for the same cause, or that the action is barred by
Rule 16 A motion to dismiss is not a responsive
MOTION TO DISMISS
Section 1. Grounds.
Within the time for but
before filing the answer to
the complaint or pleading
asserting a claim, a motion
to dismiss may be made on
any of the following
grounds:
xxxxx
Note that the summons served directs the defendant to
answer within the period specified, at the same time
warns him/her that failure to answer can result to a
judgment by default at the instance of the plaintiff.
But this does not prohibit the defendant from availing of
available remedies prior to filing an answer. For example,
if the there are allegations constituting a cause of action
but are not stated with clarity or particularity, the
defendant can in the meantime file a Motion for a Bill of
Particulars. And even when the allegations in the
complaint are now clear enough to enable the defendant
to file his responsive pleading because the adverse party
has already submitted a bill of particulars, the defendant
need not file his answer immediately. He may first
explore the possibility of filing a Motion to Dismiss under
Rule 16. If there is no ground for a motion to dismiss,
then he has to file his answer.
Current policy is to discourage filing of motion to
dismiss-
While the filing of a motion to dismiss is not prohibited,
the remedy being an integral part of the Rules of Court,
the current policy of the SC is not to encourage the filing
of such motion but to instead file an answer to the
complaint. Thus, effective August 26, 2004, within one
day from receipt of the complaint, summons shall
contain a reminder to the defendant to observe restraint
in filing a motion to dismiss and instead allege the
grounds thereof as defenses in the answer (A.M. No. 03-
1-09-SC, July 13, 2004).
Motion to dismiss is the counterpart of motion to
quash (Rule 117) in criminal procedure-
In criminal procedure, before the arraignment or before
entering a plea the accused may instead file what is
known as motion to quash. The proceedings are quashed
on the ground that: (1) the court has no jurisdiction over
the subject matter of the case or over the person of the
accused; (2) the person who filed it has no authority to
do so; (3) the complaint or information charges more
than one offense; (4) because of double jeopardy; or (5)
the criminal liability has already been extinguished.
a prior judgment or by statute of limitations, the
pleading-
Hence, if filed but denied, the defendant has to
file an answer.
An Omnibus motion-
When a motion to dismiss is filed, all grounds
available at the time the motion is filed must be
invoked in the motion. This is required under the
omnibus motion rule. Grounds not so invoked
are deemed waived. The grounds not waived
however, are lack of jurisdiction over the subject
matter, litis pendencia, res judicata and
prescription (Sec. 8 Rule 15; Sec. 1 Rule 9)
The above rule applies only when a motion
to dismiss is filed. Where no motion to dismiss is
filed, the grounds for a motion to dismiss may be
availed of as affirmative defenses in the answer
(Sec. 6 Rule 16). No defense is waived because
no motion to dismiss was filed. There is indeed
an unmistakable difference in the legal effects
between filing and not filing a motion to dismiss
in relation to waiver of defenses.
If grounds are pleaded as affirmative defenses in
an answer calling a preliminary hearing rests
upon the sound secretion of the court.
If no motion to dismiss has been filed, any of the
grounds for dismissal provided in the Rules may
be pleaded as an affirmative defense in the
answer, and in the discretion of the court, a
preliminary hearing may be had thereon as if a
motion to dismiss had been filed. Based on the
foregoing, a preliminary hearing undeniably is
subject to the discretion of the trial court. The
trial courts order granting or dispensing with the
need for a preliminary hearing may not be
corrected by certiorari absent any showing that
the trial court had acted without jurisdiction or in
excess thereof or with such grave abuse of
discretion as would amount to lack of jurisdiction
(Misamis Occidental II Cooperative, Inc. vs.
David 468 SCRA 63).
JBD
Need to file a Motion to Dismiss-
General rule:
A court may not motu proprio dismiss a case.
A motion to dismiss must be filed by a party.
Exceptions:
1. Those cases where the court may
dismiss a case motu proprio (Sec. 1, R 9 When it
appears from the pleadings or the evidence on
record that the court has no jurisdiction over
the subject matter, that there is another
action pending between the same parties
court shall dismiss the claim.);
2. Sec. 3 R 17 (Failure to prosecute); and
3. Rule on Summary Procedure (Sec. 4, 1991
Revised Rules on Summary Procedure.
Types of Dismissal of Action-
1. Upon Motion to Dismiss before Answer under
Rule 16;
2. Upon Motion to Dismiss under Rule 17;
a. upon notice by plaintiff;
b. upon motion by plaintiff; or
c. due to fault of plaintiff.
3. Motion to dismiss called a demurrer to evidence
after plaintiff has completed the presentation of his
evidence under Rule 33; and
4. Dismissal of an appeal.
Period to file a motion to dismiss-
Within the time for but before filing the answer. So,
within 15 days instead of filing an answer the law allows
the defendant to file instead a motion to dismiss.
Effect of failure to file a Motion to Dismiss before
an Answer-
General rule
A motion to dismiss that is filed after the answer has
been filed, is considered filed out of time and the
defending party is stopped from filing the motion to
dismiss (Philville vs. Javier 477 SCRA 533).
Exception:
However, a motion to dismiss may be filed even after the
filing of the answer and will not be considered filed out
of time if the ground raised in the motion is either of the
following:
(a) Lack of jurisdiction over the subject matter;
(b) Litis pendencia;
(c) Res judicata; or
(d) Prescription (Sec. 1 Rule 9).
Under said rule, when any of the above grounds
appears from the pleadings or from the evidence
on record, the court shall dismiss the claim. The229
authority given to the court is, from the tenor of
the rule, not only mandatory but also subject to a motu
proprio dismissal. Since the ground for dismissal may
appear from the evidence, it is obvious that the dismissal
may be made during the trial and this means, even after
the answer has been filed.
Motion to dismiss also available against any
pleading containing a claim-
Now, a motion to dismiss is available not only for the
purpose of dismissing the complaint but also for
dismissing a counterclaim, a cross-claim, a third party
complaint because the laws says before filing the
answer to the complaint or pleading asserting a
claim. A claim can be asserted not only in a compliant
but also in other pleading such as counterclaims, etc.
Grounds-
First Ground: [a] THAT THE COURT HAS NO
JURISDICTION OVER THE PERSON OF THE DEFENDING
PARTY
The court lacks jurisdiction over the person of the
defending party when there is (1) absence of
summons or (2) improper service of summons.
Exceptions:
Now based on decided cases, it would seem that this is
one of the weakest grounds for a motion to dismiss
the court has not acquired jurisdiction over the
person for there are many exceptions such as: (1)
waiver; (2) voluntary appearance; (3) improper service
but the defendant came to know about it so you cannot
rely on the technicality and (4) then you have the case of
Linger.
LINGER AND FISHER vs. IAC
125 SCRA 522
FACTS: The sheriff served the
summons improperly on the
defendant. And the defendant filed a
motion to dismiss on the ground that
the court has no jurisdiction over his
person.
HELD: Defendant assumed that
the sheriff made a mistake. Why
should we dismiss the complaint? It is
not the fault of the plaintiff. If the
sheriff does not know how to do it,
the fault lies on the sheriff and the
sheriff is an employee of the court,
not an agent of the plaintiff. Why
should the court blame the plaintiff? If
that is what happens we will not
dismiss the case. We will instead issue
an alias summons and direct the
sheriff to serve it properly.
FAR CORPORATION vs.
FRANCISCO
146 SCRA 197
HELD: This case reiterated the
ruling in LINGER where the SC said
again, if the sheriff did not
know how to serve the
summons, why should the
plaintiffs complaint be
dismissed when it is not his
fault. The correct procedure is
for the court to issue another
summons and direct that the
sheriff should serve it properly.
On the other hand, there was a conflict
before in jurisprudence on this question:
Q: Suppose I will file a motion to dismiss.
Assuming that there is a ground of lack of
jurisdiction over my person and venue is
improper. Meaning, I will cite 2, 3 or 4 grounds.
Is that possible?
LA NAVAL DRUG
CORPORATION vs. COURT
OF APPEALS
236 SCRA 78 [en banc]
HELD: When you file a
motion to dismiss citing lack of
Jurisdiction over your person
together with other grounds,
there is no waiver of the
defect of lack of jurisdiction.
So, you can file a motion to
dismiss on that ground
together with other grounds.
There is no more waiver. 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.
Obviously the ruling in NAVAL is
incorporated in the Rules of Court. Lets go back
to Rule 14 Section 20:
Sec. 20. Voluntary
appearance. - The
defendant's
JBD
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. (23a)
Second Ground: [b] THAT THE COURT HAS NO
JURISDICTION OVER THE SUBJECT MATTER OF THE
CLAIM.
This is one of the most important grounds for a
motion to dismiss.
EXAMPLE: An action for unlawful detainer is filed
in the RTC and your ground is, the court has no
jurisdiction over the subject matter. Or, an action for
annulment of marriage is filed in the MTC. Now, I will file
a motion to dismiss because the court has no jurisdiction
over the subject matter.
Important principles re determination of
jurisdiction over the subject matter-
FIRST PRINCIPLE: Jurisdiction over the subject matter
is determined by the allegations in the complaint .
SECOND PRINCIPLE: When a defendant files a motion
to dismiss on the ground that the court has no
jurisdiction over the subject matter, the defendant
hypothetically admits all the allegations in the complaint
to be true.
The defendant, therefore, is not allowed to present
evidence that the court has no jurisdiction. Everything
must be decided on the face of the complaint only.
EXAMPLE: A filed a complaint against B before the RTC
of Davao City to recover an unpaid loan of P350,000. By
going over the complaint, does the RTC have jurisdiction?
YES. But here comes the defendant filing a motion to
dismiss under Rule 16 alleging that it is not P350,000
but only P250,000. Therefore, the court has no
jurisdiction over the subject matter. So the court is
confronted with this situation.
Q: What will the court do? Should the court deny
the motion to dismiss?
A: YES because jurisdiction over the subject
matter is determined by the allegations in the complaint.
They are not determined by the allegations of the
defendant in his motion to dismiss.
An examination of the allegations will
show that it is an action capable of pecuniary 230
estimation and in this kind of cases jurisdiction is
determined by the amount claimed exclusive of damages,
interest, attorneys fees, etc.
But ground not waived-
But suppose it is really P250,000 only and in the course
of the trial, even plaintiffs own evidence shows that the
loan is only P250,000. If that is so, if that becomes
apparent in the middle of the trial, a motion to dismiss
can be filed on the ground that the lack of jurisdiction
has now become apparent. Anyway, you have not
waived that defect. You can raise that anytime. But at
the start of the case, whatever the complaint says, that
is assumed to be true for the moment, if the ground is
lack of jurisdiction. So, what is the principle there?
Jurisdiction over the subject matter is determined purely
by the allegations in the complaint.
THIRD PRINCIPLE: Jurisdiction over the subject
matter, once acquired by the court upon the filing of the
complaint, the court retains the jurisdiction over that
case until that case is terminated. Any subsequent
development or any subsequent amendment of the law
will no longer deprive the court of its jurisdiction. (Rule
of adherence of jurisdiction)
A perfect EXAMPLE is what happened with the
effectivity of the law expanding the jurisdiction of the
MTC under RA 7691. The jurisdiction of the MTC under
the old law should not exceed P20,000 . So, if your claim
is above P20,000, RTC has jurisdiction. And there were
several cases pending in court already being tried in the
RTC for claims beyond P20,000. Then in April 1994, the
jurisdiction of the MTC was increased to P100,000. What
happens now to all those cases which were only P21,000
or P20,000? Shall the RTC dismiss all of them or the RTC
will finish it? Jurisdiction over the subject matter once
acquired continues until the case is finished or
terminated. That is the principle to remember.
An EXCEPTION there is when the new statute is
intended to be curative in character to cure the
defect under the old law then the rule on adherence of
jurisdiction does not apply.
That was best exemplified by a situation years ago
when there was a controversy as to whether a claim for
moral and exemplary damages filed by an employee
against the employer for oppressive act of terminating
him can be granted by the Labor Arbiter.
Definitely, reinstatement and backwages can be
granted by the Labor Arbiter. The jurisprudence at that
time when it was still unsettled was, the claim for moral
damages should be settled in the RTC, not by the Labor
Arbiter. However, where these cases for damages related
to employer-employee relationship, were still pending in
the RTC, the law was changed. The Labor Arbiter now
was given jurisdiction to award damages.
So what happens to the cases for damages now
pending in the RTC? Should they be transferred to the
Labor Arbiter? If we follow the rule that jurisdiction once
acquired continues, the answer is, the RTC should
continue trying the case for damages and the Labor
Arbiter continue to try the cases for backwages and
reinstatement. But that is practically splitting the case
into two parts.
So obviously, the intention of the law granting the
Labor Arbiter the jurisdiction is to cure the error. So,
what happened? All those cases filed in the RTC
were ordered transferred to the Labor Arbiter as
an exception to the rule on adherence to
jurisdiction.
FOURTH PRINCIPLE: Lack of jurisdiction
over the subject matter is not waived if not
raised in a motion to dismiss, thus, may be raised:
1) In the answer;
2) In the course of the trial;
3) After the trial;
4) After the judgment; or even
5) For the first time on appeal.
