a) Payment of Docket Fees

Docket fees MUST be paid at the commencement of the action

1) A court acquires jurisdiction over any case only upon the payment of the prescribed docket fee,
and in order to curb the unethical practice of misleading the docket clerk in the assessment of the
correct filing fee, the SC laid down the rule that “henceforth all complaints, petitions, answers and
other similar pleadings should specify the amount of damages being prayed for not only in the body
of the pleading but also in the prayer therein, and said damages shall be the basis for assessing the
amount of the filing fees.” (SC Circular No. 7, March 24, 1988; Manchester Development v. CA, No.
L-75919, May 7, 1987).
2) Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading
and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not
specified in the pleading, or if specified, the same has been left for determination by the court, the
additional filing fee therefor shall constitute a lien on the judgment (Sun Insurance Office, Ltd., v.
Asuncion, G.R. Nos. 79937-38, February 13, 1989).
3) Payment of filing fees is also required in cases of appeal (Sec. 5, Rule 40; Sec. 4, Rule 41; Sec. 3,
Rule 45).
Effect of non-payment of docket fees:
Plainly, while the payment of the prescribed docket fee is a jurisdictional requirement, nonpayment
of which at the time of filing does not automatically cause the dismissal of the case for as long as
the fee is paid within the applicable prescriptive or reglementary period; more so when the party
involved demonstrates a willingness to abide by the rules prescribing such payment. (Sps. Go v.
Tong, G.R. 151942, Nov. 27, 2003)
Docket fees based on value of the stocks:
An action seeking for the execution of a deed of assignment of shares of stock is an action for
recovery of personal property. The payment of docket fees should be based on the value of the
shares of stock and the amount of damages he seeks to recover. (NSC v. Court of Appeals, G.R. No.
123215. February 2, 1999)
Exception: Docket fees need NOT be paid at the time of filing of the complaint and may be
considered a lien on the judgment in the following instances:
1. The damages or claim arose after the filing of the complaint/initiatory pleading or if the court
awards damages not prayed for in the complaint (Original Dev’t & Construction Corp. v. CA, 202
SCRA 75;, Sec.2, Rule 141);
2. Indigent litigant (Sec. 19, Rule 141);
3. Failure of the adverse party to timely raise the issue of nonpayment of the docket fee (National
Steel Corp. v. CA, G.R. No. 123215, February 2, 1999);
4. Civil action instituted with the criminal action where the moral, exemplary, nominal, and
temperate damages are not specified in the complaint or information (Sec. 1, Rule 141);
5. Petition for Writ of Amparo shall be exempt from the payment of docket and other filing fees
(Sec. 1, Rule on the Writ of Amparo).
6. Indigent petitioner for writ of habeas data is exempt from payment of docket or other lawful
fees. (Section 5, Rule on the Writ of Habeas Data A.M. No. 08-1-16 SC)

Payment of Court fees under Rule 141: Cooperatives – not exempt

Since the payment of legal fees is a vital component of the rules promulgated by this Court
concerning pleading, practice and procedure, it cannot be validly annulled, changed or modified by
Congress. As one of the safeguards of this Court’s institutional independence, the power to
promulgate rules of pleading, practice and procedure is now the Court’s exclusive domain. That
power is no longer shared by this Court with Congress, much less with the Executive.
With the foregoing categorical pronouncements of the Supreme Court (Supreme Court En Banc
Resolution in A.M. No. 08-2-01-0, which denied the petition of the GSIS for recognition of its
exemption from payment of legal fees imposed under Section 22 of Rule 141 of the Rules of Court,
11 February 2010; Baguio Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Cabato-
Cortes, 26 February 2010), it is evident that the exemption of cooperatives from payment of court
and sheriff’s fees no longer stands. Cooperatives can no longer invoke Republic Act No. 6938, as
amended by Republic Act No. 9520, as basis for exemption from the payment of legal fees. (Re: In
The Matter of Clarification of Exemption From Payment of All Court And Sheriff's Fees of
Cooperatives Duly Registered in Accordance with Republic Act No. 9520 Otherwise Known as the
Philippine Cooperative Code Of 2008, Perpetual Help Community Cooperative (Phcci), A.M. No. 12-2-
03-0 , March 13, 2012)
Some guidelines in payment of filling fees
In Siapno (505 Phil. 430 [2005]) the complaint alleged in its body the aggregate sum of P4,500,000
in moral and exemplary damages and attorney's fees, but the prayer portion did not mention these
claims, nor did it even pray for the payment of damages. This Court held that such a complaint
should be dismissed outright; or if already admitted, should be expunged from the records. The
Court explained that the rule – requiring the amount of damages claimed to be specified not only in
the body of the pleading but also in its prayer portion – was intended to put an end to the then
prevailing practice of lawyers where the damages prayed for were recited only in the body of the
complaint, but not in the prayer, in order to evade payment of the correct filing fees. As held by the
Court in Manchester:
“To put a stop to this irregularity, henceforth all complaints, petitions, answers and other similar
pleadings should specify the amount of damages being prayed for not only in the body of the
pleading but also in the prayer, and said damages shall be considered in the assessment of the filing
fees in any case. Any pleading that fails to comply with this requirement shall not be accepted nor
admitted, or shall otherwise be expunged from the record.”
In Sun Insurance Office Ltd. v. Judge Asuncion, the Court laid down the following rules as regards
the payment of filing fees:
1) It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of
the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature
of the action. Where the filing of the initiatory pleading is not accompanied by payment of the
docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond
the applicable prescriptive or reglementary period.
2) The same rule applies to permissive counterclaims, third-party claims and similar pleadings,
which shall not be considered filed until and unless the filing fee prescribed therefor is paid. The
court may also allow payment of said fee within a reasonable time but also in no case beyond its
applicable prescriptive or reglementary period.
3) Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading
and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not
specified in the pleading, or, if specified [but] the same has been left for determination by the
court, the additional filing fee therefor shall constitute a lien on the judgment. It shall be the
responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and
collect the additional fee.

