Siccion Liza B.

JD -2B

RULE 17
DISMISSAL OF ACTIONS

Section 1: Dismissal upon notice by Plaintiff

O.B. JOVENIR CONSTRUCTION DEVELOPMENT

VS.
MACAMIR REALTY AND DEVELOPMENT CORPORATION
GR NO. 135803, MARCH 28, 2006

Facts:

On February 03, 1997, a complaint was filed before the RTC of Makati city,
with private respondents Macamir Realty and Development Corp. and
SpsRosauroand Gloria Miranda as plaintiff and petitioner O.B. JOVENIR
CONSTRUCTION. The complaint sought the annulment of certain agreements they
had with JOVENIR CONSTRUCTION. It was alleged the JOVENIR CONSTRUCTION
was constructed to complete the construction of private respondents
condominium project. It was discovered that JOVENIR CONSTRUCTION had
misrepresented itself as a legitimate contractor. Respondent likewise prayed for
the issuance of a writ of preliminary injunction.

SaludMadeja alleged that the Sps Miranda failed to attached any Board
Resolution authorizing them to file suit on behalf of the Corp. On Feb. 13, 1997 or
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 on Feb 06, 1997, counsel for plaintiff “discovered a
supposed technical defect in the complaint that may be a ground for the dismissal
of this case. Thus, private respondents prayed that the plaintiff be allowed to
withdraw the complaint without prejudice.
 Petitioners filed an opposition to the motion to withdraw complaint. On
Feb 18, 1997, wherein they adopted Madeja’s arguments as to the lack of
authority on the part of the Sps Miranda to sue on behalf of Macamir Realty.
However, just one day earlier, or on Feb. 17, 1997. Private Respondents filed
another complaint against the same defendant.

On Feb. 24, 1997, 11 days after the filing of the motion to withdraw
complaint or 7 days after the filing of the second complaint. The Makati TRC
granted the motion to withdraw complaint.

ISSUE:

Petitioner argue that under sec. 1 of Rule 17 of the rules of civil procedures
in effect at the time of these antecedants, the plaintiff may obtain the dismissal of
his own complaint before a responsive pleading has been filed through the filing
of a notice of dismissal. However, respondents in this case did not file a notice of
dismissal, but instead lodged a motion to withdraw complaint, a motion which
requires affirmative action from the court before the complaint may be deemed
dismissed.

Ruling:

Yes.

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 the court by filing a notice of dismissal at any time before service of the
answers or of a motion for summary judgment. Unless otherwise stated in the
notice, the dismissal is w/o 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 w/o 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 w/o the necessity of alleging in
the notice of dismissal any ground nor of making any reservation. It is quite clear
that under section 1, rule 17, of the old rules, the dismissal contemplated therein
could be accomplished by the plaintiff through mere notice of dismissal, and not
through motion subject to approval by the court. Dismissal is ipso facto upon
notice, and w/o prejudice unless otherwise stated in the notice. It is due to these
considerations that the petition should be denied.

Evidently, respondent had the right to dismiss their complaint by mere notice on
Feb. 13, 1997, since as of even date, petitioner had not yet served their answer on
respondent. The motion to withdraw complaint makes clear respondent “the
desire to withdraw complain w/o prejudice”. That respondent 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.

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 plaintiff. 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.

Thus, the complaint could be properly considered as having been dismissed or

withdraw as of Feb. 13, 1997. Accordingly, when respondents filed their new
complaint relating to the same cause of action of Feb 17, 1997. The old complaint
was no longer pending.

The 1997 Rules of Civil Procedures now requires that upon 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 old 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. Since respondents
possessed an unqualified to cause the dismissal of their w/o need of confirmation
by the trial, as enunciated in the 1964 rules, they did not err in asserting that their
first complaint was withdraw on the day of the filing of their motion to withdraw
and the lower courts, were in agreeing w/ respondents on this part.
Rule 17 of the Rules of Civil Procedures govern dismissal of action at the instance
of the plaintiff. Hence, the “Two dismissal rule” under Rule 17, Section 1 of the
rules of civil procedure will not apply if the prior dismissal was done at the
instance of the dependant.

