under the Rules
(1) Motion to dismiss before answer (Rule 16)
(2) Motion to dismiss by plaintiff (Rule 17)
(3) Motion to dismiss on demurrer to evidence after plaintiff has rested his case (Rule 33)
(4) Motion to dismiss appeal either in RTC (Sec. 31, Rule 41), CA (Sec. 1, Rule 50) or SC (Sec. 5, Rule 56) Grounds
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 filingthe claim has not been complied with. Lack of jurisdiction
BOTICANO v. CHU (148 SCRA 541, 1987)
Defect in service of summons cannot be raised for the first time on appeal. Defects in jurisdiction arising from irregularities in the commencement of the proceedings, defective process or even absence of process may be waived by a failure to make seasonable objections.
FACTS: While loaded with logs, and properly parked by its driver Maximo Dalangin at the shoulder of the national highway in Nueva Ecija, Boticano’s Bedford truck was hit and bumped at the rear by another Bedford truck owned by private respondent Chu, Jr. and driven by Sigua, the former’s co-defendant in the case. Chu agreed to shoulder the expenses of the repair of the damaged truck of the latter, but he failed to pay the same.
Summons was issued but was returned unserved because Sigua was no longer connected with San Pedro Saw Mill, while Chu was properly served through the receipt by his wife of such summons.
Boticano moved to dismiss the case against Sigua and to declare Chu in default for failure to file responsive pleadings within the reglementary period. The motion was granted by the lower court allowing petitioner to adduce his evidence ex parte. The RTC found Chu responsible for the fault of his driver.
Chu filed a notice of appeal and a motion to extend to file his record on appeal. Boticano motioned to dismiss the appeal, which Chu’s counsel opposed. In the end, Chu’s record on appeal was approved. The case was brought to the CA, which set aside the RTC and remanded the case to the court of origin for summons to be properly served on Chu and for proceedings to be taken. On appeal, Boticano questioned the CA’s ruling that jurisdiction over Chu’s person was not acquired.
ISSUE: Whether the question of jurisdiction
over the person of the defendant can be raised for the first time on appeal
NO. However, one of the circumstances considered by the Court as indicative of waiver by defendant-appellant of any alleged defect if jurisdiction over his person arising from defective or even want of process, is his failure to raise the question of jurisdiction in the CFI and at the first opportunity. Defects in jurisdiction arising from irregularities in the commencement of the proceedings, defective process or even absence of process may be waived by a failure to make seasonable objections. During the
stages of the proceedings, in the case at bar, defendant-appellant could have questioned the jurisdiction of the lower court. But he did not. Chu here had voluntarily submitted himself to the court’s jurisdiction. Thus, jurisdiction was properly acquired by the trial court over the person of respondent thru both service of summons and voluntary appearance in court; he was properly declared in default for not having filed any answer; despite respondent’s failure to file a motion to set aside the declaration of default, he has the right to appeal the default of judgment but in the appeal only the evidence of the petitioner may be considered, respondent not having adduced any defense evidence.
Res judicata
DEL ROSARIO v. FEBTC (537 SCRA 571, 2007)
Res judicata “bar by prior judgment,” as a ground to dismiss the case has four essential requisites:
a) finality of the former judgment; b) the court which rendered it had
jurisdiction over the subject matter and the parties;
c) it must be a judgment on the merits; and
d) there must be, between the first and second actions, identity of parties, subject matter and causes of action.
FACTS: PDCP extended a P4.4 million loan to DATICOR, which stipulated that DATICOR shall pay: a service fee of 1% per annum (later increased 6% per annum) on the outstanding balance; 12% per annum interest; and penalty charges 2% per month in case of default. The loans were secured by real estate mortgages over six (6) parcels of land and chattel mortgages over machinery and equipment.
DATICOR paid a total of P3 million to PDCP, which the latter applied to interest, service fees and penalty charges. This left them with an outstanding balance of P10 million, according to PDCP’s computation.
DATICOR filed a complaint against PDCP for violation of the Usury Law and annulment of contract and damages. The CFI dismissed the complaint. The IAC set aside the dismissal and declared void and of no effect the stipulation of interest in the loan agreement. PDCP appealed the IAC's decision to SC.
In the interim, PDCP assigned a portion of its receivables from DATICOR to FEBTC for
of P5.4 M. FEBTC and DATICOR, in a MOA, agreed to P 6.4 million as full settlement of the receivables.
SC affirmed in toto the decision of the IAC, nullifying the stipulation of interests.
DATICOR thus filed a Complaint for sum of money against PDCP and FEBTC to recover the excess payment which they computed to be P5.3 million. RTC ordered PDCP to pay petitioners P4.035 million, to bear interest at 12% per annum until fully paid; to release or cancel the mortgages and to return the corresponding titles to petitioners; and to pay the costs of the suit.
RTC dismissed the complaint against FEBTC for lack of cause of action since the MOA between petitioners and FEBTC was not subject to SC decision, FEBTC not being a party thereto.