It cannot be gainsaid from the above guidelines that, with the exception of pauper litigants (Section
16, Rule 141 of the Rules of Court states that "the legal fees shall be a lien on the monetary or
property judgment in favor of the pauper-litigant) without the payment of the correct docket or
filing fees within the reglementary period, jurisdiction over the subject-matter or nature of the
action will not vest in the trial court. In fact, a pauper litigant may still have to pay the docket fees
later, by way of a lien on the monetary or property judgment that may accrue to him. Clearly, the
flexibility or liberality of the rules sought by the petitioners cannot apply in the instant case.
(Ricardo Rizal, Potenciana Rizal, Saturnina Rizal, Elena Rizal, And Benjamin Rizal, Vs. Leoncia
Naredo, Anastacio Lirio, Edilberto Cantavieja, Gloria Cantavieja, Celso Cantavieja, And The Heirs Of
Melanie Cantavieja, G.R. No. 151898, March 14, 2012)

MOTION
Definition of a motion
A motion is an application for relief other than by a pleading. (Rule 15, Section 1)
Under the rules on Small Claims Cases a motion is an oral or written request asking for an
affirmative action from the court, that includes a letter
b) Motions versus pleadings
A motion is an application for relief other than by a pleading. (Rule 15, Section 1). A motion prays
for another relief other than the main cause of action or the main defense, while a pleading prays
for a relief which is directly related to the cause of action or defense
c) Contents and forms of motions
Contents
A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if
required by these Rules or necessary to prove facts alleged therein, shall be accompanied by
supporting affidavits and other papers. (Rule 15, Section 3)
Form
All motions shall be in writing except those made in open court or in the course of a hearing or trial.
(Rule 15, Section 2)
d) Notice of hearing and hearing of motions
Except for motions which the court may act upon without prejudicing the rights of the adverse
party, every written motion shall be set for hearing by the applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be served in
such a manner as to ensure its receipt by the other party at least three (3) days before the date of
hearing, unless the court for good cause sets the hearing on shorter notice. (Rule 15, Section 4)
Motion Which Does Not Require Notice & Hearing – Writ Of Execution: Opportunity to be heard:
Elementary is the rule that every motion must contain the mandatory requirements of notice and
hearing and that there must be proof of service thereof. The Court has consistently held that a
motion that fails to comply with the above requirements is considered a worthless piece of paper
which should not be acted upon. The rule, however, is not absolute. There are motions that can be
acted upon by the court ex parte if these would not cause prejudice to the other party. They are not
strictly covered by the rigid requirement of the rules on notice and hearing of motions.
The motion for execution of the Spouses Co is such kind of motion. It cannot be denied that the
judgment sought to be executed in this case had already become final and executory. As such, the
Spouses Co have every right to the issuance of a writ of execution and the RTC has the ministerial
duty to enforce the same. This right on the part of the Spouses Co and duty on
the part of the RTC are based on Section 1 and Section 2 of Rule 39 of the 1997 Revised Rules of
Civil Procedure.
As can be gleaned therefrom, under Paragraph 1 of Section 1 of Rule 39 of the 1997 Revised Rules
of Civil Procedure, the Spouses Co can have their motion for execution executed as a matter of right
without the needed notice and hearing requirement to petitioner. This is in contrast to the
provision of Paragraph 2 of Section 1 and Section 2 where there must be notice to the adverse
party. In the case of Far Eastern Surety and Insurance Company, Inc. v. Virginia D. Vda. De
Hernandez, it was written:
It is evident that Section 1 of Rule 39 of the Revised Rules of Court does not prescribe that a copy of
the motion for the execution of a final and executory judgment be served on the defeated party,
like litigated motions such as a motion to dismiss (Section 3, Rule 16), or motion for new trial
