[Ching v.

Cheng]
G.R. 175507 – 8 October 2014
J. Leonen

Topic: Dismissal under Rule 17

Petitioners: Ramon Ching and Po Wing Properties, Inc.

Case Summary:
Three actions are involved in this case:
1st: The Chengs filed for a declaration of nullity of petitioners’ titles to Antonio’s estate (father of
Ramon, Joseph, and Jaime). Po Wing filed a MtD on the ground of lack of jurisdiction over the subject
matter, which the RTC granted.
2nd: The Chengs filed the same declaration of nullity case against petitioners, but they were also the
ones who filed a MtD without prejudice, which the RTC granted. Petitioners filed an MR arguing it
should have been filed with prejudice under Rule 17.1 since the first case was dismissed.
3rd: The Chengs filed another case for “Disinheritance and Declaration of Nullity of Agreement and
Waiver.” Petitioners filed an MtD on grounds of res judicata, litis pendentia, forum-shopping, and
failure to state a cause of action. RTC denied the MR to the 2nd case and denied the MTD on the 3rd
case.

The main issue (#1) was whether the dismissal of the 2 nd case operated as a bar to the filing of the third
case as per the “two-dismissal rule”. The Court said no, since when respondents filed the third case on
substantially the same claim, there was already one prior dismissal at the instance of the plaintiffs and
one prior dismissal at the instance of the defendants. While it is true that there were two previous
dismissals on the same claim, it does not necessarily follow that the refiling of the claim was barred by
Rule 17.1

Facts:
 Antonio Ching owned several businesses and properties, including Po Wing Properties. Although
unmarried, he had children from two women
 Ramon claimed he was the only child of Antonio with his common-law wife, Lucina Santos, but
Lucina disputed this, saying Ramon was only adopted
 Joseph and Jaime, meanwhile, claim to be Antonio’s illegitimate children with his housemaid,
Mercedes. Ramon disputed this but both Mercedes and Lucina have not
 1996: Antonio fell ill. Lucina claimed Antonio entrusted her with the distribution of his estate to
his heirs if something happened, giving all property titles and business documents to Ramon for
safekeeping  Antonio recovered and demanded Ramon to return all the titles to properties and
business documents
 18 July 1996: Antonio was murdered. Ramon allegedly induced Mercedes and her children,
Joseph and Jaime (collectively, the Chengs), to sign an agreement and waiver to Antonio’s estate
in consideration of P22.5 M, but Joseph and Jaime alleged Ramon never paid them
 29 Oct 1996: Ramon allegedly executed an affidavit of settlement of estate, naming himself as
the sole heir and adjudicating upon himself the entirety of Antonio’s estate
  Ramon, however, denied all the allegations, insisting that when Antonio died, the Ching family
Association, headed by Vicente Cheng, influenced him to give the Chengs financial aid after they
served Antonio for years, hence the agreement and waiver in consideration of P22.5 M
 Ramon also alleged he was summoned by the family association to execute an affidavit of
settlement of estate declaring him to be Antonio’s sole heir
 One year after investigating Antonio’s death, the police found Ramon as the primary suspect. An
information was filed and warrant of arrest was issued against him

First case
 7 Oct 1998: The Chengs filed a complaint for declaration of nullity of titles against Ramon before
the RTC of Manila
 22 Mar 1999: The complaint was amended, with leave of court, to implead additional defendants,
including Po Wing Properties, of which Ramon Ching was a primary stockholder
 The amended complaint was for “Annulment of Agreement, Waiver, Extra-Judicial Settlement of
Estate and the Certificates of Title Issued by Virtue of Said Documents with Prayer for
Temporary Restraining Order and Writ of Preliminary Injunction”
 Sometime after, Lucina filed a motion for intervention and was allowed to intervene
 After the responsive pleadings were filed, Po Wing filed a motion to dismiss (MtD) on the
ground of lack of jurisdiction over the subject matter
 13 Nov 2001: RTC of Manila Br. 6 granted the MtD. The Chengs were given 15 days to file the
appropriate pleading but they did not do so

