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A complaint may be dismissed by the plaintiff (1) by filing a notice of dismissal

(2) at any time before service of the answer or of a motion for summary judgment.

Upon such notice being filed, the court shall issue an order confirming the dismissal.

 The court does not have to approve the dismissal because it has no discretion on the matter.

 Before an answer or motion for summary judgment has been served upon plaintiff, dismissal by the plaintiff is a matter of right.

 It occurs as of the filing of the notice, not upon court’s confirmation.

General rule: The dismissal made by filing a notice of dismissal is without prejudice.

Exceptions:

(1) The notice otherwise states; and

(2) When filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim, in which case the notice operates as an adjudication upon the merits. (Sec. 1, Rule 17)

O.B. JOVENIR v. MACAMIR REALTY (2006)

The trial court has no discretion or option to deny the motion, since dismissal by the plaintiff under Section 1, Rule 17 is guaranteed as a matter of right to the plaintiffs. Even if the motion cites the most ridiculous of grounds for dismissal, the trial court has no choice but to consider the complaint as dismissed, since the plaintiff may opt for such dismissal as a matter of right, regardless of ground.

FACTS: Macamir Realty and the Miranda Spouses (principal stockholders) filed a complaint against Jovenir Construction, seeking the annulment of the construction project entered into by private respondents with Jovenir, as well as for damages. Jovenir n allegedly misrepresented itself as a legitimate contractor.

Madeja and Mangrobang, Jr., the impleaded defendants, filed their respective motions to dismiss. Madeja alleged that while the spouses Miranda had initiated the complaint on behalf of Macamir Realty, the real party-in-interest, they failed to attach any Board Resolution authorizing them to file suit on behalf of the corporation. Madeja, a member of the Board of Directors of Macamir Realty, averred as a fact that said Board had not authorized the spouses Miranda to initiate the complaint against Jovenir Realty.

Ten (10) days after the filing of the complaint, private respondents filed a Motion to Withdraw Complaint, alleging that during the initial hearing on the prayer for preliminary injunction their counsel discovered a supposed technical defect in the complaint that may be a ground for the dismissal of this case. Thus, they prayed to be allowed to withdraw the complaint without prejudice. Jovenir Construction filed an opposition.

However, just one day earlier, private respondents filed another complaint against the same defendants save for Madeja, and seeking the same reliefs as the first complaint. This time, a Board Resolution authorizing the spouses to file the Complaint on behalf of Macamir Realty was attached to the complaint. This second complaint was also filed with the Makati RTC.

The Verification and Certification of Non-Forum Shopping in the second complaint was accomplished by Rosauro Miranda.

Eleven (11) days after the filing of the Motion to Withdraw Complaint and seven (7) days after the filing of the second Complaint, the Makati RTC granted the Motion to Withdraw Complaint. The RTC noted an action may be dismissed by the plaintiffs even without Order of the Court by filing a notice of dismissal at anytime before the service of the answer under Rule 17, Section 1 of the Rules of Court, and accordingly considered the complaint withdrawn without prejudice.

Jovenir filed a Motion to Dismiss the second complaint on the ground of forum-shopping. They pointed out that at the time of the filing of the second complaint, the first complaint was still pending. The Makati RTC denied the Motion to Dismiss. This Order was affirmed by the CA

ISSUE: Whether the dismissal was improper since Macamir filed a Motion for Withdrawal instead of the required Notice of Dismissal

NO. Section 1, Rule 17 of the 1964 Rules of Civil Procedure stated:

Dismissal by the plaintiff — An action may be dismissed by the plaintiff without order of court by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. A class suit shall not be dismissed or compromised without the approval of the court.

Indubitably, the provision ordained the dismissal of the complaint by the plaintiff as a matter of right at any time before service of the answer. The plaintiff was accorded the right to dismiss the complaint without the necessity of alleging in the notice of dismissal any ground nor of making any reservation.

Evidently, respondents had the right to dismiss their complaint by mere notice when Jovenir had not yet served their answer on respondents. The Motion to Withdraw Complaint makes clear respondents’ "desire to withdraw the complaint without prejudice." That respondents resorted to a motion to effect what they could have instead by mere notice may be indicative of a certain degree of ignorance of procedural rules on the part of respondents’ counsel. Yet such "error," if it could be called as such, should hardly be of fatal consequence. Petitioners posit that the "remedy" of filing a notice of dismissal is not exclusive, respondents having the "option" of securing the court’s approval to the dismissal. On the contrary, the trial court has no discretion or option to deny the motion, since dismissal by the plaintiff under Section 1, Rule 17 is guaranteed as a matter of right to the plaintiffs. Even if the motion cites the most ridiculous of grounds for dismissal, the trial court has no choice but to consider the complaint as dismissed, since the plaintiff may opt for such dismissal as a matter of right, regardless of ground.

