MOTIONS (Rule 15)

Definition of Motion
(1) A motion is an application for relief other than by a pleading (Sec. 1, Rule
15).
Motions versus Pleadings
(1) A pleading is a written statement of the respective claims and defenses of
the parties submitted to the court for appropriate judgment (Sec. 1, Rule 6). It
may be in the form of a complaint, counterclaim, cross-claim, third-party
complaint, or complaint-in-intervention, answer or reply (Sec. 2, Rule 6).
(2) A motion on the other hand is an application for relief other than a
pleading(Sec. 1, Rule 15).
Contents and form of motions
(1) A motion shall state the order sought to be obtained, and the grounds
which it is based, and if necessary shall be accompanied by supporting
affidavits and other papers (Sec. 3).
(2) All motions must be in writing except those made in open court or in the
course of a hearing or trial (Sec. 2).
Omnibus Motion Rule
(1) The rule is a procedural principle which requires that every motion that
attacks a pleading, judgment, order or proceeding shall include all grounds
then available, and all objections not so included shall be deemed
waived (Sec. 8). Since the rule is subject to the provisions of Sec. 1, Rule 9, the
objections mentioned therein are not deemed waived even if not included in
the motion. These objections are: (a) that the court has no jurisdiction over the
subject matter, (b) that there is another action pending between the same
parties for the same cause (litis pendencia), (c) that the action is barred by a
prior judgment (res judicata), and (d) that the action is barred by the statute of
limitations (prescription) (Sec. 1, par. 2, Rule 9).
(2) A motion to dismiss is a typical example of a motion subject to omnibus
motion rule, since a motion to dismiss attacks a complaint which is a pleading.
Following the omnibus motion rule, if a motion to dismiss is filed, then the motion
must invoke all objections which are available at the time of the filing of said
motion. If the objection which is available at the time is not included in the
motion, that ground is deemed waived. It can no longer be invoked as
affirmative defense in the answer which the movant may file following the
denial of his motion to dismiss.

Litigated and ex parte motions

(1) A litigated motion is one which requires the parties to be heard before a
ruling on the motion is made by the court. Sec. 4 establishes the general rule
that every written motion is deemed a litigated motion. A motion to dismiss (Rule
16), a motion for judgment for the pleadings (Rule 34), and a summary
judgment (Rule 35), are litigated motions.
(2) An ex parte motion is one which does not require that the parties be
heard, and which the court may act upon without prejudicing the rights of the
other party. This kind of motion is not covered by the hearing requirement of the
Rules (Sec. 2). An example of an ex parte motion is that one filed by the plaintiff
pursuant to Sec. 1, Rule 18, in which he moves promptly that the case be set for
pre-trial. A motion for extension of time is an ex parte motion made to the court
in behalf of one or the other of the parties to the action, in the absence and
usually without the knowledge of the other party or parties. Ex parte motions are
frequently permissible in procedural matters, and also in situations and under
circumstances of emergency; and an exception to the rule requiring notice is
sometimes made where notice or the resulting delay might tend to defeat the
objective of the motion (Sarmiento vs. Zaratan, GR 167471, Feb. 5, 2007).

Pro-forma motions
(1) The Court has consistently held that a motion which does not meet the
requirements of Sections 4 and 5 of Rule 15 on hearing and notice of the
hearing is a mere scrap of paper, which the clerk of court has no right to receive
and the trial court has no authority to act upon. Service of a copy of a motion
containing a notice of the time and the place of hearing of that motion is a
mandatory requirement, and the failure of movants to comply with these
requirements renders their motions fatally defective (Vette Industrial Sales vs.
Cheng, GR 170232-170301, Dec. 5, 2006).
(2) A pro forma motion is one which does not satisfy the requirements of the
rules and one which will be treated as a motion intended to delay the
proceedings (Marikina Development Corporatoin vs. Flojo, 251 SCRA 87).