(Section 2, Rule 37), or a motion for execution of judgment pending appeal (Section 2, Rule 39), in
all of which instances a written notice thereof is required to be served by the movant on the
adverse party in order to afford the latter an opportunity to resist the application. (Douglas F.
Anama Vs. Philippine Savings Bank, G.R. No. 187021, January 25, 2012)
In Somera Vda. De Navarro v. Navarro, the Court held that there was substantial compliance of the
rule on notice of motions even if the first notice was irregular because no prejudice was caused the
adverse party since the motion was not considered and resolved until after several postponements
of which the parties were duly notified.
Likewise, in Jehan Shipping Corporation v. National Food Authority, the Court held that despite the
lack of notice of hearing in a Motion for Reconsideration, there was substantial compliance with the
requirements of due process where the adverse party actually had the opportunity to be heard and
had filed pleadings in opposition to the motion. The Court held:
“This Court has indeed held time and again, that under Sections 4 and 5 of Rule 15 of the Rules of
Court, mandatory is the requirement in a motion, which is rendered defective by failure to comply
with the requirement. As a rule, a motion without a notice of hearing is considered pro forma and
does not affect the reglementary period for the appeal or the filing of the requisite pleading. As an
integral component of the procedural due process, the three-day notice required by the Rules is not
intended for the benefit of the movant. Rather, the requirement is for the purpose of avoiding
surprises that may be sprung upon the adverse party, who must be given time to study and meet
the arguments in the motion before a resolution of the court. Principles of natural justice demand
that the right of a party should not be affected without giving it an opportunity to be heard. The
test is the presence of opportunity to be heard, as well as to have time to study the motion and
meaningfully oppose or controvert the grounds upon which it is based.” (United Pulp and Paper
Co., Inc. vs. Acropolis Central Guaranty Corporation, G.R. No. 171750, January 25, 2012)

e) Omnibus motion rule

Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or
proceeding shall include all objections then available, and all objections not so included shall be
deemed waived. (Rule 15, Section 8)
Exception
Motions arguing that the court has no jurisdiction over the subject matter, that there is another
action pending between the same parties for the same cause, or that the action is barred by a prior
judgment or by statute of limitations (Rule 9, Section 1)
Defense and objections not pleaded either in motion to dismiss or in answer are deemed waived;
exceptions.
Significantly, the Rule requires that such a motion should be filed “within the time for but before
filing the answer to the complaint or pleading asserting a claim.” The time frame indicates that
thereafter, the motion to dismiss based on the absence of the condition precedent is barred. It is so
inferable from the opening sentence of Section 1 of Rule 9 stating that defense and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived. There are, as just noted,
only four exceptions to this Rule, namely, lack of jurisdiction over the subject matter; litis
pendentia; res judicata; and prescription of action. Failure to allege in the complaint that earnest
efforts at a compromise has been made but had failed is not one of the exceptions. (Heirs of Dr.
Mariano Favis, Sr., represented by their co-heirs and attorneys-in-fact, Mercedes A. Favis and Nelly
Favis-Villafuente v. Juana Gonzales, her son Mariano Favis, all minors represented herein by their
parents, Sps. Mariano Favis and Larcelita D. Favis,G.R. No. 185922, January 15, 2014.)
f) Litigated and ex parte motions
Litigated Motions
They are motions which the court may not act upon without prejudicing the rights of the adverse
party. Made with notice to the adverse party to give an opportunity to oppose e.g., motion for
reconsideration, motion to dismiss motion to declare defendant in default.
Examples of Litigious Motions:
1. Motion for reconsideration
2. Motion to dismiss
3. Motion to declare defendant in default
4. Motion for execution

