SECOND DIVISION

[G.R. No. 180975 : December 09, 2009]

DAMIAN G. MERCADO V. ANICETO G. SALUDO, JR.

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court
dated 09 December 2009:

G.R. No. 180975 (Damian G. Mercado v. Aniceto G. Saludo, Jr.).-

This case is about a civil suit for damages arising from a pending
criminal action, allegedly malicious, that the plaintiff filed against his
accuser.
The Facts and the Case

On April 14, 2005 respondent Aniceto G. Saludo, Jr. (Saludo) filed a
complaint against petitioner Damian G. Mercado (Mercado) for
violation of Batas Pambansa 22 (B.P. 22) before the City Prosecutor
of Pasay City.
[1]
Saludo accused Mercado of issuing to him in payment
of a loan the following three Philippine National Bank (PNB) checks
that were drawn against what turned out to be a closed account:
(1) Check 0156076 dated April 15, 2004 for P5 million;
(2) Check 0156098 dated April 16, 2004 for P3 million; and
(3) Check 0009019 dated July 21, 2004 for P2.5 million.

In turn, on July 7, 2005 petitioner Mercado filed an action against
respondent Saludo for "declaration of absolute nullity of commercial
documents with damages" before the Regional Trial Court (RTC) of
Maasin City, Southern Leyte. Mercado alleged that he lost in April
2001 several pre-signed blank checks; that on failing to find them, he
reported his loss to the Maasin Police and placed a stop-payment
instruction to his bank; that it surprised him that on January 11, 2005
respondent Saludo demanded of him payment of P10.5 million for

three dishonored checks which, it turned out, were among those that
he reported lost in April 2001; and that respondent Saludo had
maliciously prosecuted him for violation of B.P. 22. Mercado asked
the RTC to declare the checks void and to order Saludo to pay him
actual, moral, and exemplary damages and attorney's fees totalling
P6.5 million.

On July 8, 2005, the day following the filing of the civil action,
petitioner Mercado filed his counter-affidavit in the B.P. 22 criminal
action that respondent Saludo brought against him. Here, Mercado
restated by way of defense the allegations of his complaint in Civil
Case R-3432. Further, he sought the suspension of the preliminary
investigation on the ground that the resolution of his pending civil
action constitutes prejudicial question on his liability in the criminal
case.

On September 13, 2005 the City Prosecutor dismissed respondent
Saludo's B.P. 22 complaint. On petition for review, however, the
Department of Justice (DOJ) reversed the city prosecutor's resolution
and directed the latter to file the corresponding informations against
petitioner Mercado. Upon the latter's motion for reconsideration,
however, the DOJ reversed itself, prompting Saludo to come up to the
Court of Appeals (CA) on a petition for certiorari.
[2]
The latter court
reversed the DOJ ruling and directed the filing in court of the subject
informations. This was done and the informations were docketed as
Criminal Cases 06-309 to 311 of the Metropolitan Trial Court of Pasay
City.

Meanwhile, respondent Saludo, as defendant in Civil Case R-3432 of
the RTC of Pasay City, filed a motion to dismiss the complaint in the
case"
[3]
on the grounds of (1) the pendency of the criminal case for
violation of B.P. 22; (2) the violation of the requirement of
certification against forum shopping; and (3) the failure of the
complaint to state a cause of action. Petitioner Mercado opposed the
motion.

On June 1, 2006 the RTC issued an order
[4]
denying respondent
Saludo's motion to dismiss the civil action against him. His motion for
reconsideration having been similarly denied,
[5]
Saludo instituted a
petition for special civil action of certiorari before the Court of Appeals
(CA) of Cebu City in CA-G.R. CEB-SP 02263, assailing the RTC's
denial of his motion to dismiss. On July 3, 2006 the CA issued an
order, suspending the proceedings in Criminal Cases 06-309 to 311.
On March 27, 2007, however, the CA rendered judgment, granting
respondent Saludo's petition. The CA set aside the RTC's orders dated
June 1 and September 12, 2006 and dismissed Civil Case R-3432, the
action for declaration of nullity of the subject checks on the ground
of litis pendentia.
[6]
Subsequently, on December 13, 2008 the CA
denied Mercado's motion for reconsideration, thus, the present
recourse to this Court.
The Issue Presented

