Date: November 25, 1997
1997 Rules on Civil Procedure
2001 Edition Rule 16
Motion To Dismiss
Rule 16
MOTION TO DISMISS
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 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 field 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.
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:
x x x x x
Q:When do you file a motion to dismiss?
A: 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. The principle is within 15 days
from receipt of the summons and the complaint, the defendant should
file an answer or in lieu of an answer he may instead file a motion
to dismiss based on the grounds enumerated in section 1.
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 ascertained not only in a compliant but also in other
pleading such as counterclaims, etc.
First Ground: [a] THAT THE COURT HAS NO JURISDICTION OVER THE
PERSON OF THE DEFENDING PARTY
Q: When will that happen?
A: When there is absence of summons or improper service of
summons.
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. There are many waivers. Because of the rule of waiver
the court many acquire jurisdiction over your person in some other
capacity.
EXAMPLE: You are improperly served with summons but you file a
motion for bill of particulars or you file a motion for extension
of time to file for an answer and then after that you file a motion
to dismiss. Wala na iyon. The principle is that the moment you file
a motion for bill of particulars or you file a motion for extension
of time, in effect you have already submitted to the jurisdiction
of the court. If there was any defect in the service of summons, it
was already cured. Waived na yon. Wala na yong ground mo. Thats why
there are so many question here.
EXAMPLE: Now, suppose the summon was served on a nine-year old
boy who is presumed to be responsible. When his father arrived, the
boy told his father that somebody came in and left this. So in
other words the father actually got the summons. Now, suppose the
father will file a motion to dismiss on the ground that the court
never acquired jurisdiction over the person because the summons was
improperly serve. Do you think it will prosper?
There are cases in the SC which says even if the summons was not
properly served, if actually it came to the attention of the
defendant, the defect is cured. Because if you say I will not
answer for the summons is improper that is more of a technicality.
You are being technical. Actually natanggap mo naman kahit na
magreklamo ka pa. In other words, there are cases along that line.
That is why this ground may no longer be available to you because
of those instances.
Kaya nga I still have my doubt on the corporations ba that you
must serve the complaint to the following people only. So, if you
will serve it to the branch manager, who is not among those
mentioned now in the law, because the word agent disappears, but
the branch manager transmit it to the president, can the
corporation ignore the complaint by the summons by relying on the
technicality that it was served on the wrong person? To my mind,
that is still a question mark. That is relying too much on
technicality. What is important is you were properly served.
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 solve
it properly.
With all this decided cases, it would seem that he objection of
no jurisdiction over the person of the defending party is getting
weaker and weaker because of so 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.
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?
There are some cases where the SC said no more. When you file a
motion to dismiss questioning the jurisdiction of the court over
your person and at the same time you are citing other grounds, then
you are already waiving the defect of lack of jurisdiction. Why?
When you cite other grounds like prescription, you are now
submitting to the jurisdiction of the court. In effect you have
waived the ground of lack of jurisdiction.
But there are also other cases where the same issue came up and
the question is: Can a defendant file a motion to dismiss based on
the lack of jurisdiction over the person together with other
grounds? Are you deemed to have waived the issue of lack of
jurisdiction? NO, you can not file a motion to dismiss because of
the omnibus motion rule. When you file a motion to dismiss, you
have to invoke all the grounds. So, you are not waiving that
ground.
So there was confusion. What is really the correct rule? Because
there are decided cases on both sides. NOW, the controversy has
been settled starting with the ruling of the SC in the 1994 case
of:
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 on 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 in effect that is the recent decision. 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 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.
That is one of the most important grounds for a motion to
dismiss.
EXAMPLE: An action for unlawful detainer is field 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.
So, we are familiar already with this. Now, let go to important
principles on this ground.
FIRST PRINCIPLE: Jurisdiction over the subject matter is
determined by the allegation in the compliant .
Q: How do we determine whether a court has a jurisdiction or not
over a particular case?
A: By reading the compliant, we will know whether the subject
matter is within the jurisdiction of the court or not. So the
principle to remember is, jurisdiction over the subject matter of
the case is determined by the allegations in the complaint. They
are determined in the allegations of the complaint itself, not by
the allegation of the defendant in his motion to dismiss.
EXAMPLE: A filed a complaint against B before the RTC of Davao
City to recover an unpaid loan of P250,000. By going over the
complaint, does the RTC have jurisdiction? YES ( P250,000). Now,
here comes the defendant filing a motion to dismiss under Rule 16
alleging that it is not P250,000 but only P50,000. 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.