Ramon Ching and Power Properties Inc.

Vs.
Joseph Cheng, Jaime Cheng, Mercedes Igme and Lucina Santos
GR NO. 175507
OCT. 8, 2014

FACTS:

Antonio Ching owned several businesses and properties, among which was
POWING PROPERTIES INCORPORATED. His total assets are alleged to have been
worth more than 380 million. It is also alleged that while he was unmarried, he
had children from two woman.

Ramon Ching alleged that he was the only child of Antonio Ching with his
common law wife, Lucina Santos. She however, disputed this even if Ramon
Ching’s birth Certificate indicates that he was Antonio Chings illegitimate child,
She and Antonio Ching merely adopted him and treated him like their own.

Joseph and Jaime Cheng, on the other hand, claim to be Antonio Ching’s
illegitimate children with his housemaid Mercedes Igme. While Ramon Ching
disputed this both Mercedes and Lucina have not.

On July 18, 1996, Antonio Ching was murdered. Ramon Ching allegedly
induced Mercedes Igme and her children, Joseph and Jaime to sign an agreement
and waiver to Antonio Ching estate in consideration of P 22.5 million. On oct. 29,
1996, Ramon Ching allegedly executed an affidavit of settlement of estate,
naming himself as the sole heir and adjudicating himself the entirely of Antonio
Ching’s estate.

On October 7, 1998, Joseph, Jaime and Mercedes Igme filed a complaint for
declaration of titles against RamoChingbefore RTC ON Maarch 22, 1999, the
complaint was amended with leave of court, to implead additional defendants
including POWING PROPERTIES of which Ramon Ching was a primary stockholder.
The amended complaint was for “ Annulment of Agreement “ Waiver, Extra-
judicial settlement and certificates of titles issued by virtue of said documents.
After the responsive pleadings had been filed, POWING PROPERTIES filed a
motion to dismiss on the ground of lack of jurisdiction over the subject matter.

On Nov. 13, 2001 the RTC of Manila granted the motion to dismiss on the
ground of lack of jurisdiction over the subject matter. The Chengs counsel did not
file the appropriate pleading.

On April 19, 2002, the Chengs and Lucina Santos filed a complaint for
“Annulment of Agreement”, Waiver, Extra-judicial settlement of estate against
Ramon Ching and POWING PROPERTIES.

On Nov. 11, 2002, the Chengs and Lucina Santos filed a motion to dismiss
their complaint in the second case, praying that it be dismissed w/o prejudice.

On Nov. 22, 2002, RTC issued an order granting the motion to dismiss on
the basis that the summons had not yet been served on Ramon Ching and
POWING PROPERTIES and they had not yet filed any responsive pleadings. The
dismissal of the second case was made w/o prejudice.

On Dec. 9, 2002, Ramon Ching and Po Wing Properties filed a motion for
reconsideration of the order dated Nov. 22, 2002, they argue that the dismissal
should have been w/ prejudice under the rule 17, section 1 of the rules of civil
procedure, in view of the previous dismissal of the first case.

During the pendency of the motion for reconsideration, the Chengs and
Lucina Santos filed a complaint again for “Disinheritance and Declaration of
Nullity of Agreement and Ramon Ching and Po Wing Properties

On July 30, 2004, the RTC denied the motion for reconsideration and the
motion to dismiss, holding the dismissal of the second case was w/o prejudice,
hence, would not bar the filing of the third case.
ISSUE:
WON the Trial Court’s dismissal of the second case operated as a Bar
to the filing of a third case, as per the two dismissal rule.

RULING:
The Petition is denied.
Dismissal of actions are governed by rule 17 of the 1997 rules of civil
procedure.
Section 1: Dismissal upon notice by plaintiff
Section 2: Dismissal upon motion by plaintiff
Section 3: Dismissal due to the fault of plaintiff

The first section of the rule contemplates a situation where a plaintiff request the
dismissal of the case before any responsive pleadings have been filed by the
defendant. It is done through notice by the plaintiff and confirmation by the
court. The dismissal is w/o prejudice unless otherwise declared by the court.