The core issue in this case is whether or not petitioner Mercado's civil
action for declaration of nullity of the checks and damages that he
filed against respondent Saludo in Civil Case R-3432 may be
dismissed on the ground of the pendency of the criminal action for
violation of B.P. 22 that Saludo earlier filed against Mercado in
Criminal Cases 06-309 to 311.
The Ruling of the Court

Litis pendentia is a Latin term which literally means "a pending suit."
As such, it refers to that situation in which another action is pending
between the same parties for the same cause of action, such that the
second action becomes unnecessary and vexatious.
[7]
There is no
reason for two cases involving the same issue or issues to proceed
independently of each other and possibly spawn opposite outcomes,
like one party winning in one case and the opposite party in the
other. Such a situation is intolerable and will make a mockery of the
court as a final arbiter of the legal dispute before it.

The following are the requisites of litis pendentia: (a) the parties in
both actions are the same or, at least, represent the same interests;
(b) the rights asserted and the reliefs desired are the same, such
reliefs being founded on the same facts; and (c) the two cases are so
similar that the judgment, rendered in one would, regardless of which
party wins, amount to res judicata on the other. Where these
requisites exist, the second case will often amount to forum
shopping.
[8]


Petitioner Mercado insists that litis pendentia cannot exist between
the civil action for annulment of the subject checks and criminal
action for violation of B.P. 22 since the judgment in one case will not
necessarily have the effect of res judicata in the other. For instance,
even if the civil action results in a finding by final judgment that the
checks were not stolen and were issued for a valid consideration,
such finding will not ensure the issuer's conviction for violation of B.P.
22. Some other element of the latter crime might prove absent in the
case, like the giving of notice to make good the checks. According to
Mercado, litis pendentia applies only when both pending actions are
civil in nature.

Strictly speaking, petitioner Mercado makes a valid point but only to
the extent that one case is purely criminal and the other is civil. But
every person criminally liable for a felony is also civilly liable.
[9]
And,
as a rule, when a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense charged shall be
deemed instituted with the criminal action.
[10]
This is especially true in
criminal actions for violation of B.P. 22. The criminal action shall be
deemed to include the corresponding civil action and no reservation
to file such civil action separately shall-be allowed.
[11]
Consequently,
it is a certainty that a finding that the accused in a B.P. 22 case is not
guilty of the offense constitutes res judicata to a civil action for the
recovery of civil indemnity arising from the offense.

Petitioner Mercado also insists that the application of the principle of
prejudicial question is more appropriate in this case. The question of
whether or not Mercado issued the checks in due course is, according
to him, best threshed out first in the civil action for annulment of the
subject checks that he filed against respondent Saludo in Maasin City,
Southern Leyte.

A prejudicial question is a question based on a fact distinct and
separate from the crime but so intimately connected with it that it
determines the guilt or innocence of the accused.
[12]
A classic
example of this is the question of whether or not the person accused
with bigamy had a valid pre-existing marriage. If, after the accused
filed a civil action for the declaration of nullity of his prior marriage,
he is criminally charged with bigamy, the determination of the issue
of the validity of the prior marriage is a prejudicial question to the
resolution of the subsequently filed bigamy case.

But a prejudicial question is understood in law as that which must
precede the filing of the criminal action and which requires a decision
before a final judgment can be rendered in the criminal action with
which such question is closely connected. The civil suit must be begun
prior to the filing of the criminal suit
[13]
. Here, respondent Saludo
filed the criminal case for violation of B.P. 22 before petitioner
Mercado file his civil action for annulment of the checks.
Consequently, Saludo cannot claim the benefit of a prejudicial
question pending in the civil suit that he filed against Mercado.
Besides, the suspension on the ground of existence of a prejudicial
question cannot be allowed if, as in this case, it appears that the
plaintiff filed the civil action as an afterthought to delay the ongoing
criminal action.
[14]


