Civil Procedure: Rule 16 Motion to Dismiss

Lagutan v. Icao, 224 SCRA 9

FACTS:  The heirs of L filed a complaint vs. I for specific performance.  I, in his answer, raised  the ff. defenses:  lack of cause of action, prescription, non-compliance w/ the Statute of Frauds.  Afterwards, I filed a motion to dismiss.  CFI granted the MTD.

HELD:  Under R. 16, a MTD must be filed w/in the time for pleading (period to answer).  Thus, the ct. erred in granting the MTD considering that it was filed 3 mo. after the amended answer was filed.

The sufficiency of a motion to dismiss should be tested on the strength of the allegations of facts contained in the complain & no other.  The ct. cannot inquire into the truth of the allegations & declare them to be false.  Otherwise, there would be a denial of procedural due process.


Laus v. CA, 219 SCRA

HELD:  If a defendant had not been properly summoned, the period to file a MTD for lack of jurisdiction over his person does not commence to run until he voluntarily submits to the jurisdiction of the ct..

In this case, D did not voluntarily submit.  Thus, the period to file a responsive pleading did not even commence to run.

As a general rule: an order denying a MTD being interlocutory cannot be the subject of certiorari.

EXCEPTION:  When TC clearly acted outside of its jurisdxn or w/ grave abuse of discretion in denying MTD.


Bar by prior judgment


DBP v. Pondugar, 218 SCRA 118

FACTS:  CFI dismissed the injunction suit filed  by IISMI  vs. the government, DBP CB BOI & Sheriff of Lanao del Norte w/ prejudice for IISMI’s failure to appear during the pre-trial.  Fourteen years later, IISMI, Fernando Jacinto & Jacinto Steel filed a complaint vs.  DBP, NDC & NSC before the RTC Iligan  praying that the extrajudicial foreclosure conducted in accordance w/ the decision in the first case be annulled.


1.  As a general rule, certiorari is not available since a motion to dismiss is merely interlocutory.  However, when the ct., in denying the MTD, acts w/o or in excess of jurisdiction or w/ grave abuse of discretion, certiorari becomes available to relieve the defendant of the trouble of undergoing the ordeal & expense of a useless trial.

2.  2nd Case should be dismissed bec. of res judicata.


a.  Former judgment must be final.  CFI order has attained finality since there was no motion for recon or appeal.

b.  The ct. w/c rendered it had jurisdiction over the subject matter & the parties.

c.  Must be a judgment on the MERITS.  The first case was an adjudication on the merits since the CFI considered the evidence presented during the hearing; dismissed w/ prejudice due to failure to appear during pre-trial despite due notice.

d.  There must be, between the 1st & 2nd actions, identity of parties, subject matter &  cause of action.

Absolute identity of parties is not required.  Substantial identity is sufficient.  Inclusion of add’l parties will not affect the application of RJ.

Test Of Identity of COA does not lie in the form of the action but on whether the same evidence would support & establish the former & present COA

3.  RTC has committed grave abuse of discretion in taking jurisdiction .  Although it is not prayed that the CFI orders be annulled, the effect is to annul the findings of mismanagement & to relitigate the same claims.  Action for reconveyance is misleading since it is but the inevitable consequence if the CFI orders are annulled.

4.  A finding that the complaint states a COA does not imply that the complainant is assured of a ruling in his favor.  While a MTD based on failure of the complainant to state a COA necessarily carries w/ it the admission, for purposes of the motion, of the truth of all material facts pleaded in the complaint, what is submitted for determination therein is the sufficiency of the allegations in the complaint.

5.  A MTD may be granted  even if only  1 ground is present.


Litis pendencia

Vitrionics Computers v. RTC, 217 SCRA 1

FACTS:  P filed  w/ the RTC Makati Br. 63 a complaint for a sum of money & damages vs. PR (*1st case – Civil Case # 91-2069)   The following day, the PR filed a complaint for the nullification of the contract on the ground of fraud.  This was docketed as Civil Case # 91-2192 * 2nd case.

PR filed a MTD & or to suspend proceedings 1st case.  RTC Makati Br. 63 dismissed  the 1st case on the ground of litis pendentia

HELD:  The 2nd case should be the one dismissed & not the 1st case.


1.  Identity of parties or at least such as representing the same interests in both actions;

2.  Identity of rights asserted & relief prayed for; the relief being founded on the same facts;

3.  Identity in the 2 cases should be such that the judgment that may be rendered in the pending case would, regardless of w/c party is successful, amount to res judicata in the other.

In our jurisdiction, the ROC simply requires that there is a PENDING action, NOT  a PRIOR PENDING ACTION.  Therefore, the priority in time rule is not applicable.


