• Forum shopping


    Persida Acosta

    Dear PAO,
    I filed a collection case before a Regional Trial Court that was dismissed without prejudice for my failure to pay docket fees in full. I just want to know if I can still refile the case considering that the opposing party’s counsel told me that refiling is now prohibited because doing so would constitute forum shopping.
    Thank you and God bless,

    Dear Reynold,
    Your query has already been answered in the case of Surendra Gobindram Daswani vs. Banco de Oro Universal Bank and Register of Deeds of Makati City (G.R. No. 190983, July 29, 2015, citing Heirs of Sotto vs. Palicte, G.R. No. 159691, February 17, 2014,  Spouses Melo vs. Court of Appeals, G.R. No. 123686, November 16, 1999, Taganas vs. Emuslan, 457 Phil. 305, 311-312 (2003)), wherein the Supreme Court, through former Associate Justice Arturo Brion, explained the rule on forum shopping:

    “Forum shopping exists “when a party repetitively avails 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.”

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    In Yap v. Chua [G.R. No. 186730, June 13, 2012, 672 SCRA 419],  the court elaborately explained the nature of forum shopping, to wit:

    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 [is]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.  [Emphasis supplied.]

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    Moreover, in determining whether a party violated the rule against forum shopping, the most important factor to consider is whether the elements of litis pendentia concur, namely: “(a) [there is]identity of parties, or at least such parties who represent the same interests in both actions; (b) [there is]identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) [that]the identity with respect to the two preceding particulars in the two cases is such that any judgment that may be rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other case.”

    Res judicata exists, if the following requisites are all present: “(1) the former judgment or order had already been final; (2) the judgment or order had been on the merits; (3) it had been rendered by a court having jurisdiction over the subject matter and the parties; (4) and because of the concurrence of the first three requisites, there is now between the first and the second action, identity of parties, of subject matter and cause of action.”

    All the stated elements of res judicata are present in this case except for the second requirement. The dismissal order in Daswani’s first complaint did not touch on the merits of the case. Civil Case No. 04-1075 was dismissed merely because of Daswani’s failure to fully pay the required docket fees.

    Notably, the dismissal order of the Regional Trial Court’s Branch 133 categorically provided that it was a dismissal without prejudice. In other words, Daswani was given the option to refile his complaint, provided that it had not yet prescribed, and that the defect that caused its dismissal had already been cured. In this case, the defect was the non-payment of the required docket fees, which Daswani already addressed in his second complaint.”

    Similar to your situation, the dismissal of your collection case was not based on the merits considering that it was dismissed without prejudice. Consequently, you can refile your collection case considering that res judicata, an element of litis pendentia, has not yet set in your situation. Hence, the refiling of your case shall not amount to forum shopping.

    We find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.


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