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 in the meantime, is not
allowed to present evidence that the court has no jurisdiction.
Everything must be decided on the face of the complaint only.
So, this is the corollary principle when a defendant files a
motion to dismiss on this ground, he hypothetically admits all the
allegations in the complaint. Hypothetical ba! Assuming, for the
sake of argument, that everything in your complaint is true, does
the court have the jurisdiction?
EXAMPLE: Vannie Kolotski will file a case against you for
P300,000 in the RTC on the ground that you owe her P300,000. But
the defendant will file a motion to dismiss, The RTC has no
jurisdiction because the loan is not P300,000 but only P50,000. The
defendant will present evidence that it is not P300,000 but
P150,000. Can you do that? NO, you cannot do that because you have
to hypothetically admit eh! If you will file a motion to dismiss on
that ground, it will be denied.
But suppose it is really P50,000 only and in the course of the
trial, even plaintiffs own evidence shows that the loan is only
P50,000. If that is so, if that becomes apparent in the middle of
the trial, Vannie Kolotski will now move to dismiss 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.
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 is P20,000 lang eh. So,
if your claim is above P20,000, RTC na. And there were several
cases pending in court already being tried P 30,000, P 40,000 in
the RTC. 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.
The ONLY POSSIBLE EXCEPTION there is what the Supreme Court
says, if 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 should be settled in the RTC,
not by the Labor Arbiter. However, where these cases were still
pending in the RTC, mga damages, in the meantime the law naman was
changed. The Labor Arbiter now was given jurisdiction to award
damages.
So. what happen to the cases for damages now pending in the RTC?
Should they be transferred to the Labor Arbiter? It we follow the
rule that jurisdiction once acquired continuous, the answer is, the
RTC should continue trying the case for damages and the Labor
Arbiter continue to try the 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
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.
All right, lets go to the 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 the court pala all
along have 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.
Now, that rule has somehow weakened or diluted by the ruling
in
TIJAM vs. SIBONGHANOY
23 SCRA 29 [1968]
FACTS: The case of TIJAM was something really cohere and unique.
From the start, the City Court of Cebu has no jurisdiction. The
defendant never filed a motion to dismiss. And what is so
surprising is that the court never noticed it.. So the parties will
go on trial. After trial, the court rendered judgment in favor of
the plaintiff. The defendant was not satisfied. He appealed to the
former CFI (now RTC) and on appeal that issue on lack of
jurisdiction was never raised. Talo na naman iyong defendant.
So all this process took about 10 years. Talo. So much water has
already passed under the bridge. Nagpalit ng abogado iyong
defendant and he traced the proceeding. Actually all along, the
inferior court has no jurisdiction and everything is void from the
very beginning. But take note, it took the defendant through his
lawyer 10 years or more to raise the issue. Now, of course, if we
will follow the rule, it can be raised at any stage at any time
even for the first time on appeal on this ground that everything is
void.
HELD: NO, you cannot raise it anymore. Under the equitable
doctrine of estoppel by laches, you are already under estoppel to
raise that ground because the if you will follow the general rule
and we will declare null and void everything from the City Court to
the CA, 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. Ulit na naman siya just
to prove his case.
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
Even the SC noted that courts were applying the SIBONGHANOY
ruling indiscriminately that it will take you one or two months to
raise lack of jurisdiction wala pa nagunpisa ang trial then one or
two months after the case was filed, ah estoppel na! Practically,
that is saying that lack of jurisdiction cannot be raised anymore.
But the SC said NO, that is wrong. In the case of
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]).
So, this has already been clarified. The latest case was the
1995 case of
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.
In other words, do not abuse the SIBONGHANOY ruling. That is
very exceptional case.
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.
Q: Suppose you file a motion to dismiss on the ground of
improper venue, but your motion to dismiss is denied. What is your
remedy?
A: Your remedy is to resort to the special civil action of
prohibition under Rule 65. And you should resort to it immediately
because if you will file your answer and go to trial, in effect,
you will be waiving the objection. The objection must be pursued
diligently. That was the pronouncement in the case of Pangasinan
Transportation Co. v. Yatco (21 SCRA 658).
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.