Basics:
Q: Can the issue of lack of jurisdiction over
the subject matter be raised in the middle of the
trial?
A: YES, there is no waiver.
Q: Suppose there is already a decision by
the trial court, can you still raise the issue of lack
of jurisdiction? Why?
A: YES. The decision is deemed void
because all along the court has no authority to
try. So the trial is void. The judgment is void. As
a matter of fact it can be raised at any stage of
the proceeding even for the first time on appeal.
That is the rule.
Exception:
TIJAM vs.
SIBONGHANOY
23 SCRA 29 [1968]
FACTS: In this case, a complaint for
collection cognizable by the inferior court was
filed in the CFI. The jurisdiction was not
questioned. The CFI issued a writ of preliminary
attachment but was dissolved when the
defendant filed a counterbond thru a surety.
After trial, the court rendered a judgment against
the defendants. That decision became final and a
motion for execution was filed and granted.
When implemented, the writ of execution was
unsatisfied so the plaintiff moved that the writ be
JBD
executed against the counterbond. The surety
filed an opposition and sought to be relieved
from liability. The motion was denied on ground
that the surety was not notified. Plaintiff then
filed a second motion for execution against the
counterbond notifying the surety this time. Since
the surety failed to oppose the motion was
granted. The surety moved to quash the writ
against the counterbond but was denied. The
surety went to the Court of Appeals which
affirmed the order. The surety filed a motion for
extension of time to file a motion to for
reconsideration which the CA granted. However,
instead of filing a motion for reconsideration the surety
filed this time a motion to dismiss on ground that the CFI
did not have jurisdiction over the subject matter. Instead
of deciding the CA certified the case to the Supreme
Court because the issue raised is purely legal.
RULING:
The facts of the case show that from the time the
Surety became a quasi-party on July 31, 1948, it could
have raised the question of the lack of jurisdiction of the
Court of First Instance of Cebu to take cognizance of the
present action by reason of the sum of money involved
which, according to the law then in force, was within the
original exclusive jurisdiction of inferior courts. It failed
to do so. Instead, at several stages of the proceedings,
in the court a quo as well as in the CA, it invoked the
jurisdiction of said courts to obtain affirmative reliefs and
submitted its case for a final adjudication on the merits.
It was only after an adverse decision was rendered by
the CA that it finally woke up to raise the question of
jurisdiction. Were we to sanction such conduct on its part
we would in effect be declaring as useless all the
proceedings had in the present case since it was
commenced on July 19, 1948 and compel the judgment
creditors to go up their Calvary once more. The inequity
and unfairness of this is not only patent but revolting.
In other words, while jurisdiction as a rule, may be
raised at any stage of the proceedings (Panganiban vs.
CA, 321SCRA 51, 59 [1999]), a party may be stopped
from raising such questions if he has actively taken part
in the very proceedings which he questions, belatedly
objecting to the courts jurisdiction in the event that the
judgment or order subsequently rendered is adverse to
him. (Alday v. FGU Insurance Corporation, 350 SCRA 113,
120 [2001]).
In general sense, estoppel by laches is failure or
neglect for an unreasonable and unexplained length of
time to do what ought to have been done earlier. The
failure to act warrants the presumption that one has
abandoned his right or that he had acquiesced to the
correctness and fairness of what has been resolved. The
doctrine of estoppel is based on public policy intended to
discourage stale claims. Estoppel is not a question of
time unlike the statute of limitations. It is rather based
on the inequity or unfairness of permitting
a claim to be asserted at a time such claim
is presumed to have been abandoned. (Sps. 231
Guillermo Agbada and Maxima Agbada v.
Inter-Urban Developers, Inc. GR 144029, Sept.
19,2002)
But the ruling in SIBONGHANOY is not intended to be
the rule. It is not intended to overrule the rule that lack
of jurisdiction over the subject matter can be raised at
any stage of the proceeding. The ruling in the
SIBONGHANOY is only to be applied in exceptional
situations
 SEAFDEC AGRICULTURE
DEPARTMENT vs. NRLC
206 SCRA 283 [1992]
HELD: A rule, that had been
settled by unquestioned acceptance
and upheld in decisions so numerous
to cite is that the jurisdiction of a
court over the subject matter of the
action is a matter of law and may not
be conferred by consent or agreement
of the parties. The lack of jurisdiction
of a court may be raised at any stage
of the proceedings, even on appeal.
This doctrine has been
qualified by recent pronouncements
which stemmed principally from the
ruling in the cited case of
SIBONGHANOY. It is to be regretted,
however, that the holding in said case
had been applied to situations which
were obviously not contemplated
therein. The exceptional
circumstances involved in
SIBONGHANOY which justified the
departure from the accepted concept
of non-waivability of objection to
jurisdiction has been ignored and,
instead a blanket doctrine had been
repeatedly upheld that rendered the
supposed ruling in SIBONGHANOY not
as the exception, but rather the
general rule, virtually overthrowing
altogether the time-honored principle
that the issue of jurisdiction is not lost
by waiver or by estoppel. (Calimlim
vs. Ramirez, G.R. No. L-34362, 118
SCRA 399 [1982]).
DE LEON vs. COURT OF
APPEALS
245 SCRA 166
HELD: In the past, the
principle of estoppel has been used by
the courts to avoid a clear case of
injustice. Its use as a defense to a
jurisdictional error is more of an
exception rather than the rule. The
circumstances outlining estoppel must
be unequivocal and intentional, for it
is an exception to standard legal
norms and is generally applied only in
highly exceptional and justifiable
cases.
Pattern of facts for the Tijam ruling to apply-
The fact pattern common among those cases wherein
the Court invoked estoppel to prevent a party from
questioning jurisdiction is a partys active participation in
all stages of a case, including invoking the
authority of the court in seeking affirmative relief
and questioning the courts jurisdiction only after
receiving a ruling or decision adverse to his case
for the purpose of annulling everything done in
the trial in which he has actively participated. As
clearly pointed out in Lao vs. Republic 479 SCRA
439: A party who has invoked the jurisdiction of
the court over a particular matter to secure
affirmative relief cannot be permitted to
afterwards deny the same jurisdiction to escape
liability.
The Supreme Court frowns upon the
undesirable practice of submitting ones case for
decision, and then accepting the judgment only if
favorable, but attacking it for lack of jurisdiction
if it is not (Bank of the Philippine Islands vs. ALS
Management and Development Corporation, 427
SCRA 564).
Third Ground: [c] THAT VENUE IS
IMPROPERLY LAID
Here, there is no compliance with Rule 4
the action is filed in the place other than the
proper venue under Rule 4.
Fourth Ground: [d] THAT THE PLAINTIFF HAS
NO LEGAL CAPACITY TO SUE;
Q: Give an example when the plaintiff has
no legal capacity to sue.
A: A minor will file a case without being
assisted by his parents or guardian. Or, a person
will file a case in behalf of a minor claiming that
he is a guardian when in fact he is not. He is not
the parent of the child. He is not also appointed
by the court.
Meaning of lack of capacity to sue It means
any of the following:
1.) when the plaintiff does not possess
the necessary qualifications to
appear at the trial, by himself/herself
alone, such as when the plaintiff is
JBD
not in the full exercise of his civil
rights like when he is a minor, or
insane; and
2.) when the plaintiff does not have the
character or representation which he
claims like he claims to be a
guardian when in reality he is not.
(Lunsod vs. Ortega, 46 Phil. 664)
EXAMPLE: I will sue you as the
guardian of a minor guardian ad
litem. But actually, you will challenge
my being a guardian. There is no
court order according to you. So, I might be
of age but I have no legal capacity to sue
because I do not have the representation
which I claim I have.
Distinguish lack of legal capacity to sue from lack
of legal personality to sue.
A: The former refers to disability of the
plaintiff while the latter to the fact that the
plaintiff is not a real party in interest, in which case,
the ground for dismissal would be that the complaint
fails to state a cause of action (Gonzales vs.
Alegarbes, 99 Phil 213; Casimiro vs. Roque, 98 Phil. 880)
In lack of legal capacity to sue, you are referring to a
disability of the plaintiff, like he is a minor; or he is
insane or incapacitated.
In lack of legal personality to sue or not a real party in
interest (he/she does not stand to be benefited or
injured by the judgment in the suit or not entitled to the
avails of the suit) going back to Rule 3, when you are
appointed as agent or attorney-in-fact of somebody to
manage his property and to file suit in his behalf while
you have the authority to file cases, it does not mean to
say that you should sue in your own name because the
real party in interest is the principal, not the agent.
So if one files as an agent or representative of another
but in fact he/she is not the ground is lack of capacity to
sue.
But if one is truly authorized as agent or
representative and files an action in his own name,
rather than that of the principal, what you are going to
say is, you are not the real party in interest. You are not
challenging his age or disability but you are challenging
his being placed as plaintiff when actually he is only the
attorney-in-fact or agent. In effect, when you raise this
ground, actually that would fall more under paragraph
[g] that the pleading asserting the claim states no
cause of action because there is no cause of action in
favor of the agent. The cause of action is in the principal.
Fifth Ground: [e] THAT THERE IS ANOTHER ACTION
PENDING BETWEEN THE SAME PARTIES FOR
THE SAME CAUSE;
232
Now, this is one of the most important
grounds for a motion to dismiss. This is popularly known
as the ground of litis pendentia.
Do not confuse this with the notice of lis pendens
that we discussed in Rule 13. That is the notice that you
annotate on the title of the property when you are filing
a case for its recovery although the meaning is the same
because lis pendens is Latin for pending litigation.
 In notice of lis pendens it is giving notice to
anyone that the property he or she is interested in is the
subject if a litigation and therefore he will be bound by
the result of the case.
In litis pendentia, it is giving notice that the cause
of action is already being litigated between you and the
other party, so you should not litigate it again, otherwise
you will be splitting the same cause of action, which is
prohibited under Rule 2, Section 4. The cause of action
refers to the act or omission constituting the violation of
a right.
Rule 2, Sec. 4. Splitting
a single cause of action; effect
of. - If two or more suits are
instituted on the basis of
the same cause of action,
the filing of one or a
judgment upon the merits
in any one is available as a
ground for the dismissal of
the others. (4a)
ELEMENTS OF LITIS PENDENTIA
Q: What are the requisites of litis pendentia as a
ground for a motion to dismiss?
A: There are four (4) requisites:
1.) Identity of parties between the two
actions, or at least such as represent
the same interest in both actions;
In the 2 actions, the
parties are the same the
same plaintiff, same defendant.
Literally, they may not be the
same but the persons who are
filing the second case are
persons who are actually doing
it on your behalf. So they also
represent the same interest.
2.) Substantial Identity of right or rights
violated by the same act or omission
(cause of action) and relief prayed for;
The rights asserted are
the same. The relief prayed for
in both actions are the same.
3.) The relief must be founded on the
same facts;
So same basis; same
evidence.
4.) The identity in these particulars
should be such that any judgment,
which may be rendered on the other
action will, regardless of which party
is successful, amount to res
adjudicata in the action under
consideration. (Olayvar vs.
Olayvar, 98 Phil. 52; Sapul vs.
Siva, 57 O.G. 1040, Feb. 6,
1961; Pampanga Bus Co. vs.
Ocefemia, L-21793, Oct. 20,
1966) In other words, the
principle of res adjudicata will
apply if one is decided with
finality.
It is applicable between the same parties only
when the judgment to be rendered in the action
first instituted will be such that regardless of
which party is successful, it will amount to res
judicata against the second action. (HSBC vs.
Aldecoa & Co., GR No. L 8437 March 23, 1915)
CASE: The husband filed an action for legal
separation on the ground of adultery of his wife.
In the same action, the wife demanded, in a
counterclaim, maintenance and support for her
and her children. Subsequently, the wife filed an
independent action for support against her
husband. Will the second action prosper?
A: NO, the issue of support having been
raised in the first action as a counterclaim, it
cannot be made an issue in a subsequent
independent action. Hence, the independent
action for support should be dismissed on the
ground of lis pendens, all the other requisites
being present. (Olayvar vs. Olayvar, supra)
Litis Pendentia; Fourth Element: THE
IDENTITY IN THESE PARTICULARS
SHOULD BE SUCH THAT ANY JUDGMENT
WHICH MAY BE RENDERED ON THE
OTHER ACTION WILL, REGARDLESS OF
WHICH PARTY IS SUCCESSFUL, AMOUNT
TO RES ADJUDICATA IN THE ACTION
UNDER CONSIDERATION.
Now, out of these requisites the last one is
the most important the identity of parties,
rights, relief and facts should be such that any
judgment, which the court will render in the
other action will automatically be res adjudicata
JBD
in the present action.
Example of litis
pendentia-
FRANCISCO vs. VDA.
DE BLAS
93 Phil. 1
FACTS: J filed a case
against K for recovery of a
piece of land accion
publiciana. According to J, she
is the owner of the land
occupied by K, so K should surrender
the land to him. Of course, K will deny
that.
While the action was pending, K
filed another case against J for
quieting of title (that your title be in
effect confirmed as valid so that you
will not be molested anymore by the
plaintiff). So in effect, K is asking the
court to declare him as the real owner
and is therefore entitled to possess
the property.
ISSUE: Is there litis pendencia?
