RULE 16: Motion to Dismiss Q: When should a motion to dismiss be filed?

A: Within the time for or before the filing of the answer, which is 15 days from receipt of summons. Sec. 1: Grounds

lack of jurisdiction over the person of the defendant

EXCEPTIONS: 1. 2. 3. 4. waiver voluntary appearance improper service but defendant nevertheless received the summon so no reliance on rules of technicality improper service but the fault is with the sheriff, an officer of the court, not with the defendant

Q: How does court acquire jurisdiction over defendant? A: By service of summons. Thus, if there is absence or improper service of summons, court has acquired no jurisdiction over the his person. Q: If, aside from lack of jurisdiction over the person, defendant includes in his motion to dismiss other grounds, would that constitute as voluntary appearance? A: Some jurisprudence held that the inclusion of other grounds for a motion to dismiss aside from lack of jurisdiction over the person is considered as voluntary appearance. However, recent rulings, and more particularly Sec. 20, Rule 4 provides that 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 as voluntary appearance.

lack of jurisdiction over the subject matter

- fixed by law therefore no waiver; can be raised at any time before or during trial, even for the first time on appeal Q: How is lack of jurisdiction over the subject matter determined? A: By the allegations in the complaint. NOTA BENE: When the defendant files a motion to dismiss, he hypothetically admits all the allegations contained in thecomplaint, but even so, the plaintiff cannot prosecute because the court has no jurisdiction over the subject matter. Q: What is the rule on adherence of jurisdiction? A: Once the court acquires jurisdiction over the case, the court retains it, regardless of any subsequent legislation, EXCEPT if the new law passed has a curative effect. Tijam vs. Sibonghanoy, 23 SCRA 29 (1968)

The court had no jurisdiction over the subject matter but the defendant never filed a motion to dismiss and the case was tried. The court ruled in favor of the plaintiff so defendant appealed but still he did not raise the issue of lack of jurisdiction. The appellate court affirmed the decision of the lower court. The defendant appealed again to the Court of Appeals and this time he raised the issue of lack of jurisdiction. The Supreme Court found that ten years had already lapsed before the defendant raised the question of whether or not the original court had jurisdiction over the case. He can no longer raise the issue because under the equitable doctrine of estoppel by laches, he is already estopped to raise the ground. Although the general rule is that the issue of lack of jurisdiction over the subject matter can be raised at any stage of the trial, even for the first time on appeal, to follow such rule would mean declaring as null and void everything, from the city court to the Court of Appeals. Everything a judicial work which lasted for 10 years will all be thrown in the waste basket. That is practically compelling the plaintiff to undergo a second calvary.

NOTA BENE: This ruling is an exception and should not be taken as a rule.

improper venue

- waivable so if the defendant fails to raise this in a motion to dismiss or in an answer then it is deemed waived Q: Defendant files a motion to dismiss but the court denied the motion. What is the remedy of the defendant? A: Defendant cannot appeal the decision of the court denying the motion to dismiss because it is an interlocutory order. However, he can resort to the special civil action of prohibition under Rule 65 on ground of grave abuse of discretion amounting to lack or excess of jurisdiction.

plaintiff has no legal capacity to sue

2 POSSIBLE INSTANCES: 1. 2. plaintiff lacks the necessary qualifications to appear at trial (e.g. minor, insane) plaintiff does not have the character or representation which he claims (e.g. claiming to be a guardian when in fact he is not)

Q: Distinguish lack of legal capacity to sue from lack of legal personality to sue. A: Lack of legal capacity to sue refers to the disability of the plaintiff to sue because he lacks certain qualifications to appear at trial or he does not have the representation which he claims. Lack of personality to sue, on the other hand, means that the plaintiff is not the real party in interest, in which case the ground for dismissal is that the complaint states no cause of action.

litis pendentia

- when there is another action pending between the same parties for the same cause; not waivable ELEMENTS: 1. 2. 3. 4. identity of parties (or identity of interest represented) between the two actions identity of rights asserted and reliefs prayed for identity of facts identity in these particulars should be that any judgment rendered, regardless of which party is successful, amounts to res judicata

