, signed by petitioner himself. o Petitioner's certification was signed by counsel; the petition was, thus, dismissed. MR to CA: submitted a sworn certification against forum shopping duly signed by one of its senior officers. The motion was, however, denied, with the Court of Appeals stating that: o "In the present case, absent any compelling reason for petitioner's failure to comply, at the first instance, with Revised Supreme Court Circular No. 28-91, the Court cannot therefore, accept its subsequent compliance." Hence this petition.

PETITIONER CONTENTION Petitioner contends that in the case of a corporation as petitioner, the certification against forum shopping may be signed by a natural person authorized to do so and with knowledge of the required facts. The authorized person may be anyone authorized by the corporation, not necessarily an officer thereof. In such a case, petitioner argues, the counsel of record has the authority to execute the certification on behalf of the corporation, particularly considering that under the Rules of Court, counsel's authority to represent his client is presumed. No written power of attorney is required for counsel to appear for his client. ISSUE: WHETHER CERTIFICATION OF NON FORUM SHOPPING MAY BE SIGNED BY COUNSEL AND WILL RESULT TO SUBSTANTIAL COMPLIANCE WITH REVISED CIRCULAR? NO. Counsel cannot sign certification. IT MUST BE ACCOMPLISHED BY PETITIONER HIMSELF. The reason the certification against forum shopping is required to be accomplished by petitioner himself is because only the petitioner himself has actual knowledge of whether or not he has initiated similar actions or proceedings in different courts or agencies. Even his counsel may be unaware of such fact. The Revised Circular No. 28-91 provided: "To avoid [forum shopping], every petition or complaint filed with the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other tribunal or agency, shall comply with the following requirements, aside from pertinent provisions of the Rules of Court and existing circulars: . . . 2. Certification. The party must certify under oath that he has not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other tribunal or agency, and that to the best of his knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency. If there is any other action pending, he must state the status of the same. If he should

learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other tribunal or agency, he should notify the court, tribunal or agency within five (5) days from such notice." This requirement is now found in Rule 7, Section 5 of the 1997 Rules of Civil Procedure. The requirement for a sworn certification against forum shopping was extended by Administrative Circular No. 04-94 to complaints, petitions, applications or other initiatory pleadings filed in all courts or agencies other than the Supreme Court or the Court of Appeals. The Court disagrees with petitioner that a corporation cannot possibly hope to comply with the requirement laid down by Revised Circular No. 28-91 because it is a juridical entity and not a natural person. If this were so, then it would have been impossible for a corporation to do anything at all. Needless to say, this is the reason why corporations have directors and officers, to represent it in its transactions with others. The same is true for the certification against forum shopping. It could easily have been made by a duly authorized director or officer of the corporation.

In the recent case of Spouses Valentin Ortiz and Camilla Milan Ortiz vs. Court of Appeals, et al., 299 SCRA 708, 711-712 (1998), the Court ruled that "Regrettably, we find that substantial compliance will not suffice in a matter involving strict observance as provided for in Circular No. 28-91. The attestation contained in the certification on non-forum shopping requires personal knowledge by the party who executed the same. To merit the Court's consideration, petitioners here must show reasonable cause for failure to personally sign the certification. The petitioners must convince the court that the outright dismissal of the petition would defeat the administration of justice." In this case, petitioner has not adequately explained its failure to have the certification against forum shopping signed by one of its officers. Neither has it shown any compelling reason for us to disregard strict compliance with the rules. As the Court further stated in Spouses Ortiz, "Utter disregard of the rules cannot justly be rationalized by harking on the policy of liberal construction."