Can both cases prosper?
HELD: Alright, lets analyze.
Suppose J wins the case for recovery,
the court in effect is saying that J is
the real owner, that practically
renders moot and academic the action
of K for quieting of title will fail
because the owner is J. In other
words, if J wins the first case, it will
bar the second.
Now, suppose K wins in the first
case, the court in effect is saying that
J is not entitled to possess, she is not
the owner, K is the owner. In effect,
the title of K is automatically granted,
rendering unnecessary the second
case. So, that is a perfect example of
litis pendentia whoever wins in the
first case will bar the second. This is
an illustration of the fourth requisite.
TAMBUNTING vs. ONG
L-2284, August 11, 1950
FACTS: It involves a case
between a mortgagor and a
mortgagee. Mortgagor filed a case
against the mortgagee. The nature of
the action is annulment of mortgage
contract annulment of real estate
mortgage. While their action was
pending, the mortgagee filed
another action against 233
the
mortgagor and the action is
foreclosure of the same mortgage.
Now, the mortgagor, the
plaintiff in the first case, filed a motion
to dismiss the second case on the
ground of litis pendentia on his
argument that suppose I win in this
case of annulment of mortgage and
the mortgage contract is annulled,
what are you foreclosing? There is
nothing to foreclose. So the second
 action for foreclosure will have as
basis if the mortgage contract is
annulled in the first case. So there
being litis pendencia, the second case
should be dismissed.
HELD: It is true that the second
case will have no more leg to stand on
if the mortgagor will win the first case,
that is if you win. Eh paano kung talo
ka? Suppose the first case of
annulment of mortgage contract is
dismissed? So the mortgage contract
is valid, with more reason the
mortgagee has the right to foreclose.
Therefore, the fourth requisite
is missing because the fourth requisite
is regardless of who wins in the first
case, it will bar the second case. But
here, the second case would be
barred if the mortgagor wins but if the
mortgagee wins, the second case will
not be barred. So the fourth element
is not present. There is no litis
pendencia in this case.
Which case should be dismissed?
A motion to dismiss may be filed in either suit, not
necessarily in the one instituted first.
TEODORO vs. MIRASOL
99 Phil. 150
FACTS: There was a lease
contract between the lessor and the
lessee and they were already
quarreling. According to the lessor,
Mr. Lessee, I would like to remind
you that our contract is only good up
to April. So 3 months from now,
expired na so, you better look for a
place to transfer because Im not
going to renew the lease contract.
But the lessee insisted that
contract will be valid until next year
yet. The lessor asserted that the
contract is only good up to April. They
already have a quarrel as to whether
that contract is only good up to April
or until next year.
Now, what happens, the lessor
pre-empted the filing by the lessee of
an ejectment case by filing
immediately an action for declaratory
relief under Rule 63 on the issue on
whether the contract will expire by
April or next year pa. The case
dragged on and April came and of
course the contention of the lessor is
that the contract has expired.
So he filed an unlawful
detainer on the ground that
the lease contract has expired.
Is there litis pendentia?
If there is, which case
should be dismissed?
HELD: The dismissal of
the first action would be
proper. Why? What is the
ground for dismissal? that
there is another action
pending between the same
parties for the same cause.
The law does not say that
there is another prior action
pending. So, in litis pendentia,
either one can be dismissed. It
does not necessarily follow
that the first one will be
dismissed or the second one.
Either one will be dismissed.
Now, the most exhaustive discussion on
this issue on which case should be dismissed
when there is litis pendentia was the 1993 case
of:
VICTRONICS
COMPUTERS INC. vs. RTC
BRANCH 63 OF MAKATI
217 SCRA 517
HELD: As a general rule,
it should be the second case
that should be dismissed by
applying the principle of
priority in time and the Latin
maxim of qui prior est
tempore ochor estiore (he who
is before in time is the better
law). Priority in time gives
preference in law. And that is
JBD
common sense.
But the general rule is not true all the time
just like what happened in the case of TEODORO
VS. MIRASOL where the first case was ordered
dismissed. Also in the case of RAMOS VS.
PERALTA (98 Phil)
Q: What was the principle used in the case
of TEODORO and RAMOS in sustaining the
dismissal of the first case instead of the second?
A: The criterion which was applied by the
SC was: What is the more appropriate
action to remain. In the case of TEODORO, since we
are talking about ejectment here, the unlawful detainer
case is the more appropriate action to remain rather
than the first (declaratory relief). It is not a question of
which case was filed first but which action should
stay for the good of the parties. The same thing
happened in the case of
ROA MAGSAYSAY vs. MAGSAYSAY
98 SCRA 592
HELD: In this case there was
also a conflict on which case should
be dismissed and which case should
remain. The trial court ordered the
dismissal of the first case by applying
another criterion the criterion of
interest of justice. In applying this
standard, the court should ask which
case is in a better position to serve
the interest of justice or which case
should remain to serve the interest of
justice taking into account the nature
of the controversy, the comparative
accessibility of the court to the parties
and other similar factors.
So, the general rule is: dismiss the second case,
let the first case remain based on the rule on priority in
time. But sometimes, the SC ruled that it is better that
the first case is dismissed by using the standard of (1)
more appropriate action or (2) interest of justice.
And the SC said, it will boil down to this was the
first action filed in good faith or bad faith? In the case of
TEODORO, it was obvious that the first action was filed
by the lessee in bad faith because the lessee knew that
by April, the lessor will file the action to eject. Of course,
meron man siyang depensa. His defense will be the
contract will expire next year pa but siguro he believes in
the principle of priority in time, the best defense is an
offense. So, inunahan ko siya. So, the defense in the
unlawful detainer case was converted into a cause of
action. Instead of using his argument as a defense in his
answer to the unlawful detainer, he converted it into a
cause of action. So, We will dismiss you. That was what
happened in TEODORO. So, more or less, that is the
explanation given by the SC in VICTRONICS
case.
234
Now, in a case the SC again touched on
this criteria about litis pendentia. Practically, it is a
reiteration of VICTRONICS COMPUTERS case. I am
referring to the case of
ALLIED BANKING CORP. vs.
CA
259 SCRA 371, July 26, 1996
HELD: Justice Mendoza
summarized the principle in this
 manner: Given, therefore, the
pendency of two actions, the following
are the relevant considerations in
determining which action should be
dismissed:
(1) the date of filing, with
preference generally
given to the first action
filed to be retained that
is the priority in time rule;
(2) whether the action
sought to be dismissed
was filed merely to
preempt the later action
or to anticipate its filing
and lay the basis for its
dismissal that is the
TEODORO vs. MIRASOL
case the action is filed
merely as an anticipating
action; and
(3) whether the action is the
appropriate vehicle for
litigating the issues
between the parties.
So that is practically again the summary of
VICTRONICS COMPUTERS case.
PAMPANGA BUS CO. (PAMBUSCO)
vs. OCEFEMIA
18 SCRA 407
NOTE: This problem was
already asked in the Bar.
FACTS: Cholo is a resident of
Manila; Lew is a resident of Davao.
There was contract between them.
Cholo filed a case against Lew on lets
say, January 5 in Manila where he
resides, based on that contract. The
venue is proper because the plaintiff
is a resident of Manila.
Now, lets say on January 10,
Lew not knowing about the Manila
case filed an identical action against
Cholo in Davao City. So hindi alam ni
Lew na mayroon na palang kaso. So
dalawa na. And then on January 15,
Lew received summons in Manila case.
By January 20, Cholo filed a motion to
dismiss the Davao case on the ground
of litis pendentia.
According to Lew, there is no
litis pendentia because when I filed
may case against Cholo, there is no
pending action to talk about because
hindi ko alam. I received the
summons very much later.
ISSUE: Was there litis
pendentia? Is Lew correct?
HELD: There was litis
pendentia. Lew is wrong. Why?
When does an action, become
pending? An action becomes
pending upon the filing of a
case in court and the payment
of docket fee. The action does
not become pending only from
the time you receive the
summons. It is pending form
the moment it was filed.
Therefore when it was filed on
January 5, it is already
pending although you did not
know about it. That is the
reasoning in this case.
ANDERSONS GROUP
vs. COURT OF APPEALS
G.R. No. 114928;
January 21, 1997
FACTS: Willy Denate
entered into an agency
agreement with AG as its
commission agent for the sale
of wines and liquors in Davao
City, Davao provinces and
North Cotabato. On November
18, 1991, Denate filed a civil
action for collection of sum of
money against AG before the
RTC Davao.
Denate alleged that he
was entitled to the amount of
P882,107.95, representing
commissions from AG but that
AG had maliciously failed and
refused to pay the same. On
December 19, 1991, AG
likewise filed a complaint for
collection of sum of money
with damages against Denate
with the RTC Kalookan City.
AG alleged that Denate still
JBD
owed it the sum
P1,618,467.98 after deducting
of
commissions and remittances.
Denate filed a Motion to
dismiss the case with the
Kalookan RTC on the ground
that there was another action
pending between the same
parties for the same cause of
action, citing the case earlier
filed with the RTC of Davao
City.
AG filed its opposition to the
Motion to Dismiss on the ground that
the RTC of Davao had not acquired
jurisdiction over it.
RTC of Kalookan City ruled that:
the Davao case involves the same
parties, and involves substantial
identity in the case of action and
reliefs sought, as in the instant case
however, jurisdiction over the parties
has already been acquired by the RTC
Kaloocan, as Denate received the
summons as early as Jan 8, 1992, and
AG. On the other hand, the summons
in the Davao case has not yet been
served as of Apr 21, 1992, the date of
the hearing of the instant motion, so
much so that the said Davao Court
has not yet acquired jurisdiction over
the parties. The CA reversed.
ISSUE: Should the action in the
Kalookan RTC be dismissed on the
ground of lis pendens?
HELD: YES. Lis pendens as a
ground for the dismissal of a civil
action refers to that situation wherein
another action is pending between the
same parties for the same cause of
action. To constitute the defense of
lis pendens, it must appear that not
only are the parties in the two actions
the same but there is substantial
identity in the cause of action and
relief sought.
Further, it is required that the
identity be such that any judgment
which may be rendered in the other
would, regardless of which party is
successful, amount to res judicata on
the case on hand. All these requisites
are present in the instant case: 1.)The
parties in the Davao and Caloocan
cases are the same; 2.) They are
suing each other for sums of money
which arose from their contract of
agency; 3.) The relief prayed for is
based on the same facts and there
235
is identity of rights asserted; 4.) Any
judgment rendered in one case
would amount to res judicata in the
other.
In conceptualizing lis pendens,
we have said that like res judicata as
a doctrine, litis pendentia is a sanction
of public policy against multiplicity of
suits. The principle upon which a plea
of another action pending is sustained
is that the latter action is deemed
unnecessary and vexatious.
 AG asserts that the Davao Third Division, J.
Court had not yet acquired jurisdiction Artemio Panganiban.
over the parties as the summons had
not been served as of April 21, 1992 HELD: Forum-shopping
and it claims that pendency of a case, originated as a concept in
as contemplated by the law on lis private international law,
pendens, presupposes a valid service where non-resident litigants
of summons. are given the option to choose
This argument is untenable. A the forum or place wherein to
civil action is commenced by filing a bring their suit for various
complaint with the court. The reasons or excuses, including
phraseology adopted in the Rules of to secure procedural
Court merely states that another advantages, to annoy and
action pending between the same harass the defendant, to avoid
parties for the same cause is a ground overcrowded dockets, or to
for motion to dismiss. As worded, the select a more friendly venue.
rule does not contemplate that there To combat these less than
be a prior pending action, since it is honorable excuses, the
enough that there is a pending action. principle of forum non
Neither is it required that the party be conveniens was developed
served with summons before lis whereby a court, in conflicts of
pendens should apply. The rule of lis law cases, may refuse
pendens refers to another action. An impositions on its jurisdiction
action starts only upon the filing of a where it is not the most
complaint in court. convenient or available forum
It must be emphasized that the and the parties are not
rule on litis pendentia does not precluded from seeking
require that the later case should yield remedies elsewhere.
to the earlier. The criterion used in In the Philippines,
determining which case should be forum shopping has acquired a
abated is which is the more connotation encompassing not
appropriate action or which court only a choice of venues, as it
would be in a better position to serve was originally understood in
the interests of justice. Applying these conflicts of laws, but also to a
criteria, and considering that both choice of remedies.
cases involve a sum of money As to the first
collected in and around Davao, the (CHOICE OF VENUES), the
Davao Court would be in a better Rules of Court, for example,
position to hear and try the case, as allow a plaintiff to commence
the witnesses and evidence would be personal actions "where the
coming from said area. defendant or any of the
WHEREFORE, the decision of defendants resides or may be
the CA is hereby AFFIRMED. found, or where the plaintiff or
any of the plaintiffs resides, at
LITIS PENDENTIA viz a viz FORUM- the election of the plaintiff"
SHOPPING (Rule 4, Sec. 2 [b]).
Is there a relationship between forum- shopping That is forum- shopping.
and litis pendentia? When I file two identical cases in two
courts, am I not also forum-shopping?
JBD
But that is legitimate forum- shopping
because that is allowed by law.
