FIRST DIVISION
[G.R. No. 227488. September 29, 2021.]
ASIAWIDE REFRESHMENTS CORPORATION, petitioner,vs. OMBUDSMAN CONCHITA CARPIO-MORALES, PUBLIC ATTORNEY MARIA LOVELLA C. SAMERA, AND IMELDA B. ORTIZ, respondents.
[G.R. No. 245533. September 29, 2021.]
ASIAWIDE REFRESHMENTS CORPORATION, petitioner,vs. IMELDA B. ORTIZ, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated September 29, 2021 which reads as follows:
"G.R. No. 227488: Asiawide Refreshments Corporation v. Ombudsman Conchita Carpio-Morales, Public Attorney Maria Lovella C. Samera, and Imelda B. Ortiz
G.R. No. 245533: Asiawide Refreshments Corporation v. Imelda B. Ortiz
The petitions must fail.
G.R. No. 227488
The Office of the Ombudsman (OMB) judiciously acted when it dismissed outright the complaint for usurpation of judicial functions against Atty. Maria Lovella C. Samera (Atty. Samera) and her alleged co-conspirator Imelda B. Ortiz (Ortiz). Consider:
First. Section 4, Article X of the Manual on Pre-Litigation Conference of the Public Attorney's Office (PAO) ordains, viz.:
SECTION 4. Mediation, Arbitration and Conciliation. — Requests for legal assistance in justiciable civil matters, shall first be evaluated by the District Public Attorney/Officer-in-Charge for the purpose of determining whether the issues could possibly be resolved through mediation or conciliation. In the affirmative, the case shall be assigned to a lawyer of the District, who shall immediately schedule the same for mediation conference, notifying both parties thereof. Conferences shall be within 3 months from acceptance of the case.
4.1 Public Attorneys conducting mediation or conciliation conferences, shall always maintain strict neutrality. They shall encourage the parties to come to an agreement. If a settlement is reached, the lawyer shall prepare a compromise agreement for the signature of the parties. If no agreement is arrived at, the lawyer shall determine whether or not a case should be filed on behalf of the applicant, and submit his/her recommendation to the District Head, who shall decide the matter. If a decision to file a case is reached, the matter shall be transferred to the Judicial Cases record of the District. (Emphases added)
As a public attorney herself, Atty. Samera simply discharged her duty under the foregoing provisions when she issued the Notice for Pre-Litigation Conference to petitioner Asiawide Refreshments Corporation (ARC) and Ortiz. For doing so, she could not be guilty of any infraction under the law. Suffice it to state that petitioner's sweeping, nay, unsubstantiated declaration that the aforequoted provisions ought to be nullified is at best preposterous.
Second. It is erroneous to claim that the Notice for Pre-Litigation Conference was meant to compel the parties to submit to mediation or conciliation. Compulsion is anathema to the voluntary nature of mediation or conciliation. The Notice for Pre-Litigation Conference 1 speaks for itself, viz.:
Please be informed that MS. IMELDA B. ORTIZ of Blk3 L23, Las Palmas Subd., Caypombo, Sta. Maria, Bulacan has referred a complaint against you for DAMAGES. After interview, the undersigned deems it best to conduct a Pre-Litigation Conference whereby you may present your side on the matter or settle the case amicably on the date, time, and place indicated below:
Date: 21 JANUARY 2016
You may avail the services of a lawyer to assist you during the pre-litigation conference. However, even without your lawyer, the same will proceed as scheduled. Rest assured that you will be afforded your rights under the law during these proceedings.
Your preferential attention on this matter shall be to your interest and benefit as a court action may be avoided.
Third. For perspective, when Atty. Samera sent out the Notice for Pre-Litigation Conference, PAO had not granted yet the request for legal assistance of Ortiz. At that point, the mandate of Atty. Samera was solely to explore the possibility of resolving the case through mediation or conciliation with the end in view of encouraging the parties to settle their issues amicably rather than resort to the tedious and costly litigation in court. This is in line with the policy of the Court to encourage litigants to resort to alternative means of dispute settlement which not only unclogs judicial dockets but also aids in the speedy disposition of cases pursuant to A.M. No. 19-10-SC (Guidelines for the Conduct of Court-Annexed Mediation and Judicial Dispute Resolution in Civil Cases) and A.M. No. 01-10-5-SC PHILJA, among others.
Fourth. Dumanlag v. Intong,2 is apropos. In that case, Datu Budencio Dumanlag sought the disbarment of Atty. Winston Intong for inviting the former to a pre-litigation conference. Dumanlag took offense with the invitation as it was allegedly intended to force his attendance in an investigation at Atty. Intong's law office where the latter would dare act as a judge in a court of law. In dismissing Dumanlag's disbarment complaint, the Court noted that the alleged force or compulsion was negated by the very words used in the Notice of Pre-Litigation Conference which connote a mere request or invitation. The Court also emphasized that Atty. Intong simply pursued this avenue in accordance with his duty under Rule 1.04, Canon 1 of the Code of Professional Responsibility (CPR) that "[a] lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement."