In settling the issues in the two cases, the CA correctly adopted the
formula used by this Court in disposing of a similar problem in Allied
Banking Corp. v. Court of Appeals
[15]
The Court held in that case that,
when confronted with an issue of litis pendentia, the following factors
should be taken into determining which of the two cases to dismiss:
1. The date of filing, with preference to retaining the first action
that was filed;

2. The fact that the action sought to be dismissed had been filed
merely to preempt a subsequent action or anticipate its filing and lay
the basis for its dismissal; and

3. The action is the appropriate vehicle for litigating the issues
between the parties.
[16]


Here, respondent Saludo initiated the criminal action (April 14, 2005)
ahead of petitioner Mercado's civil action (July 7, 2005). A reading of
the complaint in the civil case shows that the causes of action and
matters raised in it could very well be pleaded as defenses at the trial
of the criminal case. This Court agrees with the CA's finding that
Mercado's civil action was just an afterthought, a mere ploy to delay
the progress of the criminal case filed against him, and a scheme to
defeat it by laying the basis in a different venue for its dismissal or
suspension based on a supposed prejudicial question.

Finally, the Court finds that petitioner Mercado's civil action for
annulment of the checks is essentially a suit for damages against
respondent Saludo for malicious prosecution. It is rooted in Mercado's
allegation that Saludo was "lying to the teeth" in prosecuting the B.P.
22 case. It is thus clear that Mercado's claim for damages is
founded solely on his allegations of malicious prosecution. But this
Court has held that no case for malicious prosecution can prosper
while the subject criminal case is still pending.
Malicious prosecution has been defined as an action for
damages brought by one against whom a criminal prosecution,
civil suit or other legal proceeding has been instituted
maliciously and without probable cause, after the termination
of such prosecution, suit or other proceeding in favor of the
defendant therein. As thus defined, the fact of termination of
the criminal prosecution, civil suit, or legal proceeding
maliciously filed and without probable cause, should precede
the complaint for malicious prosecution.
[17]
(Emphasis supplied)

WHEREFORE, the Court DENIES the petition and AFFIRMS the
decision dated March 27, 2007 and resolution dated December 13,
2007 of the Court of Appeals of Cebu City in CA-G.R. CEB-SP 02263.

Costs against petitioner.

SO ORDERED.

WITNESS the Honorable Antonio T. Carpio, Chairperson, Honorable
Conchita Carpio Morales (designated additional member per S.O. No.
807 in lieu of Brion, J., on leave), Teresita J. Leonardo-De Castro
(designated additional member per S.O. No. 776), Mariano C. Del
Castillo and Roberto A. Abad, Members, Second Division, this 9
th
day
of December, 2009.
Very truly yours.

(Sgd.) MA. LUISA L. LAUREA
Clerk of Court
Endnotes:

[1]
Docketed as I.S. 05-D-222S to 05-D-2230.

[2]
Rollo, pp. 352-357. Docketed as CA-G.R. SP 97393, the petition
was resolved via the appellate court's Decision dated March 27, 2008,
which found that no prejudicial question existed as to warrant the
suspension of Criminal Cases 06-309 to 311.

[3]
Id. at 178-188,

[4]
Id. at 209-210.

[5]
Id. at 211-212.

[6]
Id. at 66.

[7]
Agilent Technologies Singapore (PTE) Ltd. v. Integrated Silicon
Technology Philippines Corporation, 471 Phil. 582,596(2004).

[8]
First Philippine International Bank v. Court of Appeals, 322 Phil.
280, 306 (1996).

[9]
REVISED PENAL CODE, Article 100.

[10]
Revised Rules of Criminal Procedure, Rule III, Sec. l(a).

[11]
Id., Sec. 1(b).

[12]
Sabandal v. Tongco, 419 Phil. 13, 18(2001).

[13]
Torres v, Garchitorena, 442 Phil. 765, 783 (2002).

[14]
First Producers Holdings Corporation v. Co, 391 Phil. 441, 448
(2000).

[15]
328 Phil. 710(1996).

[16]
Rollo, p. 58.

[17]
Lao v. Court of Appeals, 382 Phil. 583, 608 (2000).