One of the most intelligent discussion on this topic was
the case of FIRST PHILIPPINE INTERNATIONAL BANK vs. As to remedies,
CA (252 SCRA 259), January 24, 1996, penned for the aggrieved parties, for example,
Third Division by Justice Artemio Panganiban. are given a choice of pursuing
civil liabilities independently of
FIRST PHILIPPINE the criminal, arising from the
INTERNATIONAL BANK vs. COURT same set of facts. A passenger
OF APPEALS of a public utility vehicle
252 SCRA 259, January 24, involved in a vehicular
1996 accident may sue on culpa
contractual, culpa aquiliana or culpa
criminal each remedy being
available independently of the
others although he cannot recover
more than once. (First Philippine
International Bank vs. CA, supra.)
That is in effect forum- shopping. But that is also
legitimate forum-shopping.
In either of these situations
(choice of venue or choice of remedy),
the litigant actually shops for a forum
of his action. This was the original
concept of the term forum shopping
which is perfectly a valid act.
Prohibited form of forum shopping
Eventually, however, instead of
actually making a choice of the forum
of their actions, litigants, through the
encouragement of their lawyers, file
their actions in all available
courts, or invoke all relevant
remedies simultaneously. This
practice had not only resulted in
conflicting, adjudications among
different courts and consequent
confusion inimical to an orderly
administration of justice. It had
created extreme inconvenience
to some of the parties to the
action.
Thus, forum shopping had
acquired a different concept
which is unethical professional
legal practice. And this
necessitated or had given rise to
the formulation of rules and
canons discouraging or
altogether prohibiting the
practice.
What therefore originally
started both in conflicts of laws and in
our domestic law as a legitimate
device for solving problems has been
abused and misused to assure
scheming litigants of dubious
reliefs. 236
Consequently, where a
litigant or one representing the same
interest or person sues the same
party against whom another action or
actions for the alleged violation of the
same right and the enforcement of
the same relief is/are still pending, the
defense of litis pendentia in one case
is a bar to the others; and, a final
judgment in one would constitute res
judicata and thus would cause the
 dismissal of the rest. In either case,
forum shopping could be cited by the
other party as a ground to ask for
summary dismissal of the two or more
complaints or petitions, and for the
imposition of the other sanctions,
which are direct contempt of court,
criminal prosecution, and disciplinary
action against the erring lawyer.
(First Philippine International Bank vs.
CA, supra.)
So, there can be litis pendentia if one and the
same party files two cases against another party arising
from the same cause of action. This is also forum
shopping.
But between forum shopping and litis pendentia,
there is actually a difference. In litis pendentia one case
is filed by one party while the second by the other party,
though arising from the same cause of action. In forum
shopping, however, the two cases are filed by the same
party. Thus,
1. If ground is litis pendentia one will
be dismissed, the other will remain
alive.
2. In forum shopping the court will
dismiss both. In addition the
lawyer can be administratively
sanctioned and subject to
contempt of court.
Another case, also penned by Justice Panganiban
in the same year, 1996, where he also made a statement
that forum shopping and litis pendentia are almost
identical is the case of
EMPLOYEES
COMPENSATION COMMISSION vs.
COURT OF APPEALS
257 SCRA 717, June 28, 1996.
HELD: Forum-shopping exists
where the elements of litis pendencia
are present. The test therefore in
determining the presence of forum-
shopping is whether in the two (or
more case) pending, there is identity
of (a) parties, (b) rights or causes of
action and (c) reliefs sought. Forum-
shopping does not require a literal
identity of parties. It is sufficient that
there is identity of interests
represented.
When there is already adjudication on the merits
in one case to be more accurate, RES ADJUDICATA
should be alleged, and not forum shopping as a defense
because the decision in the previous case had already
become final and executory. So, when there is
already a judgment in the previous case to be
exact that should be res judicata. But when there
is no decision yet, that is litis pendentia and
forum shopping.
Sixth Ground: [f] THAT THE CAUSE OF ACTION
IS BARRED BY A PRIOR JUDGMENT OR BY THE
STATUTE OF LIMITATIONS;
Actually there are two grounds here:
1.) Barred by prior judgment (RES
ADJUDICATA) and
2.) Barred by statute of limitations.
BARRED BY PRIOR JUDGMENT OR RES
JUDICATA. This is also related to splitting of a
cause of action. The only difference is: there is
already a judgment in the first action, which has
become final and executory. That is why, you
have to go back to Rule 2, Section 4 what is
the effect of splitting a cause of action? The
pendency of one case or judgment in one case is
a ground for the dismissal of the other.
So, if there is a case on appeal, the proper
ground for dismissal would be litis pendentia
rather than res adjudicata because the case is
still pending before the CA the judgment is not
yet final.
Res judicata as a ground for dismissal is
based on two grounds, namely:
(1) Public policy and necessity, which
makes it to be the interest of the
State that there should be an end to
litigation republicae ut sit litium;
and
(2) The hardship on the individual of
being vexed twice for the same
cause nemo debet bis vexari et
eadem causa. A conflicting doctrine
would subject the public peace and
quiet to the will and dereliction of
individuals and prefer the
regalement of the litigious on the
part of the suitors to the
JBD
preservation of the public tranquility
and happiness (Fels, Inc. vs.
Province of Batangas GR No. 168557,
February 19, 2007).
Accordingly, courts will simply refuse
to reopen what has been decided.
They will not allow the same parties
or their privies to litigate anew a
question once it has been considered
and decided with finality. Litigation
must end and terminate sometime
and somewhere. The effective and
efficient administration of justice requires
that once a judgment has become final, the
prevailing party should not be deprived of
the fruits of the verdict by subsequent suits
on the same issues filed by the same parties
(ibid).
But res judicata has two aspects or concepts:
(1) Bar by Former Judgment when, between the
first case where the judgment was
rendered, and the second case where the judgment is
invoked, there is identity of parties, subject matter and
cause of action.
(2)Conclusiveness of Judgment when there is an
identity of parties but not cause of
action, the judgment being conclusive in the second case
only as to those matters
actually and directly controverted and determined, and
not as to matters invoked thereon.
Conclusiveness of judgment states that a fact or
question which was in issue in a former suit and was
there judicially passed upon and determined by a court
of competent jurisdiction, is conclusively settled by the
judgment therein as far as the parties to that action and
actions in privity with them are concerned and cannot be
again litigated in any future action between such parties
or their privies, in the same court or any other court of
concurrent jurisdiction on either the same or different
cause of action, while the judgment remains unreversed
by proper authority (Moraga vs. Spouses Somo 501
SCRA 118).
Note:
A judicial compromise has the effect of res judicata
and is immediately executory and not appealable. The
ultimate test in ascertaining the identity of causes
of action -- whether or not the same evidence fully
supports and establishes both the present cause of
action and the former cause of action. Only substantial,
and not absolute, identity of parties is required for
res judicata.
City of Cebu v. Apolonio M. Dedamo,
Jr.; G.R. No. 172852. January 30, 2013
237
Res judicata; conclusiveness of judgment. A
perusal of the allegations in the present case evidently
shows that the petitioner broaches the issues similarly
raised and already resolved in G.R. No. 172942.
Under the principle of conclusiveness of judgment, when
a right or fact has been judicially tried and determined
by a court of competent jurisdiction, or when an
opportunity for such trial has been given, the judgment
of the court, as long as it remains unreversed, should be
conclusive upon the parties and those in privity with
them. Stated differently, conclusiveness of judgment
bars the re-litigation in a second case of a fact or
question already settled in a previous case.
The adjudication in G.R. No. 172942 has become binding
and conclusive on the petitioner who can no longer
question the respondents entitlement to the 12% legal
interest awarded by the CA. The Courts determination in
G.R. No. 172942 on the reckoning point of the 12% legal
interest is likewise binding on the petitioner who cannot
re-litigate the said matter anew through the present
recourse.
Thus, the judgment in G.R. No. 172942 bars the present
case as the relief sought in the latter is inextricably
related to the ruling in the former.
Elements of res judicata as bar by former
judgment:
(1) The former judgment must be final and
executory;
(2) The court which rendered it had jurisdiction
over the subject matter and the parties;
(3) The judgment must be on the merits; and
(4) There must be between the first and second
actions, identity of parties, subject matter
and causes of action.(PCI Leasing &
Finance, Inc. Vs. Sps George M. Dai and
Divina Dai GR No. 148980, Sept. 21, 2007)
Philippine National Bank, substituted by Tranche
1 (SPV-AMC), Inc. v. Rina Parayno Lim and Puerto
Azul Land, Inc., G.R. No. 171677. January 30,
2013
Res judicata; elements. In Heirs of Maximino Derla v.
Heirs of Catalina Derla Vda. de Hipolito, we enumerated
the following as the elements of res judicata:
a) The former judgment or order must be final;
b) It must be a judgment or order on the merits, that is,
it was rendered after a consideration of the evidence or
stipulations submitted by the parties at the trial of the
case;
c) It must have been rendered by a court having
jurisdiction over the subject matter and the parties; and
i) There must be, between the first and
second actions, identity of parties, of subject
matter and of cause of action. This requisite
is satisfied if the two (2) actions are
substantially between the same parties.
ii)
In the case at bar, the validity of the subject mortgage
between PALI and PNB was the primary issue raised by
the parties and resolved by the RTC after the conclusion
of a full-blown trial. On September 10, 2004, the issue
was finally laid to rest.
A final and executory judgment, no matter how
erroneous, cannot be changed even by this Court.
Inevitably, res judicata operates to bar PALI and
PNB from raising the same issue lest there will be
no end to litigation.
Winston F. Garcia, in his capacity as
President and General Manager of the
GSIS v. Court of Appeals and Rudy C.
Tesoro, G.R. No. 169005. January 28, 2013
Res judicata; effect of minute resolutions.
In Alonso, we declared that a minute resolution
may amount to a final action on the case but it is
not a precedent. However, we continued to
state that it can not bind non-parties to the
action. Corollary thereto, we can conclude that a
minute resolution, while not a precedent relative
to strangers to an action, nonetheless binds the
parties therein, and calls for res
judicatas application.
Nationwide Security and Allied Services, Inc. v.
Valderama is instructive anent the effects of the
issuance of a minute resolution, viz:
It is true that, although contained in a
minute resolution, our dismissal of the
petition was a disposition of the merits of
the case. When we dismissed the petition,
we effectively affirmed the CA ruling being
questioned. As a result, our ruling in that
case has already become final. x x x
With respect to the same subject matter and the
same issues concerning the same parties, it
constitutes res judicata. However, if other
parties or another subject matter (even
with the same parties and issues) is
involved, the minute resolution is not
binding precedent. x x x (Underlining ours)
It is therefore clear from the above that for
purposes of the application of res
judicata, minute resolutions issued by this Court
are as much precedents as promulgated
decisions, hence, binding upon the parties to the
action
JBD
The application of the doctrine of res
judicata does not require absolute identity
of parties but merely substantial identity of
parties. There is substantial identity of
parties when there is community of
interest or privity of interest between a
party in the first and a party in the second
even if the first case did not implead the
latter (Fels, Inc. vs. Province of Batangas,
supra).
The doctrine of res judicata applies to quasi-
judicial proceedings (Heirs of Wenceslao Tabia vs.
CA, saupra), but there is no res judicata in criminal
proceedings.
Thus, the argument that the dismissal of a case during
preliminary investigation bars a further reinvestigation
because of the doctrine of res judicata, is untenable.
Even if the argument were to be expanded to
contemplate res judicata in prison grey or the criminal
law concept of double jeopardy, the reinvestigation
cannot be barred by reason of double jeopardy. The
dismissal of a case during preliminary investigation does
not constitute double jeopardy, preliminary investigation
not being part of the trial (Trinidad vs. Office of the
Ombudsman GR 166038 December 4, 2007).
Note: there can be res judicata without a trial,
such as in a judgment on the pleadings (Rule 34);
a Summary Judgment (Rule 35); or an order of
dismissal due to fault of plaintiff under Section 3
of Rule 17.
BARRED BY STATUE OF LIMITATIONS (Prescription
or Filed out of time).
A motion to dismiss filed before an answer
on the ground of prescription will be given due
course only if the complaint shows on its face that
the action has already prescribed.
Prescription vs laches
1. Prescription is concerned with the fact of delay
while laches is concerned with the effect of delay;
2. Prescription is a matter of time while laches is a
matter of equity;
3. Prescription is statutory while laches is not;
4. Prescription applies at law, laches in equity;
5. Prescription is based on fixed time while laches
is not.
Example of laches is Tijam vs. Sibonghanoy.
If the person claiming to be the owner of the
property is in actual possession thereof, the right
to seek reconveyance, which in effect seeks to
quiet title to the property, does not prescribe. One
who is in actual possession of a piece of
land claiming to be the owner thereof may
wait until his possession is disturbed or his 238
title is attacked before taking steps to
vindicate his right. (Heirs of Marcela Salonga Bituin vs.
teofilo Caoleng, Sr. GR No. 15756, Aug. 10, 2007)
Bar by Statute of Limitations (Prescription of
Actions)
An action prescribes by the lapse of time fixed in
the Civil Code (Articles 1139 to 1155).