According to the SC, when you say that the plaintiff lacks legal
capacity to sue, there are two (2) possible meanings. It means any
of the following:
1.) when the plaintiff does not possess the necessary
qualifications to appear at the trial such as when the plaintiff is
not in the full exercise of his civil right like when he is a
minor, or insane; and2.) 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.
Q: (Bar question) 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 states no cause of action (Gonzales vs. Alegarbes, 99
Phil 213; Casimiro vs. Roque, 98 Phil. 880)
ILLUSTRATION:
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 going back to Rule 3, when
you are appointed as agent or attorney-in-fact of somebody to
manage his property an 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 you own name because the real party in interest is
the principal, not the agent.
So if the agent 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;
Now, this is one of the most important grounds for a motion to
dismiss. This is popularly known as the ground of lis pendens. Now,
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.
So the essence is that there is a case filed against you and
then while it is pending, another case is filed against you based
on the same cause of action. So what will you do? I have to move to
dismiss one case. I will allege that there is already another
action pending between the same parties for the same cause. So in
effect, what you are saying is the plaintiff is guilty of splitting
his cause of action and this ground has also been mentioned in Rule
2, Section 4:
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)
So the filing of one case is available as a ground for the
dismissal of the other. Now, such ground is stated under Rule 16
that there is another action pending between the same parties for
the same cause. The other legal term for it aside from the ground
of lis pendens is the ground of litis pendencia. Pareho din iyan.
It means the same thing. Thats why when you read some SC cases, the
SC cites either one of the two terms. There is another foreign term
although it is less used, the ground of action pendant.LITIS
PENDENTIA viz a viz FORUM-SHOPPING
(taken from the 4th year Remedial Law Review transcription,
1997-98)
Now, you come analyze that when the other party files two cases
against you, sabaysabay what is the correct ground for dismissal?
Litis pendentia or forumshopping? Is there a relationship between
forumshopping and litis pendentia? When I file two identical cases
in two courts, am I not also forum-shopping?
Yaan! Iyan ang magandang tanong! Iyan ang malalalim na tanong sa
procedure.
One of the most intelligent discussion on this topic was the
case of FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259),
January 24, 1996, penned for the Third Division by Justice Artemio
Panganiban.
Do you know what he said? Itong forumshopping, how it started?
Actually, it is a concept in Private International Law where you
shop for a forum where you look for a country where you will file a
case and then the court of that country will now reject it on the
ground for forus non convenlens. That is where it originates eh.
You are shopping for a forum.
FIRST PHILIPPINE INTERNATIONAL BANK vs. COURT OF APPEALS
252 SCRA 259, January 24, 1996
Third Division, J. Artemio Panganiban.
HELD: Forum-shopping originated as a concept in private
international law, where non-resident litigants are given the
option to choose the forum or place wherein to bring their suit for
various reasons or excuses, including to secure procedural
advantages, to annoy and harass the defendant, to avoid overcrowded
dockets, or to select a more friendly venue. To combat these less
than honorable excuses, the principle of forum non conveniens was
developed whereby a court, in conflicts of law cases, may refuse
impositions on its jurisdiction where it is not the most convenient
or available forum and the parties are not precluded from seeking
remedies elsewhere.
In the Philippines, forum shopping has acquired a connotation
encompassing not only a choice of venues, as it was originally
understood in conflicts of laws, but also to a choice of
remedies.
As to the first (CHOICE OF VENUES), the Rules of Court, for
example, allow a plaintiff to commence personal actions "where the
defendant or any of the defendants resides or may be found, or
where the plaintiff or any of the plaintiffs resides, at the
election of the plaintiff" (Rule 4, Sec. 2 [b]).
That is forumshopping. lba ang rule ng venue. Where will you
file personal action? where the plaintiff or any of the principal
plaintiff resides, or, where the defendant or any of the defendants
resides. So, mamili ka! If I am the lawyer kung saan pabor, doon
ako magfile, and that is forumshopping. But that is legitimate
forumshopping because that is allowed by law.
As to remedies, aggrieved parties, for example, are given a
choice of pursuing civil liabilities independently of the criminal,
arising from the same set of facts. A passenger of a public utility
vehicle involved in a vehicular 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 forumshopping. If I am the offended party,
shall I prosecute the civil aspect in the criminal action or shall
I file an independent civil action or reserve the right? Nasa iyo
man iyan ba! In effect, you shop for a forum. That is also
forumshopping. But that is legitimate forumshopping.
