Regulación auxiliar

Plaintiff files a collection case for 500k against defendant. Defendant visits the plaintiff and asked the plaintiff for the dismissal of the case, promising payment. Plaintiff acquiesced and files notice of dismissal. Court dismisses the case. The defendant failed to pay. Can the

plaintiff file another case against defendant? Yes, as the case was dismissed without prejudice.

The defendant again approached plaintiff, asking again for time.

Plaintiff again agrees, and files another notice of dismissal. It is again dismissed. What will be the effect?

The dismissal is with prejudice this time. If plaintiff files a case for the same defendant for the same cause as the defendant again failed to pay, the case will be dismissed as the second dismissal is one with prejudice, and res judicata will lie.

What if the defendant files motion to dismiss, but failed to allege res judicata, can the court proceed to dismiss?

Yes, the court can do so, even if the defendant failed to allege it. It is a non- waivable ground of dismissal, and anytime the court discovers such fact, it will dismiss the case.

Can the court say in its decision of dismissal that the second dismissal is without prejudice?

No. The court cannot say the second dismissal is without prejudice as the law itself dictates that such dismissal is with prejudice, and the court will have no discretion as to such dismissal being with or without prejudice. As long as it is the second dismissal of the same case, it will always be with prejudice due to res judicata.

When can second dismissal is without prejudice under Section 1 Rule 17?

There can be two situations where dismissal under Section 1 Rule 17 is without prejudice?

1.If the first case was filed in a court which lacked jurisdiction thereto, then the 2nd one was filed in the competent court and there was a 2nd

dismissal, the 2nd dismissal is not res judicata. The two-dismissal rule will be considered if the case had been filed in a court competent to hear it. 2. In Section 2 Rule 17, a plaintiff may dismiss his complaint via a motion to dismiss. Here, the defendant had already filed an answer. If the plaintiff

seeks to dismiss the complaint, he must file a motion to dismiss his complaint, copy furnished to the defendant. The likelihood is that the defendant will not object. If the defendant does not object, and the court dismisses the case without prejudice, the plaintiff is allowed to file another case against the same defendant based on the same cause.

The defendant, however, is given under Section 2 a chance to object. The defendant can insist that the dismissal be one with prejudice. This is

allowed as the dismissal is upon the initiative of the plaintiff, and the defendant is given the opportunity to object. If you were the defendant’s counsel, advise the defendant to object, and state that the dismissal should be one with prejudice. (I have no opposition to the dismissal initiated by the plaintiff, as long as the dismissal is with prejudice.) If that is the tenor of the dismissal, that is res judicata. It will preclude the plaintiff from filing another case with the same claims against the same defendant.

What if the defendant has a compulsory counterclaim?

There can be a dismissal, but defendant can ask that the court should continue hearing on the counterclaim set up by defendant in his answer. In the alternative, the defendant can ask the court to try the compulsory

counterclaim in a separate case. This is one of the rare instances wherein a compulsory counterclaim could survive without the principal action.

The general rule is that if the complaint is dismissed, the compulsory

counterclaim is also dismissed. But not in Section 2 Rule 17. The complaint could be dismissed, but the compulsory counterclaim could survive. In fact the survival of the compulsory counterclaim can even be threshed out in a separate complaint, wherein there can be another complaint filed by the former defendant against the former plaintiff. But this will be an

independent action.

The other alternative is that the plaintiff can ask the court for the dismissal of the complaint but the court will continue to exercise jurisdiction so that the court will continue to try the compulsory counterclaim.

Rule 17, Section 3, Grounds of dismissal

~the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint,

~fails to prosecute his action for an unreasonable length of time (nolle prosequi),

~fails to comply with these Rules

~ fails to comply with any order of the court,

Under this section, the initiative for the dismissal of the case comes from the defendant or the court itself.

How can the court order a dismissal under Section 3 of Rule 17 upon the ground that the plaintiff failed to obey the provisions of the Rules of Court?

A good example can be had under Rule 18 on Pre-Trial. In Rule 18, it is provided expressly that after the last pleading is filed, it is the duty of the plaintiff to set his complaint for pre-trial. He must file a motion to have the complaint set for pre-trial. When the plaintiff fails to set the hearing for pre- trial for, let us say, one year ago up to the present, and there is a finding that the plaintiff failed to do so, the court can dismiss the case on the ground that the plaintiff failed to follow the provision set upon in the Rules. This has been affirmed by the SC. So, if it is the duty of the plaintiff to set the case for pre-trial, and he neglects to do so for an unreasonable length of time, there is every reason for the court to make use of Rule 17, to order the dismissal of the case under Section 3 thereof. This is a dismissal with prejudice unless the court makes the necessary qualification that it is a dismissal without prejudice.

In most courts (RTC or MTC), if the court calls the case for trial on the merits, and plaintiff does not appear during trial, the lawyer for the

defendant may ask for the dismissal under Section 3, Rule 17 for failure of the plaintiff to prosecute for an unreasonable length of time or for failure of the plaintiff to appear on the date of the presentation of his evidence in chief on the complaint. And usually, the trial court accommodates the defendant’s move because if a trial court dismisses the case, that is one case where the judge can present that he has been resolving speedily the cases that are assigned to him.