1. Eight years
a. actions to recover movables
2. Thirty years
a. real actions over immovables
3. Ten years
a. written contract
b. obligation created by law
c. judgment
4. Six years
a. oral contract
b. quasi-contract
5. One year
a. forcible entry and unlawful detainer
b. defamation
6. Five years
All other actions whose periods are not fixed in the Civil
Code or other laws
NOTES:
a. Prescription and estoppel cannot be invoked against
the State (Delos Reyes vs. CA,
January 27, 1998, 285 SCRA).
b. Even if the defense of prescription has not been raised
in a motion to dismiss or an
answer, if the plaintiffs complaint or evidence shows
that the action had prescribed , the action shall be
dismissed. (Rule 9, Sec. 1)
c. Prescription cannot be invoked as a ground if the
contract is alleged to be void ab initio
but where prescription depends on whether contract is
void or voidable, there must be
a hearing.
Seventh Ground: [g] THAT THE PLEADING
ASSERTING THE CLAIM STATES NO CAUSE OF ACTION;
Q: How will you know that the pleading (e.g. complaint)
states or does not state a cause of action?
A: The principle to remember is: Whether the
pleading states a cause of action or not is determined
only by allegations in the pleading. The rule is similar to
on the ground of lack of jurisdiction over the subject
matter under paragraph [b].
Remember that under Rule 2, Section 1, every civil
action must be based on a cause of action. Therefore,
the four (4) elements of cause of action must be alleged.
If one element is missing, there is no cause of action and
it is now a ground for dismissal.
When the ground for the dismissal is that
the complaint states no cause of action, such fact
can be determined only from the facts alleged in
the complaint.
It is beside the point whether or not the
allegations in the complaint are true, for with a motion to
dismiss a complaint based on lack of cause of
action, the movant only hypothetically admits the
truth of the facts alleged in the complaint; that is,
assuming arguendo that the facts alleged are
true, those allegations are insufficient for the
court to render a valid judgment upon the same
in accordance with the prayer of the complaint.
(Universal Aquarius, Inc., et al., vs. Q.C. Human
Resources Management Corporation, GR No.
155990, Sept. 12, 2007)
Hypothetical admissions of a motion to
dismiss-
A motion to dismiss hypothetically admits the
truth of the factual allegations of the complaint
(Peltan Development Inc., vs. CA 270 SCRA 82;
Cuarto vs. De Luna 22 SCRA 459). The admission
extends only to such matters of fact that have
been sufficiently pleaded and not to mere
epithets charging fraud, allegations of legal
conclusions or erroneous statements of law,
inference from facts not stated, matters of
evidence or irrelevant matters (De Dios vs. Bristol
Laboratories, 55 SCRA 349) Only deemed
hypothetically admitted are material allegations,
not conclusions. An allegation that a contract is
an equitable mortgage is a conclusion and not
a material allegation. Hence, it is not deemed
admitted by the motion to dismiss (Dalandan vs.
Julio 10 SCRA 4000).
If for instance the plaintiff files an action for
damages against the defendant who files a
motion to dismiss, the defendant in effect says
that even assuming the facts to be true as
alleged by the plaintiff, the latter has failed to
show that he has a right to relief because his
action has prescribed or because the court where
the action was filed has no jurisdiction over the
subject matter of the complaint.
The Claim States No Cause of Action
a. Elements of a Cause of Action
(1) a RIGHT in favor of the plaintiff by whatever
means and under whatever law it arises
or is created;
(2) an OBLIGATION on the part of the named
JBD
defendant to respect or not to violate such
right; and
(3) an ACT OR OMISSION on the part of such
defendant violative of the right of the
plaintiff or constituting a breach of the obligation
of the defendant to the plaintiff for
which the latter may maintain an action for
recovery of damages.
b. General rule: a motion to dismiss for failure
to state a cause of action
HYPOTHETICALLY ADMITS the material
allegations of the complaint.
Exceptions:
(1) allegations of which the court will take judicial notice
are not true
(2) legally impossible facts
(3) facts inadmissible in evidence
(4) facts which appear by record or document included in
the pleadings to be unfounded
(5) matters of evidence
(6) surplusage and irrelevant matters
(7) scandalous matters
(8) averments contradicted by more specific averments
(9) conclusions or interpretations of law
(10) allegations of fact the falsity of which is subject to
judicial notice (Tan vs. Director of Forestry, 125 SCRA
302 [1982])
What is the issue in a motion to dismiss on the
ground that the complaint states no
cause of action?
Admitting the allegations of the complaint, may the court
render VALID JUDGMENT in
accordance with its prayer and the law?
NOTE:
a. The insufficiency of the cause of action must appear
on the FACE OF THE COMPLAINT to sustain a dismissal
on that ground.
b. No extraneous matter may be considered nor facts
alleged which would require
evidence and therefore, must be raised as defenses and
await the trial.
Lack of cause of action not a ground for a motion
to dismiss under Rule 16
Failure to state a cause of action and not lack or absence
of cause of action is the ground for a motion to dismiss.
The former means there is insufficiency in the
allegations in the pleading. The latter means that
there is sufficiency in the allegations but insufficiency
in the factual basis of the action. The former does
not need presentation of evidence while the latter
does.
The defendant is not allowed to say that 239
the plaintiff has no cause of action because
when he files a motion to dismiss he hypothetically
admits the allegations in the complaint.
That is why the SC said in the case of
MUNICIPALITY OF BIAN vs.
GARCIA
180 SCRA 576 [1989]
 HELD: The lack of cause of
action is not a ground for the
dismissal of an action under Rule 16.
The ground is the failure of the
complaint to state a cause of action
which is obviously not the same as
the plaintiff not having a cause of
action. The lack of cause of action
becomes evident during the course of
the trial but whether the complaint
states a cause of action is only limited
to what the complaint says.
So, my complaint may state a cause of action
when in reality there is no cause of action. At that
moment, you cannot dismiss it.
General Rule:
When the court determines whether there is a cause of
action or not, the court cannot look at the evidence all
must be based on the complaint and there should be no
appreciation of any evidence.
EXCEPTION in the case of
SANTIAGO vs. PIONEER
SAVINGS & LOAN BANK
157 SCRA 100 [1987]
FACTS: The plaintiff filed a
complaint against defendant with a
prayer for a preliminary injunction. So,
it is not only a complaint but plaintiff
applied for a provisional remedy. And
under the law in provisional remedy,
that must be heard immediately
because that is urgent. And in a
preliminary injunction, there must be
a hearing because preliminary
injunction cannot be granted ex parte.
So even before the answer
could be filed, there was a hearing on
the application for preliminary
injunction and the plaintiff already
presented evidence on his cause of
action. After the hearing, now comes
the defendant moving to dismiss the
entire case because there is no cause
of action based on the evidence you
presented.
Plaintiff: No, the cause of action
is determined only based on the
allegations in the complaint and you
do not look at the evidence.
HELD:
It is true that the
determination of the sufficiency of a
cause of action must be limited to the
facts alleged in the Complaint and no
other should be considered.
However, where a hearing was
held and documentary
evidence was presented, not
on the Motion to Dismiss but
on the question of granting or
denying an application for a
Writ of Preliminary Injunction,
a motion to dismiss for
insufficiency of cause of action
will be granted if documentary
evidence admitted by
stipulation disclosing facts
sufficient to defeat the claim
which authorizes the court to
go beyond disclosure in the
complaint.
So that would be the exception: where
evidence has already been presented in the main
cause of action because of the application for
preliminary injunction.
Now, of course the rule that a defendant
who files a motion to dismiss hypothetically
admits all the allegations in the complaint, as
explained by the SC, refer only to material
allegations of ultimate facts. If those are
evidentiary facts or conclusions of fact or law,
they are not admitted, for in the first place, they
have no place in the pleading.
That is the ruling in the 1990 case of
RAVA DEV'T CORP. vs .
COURT OF APPEALS
211 SCRA 144 [1992]
HELD: The
hypothetical admission is
however limited to the
relevant and material facts
well pleaded in the
complaint and inferences
fairly deductible therefrom.
The admission does not
extend to conclusions or
interpretations of law; nor
JBD
does it cover allegations of
fact the falsity of which is
subject to judicial notice.
Meaning, you allege there something,
which is 100% false and the court knows it, but
you filed a motion to dismiss, are you deemed to
hypothetically admit something which everybody
knows is false? NO. When you file a motion to
dismiss, you are deemed to admit everything
there is true except matters which are 100%
false and which the court itself knows to be false,
or the conclusions of the pleader because in the
first place, conclusions have no place in the pleading.
ROSITA TAN vs. COURT OF
APPEALS
295 SCRA 247 [Sept. 9, 1998]
FACTS: The controversy centers
on 2 parcels of land in Manila
previously owned by one Alejandro
Tan Keh and which were then covered
by TCT 35656. Fernando Tan Kiat
claimed that he bought the land from
Tan Keh in 1954, but was unable to
effect immediate transfer of title in his
favor in view of his foreign nationality
at the time of the sale. Nonetheless,
as an assurance in good faith of the
sales agreement, Tan Keh turned over
to Kiat the owner's duplicate copy of
TCT 35656 and, in addition, executed
a lease contract in favor of Kiat for 40
years.
However, in 1958, Tan Keh sold
the subject properties to Remigio Tan,
his brother and father of Rosita Tan,
with the understanding that the land
are to be held in trust by Remigio for
the benefit of Kiat and that Remigio
would execute the proper documents
of transfer in favor of Kiat should Kiat
at anytime demand recovery of land.
TCT 35656 was thus cancelled
and in lieu thereof TCT 53284 was
issued in the name of Remigio.
Another contract of lease was
executed by Tan Keh and Remigio in
favor of Kiat to further safeguard
Kiat's interest on the land, but Kiat
never paid any rental and no demand
whatsoever for the payment thereof
had been made on him.
Remigio was killed in 1968. At
his wake, Rosita was reminded of
Kiat's ownership of the land and she
promised to transfer the land to Kiat
who by then had already acquired
Filipino citizenship by naturalization.
Rosita, however, never made
good their promise to convey the 240
land despite repeated demands by
Kiat. In fact, Rosita had the land
fraudulently transferred to her name
under TCT 117898. Thus, the filing of
the complaint for recovery of property.
On Nov 10, 1993, Rosita filed a
Motion To Dismiss the complaint,
claiming that: the complaint stated no
cause of action; the cause of action
has long prescribed; the cause of
action has long been barred by a prior
judgment; and, the claim has been
waived, abandoned and/or
extinguished by laches and estoppel.
The RTC issued an order
dismissing Kiat's complaint, acceding
to all the grounds set forth by Rosita
in her motion to dismiss. CA set aside
the dismissal and ordered the remand
of the case for further proceedings.
HELD: There is merit in the
petition. There being no trust,
express or implied, established in
favor of Kiat, the only transaction that
can be gleaned from the allegations in
the complaint is a double sale, the
controlling provision for which is Art.
1544 of the Civil Code. Kiat alleged
that he bought the subject properties
from Tan Keh in 1954 but nonetheless
failed to present any document
evidencing the same, while Remigio,
as the other buyer, had in his name
TCT 53284 duly registered on Oct 13,
1958.
Remigio, beyond doubt, was
the buyer entitled to the subject
properties since the prevailing rule is
that in the double sale of real property,
the buyer who is in possession of a
Torrens title and had the deed of sale
registered must prevail. Rosita is in
possession of TCT 117898 which
evidences her ownership of land. Kiat
relies simply on the allegation that he
is entitled to the properties by virtue
of a sale between him and Tan Keh
who is now dead. Obviously, Kiat will
rely on parol evidence which, under
the circumstances obtaining, cannot
be allowed without violating the
"Dead Man's Statute" found in Sec. 23,
Rule 130. Clearly then, from a reading
of the complaint itself, the complaint
indeed does not spell out any cause of
action.
We also agree with Rosita's
submission that Kiat's cause of action
has prescribed. TCT 53284 in the
name of Remigio was registered on
Oct 13, 1958, while TCT 117898 in
the name of Rosita, was issued on Apr
21, 1975. Kiat filed his complaint on
Oct 18, 1993. CA held that the 10-
year prescriptive period for the
reconveyance of property based on an
implied trust cannot apply in this case
since Kiat was in actual possession of
the subject properties.
However, Kiat's occupation of
the land was never in the concept of
an owner since he was a mere
lessee who is estopped from
denying the title of Remigio as
owner-lessor. It thus becomes
evident that the filing of Kiat's
complaint in 1993 35 years
after TCT 53284 in the name
of Remigio was registered and
18 years after the issuance of
TCT 117898 in the name of
Rosita was way beyond the
10-year time limit within which
reconveyance of property
based on an implied trust
should be instituted. Kiat's
cause of action, assuming that
it exists, has clearly
prescribed.
Finally, Kiat is guilty of
laches. Kiat's possession of the
land cannot be made the basis
to deflect the effects of laches
because he is a mere lessee
who, to repeat, cannot assert
any adverse claim of
ownership over the subject
properties against the lessor-
owner. What ought to be in
focus is that, Kiat was not able
to effect the transfer of title
over the subject properties in
his favor upon his purchase
thereof from Tan Keh in 1954
because he was still a
foreigner at that time. But Kiat
later on claimed that he was
already a Filipino national
when he reminded Rosita of
his ownership of the subject
properties during Remigio s
wake sometime in 1968.