SECOND DIVISION

[G.R. No. 180975 : December 09, 2009]

DAMIAN G. MERCADO V. ANICETO G. SALUDO, JR.

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court
dated 09 December 2009:

G.R. No. 180975 (Damian G. Mercado v. Aniceto G. Saludo, Jr.).-


This case is about a civil suit for damages arising from a pending
criminal action, allegedly malicious, that the plaintiff filed against his
accuser.
The Facts and the Case

On April 14, 2005 respondent Aniceto G. Saludo, Jr. (Saludo) filed a
complaint against petitioner Damian G. Mercado (Mercado) for
violation of Batas Pambansa 22 (B.P. 22) before the City Prosecutor
of Pasay City.
[1]
Saludo accused Mercado of issuing to him in payment
of a loan the following three Philippine National Bank (PNB) checks
that were drawn against what turned out to be a closed account:
(1) Check 0156076 dated April 15, 2004 for P5 million;
(2) Check 0156098 dated April 16, 2004 for P3 million; and
(3) Check 0009019 dated July 21, 2004 for P2.5 million.

In turn, on July 7, 2005 petitioner Mercado filed an action against
respondent Saludo for "declaration of absolute nullity of commercial
documents with damages" before the Regional Trial Court (RTC) of
Maasin City, Southern Leyte. Mercado alleged that he lost in April
2001 several pre-signed blank checks; that on failing to find them, he
reported his loss to the Maasin Police and placed a stop-payment
instruction to his bank; that it surprised him that on January 11, 2005
respondent Saludo demanded of him payment of P10.5 million for
three dishonored checks which, it turned out, were among those that
he reported lost in April 2001; and that respondent Saludo had
maliciously prosecuted him for violation of B.P. 22. Mercado asked
the RTC to declare the checks void and to order Saludo to pay him
actual, moral, and exemplary damages and attorney's fees totalling
P6.5 million.

On July 8, 2005, the day following the filing of the civil action,
petitioner Mercado filed his counter-affidavit in the B.P. 22 criminal
action that respondent Saludo brought against him. Here, Mercado
restated by way of defense the allegations of his complaint in Civil
Case R-3432. Further, he sought the suspension of the preliminary
investigation on the ground that the resolution of his pending civil
action constitutes prejudicial question on his liability in the criminal
case.

On September 13, 2005 the City Prosecutor dismissed respondent
Saludo's B.P. 22 complaint. On petition for review, however, the
Department of Justice (DOJ) reversed the city prosecutor's resolution
and directed the latter to file the corresponding informations against
petitioner Mercado. Upon the latter's motion for reconsideration,
however, the DOJ reversed itself, prompting Saludo to come up to the
Court of Appeals (CA) on a petition for certiorari.
[2]
The latter court
reversed the DOJ ruling and directed the filing in court of the subject
informations. This was done and the informations were docketed as
Criminal Cases 06-309 to 311 of the Metropolitan Trial Court of Pasay
City.

Meanwhile, respondent Saludo, as defendant in Civil Case R-3432 of
the RTC of Pasay City, filed a motion to dismiss the complaint in the
case"
[3]
on the grounds of (1) the pendency of the criminal case for
violation of B.P. 22; (2) the violation of the requirement of
certification against forum shopping; and (3) the failure of the
complaint to state a cause of action. Petitioner Mercado opposed the
motion.

On June 1, 2006 the RTC issued an order
[4]
denying respondent
Saludo's motion to dismiss the civil action against him. His motion for
reconsideration having been similarly denied,
[5]
Saludo instituted a
petition for special civil action of certiorari before the Court of Appeals
(CA) of Cebu City in CA-G.R. CEB-SP 02263, assailing the RTC's
denial of his motion to dismiss. On July 3, 2006 the CA issued an
order, suspending the proceedings in Criminal Cases 06-309 to 311.
On March 27, 2007, however, the CA rendered judgment, granting
respondent Saludo's petition. The CA set aside the RTC's orders dated
June 1 and September 12, 2006 and dismissed Civil Case R-3432, the
action for declaration of nullity of the subject checks on the ground
of litis pendentia.
[6]
Subsequently, on December 13, 2008 the CA
denied Mercado's motion for reconsideration, thus, the present
recourse to this Court.
The Issue Presented

