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[ G.R. No. 136239. January 27, 1999]

ESTER L. SERVACIO vs. CECILIO P. BONIEL, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 27, 1999.

G.R. No. 136239 (Ester L. Servacio vs. Cecilio P. Boniel and Norma B. Boniel.)

Before us is a petition for review on certiorari under Rule 45. Petitioner Ester L. Servacio assails the order issued by the Regional Trial Court of Maasin, Southern Leyte, Branch 24 in Civil Case No. R-2863 for sum of money with preliminary motion for reconsideration.

The present controversy stemmed from the filing by petitioner of two cases on May 3, 1994 against respondent Norma Boniel for violations of B.P. 22, otherwise known as the Bouncinng Checks Law, before the Municipal Trial Court (MTC) of Maasin, Southern Leyte. Therafter, on September 26, 1994, a civil case for collection of sum of money was also filed.

In answer to the aforesaid complaint, herein respondents alleged that petitioner violated the Supreme Court Circular on Non-Forum Shopping and particularly averred that since the pending criminal cases are deemed to have included the civil aspect of the second case, petitioner is then guilty of forum-shopping when the civil aspect of the second case, petitioner is then guilty of forum-shopping when she certified under oath in Civil Case No. R-2863 that she had not commenced any other action or proceedings involving the same issues with the Supreme Court, Court of Appeals, or with any other tribunal or agency.

After petitioner and respondents rested, the court a quo issued a show-cause order why the civil case should not be dismissed for violation of the forum-shopping circular as well as for violation of No. 57-97 which is the Rules and Guidelines in the filing and prosecution of criminal cases under B.P. 22. After compliance, the court a quo issued the assailed resolution which eventually dismissed Civil Case No. R-2863. A motion for reconsideration was filed but was denied.

Hence, the instant petition.

Petitioner is of the view that she did not violate the prescription against forum-shopping because for forum-shopping to exist, both actions must involve the same transactions, the same essential facts and circumstance and the must raise identical causes of actions, subject-matter, and issues. Petitioner argues that the court a quo failed to recognize and accordingly appreciate properly the distinct and separate characters of the criminal and civil liabilities of respondent Norma.

The Court notes that petitioner failed to make an express reservation to file a separate action. Verily, petitioner's counsel actively participated in the prosecution of the criminal cases for violation of B.P. 22, for which that in her certification of non-forum shopping in the civil case, the fact of the pendency of the criminal case be stated and cited. Petitioner failed to comply with this, necessitating the dismissal of the case.

WHEREFORE, petition is hereby dismissed.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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