Petitioners and PDCP appealed to the CA, which held that petitioners' outstanding obligation (determined to be only P1.4 million) could not be increased or decreased by any act of the creditor PDCP, and held that when PDCP assigned its receivables, the amount payable to it by DATICOR was the same amount payable to assignee FEBTC, irrespective of any stipulation that PDCP and FEBTC might have provided in the Deed of Assignment, DATICOR not having been a party thereto, hence, not bound by its terms.
By the principle of solutio indebiti, the CA held that FEBTC was bound to refund DATICOR the excess payment of P5 million it received; and that FEBTC could recover from PDCP the P4.035 million for the overpayment for the assigned receivables. But since DATICOR claimed in its complaint only of P965,000 from FEBTC, the latter was ordered to pay them only that amount.
Petitioners filed before the RTC another Complaint against FEBTC to recover the balance of the excess payment of P4.335 million.
The trial court dismissed petitioners' complaint on the ground of res judicata and splitting of cause of action. It recalled that petitioners had filed an action to recover the alleged overpayment both from PDCP and FEBTC and that the CA Decision, ordering PDCP to release and cancel the mortgages and FEBTC to pay P965,000 with interest became final and executory.
ISSUE: Whether the action should be dismissed
on the ground of res judicata
YES. There is no doubt that the judgment on appeal relative to the first civil case was a final judgment. Not only did it dispose of the case on the merits, it also became executory as a consequence of the
denial of FEBTC’s motion for reconsideration and appeal. In fact, authorities tend to widen rather than restrict the doctrine of res judicata on the ground that public as well as private interest demands the ending of suits by requiring the parties to sue once and for all in the same case all the special proceedings and remedies to which they are entitled.
Section 47 of Rule 39 lays down two main rules. Section 49(b) enunciates the first rule of res judicata known as “bar by prior judgment” or “estoppel by judgment,” which states that the judgment or decree of a court of competent jurisdiction on the merits concludes the parties and their privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal.
Stated otherwise, “bar by former judgment” makes the judgment rendered in the first case an absolute bar to the subsequent action since that judgment is conclusive not only as to the matters offered and received to sustain it but also as to any other matter which might have been offered for that purpose and which could have been adjudged therein. It is in this concept that the term res judicata is more commonly and generally used as a ground for a motion to dismiss in civil cases.
The second rule of res judicata embodied in Section 47(c), Rule 39 is “conclusiveness of judgment.” This rule provides that any right, fact, or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and their privies whether or not the claim or demand, purpose, or subject matter of the two suits is the same. It refers to a situation where the judgment in the prior action operates as an estoppel only as to the matters actually determined or which were necessarily included therein.
The case at bar satisfies the four essential requisites of “bar by prior judgment,”
viz:
a) finality of the former judgment;
b) the court which rendered it had jurisdiction over the subject matter and the parties;
c) it must be a judgment on the merits; and
d) there must be, between the first and second actions, identity of parties, subject matter and causes of action.
Failure to state a cause of action
HALIMAO v. VILLANUEVA (253 SCRA 1, 1996)
The rule that a motion to dismiss is to be considered as a hypothetical admission of the facts alleged in the complaint applies more particularly to cases in which the ground for dismissal is the failure of the complaint to state a cause of action.
FACTS: Reynaldo Halimao wrote a letter to the Chief Justice, alleging that respondents, without lawful authority and armed with armalites and handguns, forcibly entered the Oo Kian Tiok Compound in Cainta, Rizal, of which complainant was caretaker. Complainant prayed that an investigation be conducted and that respondents be disbarred.
Respondents Villanueva et. al. filed a comment, claiming that the complaint is a mere duplication of the complaint filed by Danilo Hernandez in Administrative Case No. 3835, which this Court had already dismissed for lack of merit. They pointed out that both complaints arose from the same incident and the same acts complained of and that Danilo Hernandez, who filed the prior case, is the same person whose affidavit is attached to the complaint in this case.
Co-respondent Ferrer claimed that the two complaints were filed for the purpose of harassing him because he was the principal lawyer of Atty. Daniel Villanueva in two cases before the SEC.
This case was referred to the IBP, whose Board of Governors dismissed the case. The Investigating Commissioner found that the complaint is barred by the decision in Administrative Case No. 3835 which involved the same incident. The complaints in the two cases were similarly worded.
Complainant filed a motion for reconsideration of the resolution of the IBP Board of Governors, alleging that the commissioner erroneously dismissed the complaint since the respondents are deemed to have admitted the allegations of the complaint against them by filing a motion to dismiss
ISSUE: Whether the respondents hypothetically admitted petitioner’s allegations by filing a motion to dismiss
NO. The rule that a motion to dismiss is to be considered as a hypothetical admission of the facts alleged in the complaint applies more particularly to cases in which the ground for dismissal is the failure of the complaint to
state a cause of action. This rule does not apply to other grounds for dismissal. In such cases, the hypothetical admission is limited to the facts alleged in the complaint which relate to and are necessary for the resolution of these grounds as preliminary matters involving substantive or procedural laws, but not to the other facts of the case.