1.  The more appropriate action shall be maintained (Teodoro vs. Mirasol)

2.  Interest of justice test, taking into account a) the nature of controversy; b) comparative accessibility of the ct. to the parties; c) other similar factors (Roa-Magsaysay vs. Magsaysay)

**In both tests, the bona fides or the good faith of the parties shall be taken into consideration


Res judicata

Abalos v. CA, 223 SCRA

FACTS:  The RTC, acting as a Land Registration Court, granted the application for registration of title filed by A.  After this, PR filed a complaint vs. A for the annulment of the document of sale & or redemption of ownership plus damages.  A filed a MTD on the ground of res judicata.

HELD:  MTD granted on the ground of res judicata.    The general rule is that the land registration ct. has limited jurisdiction.  EXCEPTIONS:  1.  The parties have agreed or have acquiesced in submitting the issues for determination by the ct. in the proceedings; 2.  the parties were accorded opportunity in presenting their respective arguments of the issues litigated & of the evidence in support thereof; 3. the ct. has already considered the evidence on record & is convinced that the same is sufficient & adequate for rendering a decision upon the issues controverted.  In the CAB, the  issue of ownership  was fully ventilated.

While the jurisdiction of the LRC is limited, the power to determine the validity of the documents pertaining to sale of lands is necessarily w/in its jurisdiction.


Res judicata v. conclusiveness of judgment

Nabus v. CA, 190 SCRA

FACTS:  Nabus brought an action for reconveyance of land vs. Lim.  This was based  on the Public Land Law.  Upon failure of N to comply w/ the ct. order  (CFI ordered him to deposit the repurchase price), the ct., upon L’s filing of a MTD, dismissed the case w/ prejudice.

N filed a 2nd case for the rescission of the contract  Was the complaint for rescission & damages  barred by prior judgment of dismissal.

HELD:                  NO.

A.   Res Judicata has 2 concepts:

1.  Bar by Former Judgment.  There is identity of parties, subject matter & COA.  The judgment on the merits rendered on the  1st case constitutes an absolute bar to the subsequent action not only as to every matter w/c was offered  but as to any admissible matter w/c might have been offered for that purpose.


a. presence of a final former order

b.  former judgment rendered by a ct. having jurisdiction over

the subject matter & the parties

c.  former judgment is a judgment on the merits.

d.  identity of parties, subject matter & cause of action.

   Judgment on the Merits

Þ      When it determines the rights & liabilities of the parties based           on disclosed facts, irrespective of formal, technical or dilatory objections.

Þ      Where complaint is dismissed for failure of P to comply w/ a lawful order of the ct., this has the effect of an adjudication upon the merits.

In the CAB, there is No identity of Cause of Action since the evidence that was presented in the 1st case is not the same evidence that is needed to sustain the 2nd case.

2.  Conclusiveness of Judgment –  There is identity of parties but no identity of cause of action.  In this case, judgment is conclusive only as to matters actually & directly controverted & determined & not as to matters merely involved.  This is not applicable bec. the unpaid balance was never put in issue.

B.  Nevertheless, the action was dismissed bec. it had  has already prescribed.


UP v. CA, 218 SCRA 72


Elizalde & the Tasaday representatives filed a case vs. B & S based on torts. UP filed a motion to intervene w/c was granted.  After UP has filed an answer in intervention, B & S filed a MTD on the ground of lack of COA.  Court denied B & S’s MTD.  Up also filed a MTD but this was denied  bec. UP has already filed an answer.

HELD:  Res Judicata does not apply bec.  there is no identity of subject matter.  The ct. denied B & S’s MTD on the ground that there is a COA while it denied UP’s MTD bec. it had already filed an answer.

The argument that B & S are protected by academic freedom is a valid defense that must be raised  during trial.

It is not w/in the competence of the ct. to declare the Tasadays a distinct ethnic community.  This is akin to a prayer for a judicial declaration of citizenship w/c may not be granted in a petition for declaratory relief.



MTD should contain:

a) relief sought to be obtained

a) grounds on which it is based

a) supporting affidavits and other papers as required by the Rules or to prove the facts alleged

a) notice of hearing since MTD can’t be heard ex parte

Procedure:  Movant:  one who files motions:  sets date for hearing:  clerk of court to calendar it after getting proof of service:  oppositor should have actual receipt of notice 3 days before hearing and hearing should not be > 10 days from filing of the motion: periods depend on how the filing is done whether personal delivery or registered mail:  if the latter, explainwhy not personal delivery and with proof of service


Execptions to motions must be in writing:

a) made in open court or made in the course of a hearing or trial

eg.  Exclude public; hold other counsel in contempt; admissibility of evidence; motion to leave the court

a) motions which do not substantially prejudice the rights of the other party

eg.  Motions for suspension of the trial


If no MTD filed, any of the grounds for an MTD can be raised as an affirmative defense

Except lack of jurisdiction over the person

Affirmative defense since it means that D made an answer and subjected himself to the jurisdiction of the court


Defenses NOT waived when not set up in an MTD or affirmative defense Rule  9 sec 1

a) jurisdiction over subject matter

a) res judicata or statute of limitations

a) litis pendencia


if D files MTD for failure to state a cause of action, P’s remedy is to file an amended pleading