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.
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 mis-used to assure scheming litigants of dubious
reliefs.
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 pendencia 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, what is the difference between forum shopping and litis
pendentia? Actually, there is no difference. Mas maganda pa nga
idalawa mo litis pendentia and forum shopping. Ano ang effect?
Sabihin mo, litis pendentia one will be dismissed, the other will
remain alive. In forum shopping naman, parehong patay iyan. The
court will dismiss both. I-disciplinary action pa ang abogado.
There is no contempt of court in litis pendentia.
That is now the relationship of forum shopping and litis
pendentia.
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. 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.
ELEMENTS OF LITIS PENDENTIANow, this is one of the grounds of a
motion to dismiss which is the subject matter already of so many
cases and so many questions in the bar. One of the fundamental
questions which is asked here is: What are the requisites for litis
pendencia as a ground for a motion to dismiss. Actually, there is
no wrong if will file as many cases as I want against you provided
the causes of action are different. Sometimes, it is difficult to
determine where there is litis pendencia or none. It is possible
for 2 cases to arise between the same parties or the 2 cases are
interrelated. But actually they arose from different causes of
action. So you will get confused.
Sometimes when you read cases decided by the SC on litis
pendencia, you will have a hard time determining whether the 2
cases are only related or they are really identical. IIf they are
only related, there is no basis for dismissal.
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 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 persons are actually doing it on you
behalf. So they also represent the same interest.
2.) Identity of rights asserted 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 parity 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.
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
here 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) Klaro
iyan. Nag-counterclaim ka ng support dito (first action). File ka
na naman ng action for support. So, there are now 2 actions for
support. Di pwede yan.
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 PARITY 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 in the present action. Any
judgment which the court will render in the first case regardless
of who wins will amount to res adjudicata in the second action.
That is a very important requisite. Let us see how that was applied
by the SC.
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 the mortgagor and the action is foreclosure
of the same mortgage. So dalawa na.
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.
FRANCISCO vs. VDA. DE BLAS
93 Phil. 1
FACTS: Jayhan filed a case against Jessa for recovery of a piece
of land accion publiciana. According to Jayhan, she is the owner of
the land occupied by Jessa, so Jessa should surrender the land to
him. Of course, Jessa will deny that.
While the action was pending, Jessa naman filed another case
against Jayhan 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, Jessa 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 Jayhan wins the case for
recovery, the court in effect is saying that Jayhan is the real
owner, that practically render moot and academic because
practically if Jayhan wins the first case, the action of Jessa for
quieting of title will fail because the owner pala is Jayhan. In
other words, if Jayhan wins the first case, it will bar the
second.
Now, suppose Jessa will in the first case, the court in effect
is saying that Jayhan is not entitled to possess, she is not the
owner, Jessa is the owner. In effect, the title of Jessa 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.So in this case, there is litis pendentia.
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. you better look
for a place to transfer because Im not going to renew the lease
contract.
Sabi ng lessee, No, no, no. That contract will be valid until
next year pa! The lessor asserted tha the contract is only good up
to April. Nag-aaway na talaga sila. They already have a quarrel as
to whether that contract is only good up to April or until next
year.
Now, what happens, inunahan ni lessee ang lessor. He filed
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 dumating na ang April and of course the
contention of the lessor is that the contract has expired. So file
na si lessor ng unlawful detainer on the ground that the lease
contract has expired.
So dalawa na ang kaso. May litis pendencia na. One of them must
be dismissed. The lessor filed a motion to dismiss on the ground of
litis pendencia. The lessee complained, Why will you dismiss my
case eh mas nauna ako sa yo?! If there is an action which should be
dismissed, it must be yours. Nauna akong nag-file. Dapat sa iyo ang
i-dismiss, last ka man nag-file.ISSUE: When there is litis
pendentia, which action 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. Wala mang word
na prior ba, basta another action. So, in litis pendencia, 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 estempore ochor estiore (he who is
before in time is the better law). Priority in time gives
preference in law. And that is common sense. Just like in Labor Law
last in, first out kung huli kang dumating, you are the last to be
employed. Kung termination, unahin ka rin, last ka eh. So thats the
general rule.
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. So hind iyung nauna but that
which is more appropriate. 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). So it is not a question of sino ang nauna 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,
sabi ng SC, 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? Now, sabi ng SC in the case of
TEODORO, it was obvious that the first action was filed by the
lessee in bad faith because the lessee knows that by April,
pa-file-an na siya ng kaso ng lessor 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, may
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.