Ex Parte Motions
They are motions which the court may act upon without prejudicing the rights of the adverse party.
Made without the presence or a notification to the other party because the question generally
presented is not debatable e.g., motion for extension of time to file answer, motion for
postponement, motion for extension of time to file record on appeal.
Examples of Ex Parte Motions:
1. Motion for postponement
2. Motion to set case for pre-trial

g) Pro-forma motions
They are motions which do not satisfy the requirements of the rules and one which will be treated
as a motion intended to delay the proceedings (Riano, 2007 citing Marikina Valley Dev't. Corp. v.
Hon. Flojo, G.R. No. 110801, December 8, 1995).
3.7.2. Motions for bill of particulars
Bill of Particulars –
- a more definite statement of a matter which is not stated or declared with sufficient definiteness
or particularity.
a) Purpose and when applied for
Before responding to a pleading, a party may move for a definite statement or for a bill of
particulars of any matter which is not averted with sufficient definiteness or particularity to enable
him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed
within ten (10) days from service thereof. Such motion shall point out the defects complained of,
the paragraphs wherein they are contained, and the details desired. (Rule 12, Section 1)
Vagueness in the allegations in the complaint not a ground for dismissal
An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy
of the defendant is to move for a bill of particulars or avail of the proper mode of discovery (Galeon
v. Galeon, G.R. No. L-30380, Feb. 28, 1973).
Remedy if the allegations fails to state a cause of action
If the pleading is not only indefinite or ambiguous but fails to state a cause of action, the remedy of
the party is to file a motion to dismiss on the ground that the pleading states no cause of action.
(Primer-Reviewer on Remedial Law, Vol.I, Civil Procedure, Riguera, 2nd ed., 2013)
When to file?
The motion for bill of particulars shall be filed before responding to a pleading. Hence, it must be
filed within the period granted by the Rules (Rule 11) for the filing of a responsive pleading.
b) Actions of the court
Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the
court which may either deny or grant it outright, or allow the parties the opportunity to be heard.
(Rule 12, Section 2)
c) Compliance with the order and effect of noncompliance
Compliance with Order
If the motion is granted, either in whole or in part, the compliance therewith must be effected
within ten (10) days from notice of the order, unless a different period is fixed by the
court. The bill of particulars or a more definite statement ordered by the court may be filed either
in a separate or in an amended pleading, serving a copy thereof on the adverse party. (Rule 12,
Section 3)
Effect of Noncompliance
If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the
striking out of the pleading or the portions thereof to which the order was directed or make such
other order as it deems just. (Rule 12, Section 4)
If the plaintiff fails to obey, his complaint may be dismissed with prejudice UNLESS otherwise
ordered by the court (Rule 12, Sec. 4; Rule 17, Section 3);
If defendant fails to obey, his answer will be stricken off and his counterclaim dismissed, and he will
be declared in default upon motion of the plaintiff (Rule 12, Section 4; Rule 17, Section 4; Rule 9,
Sec. 3).
d) Effect on the period to file a responsive pleading
After service of the bill of particulars or of a more definite pleading, or after notice of denial of his
motion, the moving party may file his responsive pleading within the period to which he was
entitled at the time of filing his motion, which shall not be less than five (5) days in any event. (Rule
12, Section 5)
3.7.3. Motion to dismiss
a) Grounds
(Rule 16, Sec. 1)
a. Lack of jurisdiction over the person of the defendant
b. Lack of jurisdiction over the subject matter of the claim
c. Venue is improperly laid
d. Plaintiff has no legal capacity to sue
e. There is another action pending between the same parties for the same cause (Litis Pendentia)
f. Cause of action is barred by a prior judgment or by statute of limitations (Res judicata/
Prescription)
g. Lack of Cause of action.
h. Claim or demand in the plaintiff’s pleading has been paid, waived, abandoned, extinguished
i. Claim on which action is founded is unenforceable under the statute of frauds
j. Condition precedent for filing has not been complied with (this includes prior recourse to
barangay conciliation, or failure to make attempts to reach a compromise in cases between
members of the same family)