Second case
 19 Apr 2002: The Chengs and Lucina Santos filed a complaint for "Annulment of Agreement,
Waiver, Extra-Judicial Settlement of Estate and the Certificates of Title Issued by Virtue of Said
Documents with Prayer for Temporary Restraining Order and Writ of Preliminary Injunction"
against Ramon Ching and Po Wing Properties, which was raffled to Branch 20 of the RTC of
Manila
 Br 20 issued an order transferring the case to Br 6, considering the second case involved the same
parties and causes of action as the first one
 11 Nov 2002: Respondents filed a MtD for the second case, with prayer to dismiss it without
prejudice
 22 Nov 2002: Br 6 granted the MtD on the basis that the summons had not yet been served on
Ramon Ching and Po Wing Properties, and they had not yet filed any responsive pleading. The
dismissal of the second case was made without prejudice
 9 Dec 2002: Petitioners filed a motion for reconsideration of the Nov 22 order, arguing the
dismissal should have been with prejudice under the "two-dismissal rule" of Rule 17, Section 1 of
the 1997 RoCP, in view of the previous dismissal of the first case

Third case
 During the pendency of the MfR, respondents filed a complaint for "Disinheritance and
Declaration of Nullity of Agreement and Waiver, Affidavit of Extrajudicial Agreement, Deed of
Absolute Sale, and Transfer Certificates of Title with Prayer for TRO and Writ of Preliminary
Injunction" against petitioners, which was raffled to Br 6
 10 Dec 2002: Petitioners filed their comment/opposition to the application for TRO in the third
case. They also filed a MtD on the ground of res judicata, litis pendencia, forum shopping, and
failure of the complaint to state a cause of action
 30 July 2004: Br 6 issued an omnibus order, denying both the motion for reconsideration in the
second case and the motion to dismiss in the third case, holding the dismissal of the second case
was without prejudice and, hence, would not bar the filing of the third case
  8 Oct 2004: While the MfR in the third case was pending, petitioners filed a petition for certiorari
(the first certiorari case) with the CA, assailing the order dated 22 Nov 2002 and the portion of
the omnibus order dated 30 July 30 2004, which upheld the dismissal of the second case
 28 Dec 2004: Trial Court denied the MfR, which prompted petitioners to file a petition for
certiorari and prohibition with application for a writ of preliminary injunction or the issuance of a
TRO (the second certiorari case) with the CA

Court of Appeals
 23 Mar 2006: CA dismissed the first certiorari case, saying petitioners’ reliance on the "two-
dismissal rule" was misplaced since the rule involves two motions for dismissals filed by the
plaintiff only. ITC, the dismissal of the first case was upon the motion of the defendants, while
the dismissal of the second case was at the instance of the plaintiffs  Petitioners filed the
present petition for review under Rule 45

Issues + Held:
1. W/N 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” – NO
 Dismissal of actions are governed by Rule 171
 Sec. 1 contemplates a situation where a plaintiff requests 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 without prejudice unless otherwise declared by
the court
 Sec. 2 contemplates a situation where a counterclaim has been pleaded by the defendant
before the service on him or her of the plaintiffs’ motion to dismiss. It requires leave of
court, and the dismissal is generally without prejudice unless otherwise declared by the court
 Sec. 3 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 motu propio. Generally,
the dismissal is with prejudice unless otherwise declared by the court
 In all instances, Rule 17 governs dismissals at the instance of the plaintiff, not the defendant
(covered by Rule 16, motion to dismiss)
 G.R.: Dismissals under Rule 17, Sec. 1 are without prejudice except when it is the second time
that the plaintiff caused its dismissal
 For a dismissal to operate as an adjudication upon the merits, i.e, with prejudice to the re-filing of
the same claim, the following 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 notices for dismissal were filed by the plaintiff; and

1
SEC. 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.

SEC. 2. Dismissal upon motion of plaintiff.  — Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiffs 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.

