In Italo Calvino’s The Nonexistent Knight, a medieval knight in shining armor sallies forth in search of adventures, romance, and honor. However, one who lifts the knight’s visor will find that there is no one inside the suit of armor.
Section 23, Rule 14 of the 2020 Rules of Civil Procedure provides as follows:
“Section 23. Voluntary appearance. — The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall be deemed a voluntary appearance.” (Emphasis supplied).
The second sentence of Section 23 of Rule 14 has been described as one of the most salient amendments in the 2020 Rules of Civil Procedure, the reason being that it is a complete turn-around from what had been provided in the 1997 Rules of Civil Procedure, i.e., that such a motion to dismiss shall not be deemed a voluntary appearance.
There is just a little issue with the second sentence of Section 23. The motion to dismiss mentioned therein does not exist or put differently is anachronistic. This is because a motion to dismiss (except those grounded on lack of subject-matter jurisdiction, res judicata, lis pendens, and prescription) is a prohibited motion under the 2020 Rules of Civil Procedure.
Under the 2020 Rules of Civil Procedure, lack of personal jurisdiction can be raised only by way of an affirmative defense in the answer. The question is, would the inclusion in an answer of other affirmative defenses aside from lack of personal jurisdiction be deemed a voluntary appearance? This situation is not expressly covered in the 2020 Rules, but my opinion is that the question should be answered in the negative. To say otherwise would be to confront a defendant who has affirmative defenses aside from lack of personal jurisdiction with a dilemma: if he raises the other defenses, he is deemed to have made a voluntary appearance thereby negating his defense of lack of personal jurisdiction; on the other hand, if he raises lack of personal jurisdiction only, he is deemed to have waived the other defenses pursuant to Section 1 of Rule 9. Nor do I think that the second sentence of Section 23 of Rule 14 should be applied by analogy. It would be quite arguable to anchor an analogy on a nonexistent provision.
What if a defendant in his answer raises only the affirmative defense of lack of personal jurisdiction? Would this be deemed a voluntary appearance? This time there should be no cavil about the answer: it should not be deemed a voluntary appearance. To say that the defendant would be deemed as having made a voluntary appearance would be to confront him with not only a dilemma but with a Catch-22. In order to invoke lack of personal jurisdiction, the defendant must raise it as an affirmative defense in the answer; however, in so doing, the defendant is deemed to have made a voluntary appearance thereby negating his defense of lack of personal jurisdiction. I do not think the law should be interpreted as having given rise to a paradox.
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