Note: Under the Rules on Environmental cases Strategic Lawsuit Against Public Participation is a
ground for the dismissal of the action
Instances of motu proprio dismissal
Section 1, Rule 9 provides for only four instances when the court may motu proprio dismiss the
claim, namely: (a) lack of jurisdiction over the subject matter; (b) litis pendentia; (c) res judicata;
and (d) prescription of action.
Specifically in Gumabon v. Larin (422 Phil. 222, 230 [2001]), cited in Katon v. Palanca, Jr. (481 Phil.
168, 180 [2004]), the Court held:
“x x x [T]he muto proprio dismissal of a case was traditionally limited to instances when the court
clearly had no jurisdiction over the subject matter and when the plaintiff did not appear during trial,
failed to prosecute his action for an unreasonable length of time or neglected to comply with the
rules or with any order of the court. Outside of these instances, any motu proprio [sic] dismissal
would amount to a violation of the right of the plaintiff to be heard.
Except for qualifying and expanding Section 2, Rule 9, and Section 3, Rule 17, of the Revised Rules of
Court, the amendatory 1997 Rules of Civil Procedure brought about no radical change. Under the
new rules, a court may muto proprio dismiss a claim when it appears from the pleadings or
evidence on record that it has no jurisdiction over the subject matter; when there is another cause
of action pending between the same parties for the same cause, or where the action is barred by a
prior judgment or by statute of limitations. x x x.” Heirs of Dr. Mariano Favis, Sr., represented by
their co-heirs and attorneys-in-fact, Mercedes A. Favis and Nelly Favis-Villafuente v. Juana Gonzales,
her son Mariano Favis, all minors represented herein by their parents, Sps. Mariano Favis and
Larcelita D. Favis, G.R. No. 185922, January 15, 2014)
b) Resolution of motion
After the hearing, the court may dismiss the action or claim, deny the motion, or order the
amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied upon is
not indubitable. (Rule 16, Sec. 3)
c) Remedies of plaintiff when the complaint is dismissed
The plaintiff may:
a. File a motion for reconsideration, to appeal from the order of dismissal
b. Appeal from the order of dismissal
c. Re-file the complaint
d) Remedies of the defendant when the motion is denied
The defendant may:
a. File a motion for reconsideration; or
b. File a petition for certiorari; or
c. Prohibition
e) Remedy for denial of motion to dismiss
An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally
disposes of a case as it leaves something to be done by the court before the case is finally decided
on the merits. Thus, as a general rule, the denial of a motion to dismiss cannot
be questioned in a special civil action for certiorari which is a remedy designed to correct errors of
jurisdiction and not errors of judgment. However, when the denial of the motion to dismiss is
tainted with grave abuse of discretion, the grant of the extraordinary remedy of certiorari may be
justified. (Republic of the Philippines, rep. by the Regional Executive Director of the Department of
Environment and Natural Resources, Regional Office No. 3 Vs. Roman Catholic Archbishop of
Manila/Samahang Kabuhayan ng San Lorenzo KKK, Inc., rep. by its vice President Zenaida Turla Vs.
Roman Catholic Archbishop of Manila, G.R. No. 192975/G.R. No. 192994. November 12, 2012)
e) Effect of dismissal of complaint on certain grounds
General rule: The action may be re-filed.
Exceptions: The action can no longer be re-filed if it was dismissed on the grounds of:
a. Res judicata;
b. Extinguishment of the claim or demand;
c. Prescription; or
d. Unenforceability of the claim
f) When grounds pleaded as affirmative defenses
If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may
be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary
hearing may be had thereon as if a motion to dismiss had been filed. (Rule 16, Sec. 6)
g) Bar by dismissal
The action can no longer be re-filed if it was dismissed on the grounds of:
a. Res judicata;
b. Extinguishment of the claim or demand;
c. Prescription; or
d. Unenforceability of the claim
h) Distinguished from demurrer to evidence under Rule 33 DISTINCTION BETWEEN
Motion to Dismiss Motion to Dismiss under Rule 33 (demurrer
under Rule 16 to evidence)
Filed before the service and filing of the Made after the plaintiff rests his case
answer
Anchored on many grounds Anchored on one ground, that is, plaintiff has
no right to relief