While the Motion to Withdraw Complaint is styled as a "motion" and contains a "prayer", these are innocuous errors and superfluities that do not detract from its being a notice of dismissal made under said Section 1 of Rule 17 and which ipso facto dismissed the case. It is a hornbook rule that it is not the caption of a pleading but the allegations thereat that determines its nature.

Thus, the complaint could be properly considered as having been dismissed or withdrawn as of the filing of the Motion to Withdraw Complaint. Accordingly, when respondents filed their new complaint relating to the same cause of action on, the old complaint was no longer pending.

As noted at the onset, the 1997 Rules of Civil Procedure now requires that upon the filing of such notice, the court issue an order confirming the dismissal. The new requirement is intended to qualify the right of a party to dismiss the action before the adverse party files an answer or asks for summary judgment. Still, there is no cause to apply the 1997 Rules retroactively to this case. A plaintiff’s right to cause the dismissal of his complaint under the 1964 rules was unqualified. Procedural rules may not be given retroactive effect if vested rights would be disturbed, or if their application would not be feasible or would work injustice.

Upon motion of plaintiff—after answer

SEC. 2. Dismissal upon motion of plaintiff.—Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff’s instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counter -claim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. (2a)

Effect of counterclaim Due to fault of plaintiff

SEC. 3. Dismissal due to fault of plaintiff.—If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court’s own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a)

CRUZ v. CA (2006)

Rule 17, Sec. 3 enumerates the instances where the complaint may be dismissed due to plaintiff's fault: (1) if he fails to appear on the date for the presentation of his evidence in chief; (2) if he fails to prosecute his action for an unreasonable length of time; or (3) if he fails to comply with the rules or any order of the court.

Once a case is dismissed for failure to prosecute, this has the effect of an adjudication on the merits and is understood to be with prejudice to the filing of another action unless otherwise provided in the order of dismissal. In other words, unless there be a qualification in the order of dismissal that it is without prejudice, the dismissal FACTS: There are 4 cases involved in this controversy.

1^st case: Unlawful Detainer before the MTC of Gapan, Nueva Ecija, decided in 1998 in favor of petitioner Cruz and Concepcion.

2^nd case: Quieting of Title before the RTC of Gapan, Nueva Ecija which was dismissed for failure to prosecute as evidenced by the RTC in 2000. (Civil Case 1600)

3^rd case: Suit for Injunction filed before the RTC of Gapan City, which was dismissed on ground of res judicata – because there was substantial identity of parties with the 2^nd case.

4^th case: Annulment of Title With Damages filed with RTC of Gapan City, where petitioners interposed a Motion for Outright Dismissal of Civil Case, where the court granted the Motion for Outright dismissal on g reasoned that:ounds of res judicata and accion pendente lite, after finding that – (1) the 3^rd case involve the same parties, subject matter and issue as that in the 1st case and 2^nd case; (2) in all 3 cases, Mariano Bunag was included as plaintiff and Ernestina Concepcion as party-defendant; (3) the subject matter is a 1,160 sq.m parcel of land in San Nicolas, Gapan City;l (4) and the issue is who between the 2 parties has the lawful title over the same.

The court hereby sentenced guilty of indirect Contempt of Court by reason of non-disclosure of Cases 1 and 2 in the Certificate/Verification of their complaint – as required by Section 5, Rule 7 of the ROC.

The respondents filed a MFR which the Court granted by setting aside the order which granted the defendant’s Motion for the Outright Dismissal and the order citing the plaintiffs and counsel guilty for contempt of court. The court thereby ordered the defendants to file their answer/responsive pleading within 15 days from receipt of the Court order.

Petitioners then appealed in the CA and the CA dismissed the petition for lack of merit, reasoning that there is no identity of parties between Case 1 and the instant case for the simple reason that plaintiffs in the case at bar were not parties in Case 1. Also, the plaintiffs and their counsel can not be said to have violated the rule against forum shopping. Plaintiffs and their counsel did not file Case 1 and therefore they are not obligated to inform this Court that they have filed a similar action involving the same issue with other court.

In their comment, respondents Bunag and Vda. de Bunag maintain that the CA did not err when it held that there was no res judicata in the case at bar.

Petitioners claim that res judicata applies in this case because all the elements thereof are present, which are - (1) there must be a final judgment or order; (2) said judgment or order must be on the merits; (3) the Court rendering the same must have jurisdiction on the subject matter and the parties; and (4) there must be between the two cases identity of parties, identity of subject matter, and identity of causes of action.

On the other hand, private respondents argue the contrary alleging that the 2nd and 4^th elements are lacking.

ISSUE: Whether there was a proper dismissal of the Civil Case 1600 (a case prior to the case at bar) - which is a necessary element for res judicata to attach.

YES. Under the rule of res judicata, also known as “bar by prior judgment,” a final judgment rendered by a Court having jurisdiction of the subject matter and of the parties, is conclusive in a subsequent case between the same parties and their successor-in-interest, litigating for the same thing and under the same title and in the same capacity.