It may be reasonably
deduced from these
allegations that Kiat acquired
Filipino citizenship by
naturalization, thus entitling
him to own properties in the
1960's, more or less. His
JBD
mistake, if it is one, is that he
tarried for 30 years before
formally laying claim to the
subject properties before the
court. Considerable delay in
asserting one's right before a
court of justice is strongly
persuasive of the lack of merit
of his claim, since it is human
nature for a person to enforce
his right when the same is
threatened or invaded. Thus,
Kiat is estopped by laches
from questioning the ownership of the
land.
WHEREFORE, the assailed
decision of CA is SET ASIDE, and a
new one is rendered DISMISSING
Fernando Tan Kiat's complaint.
Eight Ground: [h]THAT THE CLAIM OR
DEMAND SET FORTH IN THE PLAINTIFF'S
PLEADING HAS BEEN PAID, WAIVED,
ABANDONED, OR OTHERWISE
EXTINGUISHED;
The Claim or Demand Has Been Paid, Waived,
Abandoned, or Otherwise Extinguished.
Under Art. 1231 of the Civil Code, obligations are
extinguished:
(1) by payment or performance;
(2) by the loss of the thing due;
(3) by the condonation or remission of the debt;
(4) by the confusion or merger of rights of debtor and
creditor;
(5) by compensation; and
(6) by novation
Obligations may also be extinguished by annulment,
rescission, fulfillment of a resolutory condition and
prescription.
Laches as a ground for a motion to dismiss
In one case, in reversing the RTCs order of
dismissal, the CA held that laches could not be a ground
to dismiss a complaint since it is not one of the grounds
for the dismissal of a civil action under Section 1 of Rule
16 of the Rules of Court. The SC categorically held that
the CA is not entirely correct. Under paragraph (h)
of Sec. 1 of Rule 16, one of the grounds for the
dismissal is where a claim or demand set forth in
the plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished. The Court
declared:
The language of the rule, particularly on the
relation of the words abandoned and
otherwise extinguished to the phrase
claim or demand deemed set forth in the 241
plaintiffs pleading is broad enough to
include within its ambit the defense of bar by
laches. However, when a party moves for the dismissal
of the complaint based on laches, the trial court must set
a hearing on the motion where the parties shall submit
not only their arguments on the questions of law but also
their evidence on the questions of fact involved. Thus,
being factual in nature, the elements of laches must be
proved or disproved through the presentation of
evidence by the parties (Pineda vs. Heirs of Eliseo
Guevara, GR 143188 February 14, 2007).

Ninth Ground: [i] THAT THE CLAIM ON WHICH THE
ACTION IS FOUNDED IS UNENFORCEABLE UNDER THE
PROVISIONS OF THE STATUTE OF FRAUDS
The Claim is Unenforceable Under the Statute of
Frauds
The statute of frauds is governed by Art. 1403 (2) of the
Civil Code, which provides that:
a. certain contracts therein enumerated, unless IN
WRITING and SUBSCRIBED by the party charged or by
his agent,
b. are UNENFORCEABLE and EVIDENCE on the
agreement CANNOT BE
RECEIVED without the writing or secondary evidence of
its contents.
NOTES:
a. Where applied: The statute of frauds applies only to
EXECUTORY CONTRACTS and in actions for their
SPECIFIC PERFORMANCE, not to those which have been
totally or partially performed. Performance, which must
be proved, takes the contract out of the operation of the
principle (Tankiko vs. Cesar , 302 SCRA 559 [1999])
b. Purpose: To prevent fraud and perjury in the
enforcement of obligations depending for their evidence
on the unassisted memory of witnesses by requiring
certain contracts
and transactions to be in writing (Claudel vs. CA , 119
SCRA 113 [1999]).
Under the Statute of Frauds or Article 1403 of the
Civil Code certain contracts are unenforceable if
not made in writing. They are valid contracts, only
that they are unenforceable because they were not
reduced into writing.
EXAMPLES of Statute of Frauds under Article 1403:
1.) a contract that by its terms is not to
be performed within one year from
the making of such contract;
2.) a special promise to answer for the
debt, default, or miscarriage of
another;
3.) an agreement made in consideration
of marriage, other than a mutual
promise to marry;
4.) an agreement for the sale of goods,
chattels or things in action, at a price
not less than five hundred pesos;
5.) an agreement for the leasing for a
longer period than one year, or for
the sale of real property or an interest
therein;
6.) a representation as to the
credit of a third person.
Tenth Ground: [j] THAT A CONDITION
PRECEDENT FOR FILING THE CLAIM
HAS NOT BEEN COMPLIED WITH.
A Condition Precedent For Filing The Claim
Has Not Been Complied With
Where a condition precedent for filing the claim
in court has not been complied with, the
cause of action has not accrued.
A complaint may be dismissed for FAILURE
TO STATE A CAUSE OF ACTION if:
a. the case is between or among members of the
SAME FAMILY and there is no
allegation that earnest efforts towards a
COMPROMISE has been exerted, or
b. the claim is referable to the Katarungang
Pambarangay and prior recourse to
barangay CONCILIATION has not been made, or
c. the case involves a matter which the law
requires that there be EXHAUSTION of
ADMINISTRATIVE REMEDIES before a litigant is
allowed to resort to court for
reliefs, except where the complaint alleges facts
which bring the case under any of
the exceptions thereto (Sunville Timber Products,
Inc. vs. Abad , 206 SCRA 582 [1992]).
Or
1.) Failure to exhaust administrative
remedies;
2.) Failure to undergo Barangay
Conciliation;
For parties residing in the same city, one must
first settle or compromise the suit at the
barangay level before raising the action
3.) Article 151 of the Family Code
contemplates suit between family
members.
JBD
It must be alleged in the complaint
that earnest efforts towards a compromise
is made between: husband and wife,
parents and children, ascendants and
descendants, brothers and sisters, whether
full or half blood.
So it should appear form a verified
complaint or petition that earnest efforts
toward a compromise have been made,
but the same have failed. If it is shown
that no such efforts were in fact made, the
case must be dismissed.
Now, under the last sentence of Article 151, This
rule shall not apply to cases which may not be the
subject of compromise under the Civil Code. This refers
to Article 2035 of the New Civil Code:
Art. 2035. No
compromise upon the
following questions shall be
valid:
1. The
civil status of
persons;
2. The
validity of a
marriage or a
legal separation;
3. Any
ground for legal
separation;
4.
Futur
e support;
5. The
jurisdiction of
courts;
6.
Futur
e legitime.
Sec. 2. Hearing of motion. At the hearing
of the motion, the parties shall submit
their arguments on the questions of
law and their evidence on the
questions of fact involved except those
not available at that time. Should the
case go to trial, the evidence presented
during the hearing shall automatically
be part of the evidence of the party
presenting the same. (n)
During the hearing of a motion to dismiss, the
movant is allowed to present evidence to prove his claim.
Like for example: the venue is not properly laid or the
action is already extinguished by payment or the action
is already barred by a prior judgment.
GENERAL RULE: On hearing on a motion
to dismiss, the defendant is allowed to present 242
evidence to prove the ground for his dismissal.
EXCEPTION or when there is hypothetical
admission of the allegations in the complaint:
1.) Lack of jurisdiction over the subject
matter (paragraph [b]); or
2.) The pleading asserting the claim
states no cause of action (paragraph
[g])
When these are the grounds invoked, the
defendant is not allowed to present evidence because
you are hypothetically admitting all the allegations in the
complaint as true and correct. You are not allowed to
dispute or deny those allegations. It shall be based
purely on the allegations of the complaint so you are not
allowed to prove that those allegations are not true.
And should the case go to trial, the evidence
presented shall automatically form part of the evidence
of the party presenting the same. There is no need to
present those evidence again during the trial because
the evidence during the hearing is automatically part of
the evidence during the trial. This is similar to the rule on
Bail in Criminal Procedure.
Sec. 3. Resolution of motion. After the
hearing, the court may dismiss the
action or claim, deny the motion, or
order the amendment of the pleading.
The court shall not defer the resolution
of the motion for the reason that the
ground relied upon is not indubitable.
In every case, the resolution shall state
clearly and distinctly the reasons
therefor. (3a)
Q: How will the court rule on the motion to dismiss?
A: The following:
1.) The court will dismiss the action.
(motion is granted);
2.) The court will deny the motion
(proceed to trial); or
3.) The court will order the amendment
of the pleading
In resolving a motion to dismiss, the court is required to
give reasons for its resolution.
Sps. Eugene L. Lim and Constancia Lim v. The
Court of Appeals-Mindanao Station, et al.; G.R. No.
192615. January 30, 2013
Motion to dismiss; remedy against denial is not appeal;
denial may be assailed through a petition for
certiorari. The denial of a motion to dismiss, as an
interlocutory order, cannot be the subject of an appeal
until a final judgment or order is rendered in the main
case. An aggrieved party, however, may assail an
interlocutory order through a petition for certiorari but
only when it is shown that the court acted without or in
excess of jurisdiction or with grave abuse of discretion.
When the court orders the amendment of the pleading,
in effect the motion to dismiss is also denied. So, the
rule is when the ground for the dismissal can be cured
by amending the complaint, do not dismiss but require
the party to amend the complaint. That is a polite way of
denying your motion to dismiss.
Like for example, when the ground is failure to
state a cause of action
Q: Suppose the plaintiff filed a complaint
and the defendant files a motion to dismiss, can
the plaintiff still amend his complaint? Otherwise
stated, can the plaintiff still amend his complaint
when there is already a motion to dismiss?
A: Ah YES! Because it is the right of the
plaintiff to amend his complaint before a
responsive pleading is served upon him. And a
motion to dismiss is not a responsive pleading. It
is not even a pleading (Guirao vs. Ver, April 29,
1966) The responsive pleading to the complaint
is the Answer.
Q: Now, suppose there is already an order
of dismissal in which the court has already
ordered the dismissal of the case, because it
does not state the cause of action of the
complaint. Plaintiff: Alright! Motion to amend the
complaint to state the cause of action and set
aside the order of dismissal. Can that still be
done at that stage where there is already an
order of dismissal?
A: YES! Provided the order of dismissal has
not yet become final and executory because the
rule is absolute: for as long as there is still no
responsive pleading, the right of the plaintiff to
amend his complaint is a matter of right.
The second paragraph of the section The
court shall not defer the resolution is an
amendment of the previous rule. Under the
previous rule, the court had four options: 1)
grant the motion; 2) deny; 3)order amendment;
and 4) defer the resolution for the reason that
the ground relied upon is not indubitable.
Indubitable means without a doubt, thus
the ground was not without a doubt, it is
doubtful, it is not indubitable. EXAMPLE:
Defendant filed a motion to dismiss the case and
the court analyzed the ground. After analyzing,
the court is not sure. The ground seems to be
valid but the court also doubts. Parang 50-50 ba.
Now the previous rule allows the court not
JBD
to actit will not act, it will not deny. The court
will just postpone the resolution of the motion to
dismiss, until the trial, because the ground is
doubtful. In the course of the trial, the court
may realize whether the ground is correct or not.
When the ground becomes clearer, the court may
say, All right, I will grant the motion. That was
allowed under the previous rule.
NOW, that is not allowed anymore. The
court really has to act on the motion: either grant
it, deny it, or order the amendment.
The last paragraph is self-explanatory, whether the Court
denies or grants the Motion, it must support its Order.
Sec. 4. Time to plead. If the motion is
denied, the movant shall file his
answer within the balance of the
period prescribed by Rule 11 to which
he was entitled at the time of serving
his motion, but not less than five (5)
days in any event, computed from his
receipt of the notice of the denial. If
the pleading is ordered to be amended,
he shall file his answer within the
period prescribed by Rule 11 counted
from service of the amended pleading,
unless the court provides a longer
period. (4a)
Q: Suppose defendant files a motion to dismiss
and the court granted the motion. The case is dismissed.
What happens to the case?
A: Its the end of the case. The defendant has no
more problem because the case has been ordered
dismissed.
Q: Suppose the court denies the motion to dismiss?
A: Defendant is now obliged to file his answer.
Under Rule 11, he has within the balance of the 15 days
but not less than 5 days to file his answer.
Q: But instead of filing his answer, he files a
motion to dismiss. Like for example, after consuming 8
days, he files a motion to dismiss, the running of the
period stops. After a while, he receives an order denying
his motion. How many more days does he have?
A: Seven (7) days only. He must file his answer
within the remaining balance of the period.
This is a radical departure from the previous Rule.
Under the 1964 Rules, when you file a motion to dismiss
on the eight day, and the motion is denied, you have 15
days all over again to file an answer. NOW, no more
you only have the remaining balance of the 15-day
period.
Q: Now, suppose you file your motion to dismiss
on the 13th day, so, two days to go. If your
motion is denied, do you only have two days to
file your Answer? 243
A: NO. You are entitled to not less than
five (5) days. This is identical with Rule 12, Section 5 on
Bills of Particular:
Rule 12, Sec. 5. Stay of period to file
responsive pleading. - After service of the
bill of particulars or of a more definite
pleading, or after notice of denial 0f his
motion, the moving party may file his
responsive pleading with the period to
which he was entitled at the time of
filing his motion, which shall not be
less than five (5) days in any event.