RULE 17 Two Dismissal Rule

3.8. Dismissal of actions
3.8.1. Dismissal upon notice by plaintiff; two-dismissal rule
Dismissal upon notice by plaintiff
A complaint may be dismissed by the plaintiff by filing a notice of dismissal 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. (Rule 17, Sec. 1)
Two-Dismissal Rule
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. (Rule 17, Sec. 1) Thus, when the
same complaint had twice been dismissed by the plaintiff under Sec.1 by simply filing a notice of
dismissal, the second dismissal shall be with prejudice.
What causes the loss by a plaintiff of the right to effect dismissal of the action by mere notice is not
the filing of the defendant’s answer with the court but the service on the plaintiff of said answer or
of a motion for summary judgment. Where the plaintiff filed the notice of dismissal of his action in
the court after the filing of defendant’s answer but before service thereof, the plaintiff’s notice to
that effect ipso facto brought about the dismissal of the pending action without need of any order
from the trial court (Go v. Cruz, et al., G.R. No. 58986, April 17, 1983).
3.8.2. Dismissal upon motion by plaintiff; effect on existing counterclaim
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
plaintiffs 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 counterclaim 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. (Rule 17, Sec. 2)
The dismissal of the complaint carries with it the dismissal of the compulsory counterclaim if the
counterclaim was pleaded by the defendant after service upon him of the plaintiff’s motion for
dismissal.
The dismissal shall be limited to the complaint or the defendant can prosecute his counterclaim in a
separate action if the counterclaim was pleaded by the defendant before
service upon him of the plaintiff’s motion for dismissal.
The defendant can revive the compulsory counterclaim within 15 days from notice of such motion.
3.8.3. Dismissal due to the 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. (Rule 17, Sec. 3)
It is plaintiff’s failure to appear at the trial, and not the absence of his lawyer, which warrants
dismissal (Regalado).
Test of Non-prosequitur
The fundamental test for non prosequitur is whether, under the circumstances, the plaintiff is
chargeable with want of due diligence in failing to proceed with reasonable promptitude. There
must be unwillingness on the part of the plaintiff to prosecute. (Shimizu Philippines Contractors,
Inc., Vs. Mrs. Leticia B. Magsalin, Doing Business Under The Trade Name "Karen's Trading," Fgu
Insurance Corporation, Godofredo Garcia, Concordia Garcia, And Reynaldo Baetiong, G.R. No.
170026, June 20, 2012)
Effects of Failure to Prosecute/ Non-Prosequitur
Once a case is dismissed for failure to prosecute, the dismissal 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 this case, Pua failed to take any action on the case after summons was served by publication on
Ang. It took him more than two years to file a motion to declare Ang in default and only after the
RTC has already dismissed his case for failure to prosecute. That Pua renewed the attachment bond
is not an indication of his intention to prosecute. The payment of an attachment bond is not the
appropriate procedure to settle a legal dispute in court; it could not be considered as a substitute
for the submission of necessary pleadings or motions that would lead to prompt action on the case.
(Ma. Mercedes L. Barba Vs. Liceo De Cagayan University, G.R. No. 193857. November 28, 2012)
Under Section 3, Rule 17 of the 1997 Rules of Civil Procedure, as amended, the failure on the part of
the plaintiff, without any justifiable cause, to comply with any order of the court or the Rules, or to
prosecute his action for an unreasonable length of time, may result in the dismissal of the
complaint either motu proprio or on motion by the defendant. The failure of a plaintiff to prosecute
the action without any justifiable cause within a reasonable period of time will give rise to the
presumption that he is no longer interested to obtain from the court the relief prayed for in his
complaint; hence, the court is authorized to order the dismissal of the complaint on its own motion
or on motion of the defendants. The presumption is not, by any means, conclusive because the
plaintiff, on a motion for reconsideration of the order of dismissal, may allege and establish a
justifiable cause for such failure. The burden to show that
there are compelling reasons that would make a dismissal of the case unjustified is on the
petitioners.
While under the present Rules, it is now the duty of the clerk of court to set the case for pre-trial if
the plaintiff fails to do so within the prescribed period, this does not relieve the plaintiff of his own
duty to prosecute the case diligently. This case had been at the pre-trial stage for more than two
years and petitioners have not shown special circumstances or compelling reasons to convince us
that the dismissal of their complaint for failure to prosecute was unjustified. (Eloisa Merchandising,
Inc. And Trebel International, Inc., Vs. Banco De Oro Universal Bank And Engracio M. Escasinas, Jr.,
In His Capacity As Ex-Officio Sheriff Of The Rtc Of Makati City, G.R. No. 192716, June 13, 2012)
3.8.4. Dismissal of counterclaim, cross-claim or third-party complaint
The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-
party complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be
made before a responsive pleading or a motion for summary judgment is served or, if there is none,
before the introduction of evidence at the trial or hearing. (Rule 17, Sec. 4)