In another vein, petitioner cannot demand as a matter of right that its complaint against Atty. Samera and Ortiz be resolved on the merits, instead of the same being dismissed outright as what the OMB did.
On this score, we refer to Section 2, Rule II of Ombudsman Administrative Matter No. 7, series of 1990, the Rules of Procedure of the Office of the Ombudsman, thus:
Section 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation. (Emphasis supplied)
As heretofore shown, the OMB did not gravely abuse its discretion when it dismissed outright petitioner's complaint for usurpation of judicial functions against Atty. Samera and Ortiz. The decree of dismissal is sanctioned by the rules and supported by substantial evidence on record.
G.R. No. 245533
The issues here are (1) Did the Municipal Trial Court (MTC), Sta. Maria, Bulacan acquire jurisdiction over the person of petitioner, Asiawide Refreshments Corporation (ARC) in Civil Case No. 2223?; 3 (2) Is the dismissal of the DOH complaint res judicata to Civil Case No. 2223?; (3) Did Ortiz engage in forum shopping?; and (4) Does Ortiz have a cause of action against petitioner?
a. The MTC acquired jurisdiction over the person of petitioner
Civil Case No. 2223 was filed before the MTC on February 2, 2016. 4 When summons was served on petitioner on March 31, 2016, the applicable rule was Rule 14, Section 11 of the 1997 Rules of Civil Procedure, viz.:
Section 11. Service upon domestic private juridical entity. — When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.
Section 20 of the same Rule ordains:
Section 20. Voluntary appearance. — The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.
There is no denying that original summons was improperly served on petitioner's clerical employee who is not among the persons authorized by the rules to receive summons for the company, i.e, president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. In fact, the MTC itself recognized this error. But the MTC immediately rectified this error by causing the issuance and proper service of alias summons on petitioner. This is in accordance with G.V. Florida Transport, Inc. v. Tiara Commercial Corporation, 5 thus:
Still, improper service of summons and lack of voluntary appearance do not automatically warrant the dismissal of the complaint. In Lingner & Fisher GMBH v. Intermediate Appellate Court, we held:
A case should not be dismissed simply because an original summons was wrongfully served. It should be difficult to conceive, for example, that when a defendant personally appears before a Court complaining that he had not been validly summoned, that the case filed against him should be dismissed. An alias summons can be actually served on said defendant.
We repeated this doctrine in later cases such as Tung Ho Steel Enterprises Corporation v. Ting Guan Trading Corporation, Spouses Anunciacion v. Bocanegra, and Teh v. Court of Appeals.
xxx xxx xxx
Thus, when there is improper service of summons and the defendant makes a special appearance to question this, the proper and speedy remedy is for the court to issue alias summons. (Emphases added)
In Philippine American Life & General Insurance Company v. Breva,6 the Court decreed that the trial court did not act in grave abuse of discretion when it declined to dismiss the complaint solely on ground of lack of jurisdiction over the person of the defendant due to improper service of summons when alias summons can actually be served on the latter.
b. Res Judicata
Res judicata refers to the rule that a final judgment or decree on the merits by a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all later suits. Simply stated, it bars a party from litigating the same issue more than once. 7 Section 47, Rule 39 of the 1997 Rules of Civil Procedure ordains:
Section 47. Effect of judgments or final orders. — The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:
xxx xxx xxx
(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, conclusive between the parties and their successors in interest, by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and
(c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.
The provision comprehends two (2) concepts of res judicata: bar by prior judgment and conclusiveness of judgment. The first concept is the effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand or cause of action. On the other hand, the second concept precludes the re-litigation of a particular fact of issue in another action between the same parties on a different claim or cause of action. 8
Res judicata as a bar by prior judgment requires: (1) the prior decision must be a final judgment or order; (2) the court rendering the same must have jurisdiction over the subject matter and over parties; (3) there must be identity of parties, subject matter, and causes of action between the two cases; and (4) it must be a judgment or order on the merits. 9 Meanwhile, conclusiveness of judgment requires the same circumstances, except identity of causes of action. 10
There is no question here regarding the presence of the first, second, and fourth elements. The decree of dismissal against the DOH consumer complaint of Ortiz is already final and executory. 11 The jurisdiction of the DOH over the case is vested by Republic Act No. 7394. 12 Finally, the dismissal of the complaint was based on the merits as the DOH found no substantial evidence to support the consumer complaint.
As for the third requisite — identity of parties and subject matter. In both DOH consumer and civil cases, the subject matter is the same, the alleged "fetus-like" substance in the 800ml RC bottle. But the causes of action are different. In the DOH consumer case, the cause of action is for violation of RA 7394 while in the civil case, it is for moral and exemplary damages based on Articles 2217 and 2229 of the Civil Code.
Verily, in view of the lacking element of identity of causes of action, res judicata in the concept of bar by prior judgment does not find application here.