Motions for Bill of Particulars (Rule 12)

Purpose and when applied for

(1) A party’s right to move for a bill of particulars in accordance with Sec. 1,
Rule 12 (doesn’t include matters evidentiary in nature, which are covered by
Modes of Discovery) when the allegations of the complaint are vague and
uncertain is intended to afford a party not only a chance to properly prepare a
responsive pleading but also an opportunity to prepare an intelligent answer.
This is to avert the danger where the opposing party will find difficulty in squarely
meeting the issues raised against him and plead the corresponding defenses
which if not timely raised in the answer will be deemed waived. The proper
preparation of an intelligent answer requires information as to the precise
nature, character, scope and extent of the cause of action in order that the
pleader may be able to squarely meet the issues raised, thereby circumscribing
them within determined confines and preventing surprises during the trial, and in
order that he may set forth his defenses which may not be so readily availed of if
the allegations controverted are vague, indefinite, uncertain or are mere
general conclusions. The latter task assumes significance because defenses not
pleaded (save those excepted in Sec. 2, Rule 9, and whenever appropriate, the
defenses of prescription) in a motion to dismiss or in the answer are deemed
waived(Republic vs. Sandiganbayan, GR 115748, Aug. 7, 1996).
(2) The purpose of the motion is to seek an order from the court directing the
pleader to submit a bill of particulars which avers matters with ‘sufficient
definitiveness or particularity’ to enable the movant to prepare his responsive
pleading (Sec. 1, Rule 12), not to enable the movant to prepare for trial. The
latter purpose is the ultimate objective of the discovery procedures from Rules
23 to 29 and ever of a pre-trial under Rule 18. In other words, the function of a
bill of particulars is to clarify the allegations in the pleading so an adverse party
may be informed with certainty of the exact character of a cause of action or a
defense. Without the clarifications sought by the motion, the movant may be
deprived of the opportunity to submit an intelligent responsive pleading.

(3) A motion for a bill of particulars is to be filed before, not after responding
to a pleading (Sec. 1, Rule 12). The period to file a motion refers to the period for
filing the responsive pleading in Rule 11. Thus, where the motion for bill of
particulars is directed to a complaint, the motion should be filed within fifteen
(15) days after service of summons. If the motion is directed to a counterclaim,
then the same must be filed within ten (10) days from service of the
counterclaim which is the period provided for by Sec. 4, Rule 11 to answer a
counterclaim.
(4) In case of a reply to which no responsive pleading is provided for by the
Rules, the motion for bill of particulars must be filed within ten (10) days of the
service of said reply (Sec. 1, Rule 12).

Actions of the court

(1) Upon receipt of the motion which the clerk of court must immediately
bring to the attention of the court, the latter has three possible options, namely:
(a) to deny the motion outright, (b) to grant the motion outright or (c) to hold a
hearing on the motion.

Compliance with the order and effect of non-compliance

(1) If a motion for bill of particulars is granted, the court shall order the pleader
to submit a bill of particulars to the pleading to which the motion is directed. The
compliance shall be effected within ten (10) days from notice of the order, or
within the period fixed by the court (Sec. 3, Rule 12).
(2) In complying with the order, the pleader may file the bill of particulars
either in a separate pleading or in the form or an amended pleading (Sec. 3,
Rule 12). The bill of particulars submitted becomes part of the pleading for which
it is intended (Sec. 6, Rule 12).
(3) If the order to file a bill of particulars is not obeyed, or in case of insufficient
compliance therewith, the court may order (a) the striking out of the pleading
(b) or the portions thereof to which the order was directed (c) or make such
other order as it deems just (Sec. 4).

Effect on the period to file a responsive pleading

(1) A motion for bill of particulars is not a pleading hence, not a responsive
pleading. Whether or not his motion is granted, the movant may file his
responsive pleading. When he files a motion for BOP, the period to file the
responsive pleading is stayed or interrupted. After service of the bill of particulars
upon him or after notice of the denial of his motion, he may file his responsive
pleading within the period to which he is entitled to at the time the motion for
bill of particulars is filed. If he has still eleven (11) days to file his pleading at the
time the motion for BOP is filed, then he has the same number of days to file his
responsive pleading from the service upon him of the BOP. If the motion is
denied, then he has the same number of days within which to file his pleading
counted from his receipt of the notice of the order denying his motion. If the
movant has less than five (5) days to file his responsive pleading after service of
the bill of particulars or after notice of the denial of his motion, he nevertheless
has five (5) days within which to file his responsive pleading.(Sec.5, Rule 12).
(2) A seasonable motion for a bill of particulars interrupts the period within
which to answer. After service of the bill of particulars or of a more definite
pleading, of after notice of denial of his motion, the moving party shall have the
same time to serve his responsive pleading, if any is permitted by the rules, as
that to which he was entitled at the time of serving his motion, but no less than
five (5) days in any event (Tan vs. Sandigabayan, GR 84195, Dec. 11, 1989; Sec.
5).