The core issue in this case is whether or not petitioner Mercado's civil
action for declaration of nullity of the checks and damages that he
filed against respondent Saludo in Civil Case R-3432 may be
dismissed on the ground of the pendency of the criminal action for
violation of B.P. 22 that Saludo earlier filed against Mercado in
Criminal Cases 06-309 to 311.
The Ruling of the Court

Litis pendentia is a Latin term which literally means "a pending suit."
As such, it refers to that situation in which another action is pending
between the same parties for the same cause of action, such that the
second action becomes unnecessary and vexatious.
[7]
There is no
reason for two cases involving the same issue or issues to proceed
independently of each other and possibly spawn opposite outcomes,
like one party winning in one case and the opposite party in the
other. Such a situation is intolerable and will make a mockery of the
court as a final arbiter of the legal dispute before it.

The following are the requisites of litis pendentia: (a) the parties in
both actions are the same or, at least, represent the same interests;
(b) the rights asserted and the reliefs desired are the same, such
reliefs being founded on the same facts; and (c) the two cases are so
similar that the judgment, rendered in one would, regardless of which
party wins, amount to res judicata on the other. Where these
requisites exist, the second case will often amount to forum
shopping.
[8]


Petitioner Mercado insists that litis pendentia cannot exist between
the civil action for annulment of the subject checks and criminal
action for violation of B.P. 22 since the judgment in one case will not
necessarily have the effect of res judicata in the other. For instance,
even if the civil action results in a finding by final judgment that the
checks were not stolen and were issued for a valid consideration,
such finding will not ensure the issuer's conviction for violation of B.P.
22. Some other element of the latter crime might prove absent in the
case, like the giving of notice to make good the checks. According to
Mercado, litis pendentia applies only when both pending actions are
civil in nature.

Strictly speaking, petitioner Mercado makes a valid point but only to
the extent that one case is purely criminal and the other is civil. But
every person criminally liable for a felony is also civilly liable.
[9]
And,
as a rule, when a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense charged shall be
deemed instituted with the criminal action.
[10]
This is especially true in
criminal actions for violation of B.P. 22. The criminal action shall be
deemed to include the corresponding civil action and no reservation
to file such civil action separately shall-be allowed.
[11]
Consequently,
it is a certainty that a finding that the accused in a B.P. 22 case is not
guilty of the offense constitutes res judicata to a civil action for the
recovery of civil indemnity arising from the offense.

Petitioner Mercado also insists that the application of the principle of
prejudicial question is more appropriate in this case. The question of
whether or not Mercado issued the checks in due course is, according
to him, best threshed out first in the civil action for annulment of the
subject checks that he filed against respondent Saludo in Maasin City,
Southern Leyte.

A prejudicial question is a question based on a fact distinct and
separate from the crime but so intimately connected with it that it
determines the guilt or innocence of the accused.
[12]
A classic
example of this is the question of whether or not the person accused
with bigamy had a valid pre-existing marriage. If, after the accused
filed a civil action for the declaration of nullity of his prior marriage,
he is criminally charged with bigamy, the determination of the issue
of the validity of the prior marriage is a prejudicial question to the
resolution of the subsequently filed bigamy case.

But a prejudicial question is understood in law as that which must
precede the filing of the criminal action and which requires a decision
before a final judgment can be rendered in the criminal action with
which such question is closely connected. The civil suit must be begun
prior to the filing of the criminal suit
[13]
. Here, respondent Saludo
filed the criminal case for violation of B.P. 22 before petitioner
Mercado file his civil action for annulment of the checks.
Consequently, Saludo cannot claim the benefit of a prejudicial
question pending in the civil suit that he filed against Mercado.
Besides, the suspension on the ground of existence of a prejudicial
question cannot be allowed if, as in this case, it appears that the
plaintiff filed the civil action as an afterthought to delay the ongoing
criminal action.
[14]