On the 2nd element of res judicata – that (2) said judgment or order must be on the merits, the private respondents argue that the dismissal of CASE 2 (Quieting of Title) was not a dismissal on the merits. The dismissal of this case, they claim, will not bar the filing of the instant case, Case 4 (for Annulment of Title) because there was neither litigious consideration of the evidence nor any stipulations submitted by the parties at the trial. In fact, there was no pre-trial conference and that after four years of court inactivity, the case was dismissed for failure to prosecute.

The SC ruled that the argument raised by the respondents is UNTENABLE. Section 3 of Rule 17 of the ROC provides:

Section 3. Dismissal due to fault of plaintiff. – If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.

The rule enumerates the instances where the complaint may be dismissed due to plaintiff's fault: (1) if he fails to appear on the date for the presentation of his evidence in chief; (2) if he fails to prosecute his action for an unreasonable length of time; or (3) if he fails to comply with the rules or any order of the court. Once a case is dismissed for failure to prosecute, this has the effect of an adjudication on the merits and is understood to be with prejudice to the filing of another action unless otherwise provided in the order of dismissal. In other words, unless there be a qualification in the order of dismissal that it is without prejudice, the dismissal should be regarded as an adjudication on the merits and is with prejudice.

In the case at bar, the order dismissing Case 2 / Civil Case No. 1600 is based on the failure of the plaintiffs as well as counsel to appear on several settings despite due notices, precisely for the reception of plaintiffs’ evidence, upon motion of the defendant through Atty. Mark Arcilla, this case is dismissed for failure to prosecute.

It is clear from the afore-mentioned order that said case was dismissed, upon petitioners’ motion, for failure of private respondents and their counsel to attend several scheduled hearings for the presentation of their evidence. Since the order did not contain a qualification whether same is with or without prejudice, following Section 3, it is deemed to be with prejudice and shall have the effect of an adjudication on the merits. A ruling based on a motion to dismiss, without any trial on the merits or formal presentation of evidence, can still be a judgment on the merits.

Effect on counterclaim PINGA v. SANTIAGO (2006)

Under Section 3, Rule 17 of the 1997 Rules of Civil Procedure, the dismissal of the complaint due to the fault of plaintiff does not necessarily carry with it the dismissal of the counterclaim, compulsory or otherwise.

In fact, the dismissal of the complaint is without prejudice to the right of defendants to prosecute the counterclaim.

FACTS: Petitioner Eduardo Pinga was named as one of two defendants in a complaint for injunctionfiled in RTC Zamboanga del Sur, by respondent Heirs of German Santiago, represented by Fernando Santiago. The Complaint alleged in essence that petitioner Pinga and co-defendant Saavedra had been unlawfully entering the coco lands of the respondent, cutting wood and bamboos and harvesting the fruits of the coconut trees therein.

Respondents prayed that petitioner Pinga and Saavedra be enjoined from committing "acts of depredation" on their properties, and ordered to pay damages.

In their Amended Answer with Counterclaim, petitioner and his co-defendant disputed respondents’ ownership of the properties in question, asserting that petitioner’s father, Edmundo, from whom defendants derived their interest in the properties, had been in possession thereof since the 1930s.

By July of 2005, the trial of the case had not yet been completed. Moreover, respondents, as plaintiffs, had failed to present their evidence. It appears that the RTC already ordered the dismissal of the complaint after respondents’ counsel had sought the postponement of the hearing scheduled then. However, the order of dismissal was subsequently reconsidered by the RTC in an Order dated 9 June 2005, which took into account the assurance of respondents’ counsel that he would give priority to that case.

At the hearing, plaintiffs’ counsel on record failed to appear, sending in his stead a representative who sought the postponement of the hearing. Counsel for defendants (who include herein petitioner) opposed the move for postponement and moved instead for the dismissal of the case. The RTC noted that it was obvious that respondents had failed to prosecute the case for an unreasonable length of time, in fact not having presented their evidence yet. On that ground, the complaint was dismissed.

At the same time, the RTC allowed defendants "to present their evidence ex-parte."

Respondents filed a Motion for Reconsideration^. RTC granted respondents’ Motion for Reconsideration and dismissing the counterclaim. Petitioner Pinga filed a Motion for Reconsideration, but the same was denied by the RTC. Respondents filed an Opposition to Defendants’ Urgent Motion for Reconsideration, wherein they argued that that "compulsory counterclaims cannot

be adjudicated independently of plaintiff’s cause of action," and "a conversu, the dismissal of the complaint carries with it the dismissal of the compulsory counterclaims."¹

The matter was elevated to this Court directly by way of a Petition for Review under Rule 45 on a pure question of law

The matter was elevated to this Court directly by way of a Petition for Review under Rule 45 on a pure question of law