Nature of MTD:  hypothetically admits allegations in complaint as true:  affirmative defense

MTD confusion and avoidance (WIT):  hypothetical admission and denial


Possible defenses when served with a complaint. Line by line:

RTC – lack of jurisdiction

NCR, QC – wrong venue

P – lack of capacity to sue

Summons – lack of J over D

Pleading – no cause of action

Body – litis pendentia, res judicata, paid/waived/unenforceable

Allegations of conditions precedent – failure to undergo conditions precedent

Failure to include certification against forum shopping under oath


Court after proper hearing on MTD can:

a) sustain MTD and dismiss the complaint

b) deny the MTD and compel D to file an answer

c) order that the complaint be amended


Court will rule on face of document: no need to receive evidence but should give other party the opportunity to be heard.  Other party to file his opposition to the MTD.

Hearing not necessary if there is no need to present evident.

eg.  improper venue, no jurisdiction over subject matter or person – just study complaint or return of summons

When hearing necessary, movant has the burden of proving his opposition.  D to present evidence first.  Evidence presented during hearing on MTD automatically reproduced during trial


Hearing on motion: receive evidence in support of motion

Trial :  receive evidence on ultimate causes


MTD not a responsive pleading but a motion

After filing MTD can no longer file Bill of Particulars since MTD means that D is presumed to have understood the complaint.  Must file B of P before MTD then motion for extension of time to plead then pleading with counterclaim


NOTE Rule 16 sec 6 makes it discretionary on the trial court to rule on affirmative defense raising any of the grounds of MTD as long as MTD not filed


L: res judicata already raised as MTD, MTD denied during hearing, then can’t raise affirmative defense on same ground since already settled that not res judicata (WIT)


LINA V CA: Remedies for default judgment

a) motion to set aside order of default

b) motion for new trial

c) appeal

d) petition for review of judgment


LAUS:  no default since D did not receive summons.  Period for filing answer has not yet started to run.  Remedy:  MTD.  Remedy if MTD denied:  certiorari for arbitrary ruling



Bar by prior judgment                        conclusiveness of judgment

JUDGMENT         Former judgment                                                                 F

Valid court with jurisdiction                                         V

Merits                                                                                     M

IDENTITY            Cause of action

Subject matter


Certiorari               Special civil action

May be related to main cause of action

WON court a quo committed grave abuse of discretion


U. P. case – certiorari by Bailen and Salazar in SC first civil action


Certiorari – as a mode of appeal

Certiorari – special civil action, grave abuse of discretion

Distinguish between petition for review by certiorari and original special civil action for certiorari


UP – orders of MTD contained two (2) different things

Special civil action is a different thing

Certiorari is an extraordinary remedy


Answer-in-intervention: grounds for dismissal may be raised in an affirmative defense inspite of prior dismissal of a MTD by the original defendant.


Procedure to intervene:

1. Motion for leave of court to intervene

2. After granting by the court, intervenor may file MTD.

Denial of MTD is only a denial of the hypothetical admission mode by the defendant but may still be controverted in the trial.   Once a MTD has been filed and denied, grounds raised can no longer be set up as affirmative defenses.


Lack of Jurisdiction over the person cannot be raised in an affirmative defense.

Default – remedy of the complainant

Rule 17 §37 – plaintiff declared non-suited.

If answer filed after reglementary period and default (motion) filed thereafter, court should not render an order of default since default are generally frowned upon.


Remedies for a default judgment:

1. Motion under oath to set aside order of default

2. Motion for new trial – judgment not final & executory

3. Petition for relief from judgment – judgment final & executory

4. Appeal – no way that defendant can present evidence.


Rule 19 § 5 – failure of defendant to appear, presentation of evidence shall be proved.

No more “as in default”

No opportunity to jump to judgment, only that plaintiff may present evidence ex-parte.


Lesaca – What judgment can be rendered


Rule 34. Judgment on the Pleadings


If no material issue is contested (e.g. only amount of damages), judgment on the pleadings may be issued.


MTD – confession/avoidance

Motion for Summary Judgment – remedy so as not to go through the entire trial.

Motion for Summary Judgment may be substituted by an Answer.


Judgment after Trial                           ]

Summary Judgment                           ]               Judgment on the merits;

Judgement on the Pleadings            ]               ways of terminating trial

Judgment by Default                          ]


MTD – judgment which do not look at the merits

Final orders


Judgment              ]               Ways of terminating trial

Order                      ]


Reference:  University of the Philippines



About Magz

First of all, I am not a lawyer. I'm a graduate of AB Political Science and went to the College of Law but stopped going to law school for some reasons. I'm a passionate teacher who has been teaching English to speakers of other languages and a person who likes writing and blogging. I lost some important files and software when my computer broke down so the reason I created this website is to preserve the notes, reviewers and digests I collected when I was at the law school and at the same time, I want to help out law students who do not have enough time to go and read books in the library.

Posted on December 18, 2011, in Civil Procedure and tagged . Bookmark the permalink. Leave a comment.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: