a claim, a motion to dismiss may be made on any of the following grounds:
(a) That the court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same parties for the same cause;
(f) That the cause of action is barred by a prior judgment or by the statute of limitations;
(g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is enforceable under the provisions of the statute of frauds; and
(j) That a condition precedent for filing the claim has not been complied with. (1a)
Principles involved in motions:
1. 3-day notice rule 2. 10-day setting rule Kinds of motions:
1. Litigated
2. Non-litigated or oral
a. In the course of the trial, for example, a counsel would raise his hand, and say
“Objection, your honor”, that is an oral motion.
b. There are also certain motions that do not require hearings. When you file a motion before the CA or the SC, never set that for hearing, because hearing before the SC is not a matter of right, but a matter of discretion.
i. The same with the CA, they do not want parties to set
hearings. Especially now that the CA, under the new rules, can conduct trials, and accept evidence.
ii. Even if the CA and SC has original jurisdiction, you do not set motion submitted before them for hearing, because it is a matter of discretion on the part of the CA and SC.
Omnibus motion rule (Sec. 8) Insert here
De Guzman v Ochoa
Omnibus motion in relation to motion dismiss Facts of the case
What was the principal action? Annulment of contract of mortgage/foreclosure
What happened? Why was there an action for
foreclosure/annulment of mortgage? Failure to pay the loan. There are no other grounds for foreclosure. In fact, the judgment for foreclosure does not say judgment to sell. If the court renders a judgment to sell in a
foreclosure proceeding, it is an abuse of discretion and a ground for certiorari because a judgment under Rule 68 must be a judgment to pay and never a judgment to sell.
The layman’s knowledge of foreclosure, when it is said that one’s property is foreclosed, the property must be sold right away. When a property is foreclosed, it means that the judgment is to pay for the mortgage debt.
Instead of going to trial, they filed a motion to dismiss on the ground that the complaint did not state a cause of action. RTC denied the motion.
Recite grounds for a motion to dismiss. See Rule.
They then filed a second motion to dismiss on the ground that the certification against forum shopping attached to the complaint was not executed by the principal parties (plaintiffs) in violation of Sec. 5, Rule 7, 1997 Rules of Civil Procedure, rendering the complaint fatally defective and thus dismissible.
They went up to the CA on certiorari. Why certiorari?
What did we study regarding the jurisdiction of the SC particularly Sec. 5, Article VIII of the Constitution?
Regarding appellate jurisdiction? Review, revise, modify or affirm by appeal or certiorari
When is it appeal? When it is a pure question of law, in other words, an error of judgment
When is it certiorari? When there is error of jurisdiction In this case, they went up on certiorari because it is an error of jurisdiction. Because accordingly the ground relied upon in this case is a matter of jurisdiction, it is not just a matter of any lack of cause of action or other grounds, but an error of jurisdiction. A motion to dismiss may either be granted or denied. If it is denied, the order denying it is? What kind of order?
Interlocutory order. What is an interlocutory order?
There is no finality yet as the court has still something to do. When the court has nothing more to do, it is a final order, and thus, the remedy is appeal. But if it is
interlocutory, thus the court has still something more to do, then, the remedy is certiorari.
The second motion to dismiss was also denied because of the omnibus motion rule. Is the omnibus motion rule an absolute rule? No.
What are the exceptions? Only matters of jurisdiction;
Rule 9, Sec. 1
What is the doctrine derived from this case? The Court disposed the issue on interlocutory orders, which do not terminate a case. The general rule is that a denial of a motion to dismiss cannot be questioned in a special civil action.
So, what is the remedy of the party whose motion to dismiss is denied? Take note, certiorari is not a remedy, as a general rule, because under Rule 65, Sec. 1, certiorari is anchored only on three grounds – lack of jurisdiction, excess of jurisdiction, grave abuse of discretion amounting to lack of jurisdiction – that is why certiorari is not a remedy against an order denying a motion to dismiss, what then is the remedy? File an answer, go to trial, and if you lose, you have all the remedies against a judgment – appeal. And in your appeal, you now assign as error, the error of the court in denying your motion to dismiss. That is why pursuant to the SC AM 07-7-12, amendments on Rule 41, 45, 58 and 65, specifically regarding 65, it provides that when you avail of certiorari when you should not have availed of it, and it was found out by the court that you are simply delaying the resolution of the case, the penalty is not only on the party, but to the lawyer as well. Triple?
(check the AM, insert here)
When is there grave abuse of discretion? When there are capricious and whimsical, arbitrary and despotic actuations of the court (remember these, they go in twos)
When you cannot establish whimsical, capricious, arbitrary, and despotic, certiorari is out of the question.
But here, denial of a motion to dismiss therefore, even if it is interlocutory, certiorari is not the remedy, but you go to trial and whatever judgment, if unfavorable, you appeal. Or other remedies under Rule 37, new trial or reconsideration, or appeal. Remember, there are only three remedies against a final order. But when
judgment has already been entered, forget about those remedies. You are only left with two remedies, which are petition for relief from judgment and annulment of judgment.
