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SC in recent cases has emphasize the difference of lack of a cause of action and failure to state a cause of action:

Failure to state cause of action Lack of cause of action Insufficiency in the allegations of

the complaint

Failure to prove or establish by evidence one’s stated cause of action

As a ground for dismissal Raised in a motion to dismiss under

Rule 16 before a responsive pleading is filed

Raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case

Determination Determined only from the

allegations of the pleading and not from evidentiary matters

Resolved only on the basis of the evidence he has presented in support of his claim

Failure to state a cause of action will be a ground to dismiss because of immaturity. It assumes that the plaintiff really has a cause of action, and the fault will be due to the lawyer who crafted the complaint.

If there is an accion reinvindicatoria filed in the RTC, but there is no stated assessed value of the property involved, then the defendant may file motion to dismiss for lack of jurisdiction for failure to state a cause of action. A hearing was had. The plaintiff’s attorney failed to see what the motion was about. The court will resolve the motion purely on the allegations in the complaint. (There is no need to

present evidence in this case, as no factual matter is in issue.) The court granted the motion. The plaintiff’s lawyer received the order of dismissal, and then he finally understood what was wrong with his complaint. Can the lawyer for the plaintiff amend his complaint? Yes. The plaintiff can still amend his complaint in order to incorporate the allegation the assessed value of the property. This is because the order of dismissal will not be entered until after the lapse of 15 days, and the plaintiff can still amend and rectify the error committed by inserting the assessed value of the property. He can do so as a matter of right, because, according to SC, a motion to dismiss is not a responsive pleading, and as long as the amendment is the first amendment, under Rule 10, it is an amendment is a matter of right. The defendant will have to file an answer to the amended complaint.

Note:

In a hearing of a motion to dismiss grounded to lack of jurisdiction over the subject matter, the court will not allow presentation of evidence by the defendant. The reason is because lack of jurisdiction over the subject matter is a purely legal question and the only evidence to be taken into account is the complaint itself, applying the principle that the court acquires jurisdiction, under BP 129, based on the allegations contained in the

complaint. In the hearing of a motion, the court will allow presentation of evidence ONLY if the question that will be raised is a factual issue like the obligation has been paid, waived or otherwise extinguished. Thus, in a motion to dismiss on the ground of lack of jurisdiction over the subject matter, the court will resolve the motion based on the complaint itself. The court can easily resolve the said motion based on the allegations in the pleading itself.

Based on the above problem, if the dismissal became final and executory, what can the plaintiff do?

Under Sec. 5 Rule 16, the rule makes a distinction of an Order of Dismissal under Rule 16 under letters f, h and i (in addition to laches under the NCC) compared to other grounds, the dismissal is subject to the right of

appeal. The remedy of the plaintiff is to appeal the order of dismissal.

If the case was dismissed on grounds not on letters f, h and I, it means that we should not treat Rule 16 alone, but consult other Rules to arrive at the

correct remedy. We consult Sec. 1 under Rule 41. The dismissal is without prejudice. Therefore, the dismissal should not be appealed.

Rule 16, 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:

(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 unenforceable under the provisions of the statute of frauds; and

(j) That a condition precedent for filing the claim has not been complied with.

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.

Grounds recognized under the law that will render dismissal with prejudice under Sec. 5, Rule 16:

Rule 16, f. Res judicata/statute of limitations

Rule 16, h. paid, waived, abandoned, or otherwise extinguished

Rule 16, i. unenforceable under statute of frauds (NCC) laches (Should be included here. Dean Jara)

In analyzing Rule 16, 17, 18 and 33, we should always read these Rules in relation with Section 1 of Rule 41.

Rule 41, SECTION 1. Subject of appeal.—An appeal may be taken from a judgment or final order that completely

disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.

No appeal may be taken from:

(a) An order denying a motion for new trial or reconsideration;

(b) An order denying a petition for relief or any similar motion seeking relief from judgment;

(c) An interlocutory order;

(d) An order disallowing or dismissing an appeal;

(e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent. (f) An order of execution;

(g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross- claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (h) An order dismissing an action without prejudice.

(i) Laches and any other means recognized under the NCC (Dean Jara)

In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.

Why is it necessary to relate a motion to dismiss under Rule 16 with Rule 41, which is a rule on appeal?