The second section of the rule contemplates a situation where a counterclaim has
been pleaded by the defendant before the service on him or her of the plaintiff’s
motion to dismiss. It requires leave of court, and the dismissal is generally w/o
prejudice unless otherwise declared by the court.

The third section contemplates dismissals due to the fault of the plaintiff such as
the failure to prosecute. The case is dismissed either upon motion of the
defendant or by the court motuproprio. Generally, the dismissal is w/o prejudice
unless declared by the court.

In all instances, Rule 17 governs dismissals at the instance of the plaintiff, not of
the defendant. Dismissals upon the instance of the defendant are generally
governed by rule 16, which covers motion to dismiss.

As a general rule, dismissals under section 1 of the rule 17 are w/o prejudice
except when it is the second time the plaintiff caused its dismissal. Accordingly,
for a dismissal to operate as an adjudication upon the merits with prejudice to the
re-refiling of the same claim, the following requisites must be present.

(1) There was a previous case that was dismissed by a competent court.
 (2) Both cases were based on or include the same claim.
(3) Both notice for dismissal were filed by the plaintiff, and
(4) When the motion to dismiss filed by the plaintiff was consented to by the
defendant on the ground that the latter paid and satisfied all the claims of
the former.

The purpose of the two dismissal rule is to avoid vexatious litigation when the
complaint is dismissed a second time, the plaintiff is now barred from seeking
relief on the same claim.
The dismissal of the second case was w/o prejudice in view of the “two dismissal
rule”

Here the first case was filed as an ordinary civil action. It was later amended to
include not only new defendants but new causes of action that should have been
adjudicated in a special proceeding. A motion to dismiss was inevitably filed by
the defendants on the ground of lack of jurisdiction.

The Trial Court granted that motion to dismiss stating that the additional causes
of actions were incorporated, extra-judicial settlement of the intestate estate of
Antonio Ching and receivership, subject matters, which should be threshed out in
a special proceeding case. This is a clear departure from the main cause of action
in the original complaint which is for declaration of nullity of certificates of titles
with damages. And the rules of procedure which govern special proceeding case
are different and distinct from the rules of procedure applicable in an ordinary
civil action.

When respondents filed the second case, they were merely refilling the same
claim that had been previously dismissed on the basis of lack of jurisdiction. When
they moved to dismiss the second case, the motion to dismiss can be considered
as the first dismissal at the plaintiff’s instance. And the trial court specifically
orders the dismissal to be w/o prejudice. It is only when the trial court order
either is silent on the matter, or states otherwise, that the dismissal will be
considered an adjudication on the merits.

Petitioners do not deny that the second dismissal was requested by respondents
before the service of any responsive pleadings. Accordingly the dismissal at this
instance is a matter of right. That is not subject to the trial court’s discretion.
In O.B. JOVENIR CONSTRUCTION VS. MACAMIR REALTY, for this reason, the trial
court issued its order dated Nov. 22, 2002 dismissing the case w/o prejudice.

When respondent filed the third case on substantially the same claim, there was
already one prior dismissal at the instance of the plaintiff’s and one prior dismissal
at the instance of the defendants.

Hence the two dismissal rule under rule 17, section 1 will not apply if the prior
dismissal was done at the instance of the defendant.
SECTION 2, RULE 17: DISMISSAL UPON MOTION OF PLAINTIFF.

ALEX RAUL B. BLAY

VS.
CYNTHIA B. BANA
GR NO. 232189

FACTS:

On September 17, 2014, petitioner filed before the RTC a petition for
Declaration of Nullity of Marriage, seeking that his marriage to respondent be
declared null and void on account of his psychological incapacity.
Subsequently, respondent filed her answer with counterclaim dated Dec. 5,
2014. However, petitioner later lost interest over the case, and thus, filed a
motion to withdraw his petition, respondent invoked section 2, rule 17 of the
rules of court and prayed that her counterclaims be declared as remaining for the
court’s independent adjudication. In turn petitioner filed his reply, averring that
respondent’s counterclaims are barred from being prosecuted in the same action
due to her failure to file a manifestation therefor within (15) days from notice of
the motion to withdraw which according to petitioner was required under the
same rules of court provision.

