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Jul 14, 2008

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
  1. waiver
  2. voluntary appearance
  3. improper service but defendant nevertheless received the summon so no reliance on rules of technicality
  4. 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 the complaint, 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
  1. plaintiff lacks the necessary qualifications to appear at trial (e.g. minor, insane)
  2. 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

  1. identity of parties (or identity of interest represented) between the two actions
  2. identity of rights asserted and reliefs prayed for
  3. identity of facts
  4. 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 court determines 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 forum-shopping both actions will be dismissed without prejudice to any disciplinary action taken by the court against 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
  1. existence of a right of plaintiff
  2. corollary obligation of defendant to the plaintiff
  3. violation of the right of plaintiff
  4. 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
  1. file a motion to dismiss, if denied, then ANSWER
  2. 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)


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