What are the remedies of an aggrieved party from the court’s action on a motion to dismiss or on an affirmative defense?
COURT’S ACTION ON THE AFFIRMATIVE DEFENSE
Defendant’s remedy from the denial of an affirmative defense
The denial of the affirmative defense generally means that the case shall proceed to trial. The remedy of the defendant should an adverse judgment be rendered against him is to appeal from the judgment, assigning as an error the denial of the affirmative defense.
Take note that the defendant is prohibited from filing a motion for reconsideration of the denial. Nor may the defendant challenge the denial by a petition for certiorari, prohibition, or mandamus (Section 12[e], Rule 8, Rules of Civil Procedure).
Plaintiff’s remedy from the grant of an affirmative defense
The grant of an affirmative defense means that the complaint will be dismissed. The plaintiff’s remedy would depend on whether the dismissal is with or without prejudice.
The dismissal is with prejudice if it is on the ground of prescription, unenforceability under the statute of frauds, res judicata, or extinction of the claim or demand (PURE). In that case, the remedy of the plaintiff is to appeal from the dismissal (Section 13, Rule 15, Rules of Civil Procedure). If the dismissal is on an affirmative defense other than PURE, such as improper venue, then the dismissal is without prejudice. The remedy of the plaintiff is to file the appropriate special civil action (i.e., certiorari) under Rule 65 (Section 1[g], Rule 41, Rules of Civil Procedure).
Note that the plaintiff is also prohibited from filing a motion for reconsideration of the court’s order granting the affirmative defense pursuant to Section 12(c) of Rule 15.
COURT’S ACTION ON THE MOTION TO DISMISS
Defendant’s remedy from the denial of the motion to dismiss
The denial of the motion to dismiss means that the defendant shall file his answer. While there is a divergence of views, the majority view is that the defendant shall file his answer within the remaining period to file the answer pursuant to Section 2, Rule 22 of the Rules of Court. Thus, if the defendant filed a motion to dismiss on the 28th day from service of the summons and the motion is denied, the defendant would have 3 days from the notice of denial to file his answer.
The other view is that the defendant may file his answer within the remaining period but in no event less than 5 days from notice of the denial.1 Hence, in the preceding example, the defendant would have 5 days from notice of denial to file his answer.
May the defendant file a motion for reconsideration of the denial and subsequently a petition for certiorari under Rule 65 if the motion for reconsideration is denied? It appears that the defendant may do so. The bar on a motion for reconsideration and a petition for certiorari under Section 12(e) of Rule 8 mentions only denial of affirmative defenses, not denial of a motion to dismiss.
Plaintiff’s remedy from the grant of the motion to dismiss
The remedy of the plaintiff from the grant of the motion to dismiss depends on whether the dismissal is with prejudice or not. If the dismissal is with prejudice (i.e., a dismissal grounded on PURE), the plaintiff’s remedy is to appeal pursuant to Section 13, Rule 15 of the Rules of Court. If the dismissal is without prejudice (i.e., a dismissal based on grounds other than PURE), the plaintiff’s remedy is to file a petition for certiorari under Rule 65 pursuant to Section 1(g), Rule 41 of the Rules of Court.
May the plaintiff file a motion for reconsideration of the order granting the motion to dismiss? It appears that the plaintiff may do so. The bar on a motion for reconsideration under Section 12(c) of Rule 15 speaks only of “the court’s action on the affirmative defenses,” not the court’s action on the motion to dismiss. If the dismissal is without prejudice, the plaintiff should file a motion for reconsideration to preserve the remedy of a petition for certiorari. This is because a motion for reconsideration is a condition precedent for filing a petition for certiorari.2
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