In settling the issues in the two cases, the CA correctly adopted the
formula used by this Court in disposing of a similar problem in Allied
Banking Corp. v. Court of Appeals
[15]
The Court held in that case that,
when confronted with an issue of litis pendentia, the following factors
should be taken into determining which of the two cases to dismiss:
1. The date of filing, with preference to retaining the first action
that was filed;

2. The fact that the action sought to be dismissed had been filed
merely to preempt a subsequent action or anticipate its filing and lay
the basis for its dismissal; and

3. The action is the appropriate vehicle for litigating the issues
between the parties.
[16]


Here, respondent Saludo initiated the criminal action (April 14, 2005)
ahead of petitioner Mercado's civil action (July 7, 2005). A reading of
the complaint in the civil case shows that the causes of action and
matters raised in it could very well be pleaded as defenses at the trial
of the criminal case. This Court agrees with the CA's finding that
Mercado's civil action was just an afterthought, a mere ploy to delay
the progress of the criminal case filed against him, and a scheme to
defeat it by laying the basis in a different venue for its dismissal or
suspension based on a supposed prejudicial question.

Finally, the Court finds that petitioner Mercado's civil action for
annulment of the checks is essentially a suit for damages against
respondent Saludo for malicious prosecution. It is rooted in Mercado's
allegation that Saludo was "lying to the teeth" in prosecuting the B.P.
22 case. It is thus clear that Mercado's claim for damages is
founded solely on his allegations of malicious prosecution. But this
Court has held that no case for malicious prosecution can prosper
while the subject criminal case is still pending.
Malicious prosecution has been defined as an action for
damages brought by one against whom a criminal prosecution,
civil suit or other legal proceeding has been instituted
maliciously and without probable cause, after the termination
of such prosecution, suit or other proceeding in favor of the
defendant therein. As thus defined, the fact of termination of
the criminal prosecution, civil suit, or legal proceeding
maliciously filed and without probable cause, should precede
the complaint for malicious prosecution.
[17]
(Emphasis supplied)

WHEREFORE, the Court DENIES the petition and AFFIRMS the
decision dated March 27, 2007 and resolution dated December 13,
2007 of the Court of Appeals of Cebu City in CA-G.R. CEB-SP 02263.

Costs against petitioner.

SO ORDERED.

WITNESS the Honorable Antonio T. Carpio, Chairperson, Honorable
Conchita Carpio Morales (designated additional member per S.O. No.
807 in lieu of Brion, J., on leave), Teresita J. Leonardo-De Castro
(designated additional member per S.O. No. 776), Mariano C. Del
Castillo and Roberto A. Abad, Members, Second Division, this 9
th
day
of December, 2009.
Very truly yours.

(Sgd.) MA. LUISA L. LAUREA
Clerk of Court
Endnotes:

[1]
Docketed as I.S. 05-D-222S to 05-D-2230.

[2]
Rollo, pp. 352-357. Docketed as CA-G.R. SP 97393, the petition
was resolved via the appellate court's Decision dated March 27, 2008,
which found that no prejudicial question existed as to warrant the
suspension of Criminal Cases 06-309 to 311.

[3]
Id. at 178-188,

[4]
Id. at 209-210.

[5]
Id. at 211-212.

[6]
Id. at 66.

[7]
Agilent Technologies Singapore (PTE) Ltd. v. Integrated Silicon
Technology Philippines Corporation, 471 Phil. 582,596(2004).

[8]
First Philippine International Bank v. Court of Appeals, 322 Phil.
280, 306 (1996).

[9]
REVISED PENAL CODE, Article 100.

[10]
Revised Rules of Criminal Procedure, Rule III, Sec. l(a).

[11]
Id., Sec. 1(b).

[12]
Sabandal v. Tongco, 419 Phil. 13, 18(2001).

[13]
Torres v, Garchitorena, 442 Phil. 765, 783 (2002).

[14]
First Producers Holdings Corporation v. Co, 391 Phil. 441, 448
(2000).

[15]
328 Phil. 710(1996).

[16]
Rollo, p. 58.

[17]
Lao v. Court of Appeals, 382 Phil. 583, 608 (2000).