RES JUDICATA
What is res judicata?
Res judicata means "a matter adjudged; a thing judicially acted upon or decided; a thing or matter
settled by judgment." It lays the rule that an existing final judgment or decree rendered on the
merits, without fraud or collusion, by a court of competent jurisdiction, upon any matter within its
jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits in
the same or any other judicial tribunal of concurrent jurisdiction on the points and matters in issue
in the first suit.(Selga vs SONY, G.R. No. 175151, September 21, 2011)
Two aspects of res judicata
Res judicata embraces two concepts: (1) bar by prior judgment as enunciated in Rule 39, Section
47(b) of the Rules of Civil Procedure; and (2) conclusiveness of judgment in Rule 39, Section 47(c).
There is “bar by prior judgment” when, as between the first case where the judgment was rendered
and the second case that is sought to be barred, there is identity of parties, subject matter, and
causes of action. In this instance, the judgment in the first case constitutes an absolute bar to the
second action.
But where there is identity of parties in the first and second cases, but no identity of causes of
action, the first judgment is conclusive only as to those matters actually and directly controverted
and determined and not as to matters merely involved therein. This is the concept of res judicata
known as “conclusiveness of judgment.” Stated differently, any right, fact or matter in issue directly
adjudicated or necessarily involved in the determination of an action before a competent court in
which judgment 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, demand, purpose,
or subject matter of the two actions is the same.
Thus, if a particular point or question is in issue in the second action, and the judgment will depend
on the determination of that particular point or question, a former judgment between the same
parties or their privies will be final and conclusive in the second if that same point or question was
in issue and adjudicated in the first suit. Identity of cause of action is not required but merely
identity of issue.
The elements of res judicata are: (1) the judgment sought to bar the new action must be final; (2)
the decision must have been rendered by a court having jurisdiction over the subject matter and
the parties; (3) the disposition of the case must be a judgment on the merits; and (4) there must be
as between the first and second action, identity of parties, subject matter, and causes of action.
Should identity of parties, subject matter, and causes of action be shown in the two cases, then
res judicata in its aspect as a “bar by prior judgment” would apply. If as between the two cases,
only identity of parties can be shown, but not identical causes of action, then res judicata as
“conclusiveness of judgment” applies. (SOCIAL SECURITY COMMISSION VS RIZAL POULTRY, G.R.
No. 167050, June 1, 2011)
Res judicata by conclusiveness of judgment.
The doctrine of res judicata by conclusiveness of judgment postulates that when a right or fact has
been judicially tried and determined by a court of competent jurisdiction, or when an opportunity
for such trial has been given, the judgment of the court, as long as it remains unreversed, should be
conclusive upon the parties and those in privity with them.
All the elements of the doctrine are present in this case. The final judgment in G.R. No. 167998 was
rendered by the Court pursuant to its jurisdiction over the review of decisions and rulings of the CA.
It was a judgment on the merits of Planters Bank’s right to apply for and be issued a writ of
possession. Lastly, the parties in G.R. No. 167998 are the same parties involved in the present case.
(LZK Holdings and Development Corporation v. Planters Development Bank, G.R. No. 187973,
January 20, 2014)

