shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period. (4a)
Breakdown of Provision:
1. If the motion is denied, movant shall file his answer: a. Within the balance of the period prescribed by Rule 11
to which he was entitled at the time of serving his motion
b. But not less than 5 days in any event, computed from his receipt of the notice of denial
2. If pleading is ordered to be amended, he shall file his answer a. Within the period prescribed by Rule 11 counted from
service of amended pleading
b. Unless the court provides a longer period
When the period of filing the answer has been suspended, as by defendant’s filing of a motion for a bill of particulars, a motion to dismiss may thereafter be filed within the remaining period to file the answer since the time to file the latter is coterminous with that of the former. (Dumanan et al. v. Butuan City Rural Bank, et al.)
SECTION 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)
Effects of Action on Motion to Dismiss
ACTION REMEDY
Order granting motion to dismiss is a
final order, without prejudice
Re-file the complaint Order granting
motion to dismiss,
with prejudice Appeal
Order denying the motion to dismiss is
interlocutory
File answer and proceed with the trial. If decision is adverse, appeal therefrom
and raise as error the denial of the motion to dismiss. If there is grave abuse of discretion
amounting to lack or excess of jurisdiction, certiorari or prohibition may
be filed under Rule 65 Effect of Dismissal
GENERAL RULE: The action or claim may be re-filed
EXCEPTION: The action cannot be re-filed if it was dismissed on any of these grounds:
1. Prescription
2. Unenforceability under the Statute of Frauds 3. Res judicata; and
4. Extinguishment of claim or demand
Note: in these instances, remedy of plaintiff is appeal since an order sustaining the motion to dismiss was an adjudication on the merits
Jurisprudence
1. When the ground is based on fact that the action is premature, it is not a judgment on the merits (Castano v.
Castano)
2. Dismissal based on lis pendens is not a judgment on merits, hence, no res judicata (Moldes v. Mullet)
3. On the matter of prescription:
a. If what is referred to is that the cause of action is barred by the statute of limitations, that is the action has prescribed (Art. 1139 – 1155), the motion to dismiss shall be grounded on Sec. 1, par. (f)
b. If what is involved us the fact that the ownership or other real rights claimed have prescribed, or a case of extinctive prescription is involved (Art. 1117 to 1138), then the ground for the motion to dismiss should properly be based on Sec. 1, par. (h) since the claim has been extinguished
SECTION 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)
If no motion to dismiss had been filed, any of the grounds for dismissal may be pleaded as affirmative defenses and a preliminary hearing may be had at court’s discretion.
The 2nd paragraph clarified the effect of dismissal of the complaint
upon a counterclaim duly pleaded in the action
Note: If the defendant would not want to file a counterclaim, he should not file a motion to dismiss
- Instead, he should allege the grounds of a motion to dismiss as affirmative defenses in his answer with a counterclaim
- A preliminary hearing may be had thereon, and in the event the complaint is dismissed, defendant can prosecute his counterclaim
Note: A motion to dismiss is not a responsive pleading, hence the filing thereof does not preclude the plaintiff from doing what he can lawfully do before the defendant files his answer (Rodriguez v.
Fernan)
Regalado notes:
- Any of the grounds for dismissal provide for in this rule, may be alleged as affirmative defenses
- And a preliminary hearing may be had thereon if no motion to dismiss on any of said grounds had been filed and resolved
- As to other affirmative defenses:
a. Sec. 5(b), Rule 6 enumerates some affirmative defenses such as fraud, illegality, and estoppel b. Jurisprudence has also provided ultra vires acts and
unconstitutionality of the statute involved
Since the aforementioned defenses and others by way of confession and avoidance are not among the grounds for a motion to dismiss under Rule 16, while the same may be alleged as affirmative defenses to be proved during trial, it would not be proper to have a preliminary hearing thereon under the circumstances and for the purpose contemplated in this section
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Note that the preliminary hearing authorized in this section is NOT mandatory, since the grant thereof may be had in the discretion of the court.
If a motion to dismiss has been filed and denied: - The order of denial is interlocutory
- The court may reconsider and reverse the order of denial in its final judgment (Lasala v. Sarnate)
- Defendant may also reiterate the grounds thereof as affirmative defenses
- BUT no preliminary hearing may be had thereon because a motion to dismiss had already been filed and decided (Rasdas v. Estenor)
The present rule makes it clear that any of the grounds for dismissal provided for Rule 16 may be pleaded as an affirmative defense in the answer if no motion to dismiss has been filed
- This means that if a motion to dismiss has been filed and unconditionally denied, it need no longer be alleged in the answer but may only be raised again on appeal
Note: The filing of a motion to dismiss is implied waiver of compulsory counterclaim
- The dismissal of the main action results in the dismissal of the counterclaim already filed
- As such, the filing of the motion to dismiss is an implied waiver of the compulsory counterclaim
- Both are incompatible remedies - As such, the defendant must choose one
DENIAL OF THE MOTION
GENERAL RULE: The denial of a motion to dismiss a complaint is an interlocutory order and cannot be appealed or questioned
The remedy of the aggrieved party is to file an answer and interpose as defenses the objections raised in his motion to dismiss, proceed to trial, and in case of an adverse decision, to appeal
EXCEPTION: When certiorari, prohibition, or mandamus is available Where there is patent grave abuse of discretion in denying
the motion, the court may entertain the petition for certiorari (National Investment Dev. Corp. v. Aquino) If the grounds are indubitable, certiorari and prohibition is
available (Alice Van Dorn v. Romillo)
Or where the court in denying the motion acts without or in excess of jurisdiction (Mendoza v. CA)
Under certain situations, recourse to certiorari or mandamus is appropriate (Emergency Loan Pawnshop
Inc. v. CA):
1. When the trial court issued the order without or in excess of jurisdiction
2. Where there is patent grave abuse of discretion by the trial court
3. Appeal would not prove to be a speedy and adequate remedy
EFFECT OF GRANT
When an order sustaining a motion to dismiss is final, in that it disposes of the case in its entirety being an adjudication on the merits, the remedy of the plaintiff is to appeal the order
When the ground is based on facts that the action is premature, it is not a judgment on the merits (Castano v. Castano)
Dismissal based on lis pendens is not a judgment on the merits, hence, no res judicata (Moldes v. Mullet)