ISSUE: WON the CA erred in upholding the RTC orders declaring respondent’s
counterclaim for independent adjudication before the same trial court.

RULING: The petition is meritorious.

Section 2, Rule 17 of the Rules of Court provides for the procedure relative to
counterclaims in the event that a complaint is dismissed by the court at the
plaintiff’s instance.

Section 2 : Dismissal upon motion of plaintiff: except as provided in the preceding

section a complain shall not be dismissed at the plaintiff 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 w/o prejudice to the right of the defendant
to prosecute his counterclaim in the same action. Unless otherwise specified in
the order, a dismissal under this paragraph shall be w/o prejudice. A class suit
shall not be dismissed or compromised w/o the approval of the court.

As per the second sentence of the provision, if a counterclaim has been pleaded
by the defendant prior to the service upon him of the plaintiff’s motion for the
dismissal. As in this case, the rule is that the dismissal shall be limited to the
complaint. A dismissal of an action is different from a mere dismissal of the
complaint. For this reason, since only the complaint and not the action is
dismissed, the defendant inspired of said dismissal may still prosecute his
counterclaim in the same action.

Under this revised section, where the plaintiff moves for the dismissal of the
complaint to which a counterclaim has been interpose, the dismissal shall be
limited to the complaint. Such dismissal shall be w/o prejudice to the right of the
defendant to either prosecute his counterclaim in a separate action or to have the
same resolved in the same actions.

However, as stated in the third sentence of section 2, rule 17, if the defendant
desires to prosecute his counterclaim in the same action, he is required to file a
manifestation within 15 days from notice of the motion. Otherwise, his
counterclaim may be prosecuted in a separate action.

In this case, the CA confined, the application of section 2, rule 17, to the portion
of its second sentence that the dismissed shall be limited to the complaint.
Evidently, the CA ignored the same provision’s third sentence, which provides for
the alternative available to the defendant who interposes a counterclaim prior to
the service upon him of the plaintiff’s motion for dismissal.
Should the defendant desire to prosecute his counterclaim, he is required to
manifest his reference therefor within 15 days from noticeof the plaintiff’s motion
to dismiss. Failing in which, the counterclaim may be prosecuted only in a
separate case.
SECTION 3, RULE 17: DISMISSAL DUE TO THE FAULT OF PLAINTIFF.

The dismissal in this case will be through reasons attributed to his fault. The
trial court may dismiss an action its own volition for failure to prosecute; or upon
motion by the defendant. Generally, the dismissal is with prejudice unless
otherwise declared by the court.

Section 3, Rule 17 contemplates certain instances where the complaint maybe

dismissed due to the fault and these are:

(a) Where the plaintiff fails to appear at the time of the trial
(b) Where he fails to prosecute his action for an unreasonable length of time.
(c) When he fails to comply with these rules or any order of the court.

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
unreasonable promptitude. There must be unwillingness on the part of the
plaintiff to prosecute. In short, there must be sufficient reason to justify the
dismissal of the complaint. Like, the excuse proffered by respondents was not
acceptable to the trial court.

However, the dismissal of the complaint due to the fault of the plaintiff does not
necessarily carry with it the dismissal of the compulsory counterclaim or
otherwise. In fact, the dismissal of the complaint is w/o prejudice to the right of
the defendants to prosecute the counterclaim. If the RTC were to dismiss the
counterclaim, it should be on the merits of such counterclaim.
SECTION 4, RULE 17: DISMISSAL OF A COUNTERCLAIM, CROSS-CLAIM, OR
THIRD PARTY COMPLAINT.

Rule 17 applies to a dismissal of a counterclaim, cross-claim, or third party

complaint. If the dismissal is by notice as in section 1 of rule 17 the dismissal shall
be made before the adverse party service either a responsive pleadings or a
motion for summary judgment, or if there is none before the introduction of
evidence at the trial or hearing.

VOLUNTARY DISMISSAL BY THE PLAINTIFF:

 It is done through mere notice before any responsive pleadings has been
filed by the defendant or before the service of the answer.
 If there is no responsive pleading before the introduction of evidence at the
trial or hearing.