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 iyan ang tinatawag na the best defense is
offense 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 actions becomes pending upon the filing
of a case in court and the payment of docket fee. The actions 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, t is already pending although you did not know
about it. That is the reasoning in this case.
ANDRESONS 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 owed it the sum of P1,618,467.98 after deducting
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 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 Court had not yet acquired
jurisdiction over the parties as the summons had not been served as
of April 21, 1992 and it claims that pendency of a case, as
contemplated by the law on lis pendens, presupposes a valid service
of summons.
This argument is untenable. A civil action is commenced by
filing a complaint with the court. The phraseology adopted in the
Rules of Court merely states that another action pending between
the same parties for the same cause is a ground for motion to
dismiss. As worded, the rule does not contemplate that there be a
prior pending action, since it is enough that there is a pending
action. Neither is it required that the party be served with
summons before lis pendens should apply. The rule of lis pendens
refers to another action. An action starts only upon the filing of
a complaint in court.
It must be emphasized that the rule on litis pendentia does not
require that the later case should yield to the earlier. The
criterion used in determining which case should be abated is which
is the more appropriate action or which court would be in a better
position to serve the interests of justice. Applying these
criteria, and considering that both cases involve a sum of money
collected in and around Davao, the Davao Court would be in a better
position to hear and try the case, as the witnesses and evidence
would be coming from said area.
WHEREFORE, the decision of the CA is hereby AFFIRMED.
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 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 f or 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.
BARRED BY STATUE OF LIMITATIONS. Prescription. Filed out of
time.
The grounds on motion to dismiss are waivable based on Rule 9,
Section 1 defenses and objections not pleaded whether in a motion
to dismiss or in the answer are deemed waived. HOWEVER when it
appears from the pleadings or the evidence on record:
1.) that the court has no jurisdiction over the subject matter
(Rule 16, Section 1 [b]);
2.) that there is another action pending between the same
parties for the same cause (Rule 16, Section 1 [e]); or
3.) that the action is barred by a prior judgment (Rule 16,
Section 1 [f]); or
4.) that the action is barred statute of limitations (Rule 16,
Section 1 [f]),
the court shall dismiss the claim.
Seventh Ground: [g] THAT THE PLEADING ASSERTING THE CLAIM
STATES NO CAUSE OF ACTION;
That is also an important one the pleading asserting the claim
does not state a cause of action. In most cases, it is the
defendant who files a motion to dismiss citing this ground.
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. So,
that is a condition. Kung walang cause of action, patay!
I think the language of the previous rule is: The complaint
states no cause of action. That is the 64 Rules. Ito namang 1997
Rules: The pleading asserting the claim states no cause of action.
This is broader because the pleading which does not state a cause
of action could be a complaint, counterclaim, crossclam or
thirdparty complaint. So, it is broader.
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 under paragraph [b].
The defendant is not allowed to say that the plaintiff has no
cause of action because what he is saying in his complaint is not
true and this is what is true. No, that will not lie. You have to
hypothetically admit again.
What is the rule? When a defendant files a motion to dismiss
under this ground, he hypothetically admits the truth of all the
allegation raised in the complaint. And he is posing this question:
Assuming for the sake of argument that everything contained in your
complaint or pleading is really correct, are you entitled to the
relief prayed for?
If the answer is YES, then it states a cause of action. If the
answer is NO, even if lahat niyan eh totoo, you still cant win,
then there is something wrong in the complaint. It still states no
cause of action. Therefore, when the defendant disputes the truth
of the allegations of the complaint, the correct move is to file an
answer and not a motion to dismiss. He cannot dispute the
allegation in the pleading because he hypothetically admits
them.
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 it
does not. At that moment, you cannot dismiss it.
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.
Di ba? You are not supposed to allege conclusion there or
arguments. So these are not admitted even if I filed a motion
because what are admitted are those material allegation of the
ultimate facts. 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 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, 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
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 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.
Q: Now, is there an exception to the rule that 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?
A: Based on the 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, eh! 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, nagkaroon na ng
hearing and the plaintiff already presented evidence on his cause
of action during the hearing for the issuance of the writ of
preliminary injunction. Then after the hearing, here comes now 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: That is the general rule. If nag-present ka na ng
ebidensiya in the preliminary injunction, the court can now
determine whether there is a cause of action also based on the
evidence. So that is the exception because there has been a
reception of evidence ahead of a motion to dismiss.