(1[b]a)
Remedies of defendant if motion to dismiss is
denied-
As a rule, the filing of an answer, going
through the usual trial process, and the filing of a
timely appeal from an adverse judgment are the
proper remedies against a denial of a motion to dismiss.
The filing of an appeal from an order denying a motion
to dismiss is not the remedy prescribed by existing rules.
The order of denial, being interlocutory, is not
appealable by express provision of Section 1(b), Rule 41.
Where the judgment or final order is not
appealable, like an interlocutory order, Rule 41 declares
that the aggrieved party may file an appropriate civil
action under Rule 65. The remedy therefore, would be
certiorari, prohibition or mandamus. This remedy
however, is predicated upon an allegation and a showing
that the denial of the motion was tainted with grave
abuse of discretion amounting to lack of jurisdiction
where the remedy chosen is either certiorari or
prohibition or both. In case the remedy chosen is
mandamus, there must be a showing that the
respondent court unlawfully neglected the performance
of an act which the law specifically enjoins. Without such
showing, Rule 65 cannot be availed of as a remedy.
Jurisprudence declares:
An order denying a motion to dismiss is an
interlocutory order which neither terminates nor finally
disposes of a case, as it leaves something to be done by
the court before the case is finally decided on the merits.
As such, the general rule is that the denial of a motion to
dismiss cannot be questioned in a special civil action for
certiorari which is a remedy designed to correct errors of
jurisdiction and not errors of judgment. Neither can a
denial of a motion to dismiss be the subject of an appeal
unless and until a final judgment or order is rendered. In
order to justify the grant of the extraordinary
remedy of certiorari, the denial of the motion to
dismiss must have been tainted with grave abuse
of discretion amounting to lack or excess of
jurisdiction (Douglas Lu Ym vs. Gertrudes Nabua 451
SCRA 298).
Sec. 5. Effect of dismissal. Subject to the
right of appeal, an order granting a
motion to dismiss based on paragraphs
(f), (h) and (i) of section 1 hereof shall
bar the refiling of the same action or
claim. (n)
GENERAL RULE: A case that has been dismissed can
be re-filed.
EXCEPTIONS: When the case was
dismissed on the following grounds:
1.) That the cause of action is
barred by a prior judgment
or by the statute of
limitations;
2.) That the claim or demand set
forth in the plaintiffs pleading
has been paid, waived,
abandoned or otherwise
extinguished; or
3.) That the claim on which the
action is founded is
unenforceable under the
provisions of the Statute of
Frauds.
Remedies of the plaintiff if the motion to
dismiss is granted-
If the motion to dismiss is granted, the
complaint is dismissed. Since the order of
dismissal is a final order, and not interlocutory in
character, the plaintiff has several options.
When dismissal is with prejudice, remedy is
appeal-
He may appeal from the order of dismissal
where the ground relied upon is one which bars
the refiling of the complaint like res judicata,
prescription, extinguishment of the
obligation or violation of the statute of
frauds (Sec. 5). Since the complaint cannot
be refiled, the dismissal is with prejudice.
Under Section 1(g) of Rule 41, it is an order
dismissing an action without prejudice,
which cannot be appealed from. Conversely,
where the dismissal is with prejudice, an appeal
from the order of dismissal is not precluded.
When dismissal is without prejudice,
remedy is to refile-
However, where the ground for dismissal
for instance, is the failure of the complaint to
JBD
state a cause of action, the plaintiff may
simply file the complaint anew but since the
dismissal is without prejudice to its refiling, the
order of dismissal cannot be appealed from under
the terms of Section 1(h) of Rule 41 of the Rules
of Court.
Where the ground for dismissal is lack of
jurisdiction over the subject matter, the
dismissal is without prejudice to the refiling of
the complaint. Following the tenor of Sec. 1(g) of
Rule 41, an order dismissing a complaint for lack
of jurisdiction over the subject matter is a
dismissal without prejudice and hence, no appeal may be
had from that order.
Exception-
Despite Section 1 of Rule 41, appeal may
nevertheless be taken from the order dismissing an
action for lack of jurisdiction over the subject matter in a
situation contemplated under Section 8 of Rule 40. This
provision specifically allows, by necessary implication, an
appeal from orders dismissing cases on the ground of
lack of jurisdiction over the subject matter. The tenor of
Section 8 of Rule 40 therefore, operates to furnish an
exception to the general rule enunciated in Section 1 of
Rule 41. This situation applies in dismissal made in
the MTC and not to a dismissal in the RTC.
Sec. 8. Appeal from orders dismissing case
without trial; lack of jurisdiction. If an
appeal is taken from an order of the
lower court dismissing the case
without a trial on the merits, the
Regional Trial Court may affirm or
reverse it, as the case may be. In case
of affirmance and the ground of
dismissal is lack of jurisdiction over the
subject matter, the Regional Trial
Court, if it has jurisdiction thereover,
shall try the case on the merits as if
the case was originally filed with it. In
case of reversal, the case shall be
remanded for further proceedings.
If the case was tried on the merits by
the lower court without jurisdiction
over the subject matter, the Regional
Trial Court on appeal shall not dismiss
the case if it has original jurisdiction
thereof, but shall decide the case in
accordance with the preceding section,
without prejudice to the admission of
amended pleadings and additional
evidence in the interest of justice. (n)
When remedy is certiorari-
The plaintiff may also avail of a petition
for certiorari. This remedy is available if the
court gravely abuses its discretion in a manner 244
amounting to lack of jurisdiction and is the
appropriate remedy in those instances when the
dismissal is without prejudice (Sec. 1, Rule 41).
Summary of Effect of action on motion to dismiss
and corresponding remedy
1. Order granting a motion to dismiss is a final
order (if without prejudice like ground is lack of
jurisdiction over the subject matter) -- remedy is to refile;
2. Order granting the motion with prejudice (ground is
prior judgment, res judicata, statute of limitations,
prescription of the claim or statute of frauds.
-- remedy is appeal;
3. Order denying the motion to dismiss is
interlocutory - - file answer and proceed with the trial. If
the decision is adverse, appeal therefrom and raise as
error the denial of the motion to dismiss.
4. If there is grave abuse of discretion amounting
to lack or excess of jurisdiction, and dismissal is without
prejudice, certiorari or prohibition may lie under Rule 65.
Sec. 6. Pleading grounds as affirmative
defenses. If no motion to dismiss has
been filed, any of the grounds for
dismissal provided for in this Rule may
be pleaded as an affirmative defense in
the answer and, in the discretion of the
court, a preliminary hearing may be
had thereon as if a motion to dismiss
had been filed. (5a)
The dismissal of the complaint under
this section shall be without prejudice
to the prosecution in the same or
separate action of a counterclaim
pleaded in the answer. (n)
Q: For example, Im a defendant, I receive a
complaint and I believe I have a ground for a Motion to
Dismiss under Section 1 from [a] to [j]. I will not file a
motion to dismiss, instead, I will file an answer, is that
allowed?
A: Yes, because it is OPTIONAL for a defendant to
file a motion to dismiss. And I can file my answer and a
ground for dismissal can be raised as an affirmative
defense.
So the grounds for a motion to dismiss are
convertible. Instead of filing a motion to dismiss, I will
allege the grounds as affirmative defenses, likeno
cause of action, litis pendentia, res adjudicata, payment,
statute of frauds, prescription
Under Section 6, after filing of such answer, the
defendant can ask for a preliminary hearing on his
affirmative defenses as if a motion to dismiss has been
filed. Meaning, this should be heard ahead. And if the
court grants the preliminary hearing, you can move your
affirmative defenses ahead and if you are correct, the
court will dismiss the case. So, it has the same effect as
if you file a motion to dismiss. That is why a preliminary
hearing may be had as a motion to dismiss.
Now, you ask why should the defendant do this?
Why file an answer and then preliminary hearing?
Because this is a matter of strategy on trial
technique. If I will file a motion to dismiss which is not a
responsive pleading, the plaintiff may amend the
complaint, and I cannot prevent him from amending
because the amendment is still a matter of right HELD: A compulsory
at that moment. counterclaim is so intertwined with
the complaint that it would not remain
That follows the general principle in trial pending for independent adjudication
technique. Do not expose your adversarys by the court after the dismissal of the
mistake when he is in a position to correct them. complaint which had provoked the
When the point is reached when he cannot counterclaim in the first place. As a
anymore correct the error, then, expose it. That consequence, the dismissal of the
is the advice in trial technique. complaint operated also to dismiss the
counterclaim questioning the
The second paragraph of Section 6 is new: complaint. When defendant moved to
dismiss the main action, he also
The dismissal of moved, in effect, for the dismissal of
the complaint under the counterclaim.
this section shall be
without prejudice to That is the prior rule. That ruling is already
the prosecution in OBSOLETE because of this new paragraph, The
the same or separate dismissal of the complaint under this section shall
action of a be without prejudice to the prosecution in the
counterclaim pleaded same or separate action of a counterclaim pleaded
in the answer. (n) in the answer.
Note:
If the defendant would want to file a Reviewer
counterclaim, he should not file a motion to Motion to Dismiss (Rule 16)
dismiss. Instead, he should allege the grounds
of a motion to dismiss as affirmative defenses in Four general types of motion to dismiss under the Rules
his answer with a counterclaim. A preliminary 1. Motion to dismiss before answer (Rule 16)
hearing may be had thereon, and in the event 2. Motion to dismiss by plaintiff (Rule 17)
the complaint is dismissed, the defendant can 3. Motion to dismiss on demurrer to evidence after
prosecute his counterclaim pursuant to said plaintiff has rested his case (Rule 33)
second paragraph. 4. Motion to dismiss appeal either in RTC (Rule 41, Sec.
13), CA (Rule 50, Sec. 1) or SC
Q: Suppose I will file an answer with (Rule 56, Sec. 5)
affirmative defenses and with a counterclaim. If
the court dismisses the complaint, what happens When may a court motu proprio dismiss a case?
to my counterclaim? 1. When it appears from the pleadings or the evidence
A: Under the NEW RULES, there are two on record that the following grounds for dismissal are
possibilities: present: lack of jurisdiction over the subject matter; litis
pendentia; res judicata and prescription (Rule 9, Sec. 1)
1.) The defendant can still - LLRP
prosecute his counterclaim in
a separate action; or 2. If for no justifiable cause, the plaintiff fails to appear
2.) The defendant can dismiss the on the date of the presentation of
complaint but the his evidence in chief on the complaint, or to prosecute
counterclaim remains alive. his complaint for an unreasonable
length of time, or to comply with the Rules of Court or
In the OLD RULES, when the main case is any order of the court (Rule 17,
dismissed,
JBD
dismissed, the counterclaim is automatically
especially if compulsory. If the
Sec. 3); and
245
defendant moved to dismiss the case, in effect 3. After an examination of the allegations in the
he was also moving to dismiss his counterclaim. complaint and such evidence attached
That is what the SC said in the case of thereto, the court may dismiss the complaint outright on
any of the grounds apparent
INTL CONTAINER therefrom [ex. lack of jurisdiction] (Revised Rule on
TERMINAL SERVICES vs. Summary Procedure, Sec. 4)
COURT OF APPEALS
214 SCRA 456 a. Grounds
[OBSOLETE!] What are the grounds for a motion to dismiss? (Rule 16,
Section 1)
a. That the court has no jurisdiction over the person of
the defending party;
b. That the court has no jurisdiction over the subject
matter of the claim;
c. That venue is improperly laid;
d. That the plaintiff has no legal capacity to sue;
e. That there is another action pending between the
same parties for the same
cause;
f. That the cause of action is barred by a prior judgment
or by the statute of
limitations;
g. That the pleading asserting the claim states no cause
of action;
h. That the claim or demand set forth in plaintiffs
pleading has been paid, waived,
abandoned, or otherwise extinguished;
i. That the claim on which the action is founded is
unenforceable under the
provisions of the Statute of Frauds; and
j. That a condition precedent for filing the claim has not
been complied with.
NOTES:
1. The motion must comply with Rule 15. The court is
without authority to act on the
motion without PROOF OF SERVICE of the notice of
hearing.
2. Waiver of defenses. Defenses and objections not
pleaded whether in a motion to
dismiss or in the answer are deemed waived (Rule 9, Sec.
1, 1st sentence).
Defenses and objections not waived even if not
raised in a motion to dismiss or
answer . The court shall motu proprio dismiss the claim
when it appears from the
pleadings or the evidence on record that:
a. The court has no jurisdiction over the subject matter
(lack of jurisdiction)
b. There is another action pending between the same
parties for the same cause (litis
pendentia)
c. The action is barred by prior judgment (res judicata)
d. The action is barred by the statute of limitations
(prescription) (Rule 9, Sec. 1, 2nd
sentence). [LLRP]
Discussion of individual grounds
The court has no jurisdiction over the person of
the defending party
The court has no jurisdiction over the subject
matter of the claim.
The venue Is Improperly laid.
a. Venue of an action depends upon the:
(1) nature of the action
(2) residence of the parties
(3) stipulation of the parties
(4) law
b. Test to determine nature of action
The nature of the action is determined from the
allegations of the complaint, the
character of the relief, its purpose and prime
objective. When the prime objective is to
recover real property, it is a real action.