CAUSE OF ACTION
3.2.1 Meaning of Cause of Action
It is the act or omission by which a party violates the right of another (Rule 2, Sec. 2).
A cause of action is defined in Section 2, Rule 2 of the Rules of Court as the act or omission by
which a party violates the right of another. (Goodland Company, Inc., vs. Asia United Bank,
Abraham Co, Atty. Joel T. Pelicano And The Register Of Deeds Of Makati City, G.R. No. 195561,
March 14, 2012)
Elements of Cause of Action:
1) A legal right of the plaintiff;
2) A correlative duty of the defendant to respect plaintiff’s right; and
3) An act or omission of the defendant in violation of the plaintiff’s right with consequential injury
or damage to the plaintiff for which he may maintain an action for recovery or other relief (Relucio
vs. Lopez, 373 SCRA 578, 2002).
Section 2, Rule 2 of the Rules of Court defines a cause of action as an act or omission by which a
party violates the right of another. A complaint states a cause of action when it contains three (3)
essential elements of a cause of action, namely:
1) the legal right of the plaintiff,
2) the correlative obligation of the defendant, and
3) the act or omission of the defendant in violation of said legal right (Juana Complex I Homeowners
Association, Inc., et al. vs. Fil-Estate Land, Inc., G.R. No. 152272, March 5, 2012)
3.2.2. Right of Action versus Cause of Action
Right of action is the right to commence and prosecute an action to obtain the relief sought, while
cause of action is the act or omission by which a party violates the right of another (Rule 2, Sec. 2).
Elements of Right of Action:
a) Existence of the cause of action;
b) Performance of all conditions precedent; and
c) The action must be instituted by the proper party.
3.2.3. Failure to State Cause of Action
Where there is failure to state a cause of action in a pleading, the remedy of the defendant is to
move for its dismissal on the ground that the pleading asserting the claim states no cause of action.
Rule 16, Sec 1 (g)
3.2.4. Test of Sufficiency of Action
Whether or not admitting the facts alleged, the court could render a valid judgment upon the same
in accordance with the prayer in the complaint (Misamis Occidental II Cooperative, Inc. v. David, 468
SCRA 63).
The question of whether the complaint states a cause of action is determined by its averments
regarding the acts committed by the defendant. Thus, it must contain a concise statement of the
ultimate or essential facts constituting the plaintiff’s cause of action. To be taken into account are
only the material allegations in the complaint; extraneous facts and circumstances or other matters
aliunde are not considered.
The test of sufficiency of facts alleged in the complaint as constituting a cause of action is whether
or not admitting the facts alleged, the court could render a valid verdict in accordance with the
prayer of said complaint. Stated differently, if the allegations in the complaint furnish sufficient
basis by which the complaint can be maintained, the same should not be dismissed regardless of
the defense that may be asserted by the defendant. (Juana Complex I Homeowners Association,
Inc., et al. vs. Fil-Estate Land, Inc., G.R. No. 152272, March 5, 2012)
3.2.5. Splitting a Single Cause of Action and its Effects
Splitting a single cause of Action
The act of dividing a single cause of action, claim or demand into two or more parts, and bringing
the suit for one of such parts only, intending to reserve the rest for another separate action is the
prohibited act of splitting a single cause of action (Regalado).
Effects
If two or more suits are instituted on the basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a ground for the dismissal of the others (Rule 2,
Sec. 4).
When a single cause of action is split, the remedy of the defendant is to move for its dismissal
under Rule 16 on the ground that:
1) There is another action pending between the same parties for the same cause, or litis pendentia
(Sec. 1[e]); or
2) If the first action has already been finally terminated, on the ground of res judicata (Sec. 1[f]).
The well-entrenched rule is that "a party cannot, by varying the form of action, or adopting a
different method of presenting his case, escape the operation of the principle that one and the
same cause of action shall not be twice litigated.” This Court has laid down the test in determining
whether or not the causes of action in the first and second cases are identical, to wit: would the
same evidence support and establish both the present and former cause of action? If so, the former
recovery is a bar; if otherwise, it does not stand in the way of the former action. (Goodland
Company, Inc., vs. Asia United Bank, Abraham Co, Atty. Joel T. Pelicano And The Register Of Deeds
Of Makati City, G.R. No. 195561, March 14, 2012)
What is litis pendentia?
Litis pendentia is a Latin term, which literally means "a pending suit" and is variously referred to in
some decisions as lis pendens and auter action pendant. As a ground for the dismissal of a civil
action, it refers to the situation where two actions are pending between the same parties for the
same cause of action, so that one of them becomes unnecessary and vexatious. It is based on the
policy against multiplicity of suits. (Philippine National Bank vs. Gateway Property Holdings, Inc.,
G.R. No. 181485, February 15, 2012)
3.2.6. Joinder and Mis-joinder of Causes of Action.
Joinder of Causes of Action:
The assertion, in the alternative or otherwise, of as many causes of action as a party may have
against another in one pleading alone is valid. (Rule 2, Section 5)
Requisites for joinder of parties:
a) The party joining the causes of action shall comply with the rules on joinder of parties;
b) The joinder shall NOT include special civil action or actions governed by special rules;

c) Where the causes of action are between the same parties but pertain to different venues or
jurisdiction, the joinder may be allowed in the RTC provided that:
1) one of the causes of action falls within the jurisdiction of the RTC; and
2) the venue lies therein.
d) Where the claims in all the causes of action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction (Totality Rule, Sec. 33[1], B.P. 129).
Elements for Joinder of Parties
a) There must be a right to relief in respect to or arising from the same transaction or series of
transaction;
b) There is a question of fact or law common to all the plaintiffs or defendants; and
c) Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue
(Sec. 6, Rule 3).
Nature of joinder of causes of action:
The rule on joinder of causes of action is purely permissive and the plaintiff can always file separate
actions for each cause of action (Baldovir v. Sarte, 36 Phil. 550).
Conditions of causes of action:
The rule on permissive joinder of causes of action is subject to the rules regarding jurisdiction,
venue and joinder of parties.
Note: When the joinder refers to joinder of indispensable parties, joinder is COMPULSORY (Sec. 7,
Rule 3).
The provision allowing joinder of causes of action which pertains to different jurisdictions under
Section 5 (c) of Rule 2 applies only if the joinder is in the RTC.
Misjoinder of Causes of Action
Two or more causes of action are joined in one complaint when they should not have been joined.
(Rule 2, Section 6)
Misjoinder of causes of action is NOT a ground for dismissal of an action. A misjoined cause of
action may, on motion of a party or on the initiative of the court, be severed and proceeded with
separately (Rule 2, Section 6)