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.
Eight Ground: [h]THAT THE CLAIM OR DEMAND SET FORTH IN THE
PLAINTIFF'S PLEADING HAS BEEN PAID, WAIVED, ABANDONED, OR OTHERWISE
EXTINGUISHED;
Under Obligations and Contracts, the modes of extinguishing
obligation are Payment, Performance, Condonation, Compensation,
Remission, etc. So if I have already paid a sum of money and you
are filing a case to collect such amount, I can file a motion to
dismiss on the ground that the claim or demand set forth in the
complaint has already been paid or otherwise extinguished.
Ninth Ground: [i] THAT THE CLAIM ON WHICH THE ACTION IS FOUNDED
IS
UNENFORCEABLE UNDER THE PROVISIONS OF THE STATUTE OF FRAUDS
Statute of Frauds are contracts under Article 1403 of the Civil
Code which are unenforceable if not made in writing. However there
is still a valid contract, only 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.
Meaning, the law requires something to be done before going to
court and if you file the case in court immediately without
complying with that condition precedent, then the defendant can
move for dismissal of the complaint.
EXAMPLES:
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
in court. If nothing will happen then proceed the case to
court.
3.) Article 151 of the Family Code contemplates suit between
family members.
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 you are not allowed to file a case directly
between family members in order to preserve the family as a basic
social institution being the foundation of the nation.
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.
Q: What about a suit to a nephew?
A: Article 151 will not apply. One can file directly to the
court because even though he is your relative he is not a member of
your family.
Q: How about a suit against a brother and a stranger?
A: There is no need for the requirement of earnest efforts. It
is a mixed case, there is already a stranger included. Pag-nahaluan
na, Article 151 will not apply anymore.
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 refer 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.Future support;
5.The jurisdiction of courts;
6.Future legitime.
So hindi nyo pwedeng pag-usapan na lang ang mga bagay na iyan.
If a person claiming to be the son of your father and you wish to
avoid delay, you will seek to compromise, this cannot be done. As
well as saying you are single even if you are married in order to
facilitate things, this cannot be done.
Under the 1964 Rules, this last ground (non-compliance with a
condition precedent requirement) is not found therein. However,
there is a ground that is no longer found in the present Rules of
Court, that the suit between members of the family and that no
earnest efforts towards a compromise has been made, this was stated
as the last ground. It does not mean, however, that it can no
longer be applied. This has been incorporated under paragraph [j]
of the new rules. It is already a broader ground.
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 evidence to prove the ground for his
dismissal.
EXCEPTION: He is not allowed when the grounds are:
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
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, the cause of action is imperfectly stated,
kulang ng allegation ba. So the plaintiff would say: Your Honor, we
will add one sentence para makumpleto. Sabi ng judge: No! no! no!
We will dismiss. No, the judge cannot do that. Curable yon eh! And
amendment of the pleading is favored.
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. What does it
mean?
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 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.
Even under the previous rule, there were already instances where
the SC said that the courts should not postpone the resolution,
especially when the ground of dismissal is lack of jurisdiction
over the subject matter, or that the complaint states no cause of
action. Why? The court only has to read the complaint and there is
no need of presentation of evidence to rule on the motion. There
were decided cases along that line, and obviously that reasoning
predominated the committee.
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: No more 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 15 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?
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 of 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)
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)
Normally, when the motion to dismiss is granted, it does not
prevent the plaintiff from re-filing the case. Like for example,
the case is dismissed for lack of jurisdiction over the subject
matter. I can re-file that in the proper court. Or, suppose the
case is dismissed for improper venue, so I will file it in the
proper venue.
But there is a new provision, that is, if the ground for a
motion to dismiss are the following you cannot re-file it anymore.
That is: paragraphs [f], [h] and [i]. Ano iyon? Prior judgment, res
judicata, statute of limitations, prescription of the claim or
statute of frauds.
Tama man ba! common sense lang yan eh! Kaya nga na-dismiss eh
kasi res judicata na, tapos magpa-file ka na naman ng panibago?
Hindi na puwede yan. Or, it is already dismissed because the
obligation has already been paid, then you will file? That cannot
be done anymore. So, in other words, it is res judicata already. So
to summarize:
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.
