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. That’s 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.

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 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 plaintiff’s 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

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 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. Let’s 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 plaintiff’s own evidence
shows that the loan is only P50,000. If that is so, if that becomes apparent in the middle of the trial,

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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, let’s 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

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 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

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 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;
and
2) when the plaintiff does not have the character or representation which he claims like he claims
to be a guardian when in reality he is not. (Lunsod vs. Ortega, 46 Phil. 664)

EXAMPLE: I will sue you as the guardian of a minor – guardian ad litem. But actually, you
will challenge my being a guardian. There is no court order according to you. So, I might be of
age but I have no legal capacity to sue because I do not have the representation which I claim I
have.

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

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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. That’s 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

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 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.

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 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 PENDENTIA

Now, 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?

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 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, let’s 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.

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 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 I’m 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
that’s 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

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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, let’s 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

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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.”

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 “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!

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 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 can’t 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 BIÑAN 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

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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

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 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.

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 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.
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 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);
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 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 act—it 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

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 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 plaintiff’s 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?

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 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, I’m 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, like—no 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 adversary’s 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:

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 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

INT’L 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.

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