Remedies:
1. Rule 16 (MTD);
2. Demurrer;
3. Rule 37 (new trial/recon) 4. Rule 40-45 (appeals)
5. After judgment has been entered, Rule 38 and 47 (petition for relief from judgment and annulment of judgment)
Where do you find the equivalent of motion to dismiss in criminal procedure? Motion to quash under Sec. 3, Rule 117. Read this together with Sec. 1, Rule 16. Every ground for a motion to dismiss has its equivalent in a motion to quash. But take note that these are two different things. What are the distinction between a motion to dismiss and a motion to quash?
1. MTD applies in civil cases; MTQ applies in criminal cases
2. MTD has 10 grounds; MTQ has 9 grounds, why is it so? What is lacking in motion to quash?
Venue. Because in criminal cases, venue is jurisdictional, so it is not a ground anymore for MTQ.
a. But every ground in MTD has an equivalent in MTQ. Examples:
i. Under res judicata or that the cause of action has been barred by prior judgment or by the statute of limitation = That the accused has been previously convicted or acquitted or the case against him has been dismissed without his consent;
ii. Failure to state cause of action
= That the facts charged do not constitute an offense
iii. That plaintiff has no legal capacity to sue = That the officer who filed the
information has no authority to do so
iv. Litis pendentia = duplicity of offense filed in one information
v. Condition precedent = Did not comply substantially with the prescribed form
3. In a MTD, you seek to dismiss the complaint; In a MTQ, you seek to quash the information.
MTD grounds, discussion; cont.
1. That the court has no jurisdiction over the person of the defendant
a. How does the court acquire jurisdiction over the person of the defendant?
i. Valid service of summons;
ii. Voluntary appearance 2. That the court has no jurisdiction over the
subject matter of the case a. What is the principle?
i. Jurisdiction is conferred by law except the jurisdiction of the Supreme Court, which is conferred by the Constitution.
3. That venue is improperly laid a. Under Rule 4
4. That the plaintiff has no legal capacity to sue a. Under Rule 3 on parties
5. Litis pendentia
a. One suit for a single cause of action and joinder of causes of action
6. That cause of action had been barred by prior judgment or the statute of limitations
a. Sec. 47, Rule 39
7. Unenforceability of claim pursuant to the statute of frauds
a. Civil in nature
8. That the claim has been paid, waived, abandoned, or otherwise extinguished
a. Obligations and contracts
b. When is an obligation extinguished?
i. Payment, loss of the thing due, merger, subrogation, novation, etc.
c. See affirmative defenses.
9. Condition precedent
a. Katarungang Pambaranggay Law i. General Rule: All cases must
pass through the barangay conciliation proceedings;
otherwise it is a ground for dismissal on the ground of prematurity.
1. It is no longer
jurisdictional. It is just a matter of prematurity.
The Court will merely archive the case until condition precedent has been complied with.
ii. Exceptions:
1. An action wherein one of the parties is a government instrumentality
2. When a public officer is involved and the action involved his office 3. Where one of the
parties is a corporation 4. If the parties reside in
different cities or municipalities except when they voluntarily submit themselves in the proper forum and the barangay in which they reside is adjacent to each other. So even if the parties reside in different cities or municipalities but they reside in a barangay who is adjacent to each other there is still a need for barangay conciliation.
5. When parties avail any one of the provisional remedies
a. What are these provisional remedies?
AIRRS
i. Prelimi nary Attach ment ii. Prelimi
nary Injuncti on
iii. Receive rship iv. Replevi
n v. Support
penden te lite 6. When party is arrested
pursuant to Sec. 5, Rule 113 or warrantless arrest
b. When the case is between or among members of the immediate family
i. Immediate family = up to 2nd degree of consanguinity
1. Vertical line = no limitation
2. Horizontal line = up to brothers and sisters ii. However under Rule 3, we
spoke of parties - spouses 1. In-laws are included,
because they have to be impleaded as spouse/s.
c. Exhaustion of administrative remedies i. Exercise of primary jurisdiction If a MTD is granted, what happens? The case is
dismissed. What is the remedy? Appeal, because an order denying a motion to dismiss is a final order – court has nothing left to do. If denied, what is your remedy?
File an answer. When? Within the remaining balance of days for the period of filing an answer from receipt of notice of denial, which must not be less than 5 days.
When do we not apply the Neypes? Doctrine (fresh period rule)? Rules 12, 16 and 64. Example: If summons was duly served on 1st of the month, the defendant has until the 16th of the month to file an answer; however, he filed a MTD on the 5th day. How many days were consumed? 4 days. What is the balance of the period?
11 days. MTD was denied, when should the defendant file an answer? Within 11 days from receipt of the notice of the denial of the motion to dismiss (only the balance of the period but not less than 5 days).
Rule 17
Dismissal of actions
Sec.1 notice of dismissal by plaintiff
Section 1. Dismissal upon notice by plaintiff. — A