Motion to Dismiss (Rule 16)

(1) A motion to dismiss is not a pleading. It is merely a motion. It is an
application for relief other than by a pleading (Sec. 1, Rule 15). The pleadings
allowed under the Rules are: (a) complaint, (b) answer, (c) counterclaim, (d)
cross-claim, (e) third (fourth, etc.) –party complaint, (f) complaint in
intervention (Sec. 2, Rule 6), and reply(Sec. 10, Rule 6). A motion is not one of
those specifically designated as a pleading.
Grounds
(1) Under Sec. 1, Rule 16, a motion to dismiss may be filed on any of the
following grounds:

(a) The court has no jurisdiction over the person of the defending party;

(b) The court has no jurisdiction over the subject matter of the claim;

(c) The venue is improperly laid;

(d) The plaintiff has no legal capacity to sue;

(e) There is another action pending between the same parties and for the
same cause (lis pendens);
(f) The cause of action is barred by a prior judgment (res judicata) or by the
statute of limitations (prescription);
(g) The pleading asserting the claim states no cause of action;

(h) The claim or demand set forth in the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise extinguished;

(i) The claim on which the action is founded is unenforceable under the
provisions of the statute of frauds; and

(j) A condition precedent for filing the action has not been complied with.

(2) The language of the rule, particularly on the relation of the words
“abandoned” and “otherwise extinguished” to the phrase “claim or demand
deemed set forth in the plaintiff’s pleading” is broad enough to include within its
ambit the defense of bar by laches. However, when a party moves for the
dismissal of the complaint based on laches, the trial court must set a hearing on
the motion where the parties shall submit not only their arguments on the
questions of law but also their evidence on the questions of fact involved. Thus,
being factual in nature, the elements of laches must be proved or disproved
through the presentation of evidence by the parties (Pineda vs. Heirs of Eliseo
Guevara, GR 143188, Feb. 14, 2007).

Resolution of motion
(1) After the hearing, the court may dismiss the action or claim, deny the
motion, or order the amendment of the pleading. The court shall not defer the
resolution of the motion for the reason that the ground relied upon is not
indubitable. In every case, the resolution shall state clearly and distinctly the
reasons therefor (Sec. 3).
(2) Options of the court after hearing – but not to defer the resolution of the
motion for the reason that the ground relied upon is not indubitable:
(1) dismiss the action or claim;

(2) deny the motion to dismiss; or

(3) order amendment of the pleading.

Remedies of plaintiff when the complaint is dismissed

(1) If the motion is granted, the complaint is dismissed. Since the dismissal is
final and not interlocutory in character, the defendant has several options:

(a) Refile the complaint, depending upon the ground for the dismissal of the
action. For instance, if the ground for dismissal was anchored on improper
venue, the defendant may file the action in the proper venue.

(b) Appeal from the order of dismissal where the ground relied upon is one
which bars the refiling of the complaint like res judicata, prescription,
extinguishment of the obligation or violation of the statute of frauds (Sec. 5, Rule
16). Since the complaint cannot be refiled, the dismissal is with prejudice. Under
Sec. 1[h], Rule 41, it is an order dismissing an action without prejudice which
cannot be appealed from. Conversely, where the dismissal is with prejudice, an
appeal from the order of dismissal is not precluded. However, where the ground
for dismissal for instance, is the failure of the complaint to state cause of action,
the plaintiff may simply file the complaint anew; but since the dismissal is without
prejudice to its refilling, the order of dismissal cannot be appealed from under
the terms of Sec. 1[h], Rule 41.

(c) Petition for certiorari is availed of if the court gravely abuses its discretion in
a manner amounting to lack of jurisdiction and is the appropriate remedy in
those instances when the dismissal is without prejudice (Sec. 1, Rule 41).