Petitioner nonetheless argues that the final ruling of the DOH that "the sealed bottle was previously opened and re-sealed, hence, the possibility of tampering may be present in the above case" should already warrant the dismissal of the civil case based on the second concept of res judicata, that is, conclusiveness of judgment. Since the "possibility of tampering" as a fact had already attained finality, the civil case for damages necessarily has lost its factual anchor.
To clarify, the only concluded fact is the mere possibility that the subject 800 ml RC Bottle was tampered. Nothing more. There is no finality, nay, certainty that indeed the claim of Ortiz in the civil suit that the bottle contained a fetus-like substance is a sham. There is a need to settle this factual issue by presentation of evidence in the civil suit for the ultimate purpose of converting a "possibility" to "reality" or "falsity," as the case may be. Until then, the civil suit stays alive.
c. Ortiz did not commit forum shopping
There is forum shopping when a party institutes two or more suits in different courts, either simultaneously or successively, in order to ask the courts to rule on the same or related causes or to grant the same or substantially the same reliefs, on the supposition that one or the other court would make a favorable disposition or increase a party's chances of obtaining a favorable decision or action. 13 The proscription against forum shopping is embodied in Section 5, Rule 7 of our Rules of Court, thus:
Section 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 the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.
To determine whether a party violated the rule against forum shopping, the most important factor 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 cases pending, there is identity of parties, rights or causes of action, and remedies sought. 14 To repeat, there is no identity of causes of action here. The consumer complaint before the DOH does not share the same cause of action as the complaint for damages before the MTC. Verily, Ortiz did not commit forum shopping when she initiated these twin actions separately against petitioner.
Besides, Ortiz does not appear to have been impelled by malicious ulterior motives or any willful or deliberate intent to commit forum shopping when she successively filed these cases. In fact, in her certification of non-forum shopping in Civil Case No. 2223, she disclosed that she had then a pending consumer complaint before the DOH.
d. Determining whether Ortiz has a cause of action against petitioner in the civil suit prior to the resolution of the factual issues raised therein is premature
Failure to state a cause of action and lack of cause of action are distinct grounds to dismiss a particular action. The former refers to the insufficiency of the allegations in the pleading, while the latter to the insufficiency of the factual basis for the action. Under the 1997 Rules of Civil Procedure, dismissal for failure to state a cause of action may be raised at the earliest stages of the proceedings through a motion to dismiss under Rule 16, 15 while dismissal for lack of cause of action may be raised any time after the questions of fact have been resolved on the basis of stipulations, admissions or evidence presented by the plaintiff. 16 Prior thereto, the dismissal of the case on the ground of lack of cause of action is at best premature.
ACCORDINGLY, the petition for certiorari in G.R. No. 227488 is DISMISSED. The Notice dated July 11, 2016 and Letter dated August 24, 2016 of the Office of the Ombudsman in IC-OL-16-0477 are AFFIRMED.
Further, the petition for review on certiorari in G.R. No. 245533 is DENIED. The Decision dated July 25, 2018 and Resolution dated January 24, 2019 of the Court of Appeals in CA-G.R. SP No. 155409 are AFFIRMED.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
by:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Rollo, p. 75.
2. See 797 Phil. 1, 4 (2016).
3.Rollo, p. 65.
4.Id. at 7.
5. 820 Phil. 235, 253 (2017).
6. 484 Phil. 824, 828 (2004).
7.Degayo v. Magbanua-Dinglasan, 757 Phil. 376, 382 (2015).
8.Heirs of Elliot, et al. v. Corcuera, G.R. No. 233767, August 27, 2020.
9.Id.
10.Monterona v. Coca-Cola Bottlers Philippines, G.R. No. 209116, January 14, 2019.
11. RA 7394, Entitled, "Consumer Act of the Phil." Article 165. Appeal from Orders. — Any order, not interlocutory of the Consumer arbitration officer, becomes final and executory unless appealed to the Department Secretary concerned within fifteen (15) days from receipt of such order. x x x
12. Entitled, "Consumer Act of the Philippines," Article 159. Consumer Complaints. — The concerned department may commence an investigation upon petition or upon letters complaint from any consumer: Provided, That, upon a finding by the department of prima facie violation of any provisions of this Act or any rule or regulation promulgated under its authority, it may motu proprio or upon verified complaint commence formal administrative action against any person who appears responsible therefor. The department shall establish procedures for systematically logging in, investigating and responding to consumer complaints into the development of consumer policies, rules and regulations, assuring as far as practicable simple and easy access on the part of the consumer to seek redress for his grievances.
13.Zamora v. Quinan, et al., 861 Phil. 1009, (2017), citing Top Rate Construction & General Services, Inc. v. Paxton Development Corporation, 457 Phil. 740 (2003).
14.Heirs of Mampo v. Morada, G.R. No. 214526, (November 3, 2020).
15. Failure to state a cause of action is an affirmative defense under Section 12, Rule 8 of the amended rules.
16.Santos v. Santos-Gran, 745 Phil. 171, 178 (2014).