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KUPALOURD RULE 17

REM 1 BRONDIAL

Sec.1 notice of dismissal by plaintiff


Section 1. 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. 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. (1a)
(Brondial audio 2013) Rule 17 is the first
available remedy to the plaintiff. Actually it is
not a remedy it is much more of a RIGHT of
the plaintiff. See? kasi sa kanya yon, so kahit
ano pwede niyang gawin doon. Siya ang nag
file ng kaso so kahit any point in time, pwede
niya Ipa-dismiss. At least in section 1,
nobody will be prejudiced. Kaya tatandaan
niyo, the dismissal in sec. 1 is by notice! Did
you notice that? (laughing). It is by notice.
While the dismissal in sec. 2 is by motion.
What kind of a motion is that? The motion is
a litigated motion (meaning kailngan mag
comply sa dun sa mga requirement). While
the other one is simply by notice. Remember
that NOTICE is different from a MOTION.
A notice is you simply file a notification with
the court, even without complying with the
requirements for motion. You simply notify
the court or tell the court through a pleading
that you are no longer interested, that you

are dismissing, that you are causing the


dismissal of the case. Kaya nga if you notice,
under sec.1, there is no ground and even in
sec. 2, there is also no ground. So you can
think of 101 grounds and you can file a notice
of dismissal. You are the plaintiff ha, YOU
ARE THE PLAINTIFF here.

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Rule 17
Dismissal of actions

Question, is that applicable to the defendant


as far as a permissive counterclaim is
concerned? YES! It is also admissible.
Will that have a conflict in sec. 2? NO! there
will be no conflict in section 2. But you will
note, I am talking very academically, but in
actual practice, paano ba mangyayare yon?
Wherein in sec. 2, the rule even supports the
contention of the defendant. You notice that?
Kasi in sec. 1, on whatever ground, kahit
ilagay mo lang, I notify this court im no longer
interested EVEN WITHOUT STATING THE
REASON. But you always have to do that
BEFORE THE ANSWER. Notice of dismissal.
So you can think of 101 ground. Halimbawa
nagkamali siya, akala ko kapatid siya ni
Napoles, hindi pala. O di ba? So release na
natin, di ba nagkamali, ibang tao pala yung
hinuli. So release, nagkamali ka sa file mo, so
ayaw mo na ituloy yung pagkakamali mo so
you ask for the dismissal. OR tama yung pag
gawa mo ng kaso, you correctly filed a
complaint against the person but later on you
realize na lalong mas maguguluhan ako dito sa
buhay ko, tanggalin na lang natin ito, pasensya
na lang. pwede rin yon. OR your reason mo,
yung defendant pala na finile-an ko kaibigan
ng kaibigan ng kaibigan ng kaibigan ko. Alam
mo naman ang Pilipino kung sino sino, akal mo
kaibigan ng kaibgan ng kaibigan ko, so sino
yon? Si Tito Mario. Bakit mo naging tito,
kapatid ng tatay mo? Hinde. Ano pinsan ng
tatay mo? Hinde. Malimit yan mag sabong
kasama si tatay kaya tito ko na din. So
because of any reason. Why does the
court/rule allow that? Because nobody will

be prejudiced. Masasaktan lang ay yung


plaintiff. Pero look at the additional
requirement in sec. 1 which you do not find in
the rule prior to 1997, the additional
requirement is that it calls for an order of
confirmation. Dati wala yan. by mere
notification tapos na, ngayon, the order of
confirmation must be issued by the court to
effect the dismissal. Without the order of
confirmation, then the dismissal does not take
effect. It requires an order of confirmation.
Why do I mention this? kasi in the rules,
there are two (2) orders of confirmation. Baka
itanong sa BAR, what is an order of
confirmation? Dalawa ang order of
confirmation there. One is here in sec.1 of Rule
17 and the other one, you find that in Rule 68:
foreclosure of real estate mortgage. Ano ba
yung order of confirmation sa Rule 68? The
order of confirmation under Rule 68. Cuts the
equity of redemption so that in rule 68, kapag
walang order of confirmation, the equity of
redemption, kahit nakalagay diyan between 90
to 120 days from entry of judgment you have
to pay (equity of redemption), pag wala pag
order of confirmation, you can still avail or
comply with the payment. Hindi nawawala
yung equity of redemption kasi sa foreclosure
of real est. mortgate wala namang right of
redemption, di ba? We have only equity of
redemption with the exception if financial
institutions is concerned.
So watch out that there are two (2)
orders of confirmation in the rule. 1 is in
section 1 rule 17 and the other is in rule
68.

Who files the notice? Plaintiff. What are the


grounds? No grounds. Nobody will be
prejudiced except the plaintiff. There is,
however, a sanction to the plaintiff, which is
the two-dismissal rule. What is the twodismissal rule? A situation where the plaintiff
has twice dismissed a complaint without order

KUPALOURD RULE 17
REM 1 BRONDIAL

Example: A v B. A, plaintiff, files notice of


dismissal on the ground improper venue. The
court dismissed the case. He again filed
another claim against B. But then he found
out that B is a (close friend of his friend), so
he drops the case again. Will the twodismissal rule apply? Yes. However, if one of
the grounds is a jurisdictional matter, the
two-dismissal rule will not apply. For instance,
(Patmigs example), one of the grounds for
filing a notice of dismissal is on the ground of
lack of jurisdiction over the subject matter.
What is the requirement for the notice of
dismissal to become effective? There must
be order of confirmation from the court. It is
the order issued by the court pursuant to
Sec. 1, Rule 17 for the purpose of effecting
the notice of dismissal. Without such order,
the notice does not become effective. Do not
confuse this with another order of
confirmation (of sale) under Rule 68 for the
purpose of cutting the equity of redemption.
Sec. 2 motion by plaintiff
Section 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 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. (2a)

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of the court, and in such event, the dismissal


will be a judgment on the merits.

