When a motion to dismiss is filed before the filing of an answer, the running of the period during which the rules required a party to file his answer is deemed suspended. If, however, the motion to dismiss is denied, he has the balance of his period for filing an answer within which to file the same but in no case shall be less than five (5) days, to be computed from her receipt of notice of denial of his motion to dismiss.
Facts:
Garcia filed a complaint for damages against Narciso before the RTC of San Fernando, Pampanga. Defendant subsequently filed a motion to dismiss the complaint on the ground that the RTC had no jurisdiction over the subject matter of the complaint since it averred facts constitutive of forcible entry – of which the acts complained of were committed in Angeles City.
Petitioner opposed motion to dismiss and sought to have defendant declared in default. He cited a Supreme Court administrative circular that discouraged the filing of a motion to dismiss in lieu of an answer.
The RTC denied petitioner’s motion to dismiss and declared her in default for failing to file an answer. The defendant filed a motion for reconsideration which plaintiff opposed. The latter sought to present her evidence ex parte. Meanwhile, the presiding judge retired and a new acting judge replaced him.
The new presiding judge referred the case for mediation but it failed. The court then set the case for judicial dispute resolution (JDR) as a component of pre-trial. However, such JDR failed.
The RTC denied Narciso’s motion for reconsideration and declared her in default as early as November 2004. It held that since she had not filed any motion to lift the order of default within an allowable time, Narciso could no longer assail such default order.
Defendant filed motion to lift the order of default against her. The protracted resolution of her motion for reconsideration and referral of the case for mediation prevented her from filing an answer. This motion was denied as well as the motion for reconsideration filed later.
Issue:
Did the CA gravely abuse its discretion in affirming the order of default that the RTC issued against petitioner Narciso (propriety of declaring a defendant in default when the time for filing the answer has not yet elapsed)?
Ruling:
Yes, the CA gravely abused its discretion in affirming the order of default that the RTC issued.
Sec. 3, Rule 9 provides that a defending party may be declared in default upon motion of the claiming party with notice to the defending party, and proof of failure to file an answer within the time allowed for it.
In this case, defendant Narciso filed the motion to dismiss the complaint before filing an answer. Sec. 1, Rule 16 allows her this remedy.
As a consequence of the motion to dismiss that defendant Narciso filed, the running of the period during which the rules required her to file her answer was deemed suspended.
When the trial court denied her motion to dismiss, she had the balance of her period for filing an answer under Sec. 4, Rule 16 within which to file the same but in no case less than five (5) days, computed from her receipt of notice of denial of her motion to dismiss.
Hence, Narciso was not yet in default when the trial court denied her motion to dismiss. She had at least five (5) days within which to file her answer to the complaint. Narciso had the right to file a motion for reconsideration of the trial court’s order denying her motion to dismiss. No rule prohibits the filing of such motion.
