99.

Motion to Dismiss

Q: After filing his Answer, Alvarado filed his Motion to Dismiss substantially reiterating the same procedural
defects. In her Order,, Judge denied Alvarado’s Motion to Dismiss. She noted that the Motion was filed out of time as
Alvarado already filed his Answer and that “Alvarado was considered estopped from filing the subject Motion to
Dismiss.” She conceded that the rule preventing the consideration of motions to dismiss filed after the filing of
answers admitted exceptions but noted that the grounds pleaded by Alvarado still did not warrant the dismissal of
respondents’ Complaint.

Is the filing of motion to dismiss proper?

ANS: No. 2 categories of motions to dismiss may be recognized under the 1997 Rules of Civil Procedure:
first, those that must be filed ahead of an answer, and second, those that may be entertained even after an
answer has been filed. Motions to dismiss under the first category may plead any of the 10 grounds under
Rule 16, Section 1. Those under the second category may only plead 4 of Rule 16, Section 1 's 10 grounds:
lack of jurisdiction over the subject matter, litis pendentia, res judicata, and prescription. In addition to
these four (4) grounds, motions to dismiss under the second category may also plead lack of cause of action
and other grounds that may only be made known after the answer was filed.

The prior filing of an answer, therefore, serves as a bar to the consideration of Rule 16, Section 1 's 6 other
grounds. However, the grounds stated in a belatedly filed motion to dismiss may still be considered
provided that they were pleaded as affirmative defenses in an answer. There is then no waiver of the
previously pleaded defenses. The complaint may be dismissed even for reasons other than lack of
jurisdiction over the subject matter, litis pendentia, res judicata, prescription, lack of cause of action, or
delayed discovery of a ground for dismissal. The belatedly filed motion to dismiss is not a useless
superfluity. It is effectively a motion for the court to hear the grounds for dismissal previously pleaded as
affirmative defenses in the answer, pursuant to Rule 16, Section 6. Still, the continuing availability of
grounds does not guarantee a dismissal. An allegation of non-compliance with a condition precedent may
be belied by antecedent facts; a claim of failure to state a cause of action may be negated by sufficient
allegations in the complaint.

Judge correctly observed that petitioner filed his Answer ahead of his Motion to Dismiss. The filing of an answer
precludes a motion to dismiss. However, the grounds invoked by petitioner in his Motion to Dismiss had been
previously pleaded in his Answer. The consideration of these grounds was, therefore, not forestalled by
petitioner’s belated filing of a motion to dismiss. These grounds are still considered timely pleaded in his Answer
and merely reiterated in his Motion to Dismiss. Ultimately, however, Judge correctly found petitioner’s pleaded
grounds to be unavailing. Thus, this Court sustains her denial of petitioner’s Motion to Dismiss. (SAMUEL M.
ALVARADO vs. AYALA LAND, INC. G.R. No. 208426 / September 20, 2017 )

100. Arbitration

Q: Steamship was a Bermuda-based Protection and Indemnity Club, managed outside London, England. It insures
its member-shipowners against “third-party risks and liabilities”. Sulpicio insured its fleet of inter-island vessels
with Steamship for Protection & Indemnity risks through local insurance agents. Sulpicio filed a Complaint with the
court for specific performance and damages, and Steamship filed its Motion to Dismiss and/or to Refer Case to
Arbitration. Sulpicio denies being bound by the arbitration clause in the Club Rules since neither the Certificate of
Entry and Acceptance, which covers M/V Princess, mentioned this arbitration agreement, nor was it given a copy
of the Club Rulebook. Steamship contends that the arbitration agreement set forth in its Club Rules, which in turn
is incorporated by reference in the Certificate of Entry and Acceptance of M/V Princess is valid and binding upon
Sulpicio.

Is there a valid and binding arbitration agreement between Steamship Mutual Underwriting (Bermuda)
Limited and Sulpicio Lines?