(Brondial audio 2013)Lets go to section 2 of


rule 17. Eto sino ang nag papadismiss? Plaintiff
pa rin. It is still the plaintiff who files the
motion to dismiss but this time it is no longer a
notice, it is already a motion. And what kind of
a motion is it? It is a litigated motion. Why?
Because you do this when ANSWER HAS
ALREADY BEEN FILED and in the answer, the
defendant had interposed a counterclaim
whether permissive or compulsory counter
claim. That is why the rule on section 2 says
that the dismissal is limited only to the
complaint. O ano madali ba yon intindihin?
Masalimuot din yan. kasi there is no distinction
as to what kind of counterclaim it is and we
have studied in rule 6 that the nature of a
compulsory counterclaim is such that it cannot
exist without the claim. Kaya nga compulsory,
it arises out of the same transaction or series
of transaction. That's the basis of the
counterclaim if compulsory. SO pag tinaggal
mo yung complaint, wala ng yung compulsory
counter claim. Eh bakit dito ganon? This is
an exception to the Rule. And what is the
rationale behind? Why is it that even a
compulsory counterclaim after the defendant
files a motion to dismiss, the compulsory
counter claim remains, bakit? It defies the very
nature of the counter claim. KASI sinktan mo
na yung defendant, sa paanong paraan mo
siya sinaktan? Eh halimbawa kumuha nan g
abogado na mahal, eh masakit yon. So this is
motion to dismiss under section 2. Wala ring
ground but the dismissal is only limited to the
complaint. The counter claim remains whether

it is compulsory or permissive. So ano ang


mangyayare dun sa counterclaim? You
manifest within 15 day period before the court
that you want it resolved, kahit wala na yung
complaint, ipapa resolve ko pa rin itong
counter claim ko in the same court but you are
limited to make the proper manifestation
within 15 days, otherwise, magpe prescribe ba
iyon? Hinde! You can file file a separate
complaint relative to the counterclaim which is
compulsory. Can you imagine that? This is
really exceptional to the baseci rule of
compulsory counter claim. So dinismiss yan, ok
lang, pabayaan ko yan, then I file another case
based on the dismissal of the complaint which
is left undismissed which is the compulsory
counter claim. So if that is true with
compulsory counter claim, there is more
reason that it applies to permissive
counterclaim. Ok? That's section 2: the first
remedy or right available to the plaintiff in the
ROC.
Kasi first remedy ng defendant is rule 16 di ba?
Do you recall my first few, opening discussion
in this review regarding the signed post of
remedial law? ang unang una sa defendant,
MTD. Pagdating sa plaintif, dismissal of action,
yan. yan ang unang gagamitin.

A motion, not a notice, filed by the plaintiff


on any ground. There is again a sanction if
he filed the motion when answer has
already been filed and served upon him,
which includes a counterclaim. What is the
effect? The counterclaim will not be
dismissed. The dismissal is limited to the
original complaint. Why? Because there is
already prejudice on the part of the
defendant, i.e. acquired services of counsel,
paid acceptance fee, etc.
What happens now to the counterclaim?
Defendant has two options: (1) Defendant

KUPALOURD RULE 17
REM 1 BRONDIAL

Sec. 3 defendant files motion/court


motu propio
dismisses the case
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. (3a)

(8 grounds for a dismissal of a case motu


propio)

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may file a separate action; and (2) Make a


manifestation in the trial court to continue
the case as to the counterclaim. Is there any
qualification as to what kind of
counterclaim? No. Does that not go against
the basic doctrine that a compulsory
counterclaim can only co-exist with a
complaint; remove the complaint; the
compulsory counterclaim dies with it? What
should be the proper interpretation of this
rule?
Irrespective of the kind of counterclaim,
the counterclaim will not be dismissed.
Within 15 days, if you dont want a
separate action, you manifest before the
trial court.

(brondial audio 2013) Section 3 or Rule 17


provides for the grounds for dismissal of the
case motu proprio. Do you recall what I discuss
regarding dismissal of the case motu proprio?
Sec.1 of rule 9 (defenses and objection) the
last sentence there: the grounds of 1. Res
judicata; 2. Litis pendencia; 3. Lack of
jurisdiction; 4. Prescription. This four grounds
can be a ground for dismissal of the action
motu proprio. Idagdag mo yung tatlo dito sa
sec 3 of rule 17: 1. Failure to present evidence
in chief during the time it was supposed to be
presented; 2. Failure to prosecute for a very
long time; 3 non-compliance with the order of
the court (any order of the court). This can be
grounds for dismissal by motion or motu
proprio under sec. 3 of rule 17.

1.
2.
3.
4.
5.

Summary procedure;
Lack of jurisdiction (Sec.1, Rule 9)
Litis pendentia (Sec.1, Rule 9)
Res judicata (Sec.1, Rule 9)
Prescription (Sec.1, Rule 9)

Under this rule, there are three grounds:


1. Failure of the plaintiff to
appear upon the presentation
of his evidence in chief;
2. Failure of the plaintiff to prosecute his action
for an unreasonable length of time;
3. Failure to comply with any order of the court.
(brondial audio 2013) Sec. 4 of Rule 17 is
only a recapitulation of the former rules that
this rule 17 applies to counterclaim, cross
claim, third party complaints and the like. So
sui generis will not apply to intervention? Of
course, pwede rin. Intervention under rule 19.
So that ends rule 17.