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REMEDIAL LAW BAR QUESTIONS

2007 – 2013

Civil Procedure

QUESTION 16

Source: 2010, V.A., B., C.


Topic: (A) Motion to Dismiss – Grounds; (B) Omnibus Motion Rule; (C) Execution –
Tender/Consignation with the Courts

Charisse, alleging that she was a resident of Lapu-Lapu City, filed a complaint for damages against Atlanta
Bank before the RTC of Lapu-Lapu City, following the dishonor of a check she drew in favor of Shirley
against her current account which she maintained in the bank's local branch. The bank filed a Motion to
Dismiss the complaint on the ground that it failed to state a cause of action, but it was denied. It thus filed
an Answer.

A. In the course of the trial, Charisse admitted that she was a US citizen residing in Los Angeles, California
and that she was temporarily billeted at the Pescado Hotel in Lapu-Lapu City, drawing the bank to file
another motion to dismiss, this time on the ground of improper venue, since Charisse is not a resident of
Lapu-Lapu City.

Charisse opposed the motion citing the “omnibus motion rule". Rule on the motion. (3%)

SUGGESTED ANSWER:

The bank's second motion to dismiss which is grounded on improper venue, should be denied. The
improper venue of an action is deemed waived by the bank's filing an earlier motion to dismiss
without raising improper venue as an issue, and more so when the bank filed an Answer without
raising improper venue as an issue after its first motion to dismiss was denied.

Under the "omnibus motion rule" (Rule 15, Sec 8, Rules of Court) which governs the bank's motion
to dismiss, such motion should include all objections then available; otherwise, all objections not so
included shall be deemed waived.

Although the improper venue became known only in the course of the trial, the same should not be
allowed to obstruct or disturb the proceedings since venue of civil actions is defined for the
convenience of the parties, nay jurisdictional.

ALTERNATIVE ANSWER:

The "omnibus motion rule" should not apply, because the improper venue became known and thus
available only to the movant bank after the motions to dismiss were filed and resolved by the court,
and in the course of the trial of the case. In fairness to the defendant bank, it should not be precluded
by the "omnibus motion rule" from raising objection to the improper venue only when said ground
for objection became known to it.

The court may not resolve the second motion to dismiss precisely because of the "omnibus motion
rule", since the bank filed an earlier motion to dismiss but did not raise the ground of improper venue
has not again been raised. Hence, the question of improper venue has become moot and academic.
The only grounds not barred by the "omnibus motion rule" are (a) lack of jurisdiction over the
subject matter; (b) litis pendentia; and (c) bar by prior judgment or by Statute of Limitations.

B. Suppose Charisse did not raise the "omnibus motion rule", can the judge proceed to resolve the motion
to dismiss? Explain. (3%)

SUGGESTED ANSWER:
Yes, the judge can proceed to resolve the motion to dismiss, because the ground raised therefor
became known to the movant only during the trial, such that it was only then that the objection
became available to him.

C. Suppose the judge correctly denied the second motion to dismiss and rendered judgment in favor of
Charisse, ordering the bank to pay her Php 100,000 in damages in 2008. To date, Charisse has not moved
to execute the judgment. The bank is concerned that its liability will increase with the delay because of the
interest on the judgment award.

As counsel of the bank, what move should you take? (3%)

SUGGESTED ANSWER:

As counsel of the bank, I shall recommend to the bank as judgment obligor, to make a tender of
payment to the judgment obligee and thereafter make a consignation of the amount due by filing an
application therefor placing the same at the disposal of the court which rendered the judgment (Arts
1256 and 1258, Civil Code).