Q: Between the two identical actions filed, which one should be dismissed the first or second on ground of litis pendentia? A: As a general rule, the second one should be dismissed, following the principle of priority of time and the maxim of qui prior estempore ochor estiore (priority in time gives preference in law). But there is an EXCEPTION as when the courtdetermines what is the more appropriate action to remain or which court is in a better position to serve the interests of justice. Another EXCEPTION is whether the party in any of the actions is in bad faith or good faith. Q: Distinguish litis pendentia from forum-shopping (splitting a cause of action under sec. 4, Rule 2). A: The two share the same concepts in that both contemplate two or more suits filed by the same parties on the basis of the same cause of action. The difference is in the effect because in litis pendentia, only one action will be dismissed, while in forumshopping both actions will be dismissed without prejudice to any disciplinary action taken by the courtagainst the lawyer. There is no contempt of court in litis pendentia.

res judicata or prescription (statute of limitations)

- not waivable Q: Distinguish res judicata from litis pendentia.

A: Although the two are related in that they both contemplate two or more actions filed by the same parties on the basis of the same action, the difference is that in res judicata, one of the suits has already been settled. Adjudication in one suit bars the filing of another suit with identical parties and based on identical causes of action.

claim states no cause of action

ELEMENTS OF A CAUSE OF ACTION: 1. 2. 3. 4. existence of a right of plaintiff corollary obligation of defendant to the plaintiff violation of the right of plaintiff resulting to damage.

NOTA BENE: If any of these requisites are missing, the case must be dismissed for lack of cause of action. - determined by the allegations in the pleading, which the defendant must hypothetically admit; EXCEPTION: where evidence has already been presented in the main cause of action because of the application for preliminary injunction or any provisional remedy

payment, waiver, abandonment, or extinguishment statute of frauds

- ART. 1403, N.C.C.

non-compliance with a condition precedent

- e.g. failure to exhaust administrative remedies, or failure to undergo barangay conciliation Sec. 2: Hearing of Motion

- presentation of arguments and evidence to prove grounds for dismissal, EXCEPT if the ground is lack of jurisdiction over the subject matter and no cause of action Sec. 3: Resolution of Motion

grant the motion

- case is dismissed without prejudice to its refiling, EXCEPT if the ground is res judicata or prescription, payment, waiver, abandonment, or extinguishment, and statute of frauds (sec. 5)

deny the motion

- defendant must then file an answer within the remainder of the reglementary period (15 days), which should not be less than 5 days from notice of denial (sec. 4)

order an amendment of the pleading (which is really the same as dismissing the motion and allowing the plaintiff to amend the complaint in order to correct any defect)

- the amendment is a matter of right because a motion to dismiss is neither a responsive pleading nor even a pleading; amendment still a matter of right if the resolution over the motion to dismiss has not yet achieved finality NOTA BENE: The court cannot defer resolution of the motion because the ground relied upon is not indubitable.

Sec. 6: Pleading Grounds as Affirmative Defense 2 OPTIONS: 1. 2. file a motion to dismiss, if denied, then ANSWER file an ANSWER and raise the grounds for dismissal in the form of a special affirmative defense and then ask the court to hear over the matter first (purpose: so plaintiff can no longer amend the pleading as a matter of right in order to cure any defects that would have been raised in a motion to dismiss)

RULE 17: Dismissal of Action

Dismissal upon NOTICE by plaintiff (sec. 1)

- before service of answer or of a motion for summary judgment - ministerial duty of court to issue order confirming the dismissal - without prejudice, EXCEPT: 1. 2. 3. where notice states otherwise where plaintiff has previously dismissed case in court of competent jurisdiction where the dismissal is premised on the fact that the defendant has already paid the claim Dismissal upon MOTION by plaintiff (sec. 2)

- after the defendant has served his answer to the plaintiff - Motion for Leave of Court to Withdraw the Complaint - if defendant filed a counterclaim before service of motion for dismissal by plaintiff, the dismissal shall not affect the counterclaim and only dismiss the main complaint 2 REMEDIES OF DEFENDANT (within 15 days from notice of motion): 1. 2. prosecute his counterclaim in a separate action opt to have it resolved in the same action