If you read Section 1 of Rule 41, there is an enumeration of orders where no appeal can be had, although they are final in character. In the enumeration under Section 1 of Rule 41, the last item is closely related to Rule 16, that it is a dismissal is without prejudice. In Rule 16, what the Rule tells us is that under items f, h and i of Sec. 5 Rule 16 are subject to appeal. That means the dismissal is with prejudice as the remedy thereof is to appeal.

But when the dismissal on other grounds other than items f, h and i under Sec. 5 Rule 16, they are without prejudice. And Section 1(h)Rule 41 tells the plaintiff that one of the recourses available to him when the dismissal is without prejudice. Appeal is not a remedy available to him.

The court issued an order of dismissal. What should the plaintiff do? The remedy available to the plaintiff is found under Sec. 1 of rule 41 in order to challenge the order of dismissal that are still appealable based on Sections 1 and 5 of Rule 16 (those not under items f, h and i). Since an order of dismissal is not appealable, then the plaintiff must file an

appropriate petition under Rule 65. The plaintiff may file a petition for certiorari or prohibition with the CA or SC as the case may be.

Why do we allow the plaintiff to file a petition under Rule 65

challenging the dismissal of his complaint for lack of jurisdiction, although the order of dismissal has already been entered after the lapse of 15 day period?

Because under Rule 65, the period for filing the petition under this rule is 60 days, not 15 days. So if the 15-day period for entry of judgment has lapsed, the plaintiff has 45 days more to file a petition under Rule 65.

But because the dismissal is without prejudice, the plaintiff can forget about going to a higher court. Because if the dismissal of his complaint was

without prejudice, he has another alternative: he can just file a new complaint in the same court involving the same party with the complaint impleading the necessary allegations.

If we compare this dismissal under Rule 16 based on lack of jurisdiction on the ground of f, h and i, we can understand why they are not appealable.

The order of dismissal based on these items will be a judgment on the merits. If the claim of the plaintiff alleged in the complaint has really been paid, waived, abandoned or otherwise extinguished as provided in the NCC, then it would seem that he really has no claim at all with the defendant, and thus the complaint is dismissed with prejudice. If the allegation of the defendant is that the claim has been paid, waived,

abandoned or otherwise extinguished, that motion presents a factual issue. During the hearing of that motion, the defendant will be given an

opportunity to prove that the claim has really been paid, waived,

abandoned or otherwise extinguished. The hearing will be as if the court was actually trying the case, the defendant being allowed to present witnesses, or present evidence of his allegation that the claim has been paid, waived, abandoned or otherwise extinguished based on grounds recognized under substantive law(enumerated in the NCC).

In fact, the court said that the results enumerated under Section 16 is not exclusive. We should include laches. Under the NCC, laches could

extinguish an obligation.

Remember that procedurally, in a hearing on a motion to dismiss based on a question of law to a motion to dismiss founded on factual issue. If

founded on a legal issue, the court will not allow presentation of evidence. The court will simply read the allegations in the complaint. If the issue is factual, the court will be forced to conduct a hearing for presentation of evidence therein.

Let us say that the defendant’s motion is founded on letter h. During the hearing, the defendant presents evidence. Then, the motion was submitted for resolution. The court denies the motion. What is the next move for the defendant if the motion is denied?

The defendant should file an answer during the remaining period to file, which should not be less than 5 days from the receipt of the order of denial. The defendant files an answer. Can he incorporate the ground in the motion to dismiss that was denied as an affirmative defense?

Yes, the defendant is allowed to do that. Under our rules, if there are objections or grounds not raised in the PLEADINGS, these grounds are deemed waived.

Can the defendant, after filing his answer with his affirmative defense move for a preliminary hearing on his affirmative defense?

No, the court will not allow such a hearing anymore as there had been a prior hearing for the same issue in the prior motion to dismiss that was denied. Thus, although a defendant is allowed to use his ground under Rule 16 in a motion to dismiss that was denied as an affirmative defense, he is not allowed to have another preliminary hearing as the said defenses had been already subject to a hearing when the said defenses were

contained as a ground for dismissal in the prior motion that was denied. So, during the trial of the case, the defendant may be able to present to the court additional evidence in order to prove such ground under Rule 16 that he has relied upon.

RULE 41 SEC. 1 IN RELATION TO RULE 16 (DISMISSAL WITH OR