SEC. 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. (Emphasis supplied)
 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 a complaint is
dismissed a second time, the plaintiff is now barred from seeking relief on the same claim
 The trial court dismissed the first case by granting the motion to dismiss filed by the defendants
 Under Rule 17, Section 3, a defendant may move to dismiss the case if the plaintiff defaults; it
does not contemplate a situation where the dismissal was due to lack of jurisdiction. Since there
was already a dismissal prior to plaintiffs’ default, the trial court's instruction to file the
appropriate pleading will not reverse the dismissal. If the plaintiff fails to file the appropriate
pleading, the trial court does not dismiss the case anew; the order dismissing the case still stands
 The dismissal of the first case was done at the instance of the defendant under Rule 16, Section
1(b)2
 When respondents filed the second case, they were merely refiling 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 plaintiffs instance
 The Nov. 22 order dismissing the case was without prejudice, considering the defendants have
not yet filed their answers nor any pleading, so plaintiffs have the right to cause the dismissal of
the complaint as per Rule 17.2
 When respondents filed the third case on substantially the same claim, there was already one
prior dismissal at the instance of the plaintiffs and one prior dismissal at the instance of the
defendants. While it is true that there were two previous dismissals on the same claim, it does
not necessarily follow that the refiling of the claim was barred by Rule 17.1
 While the dismissal of the second case was without prejudice, respondents' act of filing the third
case while petitioners' motion for reconsideration was still pending constituted forum shopping

2. W/N respondents committed forum shopping when they filed the third case while the
motion for reconsideration of the second case was still pending – YES, but..
 Yap v. Chua: Forum shopping is the institution of two or more actions or proceedings involving
the same parties for the same cause of action, either simultaneously or successively, on the
supposition that one or the other court would make a favorable disposition. To determine whether
a party violated the rule against forum shopping, the most important factor to ask is whether the
elements of litis pendentia are present, or whether a final judgment in one case will amount
to res judicata in another; otherwise stated, the test for determining forum shopping is whether
in the two (or more) cases pending, there is identity of parties, rights or causes of action, and
reliefs sought.
 When respondents filed the third case, petitioners' MfR of the dismissal of the second case was
still pending, hence, not yet final since it could still be overturned upon reconsideration, or even
on appeal to a higher court
 When respondents filed the third case, they engaged in forum shopping. Any judgment by
this court on the propriety of the dismissal of the second case will inevitably affect the disposition
of the third case. The denial of petitioners' motion for reconsideration in the third case, however,
could still be the subject of a separate petition for certiorari. That petition would be based now on
the third case, and not on the second case.
 However, ITC, the dismissal of the first case became final and executory upon the failure of
respondents' counsel to file the appropriate pleading. They filed the correct pleading the second
time around but eventually sought its dismissal as they "[suspected] that their counsel is not
amply protecting their interests as the case is not moving for almost three (3) years." The filing of

2
SECTION 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of
the following grounds: (b) That the court has no jurisdiction over the subject matter of the claim;
 the third case, therefore, was not precisely for the purpose of obtaining a favorable result
but only to get the case moving, in an attempt to protect their rights
 The rule on forum shopping will not strictly apply when it can be shown that (1) the original
case has been dismissed upon request of the plaintiff for valid procedural reasons; (2) the
only pending matter is a motion for reconsideration; and (3) there are valid procedural
reasons that serve the goal of substantial justice for the fresh new case to proceed.
 The MfR filed in the second case has since been dismissed and is now the subject of a petition for
certiorari. The third case filed apparently contains the better cause of action for the plaintiffs and
is now being prosecuted by a counsel they are more comfortable with. Substantial justice will be
better served if respondents do not fall victim to the labyrinth in the procedures that their travails
led them.

Ruling:
WHEREFORE, the petition is DENIED. The Regional Trial Court of Manila, Branch 6 is ordered to
proceed with Civil Case No. 02-105251 with due and deliberate dispatch.