Q: For example, the court says: Your action is barred by res
judicata. But actually, the court is wrong, what is your
REMEDY?
A: Your remedy is to appeal from the order of dismissal, but not
to re-file the case because that would already be res adjudicata.
That is common sense.
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 grounds 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
Now, if you will file an answer raising the ground for a motion
to dismiss as an affirmative defense, then you are prolonging the
agony because if the court has no jurisdiction, or there is
improper venue or whatever it is, if you file a motion to dismiss
in the first place and you are sustained, then tapos na sana! Bakit
patagaling mo pa by filing an answer eh pwede naman pala i-raise
yung mga yun in a motion to dismiss? Because of this, trial will
proceed. And after the plaintiff has rested the case, that is the
only time you will prove your defense. So, why do you prolong the
agony?
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 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 me why should the defendant do this? Di, mabuti pa
na mag-file na lang siya ng motion to dismiss doon din pala and
babaksakan eh. 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 at that
moment.
So if I will file an answer instead, sabihin ng plaintiff, Tama
no? Ok, I will amend the complaint. Defendant: No! No! No! No!
Hindi na puwede because may responsive pleading na! Amendment is
not anymore a matter of right. That would be the purpose of the
defendant in not filing a motion to dismiss.
That follows the general principle in trial technique. Do not
expose your adversarys mistake when he is in a position to correct
them. When the point is reached when he cannot anymore correct the
error, then, dyan mo na ilabas. Huwag kang magmadali, maghintay ka.
That is the advice in trial technique.
The second paragraph of Section 6 is new:
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: Suppose I will file
an answer with affirmative defenses and with a counterclaim. If the
court dismisses the complaint, what happens to my counterclaim?
A: Under the NEW RULES, there are two possibilities:
1.) The defendant can still prosecute his counterclaim in a
separate action; or
2.) The defendant can dismiss the complaint but the counterclaim
remains alive.
In the OLD RULES, when the main case is dismissed, the
counterclaim is automatically dismissed, lalo na yong compulsory.
If the defendant moved to dismiss the case, in effect he was also
moving to dismiss his counterclaim. That is what the SC said in the
case of
INTL CONTAINER TERMINAL SERVICES vs. COURT OF APPEALS
214 SCRA 456 [OBSOLETE!]
HELD: A compulsory counterclaim is so intertwined with the
complaint that it would not remain pending for independent
adjudication by the court after the dismissal of the complaint
which had provoked the counterclaim in the first place. As a
consequence, the dismissal of the complaint operated also to
dismiss the counterclaim questioning the complaint. When defendant
moved to dismiss the main action, he also moved, in effect, for the
dismissal of the counterclaim.
That is the prior rule. That ruling is already OBSOLETE because
of this new paragraph, 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.
NOW, you can move to dismiss the complaint. Ang counterclaim mo
buhay pa rin. And you can continue to insist that on a trial.
published byLAKAS ATENISTA 1997 1998: FOURTH YEAR: Anna Vanessa
Angeles Glenda Buhion Joseph Martin Castillo Aaron Philip Cruz
Pearly Joan Jayagan Anderson Lo
Yogie Martirizar Frecelyn Mejia Dorothy Montejo Rowena Panales
Regina Sison
Ruby Teleron Marilou Timbol Maceste Uy Perla Vicencio Liberty
Wong Jude Zamora Special Thanks to: Marissa Corrales and July
Romena
SECOND YEAR: Jonalyn Adiong Emily Alio Karen Allones Joseph
Apao
Melody Penelope Batu Gemma Betonio Rocky Cabarroguis Charina
Cabrera
Marlon Cascuejo Mike Castaos Karen de Leon Cherry Frondozo Jude
Fuentes Maila Ilao Ilai Llena Rocky Malaki Jenny Namoc Ines Papaya
Jennifer Ramos Paisal Tanjili
LAKAS ATENISTA 20012002: REVISION COMMITTEE: Melissa Suarez
Jessamyn Agustin Judee Uy Janice Joanne Torres Genie Salvania Pches
Fernandez Riezl Locsin
Kenneth Lim Charles Concon Roy Acelar Francis Ampig Karen
Cacabelos
Maying Dadula Hannah Examen Thea Guadalope Myra Montecalvo Paul
Ongkingco Michael Pito Rod Quiachon Maya Quitain Rina Sacdalan Lyle
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