Dismissal due to FAULT of plaintiff (sec. 3)

- motu propio of the court or upon motion of the defendant - dismissal is with prejudice, UNLESS otherwise declared by court or ground is lack of jurisdiction - GROUNDS 1. non-appearance on the date plaintiff is to present his evidence in chief without justifiable reason - limited to the date of presentation of evidence in chief only; plaintiffs failure to appear, not absence of lawyer, that warrants dismissal failure to prosecute for an unreasonable length of time - applies to pre-trials and appeals; if plaintiff has already presented his evidence, his failure to appear in subsequent proceedings is not failure to prosecute but a waiver of right to cross-examine and object to the admissibility of evidence non-compliance with the Rules or any court order - e.g. plaintiff fails to amend complaint even after court orders him to do so

2.

3.

NOTA BENE: This also applies to dismissal of any counterclaim, cross-claim, or third-party complaint. RULE 18: Pre-Trial - plaintiffs duty to move ex parte that the case be set for trial - WHEN: after the last pleading (normally a reply) has been served, or the period to file it has expired (10 days if reply, 15 days if answer) - held on a date separate from that of the trial on the merits Sec. 2: Nature and Purpose 1. 2. 3. 4. 5. 6. 7. 8. 9. amicable settlement or other alternative modes of dispute resolution simplification of issues amendments to the pleadings stipulations or admissions of facts and of documents limitation of the number of witnesses preliminary reference of issues to a commissioner proprietary of rendering judgment on the pleadings, or summary judgment, or dismissing the case if there is a ground suspending the proceedings other matters that would ensure a speedy disposition of the case

- notice of pre-trial served on counsel, or on the party who has no counsel (sec. 3) - counsel will notify his client; if he does not, he will be subject to administrative disciplinary action - parties are required to appear - EXCUSABLE NON-APPEARANCE:

valid cause representative with authority to: enter into amicable settlement submit to alternative modes of dispute resolution enter into stipulations or admissions of facts and of documents

NOTA BENE: Authority of the representative need not be in writing if it is established by competent evidence or subsequently ratified by the party concerned. Q: What if the party is a corporation, can the president authorize another person to appear in behalf of the corporation? A: The presidents authorization is not sufficient. If party is a corporation, the authority must be made with an appropriate resolution by its board of directors. Q: Is it sufficient to appear as authorized representative? A: No, because the authorization must be complemented by a showing of a valid cause for non-appearance of the party. Q: What if no one appeared during the trial, not the defendant or his counsel and not the plaintiff? Only the plaintiffs counsel appeared but he does not have authority to represent his client. A: It is proper to declare the plaintiff non-suited and the court may dismiss the case without motion by the defendant.

Q: What is the remedy of the plaintiff? A: He can appeal from the order of the dismissal by ordinary appeal. The order is already final and not interlocutory. Q: What is the effect of defendants non-appearance during pre-trial? A: The court will allow the plaintiff to present evidence ex parte and render judgment based on such evidence presented. Defendant is not technically in default because no party can be held in default after he has filed his pleading, but the effect is substantially the same in that the defendant is no longer allowed to actively participate during the proceedings. (Sec. 5) Q: What is the remedy of the defendant? A: He can file a motion for reconsideration without need for affidavits of merits regarding fraud, accident, mistake or excusable negligence (FAME) because these grounds are already raised in his answer. If still denied, he can resort to certiorari under Rule 65 for grave abuse of discretion amounting to lack or excess of jurisdiction. Sec. 6: Pre-trial Brief - WHEN: at least 3 days before the date of pre-trial - mandatory duty of parties to file it with court and serve it to the adverse party; failure to file it will result in plaintiff declared non-suited or ex parte proceedings against defendant, whichever may be the case - CONTENTS:

statements expressing their willingness to submit to amicable settle or other alternative modes of dispute resolution summary of admitted facts and proposed stipulation of facts issues to be tried or resolved documents or exhibits to presented and purpose manifestation that they have availed of or intended to avail of discovery procedures or referral to commissioners number and names of witnesses and substance of their testimony

- after pre-trial, court shall issue an order, which explicitly define and limit the issues to be tried