Last year, the SC came out with a resolution concerning this particular provision in relation to Shimizu vs. Magsalin. Study this case as it would be a good problem in the bar.

Shimizu vs. Magsalin 2008 – revolutionary decision concerning dismissals with prejudice under Section 17

Order of dismissal with prejudice should comply with Rule 36 and the Constitution. Otherwise, it shall be open to collateral and direct

attack. (A trial court should always specify the reasons for a complaint’s dismissal so that on appeal, the reviewing court can readily determine the prima facie justification for the dismissal)

The Dismissal Order is Void

The nullity of the dismissal order is patent on its face. It simply states its conclusion that the case should be dismissed for non prosequitur , a legal conclusion, but does not state the facts on which this conclusion is based. Dismissals of actions for failure of the plaintiff to prosecute is authorized under Section 3, Rule 17 of the Rules of Court. A plain examination of the December 16, 2003 dismissal order shows that it is an unqualified order and, as such, is deemed to be a dismissal with prejudice. “Dismissals of actions (under Section 3) which do not expressly state whether they are with or without prejudice are held to be with prejudice[.]” As a prejudicial dismissal, the December 16, 2003 dismissal order is also deemed to be a judgment on the merits so that the petitioner’s complaint in Civil Case No. 02- 488 can no longer be refiled on the principle of res judicata. Procedurally, when a complaint is dismissed for failure to prosecute and the dismissal is unqualified, the dismissal has the effect of an adjudication on the merits.

As an adjudication on the merits, it is imperative that the dismissal order conform with Section 1, Rule 36 of the Rules of Court on the writing of valid judgments and final orders. The rule states:

RULE 36

Judgments, Final Orders and Entry Thereof Section 1. Rendition of judgments and final orders. — A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court.

The December 16, 2003 dismissal order clearly violates this rule for its failure to disclose how and why the petitioner failed to prosecute its complaint. Thus, neither the petitioner nor the reviewing court is able to know the particular facts that had prompted the prejudicial dismissal. Had the petitioner perhaps failed to appear at a scheduled trial date? Had it failed to take appropriate actions for the active prosecution of its complaint for an unreasonable length of time? Had it failed to comply with the rules or any order of the trial court? The December 16, 2003 dismissal order does not say.

We have in the past admonished trial courts against issuing dismissal orders similar to that appealed in CA-G.R. CV No. 83096. A trial court should always specify the reasons for a complaint’s dismissal so that on appeal, the reviewing court can readily determine the prima facie justification for the dismissal. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark and is especially prejudicial to the losing party who is unable to point the assigned error in seeking a review by a higher tribunal.

We thus agree with the petitioner that the dismissal of Civil Case No. 02-488 constituted a denial of due process. Elementary due process demands that the parties to a litigation be given information on how the case was

decided, as well as an explanation of the factual and legal reasons that led to the conclusions of the court. Where the reasons are absent, a decision (such as the December 16, 2003 dismissal order) has absolutely nothing to support it and is thus a nullity.

For this same reason, we are not moved by respondent FGU Insurance’s statement that the disposition of the present petition must be limited to the issue of whether the CA had correctly dismissed the appeal in CA-G.R. CV No. 83096. This statement implies that we cannot properly look into the validity of the December 16, 2003 dismissal order in this Rule 45 petition. A void decision, however, is open to collateral attack. While we note that the validity of the dismissal order with respect to Section 1, Rule 36 of the Rules of Court was never raised by the petitioner as an issue in the present petition, the Supreme Court is vested with ample authority to review an unassigned error if it finds that consideration and resolution are indispensable or necessary in arriving at a just decision in an appeal. In this case, the interests of substantial justice warrant the review of an obviously void dismissal order.

A valid judgment must contain factual findings, it must have

conclusions as to the law available. If the court simply says that the dismissal was for failure to prosecute for an unreasonable length of time, that is not a factual finding nor conclusion based on law, it is just a conclusion of the court. The SC said that for a trial court to render a valid judgment, the court should explain why and how the court came to the conclusion that the plaintiff is guilty of nolle prosequi. The court should give instances pertaining to the records of the case that enabled the court to conclude that the plaintiff has failed to prosecute for an

unreasonable length of time. Without such explanation, even if the judgment is entered, it can be subjected to direct or collateral attack. If there is an adjudication upon the merits, when the order is simply an order of dismissal, under Rule 17 or even under Rule 16, for the validity of that final order of dismissal, there should be an explanation of how and why

there is a dismissal of the case, the dismissal being a final adjudication of the case.

An order of dismissal with prejudice under Rules 16, 17, 33 or even under any rule allowing dismissal of the action, the order of

dismissal, if it is going to be considered an adjudication of the merits, must comply with the requirements of Section 1, Rule 36. Non-

compliance thereto, the dismissal is an void judgment which can be subjected to direct or collateral attack.