Plaintiff Has No Legal Capacity To Sue
a. Legal capacity to sue means that a party is not
suffering from any disability such as
minority, insanity, covertures, lack of juridical
personality, incompetence, civil interdiction or
does not have the character or representation
which he claims or with respect to foreign
corporation, that it is doing business in the
Philippines with a license.
b. In Pilipinas Shell Petroleum Corporation v.
Dumlao, the Supreme Court held that a
person who has no interest in the estate of a
deceased person has no legal capacity to file a
petition for letters of administration. With respect
to foreign corporations, the qualifying
circumstances of plaintiffs capacity to sue being
an essential element must be affirmatively
pleaded. The qualifying circumstance is an
essential part of the element of the plaintiffs
capacity to sue. The complaint must either allege
that it is doing business in the Philippines with a
license or that it is a foreign corporation not
engaged in business and that it is suing in an
isolated transaction.
Pendency Of Another Action Between The
Same Parties For The Same Cause (Litis
Pendentia)
a. Rationale of the Rule: Like res judicata as a
doctrine, litis pendentia is a sanction of
public policy against multiplicity of suits. The
principle upon which a plea of another action
pending is sustained is that the latter action is
deemed unnecessary and vexatious.
b. Requisites of Litis Pendentia:
(1) Identity of parties, or at least such as
representing the same interest in both actions;
JBD
(2) Identity of rights asserted and prayed for, the
relief being founded on the same facts; and
(3) The identity on the preceding particulars
should be such that any judgment, which may be
rendered on the other action will, regardless of
which party is successful, amount to res judicata
in the action under consideration.
Bar by prior judgment (Res Judicata)
a. Requisites of Res Judicata:
(1)the former judgment or order must be final;
(2) it must be a judgment or order on the merits;
(3) the court which rendered it had jurisdiction over the
subject matter and the parties; and
(4) there must be, between the first and second actions,
identity of parties, of subject
matter and of cause of action.
b. Two aspects of Res Judicata
(1) Bar by Former Judgment when, between the
first case where the judgment was
rendered, and the second case where the judgment is
invoked, there is identity of parties, subject matter and
cause of action.
(2)Conclusiveness of Judgment when there is an
identity of parties but not cause of
action, the judgment being conclusive in the second case
only as to those matters
actually and directly controverted and determined, and
not as to matters invoked thereon.
c. A judicial compromise has the effect of res judicata
and is immediately executory and not appealable. The
ultimate test in ascertaining the identity of causes of
action -- whether or not the same evidence fully
supports and establishes both the present cause of
action and the former cause of action. Only substantial,
and not absolute, identity of parties is required for res
judicata.
Bar by Statute of Limitations (Prescription of
Actions)
An action prescribes by the lapse of time fixed in
the Civil Code (Articles 1139 to 1155).
1. Eight years
a. actions to recover movables
2. Thirty years
a. real actions over immovables
3. Ten years
a. written contract
b. obligation created by law
c. judgment
4. Six years
a. oral contract
b. quasi-contract
5. One year 246
a. forcible entry and unlawful detainer
b. defamation
6. Five years
All other actions whose periods are not fixed in the Civil
Code or other laws
NOTES:
a. Prescription and estoppel cannot be invoked against
the State (Delos Reyes vs. CA,
January 27, 1998, 285 SCRA).
b. Even if the defense of prescription has not been raised
in a motion to dismiss or an
answer, if the plaintiffs complaint or evidence shows
that the action had prescribed , the action shall be
dismissed. (Rule 9, Sec. 1)
c. Prescription cannot be invoked as a ground if the
contract is alleged to be void ab initio
but where prescription depends on whether contract is
void or voidable, there must be
a hearing.
The Claim States No Cause of Action
a. Elements of a Cause of Action
(1) a RIGHT in favor of the plaintiff by whatever means
and under whatever law it arises
or is created;
(2) an OBLIGATION on the part of the named defendant
to respect or not to violate such
right; and
(3) an ACT OR OMISSION on the part of such defendant
violative of the right of the
plaintiff or constituting a breach of the obligation of the
defendant to the plaintiff for
which the latter may maintain an action for recovery of
damages.
b. General rule: a motion to dismiss for failure to state
a cause of action
HYPOTHETICALLY ADMITS the material allegations of
the complaint.
Exceptions:
(1) allegations of which the court will take judicial notice
are not true
(2) legally impossible facts
(3) facts inadmissible in evidence
(4) facts which appear by record or document included in
the pleadings to be unfounded
(5) matters of evidence
(6) surplusage and irrelevant matters
(7) scandalous matters
(8) averments contradicted by more specific averments
(9) conclusions or interpretations of law
(10) allegations of fact the falsity of which is subject to
judicial notice (Tan vs. Director of Forestry, 125 SCRA
302 [1982])
What is the issue in a motion to dismiss on the
ground that the complaint states no
cause of action?
Admitting the allegations of the complaint, may the court
render VALID JUDGMENT in
accordance with its prayer and the law?
NOTE:
a. The insufficiency of the cause of action must appear
on the FACE OF THE COMPLAINT to sustain a dismissal
on that ground.
b. No extraneous matter may be considered nor facts
alleged which would require
evidence and therefore, must be raised as defenses and
await the trial.
The Claim or Demand Has Been Paid,
Waived, Abandoned, or Otherwise
Extinguished.
Under Art. 1231 of the Civil Code, obligations are
extinguished:
(1) by payment or performance;
(2) by the loss of the thing due;
(3) by the condonation or remission of the debt;
(4) by the confusion or merger of rights of debtor
and creditor;
(5) by compensation; and
(6) by novation
Obligations may also be extinguished by
annulment, rescission, fulfillment of a resolutory
condition and prescription.
The Claim is Unenforceable Under the
Statute of Frauds
The statute of frauds is governed by Art. 1403 (2)
of the Civil Code, which provides that:
a. certain contracts therein enumerated, unless
IN WRITING and SUBSCRIBED by the party
charged or by his agent,
b. are UNENFORCEABLE and EVIDENCE on the
agreement CANNOT BE
RECEIVED without the writing or secondary
evidence of its contents.
NOTES:
a. Where applied: The statute of frauds applies
only to EXECUTORY CONTRACTS and in actions
for their SPECIFIC PERFORMANCE, not to those
which have been totally or partially performed.
Performance, which must be proved, takes the
contract out of the operation of the principle
(Tankiko vs. Cesar , 302 SCRA 559 [1999])
b. Purpose: To prevent fraud and perjury in the
enforcement of obligations depending for their
evidence on the unassisted memory of witnesses
by requiring certain contracts
and transactions to be in writing (Claudel vs. CA ,
119 SCRA 113 [1999]).
JBD
A Condition Precedent For Filing The Claim
Has Not Been Complied With
Where a condition precedent for filing the claim
in court has not been complied with, the
cause of action has not accrued.
A complaint may be dismissed for FAILURE
TO STATE A CAUSE OF ACTION if:
a. the case is between or among members of the
SAME FAMILY and there is no
allegation that earnest efforts towards a
COMPROMISE has been exerted, or
b. the claim is referable to the Katarungang
Pambarangay and prior recourse to
barangay CONCILIATION has not been made, or
c. the case involves a matter which the law requires that
there be EXHAUSTION of
ADMINISTRATIVE REMEDIES before a litigant is allowed
to resort to court for
reliefs, except where the complaint alleges facts which
bring the case under any of
the exceptions thereto (Sunville Timber Products, Inc. vs.
Abad , 206 SCRA 582 [1992]).
b. Resolution of Motion
Rule 16, Sec. 3. After the hearing, the court may
1) dismiss the action or claim,
2) deny the motion, or
3) order the amendment of the pleading.
The court shall not defer the resolution of the motion for
the reason that the ground relied
upon is not indubitable. In every case, the resolution
shall state clearly and distinctly the reasons therefor.
c. Remedies of plaintiff when the complaint is
dismissed
a. APPEAL the order granting the motion or
b. REFILE the complaint, except where grounds for
dismissal are:
(1) that the cause of action is barred by prior judgment
[res judicata]
(2) that the cause of action is barred by the statute of
limitations [prescription]
(3) that the claim or demand has been paid, waived,
abandoned or otherwise
extinguished [extinguishment]
(4) that the claim is unenforceable under the statute of
frauds [statute of frauds]
[RPES ] (Rule 16, Sec. 5)
d. Remedies of the defendant when the motion is
denied
a. File his ANSWER (within the balance of the 15-day
period to which he was entitled
at the time of serving the motion, but not less than 5
days in any event, computed
from his receipt of the order of denial Rule 16, Sec. 4)
and proceed with the
hearing before the trial court.
b. if the decision is adverse, APPEAL therefrom.
The denial of the motion to dismiss 247
being interlocutory, cannot be questioned by
certiorari; it cannot be the subject of
appeal until judgment is rendered (Casil vs. CA, January
28, 1998).
c. Exception: where the court denying the motion acts
without or in excess of
jurisdiction or with grave abuse of discretion, the
defendant may question the
denial by petition for CERTIORARI under Rule 65.
Reason: it would be unfair to
require the defendant to undergo the ordeal and
expense of trial under such
circumstances because the remedy of appeal then would
not be plain and
adequate (Drilon vs. CA, March 20, 1997).
e. Effect of dismissal of complaint on certain
grounds
Rule 16, Sec. 5. Effect of dismissal.
Subject to the right of appeal, an order granting a
motion to dismiss based on paragraphs
(f), (h) and (i) of section 1 hereof shall BAR the refiling
of the same action or claim. These are:
(1) that the cause of action is barred by prior judgment
[res judicata]
(2) that the cause of action is barred by the statute of
limitations [prescription]
(3) that the claim or demand has been paid, waived,
abandoned or otherwise
extinguished [extinguishment]
(4) that the claim is unenforceable under the statute of
frauds [statute of frauds] [RPES]
(Rule 16, Sec. 5)
f. When grounds pleaded as affirmative defenses
Rule 16, Sec. 6. Pleading grounds as affirmative
defenses.
If no motion to dismiss has been filed, any of the
grounds for dismissal provided for in this Rule may be
pleaded as an affirmative defense in the answer and, in
the discretion of the court, a preliminary hearing may be
had thereon as if a motion to dismiss had been filed. The
dismissal of the complaint under this section shall be
without prejudice to the
prosecution in the same or separate action of a
counterclaim pleaded in the answer.
g. Bar by dismissal
See above
h. Distinguished from demurrer to evidence under
Rule 33:
After the plaintiff has completed the presentation of his
evidence, the defendant may
move for dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief. If
his motion is DENIED, he shall have the right to present
evidence. If the motion is GRANTED but on appeal the
order of dismissal is reversed, he shall be deemed to
have WAIVED the right to present evidence. (Rules of
Court, Rule 33, Sec. 1.)
A demurrer to evidence is differentiated from a motion to
dismiss in that the former can be availed of only after
the presentation of plaintiffs evidence while the latter is
instituted as a general rule before a responsive pleading
is filed.
Distinction between motion to dismiss for may be separately or independently prosecuted.
failure to state a cause of action and to
dismiss based on lack of cause of action.
The first is raised in a motion to dismiss under
Rule 16, Sec. 1 (g) before a responsive
pleading is filed and can be determined only from
the ALLEGATIONS of the pleading and not from
evidentiary matters. The second is raised in a
demurrer to evidence under Rule 33 after the
plaintiff has rested his case and can be resolved
only on the basis of the EVIDENCE he has
presented in support of his claim(The Manila
Banking Corp. vs. University of Baguio, Inc.,
G.R. No. 159189, February 21, 2007)
When the motion for a demurrer to evidence is
granted, the judgment of the court is
considered on the merits and so it has to comply
with Rule 36, Section 1, regarding the
requirement that judgment should clearly and
distinctly state the facts and the law on which it
is based. If the motion is denied, the order is
merely interlocutory. (Nepomuceno vs.
Commission on Elections, G.R. No. 60601,
December 29, 1983, 126 SCRA 472.)
BAR QUESTION (1992):
Is a motion to dismiss with counterclaim
sanctioned by the Rules of Court?
a. If your answer is YES state your reasons.
b. If your answer is NO, give your reasons and
state what the defendant should
instead file in court to preserve his counterclaim
while maintaining the ground
asserted in his motion to dismiss as an issue that
should be the subject of a
preliminary hearing,
ANSWER: No, because a counterclaim is
contained in an answer and not in a motion to
dismiss.
What the defendant should do is to plead the
ground of his motion to dismiss as an
affirmative defense in his answer, together with
his counterclaim, and ask for a preliminary
hearing on his affirmative defense as if a motion
to dismiss has been filed. In the discretion of the
JBD
court, a preliminary hearing may be had thereon
as if a motion to dismiss has been filed. The 248
dismissal of the complaint after preliminary
hearing shall be without prejudice to the
prosecution in the same or separate action of a
counterclaim pleaded in the answer (Rule 16, Sec.
6 ).
NOTE: The counterclaim mentioned here
apparently refers to a PERMISSIVE
counterclaim, as it allows its prosecution in the
same or separate action . Only a permissive
counterclaim, and not a compulsory counterclaim,