ANS:YES. In domestic arbitration, the formal requirements of an arbitration agreement are that it must "be
in writing and subscribed by the party sought to be charged, or by his lawful agent." In international
commercial arbitration, it is likewise required that the arbitration agreement must be in writing.

An arbitration agreement is in writing if it is contained (1) in a document signed by the parties, (2) in an
exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the
agreement, or (3) in an exchange of statements of claim and defense in which the existence of an
agreement is alleged by a party and not denied by another. The reference in a contract to a document
containing an arbitration clause constitutes an arbitration agreement provided that the contract is in
writing and the reference is such as to make that clause part of the contract.

An arbitration agreement that was not embodied in the main agreement but set forth in another document is
binding upon the parties, where the document was incorporated by reference to the main agreement. The
arbitration agreement contained in the Club Rules, which in turn was referred to in the Certificate of Entry and
Acceptance, is binding upon Sulpicio even though there was no specific stipulation on dispute resolution in this
Certificate.

In this case, by its act of entering its fleet of vessels to Steamship and accepting without objection the Certificate of
Entry and Acceptance covering its vessels, Sulpicio manifests its consent to be bound by the Club Rules. The
contract between Sulpicio and Steamship gives rise to reciprocal rights and obligations. Steamship undertakes to
provide protection and indemnity cover to Sulpicio’s fleet. On the other hand, Sulpicio, as a member, agrees to
observe Steamship’s rules and regulations, including its provisions on arbitration. (BERMUDA vs. SULPICIO LINES,
INC. G.R. No. 196072 / September 20, 2017 G.R. No. 208603)

101. Bail
Q: Pending before Branch 61, Regional Trial Court, Bogo City was a civil case 3 for declaration of absolute nullity of
deed of absolute sale filed against Andrino. In 2013 and during the pendency of the civil case, Tejano filed a
criminal complaint for violation of the Anti-Violence Against Women and Children Act against Andrino befote
Branch 20 of the Regional Trial Court of Cebu City. On May 9, 2013 and with no standing warrant of arrest against
him, Andrino posted bail before Branch 61, Regional Trial Court, Bogo City, not before Branch 20 in Cebu City
where the criminal case was pending. Tejano alleged that Judge Marigomen issued the Order of Release with no
standing warrant of arrest against Andrino, in violation of Rule 114, Section 1 of the Rules of Court.  The Warrant of
Arrest was issued by Judge in Cebu only on May 30, 2013.

Is the grant of the bail proper despite the absence of a warrant of arrest?

ANS: NO. The text of Rule 114, Section 17(a) of the Rules of Court shows that there is an order of preference with
respect to where bail may be filed. In the absence or unavailability of the judge where the case is pending, the
accused must first go to a judge in the province, city, or municipality where the case is pending. Furthermore, a judge
of another province, city, or municipality may grant bail only if the accused has been arrested in a province, city, or
municipality other than where the case is pending.

A judge not assigned to the province, city, or municipality where the case is pending but approves an application
for bail filed by an accused not arrested is guilty of gross ignorance of the law. The last sentence of Rule 114,
Section 17(a) is clear that for purposes of determining whether or not the accused is in custody of the law, the
mode required is arrest, not voluntary surrender, before a judge of another province, city, or municipality may
grant a bail application.

Judge Marigomen was not a judge in the province, city, or municipality where the case was pending. Neither was
Andrino arrested in a province, city, or municipality other than where the case was pending precisely because no
warrant of arrest had yet been issued when he posted bail on May 9, 2013. Judge Marigomen violated Rule 114,
Section 17(a) and is guilty of gross ignorance of the law.

Without a standing warrant of arrest, a judge not assigned to the province, city, or municipality where the
case is pending has no authority to grant bail. To do so would be gross ignorance of the law. (PROSECUTOR
IVY A. TEJANO vs. PRESIDING JUDGE ANTONIO D. MARIGOMEN A.M. No. RTJ-17-2492 / September 26, 2017)