Two motions for reconsideration of this resolution were filed by the complainant therein, both of which were denied. While the complainant (Danilo Hernandez) in Administrative Case No. 3835 is different from the complainant in the present case, the fact is that they have an identity of interest, as the Investigating Commissioner ruled. Both complainants were employed at the Oo Kian Tiok Compound at the time of the alleged incident. Both complain of the same act allegedly committed by respondents. The resolution of this Court in Administrative Case No. 3835 is thus conclusive in this case, it appearing that the complaint in this case is nothing but a duplication of the complaint of Danilo Hernandez in the prior case.
TAN v. CA
(295 SCRA 247, 1998)
General rule: Averments in the complaint
are deemed hypothetically admitted upon filing of a Motion to Dismiss grounded on failure to state a cause of action
Exceptions: Motion to Dismiss does not
admit the following: 1) Epithets of fraud
2) Allegations of legal conclusions 3) Erroneous statements of law
4) Inferences or conclusions from facts not stated
5) Conclusions of law
6) Allegations of fact, falsity of which is subject to judicial notice
7) Matters of evidence
8) Surplusage and irrelevant matter 9) Scandalous or insulting matter 10) Legally impossible facts
11) Unfounded facts by record incorporated in pleading or document
General averments contradicted
FACTS: Tan Keh sold two parcels of land to Tan Kiat, but failed to effect the immediate transfer of the properties since Tan Kiat was still a foreign national at the time of the sale. Nevertheless Tan Keh secured the sale by
executing a lease contract of 40 years in favor of Tan Kiat.
Four years later, Tan Keh sold the properties to his brother, Tan. Tan knowingly held the property in trust for Tan Kiat until the latter acquires Filipino citizenship. The new TCTs were issued in the name of Tan as trustee of Tan Kiat. Tank Keh and Tan executed another lease contract to secure the conveyance of the property to Tan Kiat. Tan Kiat never paid rental and no demand for rentals was made on him.
Tan Died. Tan Kiat thereafter demanded for the conveyance of the property as he was finally a naturalized Filipino. Petitioners failed to convey them.
Tan Kiat filed a complaint for recovery of property. Petitioners moved for its dismissal based, among others, on failure to state a cause of action. RTC dismissed complaint acceding to all grounds set forth by the petitioners. CA reversed and ordered that case be remanded for further proceedings.
ISSUE: Whether the complaint stated no cause
of action
YES. Averments in the complaint are deemed hypothetically admitted upon filing of a Motion to Dismiss grounded on failure to state a cause of action. But there are also limitations to such rule.
In the case at bar, the “trust theory” claimed by Tan Kiat does not hold water. The lease contract as evidenced by document attached with the Motion to Dismiss and admitted by Tan Kiat already belies the latter’s claim of ownership. There is an apparent lessor-lessee relationship. Ownership of Tan is further supported by the annotated mortgage on the back of the TCT which Tan executed in favor of a bank so as to secure a loan. In truth, By the very nature of a mortgage contract, Tan could not have mortgage the property if he was not the real owner.
Having failed to prove the trust relationship, it may be gleaned from the allegations that the transaction was a double sale instead. Since Tan had the TCT in his name, he is presumed to have the better right. Statute of Frauds
ASIA PRODUCTION CO., INC. v. PANO (205 SCRA 458, 1992)
Under Article 1403, the contracts concerned are simply "unenforceable" and the requirement that they—or some note or memorandum thereof — be in writing refers only to the manner they are to be proved. It goes without saying then, that the statute will apply only to executory rather than executed contracts. Partial execution is even enough to bar the application of the statute.
FACTS: Respondents Hua and Dy, owners of a building constructed on a lot leased from Lucio San Andres and located in Bulacan, sold the building to the petitioners for P170,000.00, with the assurance that respondents will also assign to them the contract of lease over the land. The above agreement and promise were not reduced to writing.
Private respondents undertook to deliver the deed of conveyance over the building and the deed of assignment of the contract of lease within sixty (60) days upon the P20,000 downpayment. The balance was to be paid in monthly installments. Petitioners paid the downpayment and issued eight (8) postdated checks for the payment of the eight (8) monthly installments.
Petitioners constructed a weaving factory on the leased lot. Unfortunately, private respondents, despite extensions granted, failed to comply with their undertaking to execute the deed of sale and to assign the contract despite the fact that they were able to encash the checks in the total amount of P30,000. Worse, the lot owner made it plain to petitioners that he was unwilling to give consent to the assignment of the lease unless petitioners agreed to certain onerous terms, such as an increase in rental, or the purchase of the land at a very unconscionable price.
Petitioners removed all their property, machinery and equipment from the building, vacated the same and returned its possession to private respondents. They demanded from the latter the return of their partial payment for the purchase price of the building in the total sum of P50,000, which respondents refused to return. Petitioner filed a complaint for recovery and of actual, moral and exemplary damages and attorney's fees with the CFI.