Remedies of the defendant when the motion is denied

(1) File answer within the balance of the period prescribed by Rule 11 to
which he was entitled at the time of serving his motion, but not less than five (5)
days in any event (Sec. 4, Rule 16). As a rule, the filing of an answer, going
through the usual trial process, and the filing of a timely appeal from an adverse
judgment are the proper remedies against a denial of a motion to dismiss. The
filing of an appeal from an order denying a motion to dismiss is not the remedy
prescribed by existing rules. The order of denial, being interlocutory is not
appealable by express provision of Sec 1[c], Rule 41.
(2) Civil action under Rule 65. This remedy however is predicated upon an
allegation and a showing that the denial of the motion was tainted with grave
abuse of discretion amounting to lack of jurisdiction. Without such showing, Rule
65 cannot be availed of as a remedy.

(3) The general rule is that the denial of a motion to dismiss cannot be
questioned in a special civil action for certiorari which is a remedy designed to
correct errors of jurisdiction and not errors of judgment. Neither can a denial of a
motion to dismiss be the subject of an appeal unless and until a final judgment
or order is rendered. In order to justify the grant of the extraordinary remedy of
certiorari, the denial of the motion to dismiss must have been tainted with grave
abuse of discretion amounting to lack or excess of jurisdiction (Douglas Lu Ym vs.
Gertrudes Nabua, Gr 161309, Feb. 23, 2005).
(4) File an appeal, because by the clear language of Sec. 5, the dismissal is
subject to the right of appeal. This remedy is appropriate in the instances where
the defendant is barred from refiling the same action of claim if the dismissal is
based on the following grounds:

(a) The cause of action is barred by a prior judgment

(b) The cause of action is barred by the statute of limitations

(c) The claim or demand has been paid, waived, abandoned or otherwise
extinguished

(d) The claim on which the action is founded is unenforceable under the
provisions of the statute of frauds.

(5) The denial of a motion to dismiss is interlocutory, hence, the remedy is to

file an answer, proceed to trial, and await judgment before interposing an
appeal. The denial should be raised as an error of the trial court on
appeal. Certiorari is not the proper remedy. A writ of certiorari is not intended to
correct every controversial interlocutory ruling: It is resorted to only to correct a
grave abuse of discretion or a whimsical exercise of judgment equivalent to
lack of jurisdiction. Its function is limited to keeping an inferior court within its
jurisdiction and to relieve persons from arbitrary acts, acts which courts or judges
have no power or authority in law to perform. It is not designed to correct
erroneous findings and conclusions made by the courts(Bonifacio Construction
Management Corp. vs. Hon. Estela Bernabe, GR 148174, June 30, 2005).

Effect of dismissal of complaint on certain grounds

(1) Failure to state cause of action – defendant hypothetically admits all the
averments thereof. The test of sufficiency of the facts found in a complaint as
constituting a cause of action is whether or not admitting the facts alleged, the
court can render a valid judgment upon the same in accordance with the
prayer thereof. The hypothetical admission extends to the relevant and material
facts well pleaded in the complaint and inferences fairly deducible therefrom.
Hence, if the allegations in the complaint can be maintained, the same should
not be dismissed regardless of the defense that may be assessed by the
defendant (Davao Light and Power Co. vs.Hon. Judge, Davao City RTC, GR
147058, March 10, 2005).
(2) When the complaint is dismissed on the grounds of prior judgment or by
the statute of limitations, or payment, waiver, abandonment or extinguishment
of the claim or unenforceability of the cause of action under the statute of
frauds, the dismissal shall bar the refiling of the same action or claim, but this is
without prejudice to the right of the other party to appeal from the order of
dismissal because such dismissal is a final order, not merely interlocutory (Sec. 5).

When grounds pleaded as affirmative defenses

(1) If no motion to dismiss has been filed, any of the grounds provided for
dismissal may be pleaded as an affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be had thereon as if a motion
to dismiss has been filed (Sec. 6, Rule 16).
(2) Implied under Sec. 6, Rule 16 is that the grounds for a motion to dismiss are
not waived even if the defendant fails to file a motion to dismiss because he
may still avail of the defenses under Rule 16 as affirmative defenses in his answer.

(3) The preliminary hearing authorized on the affirmative defenses raised in

the answer, applies only if no motion to dismiss has been filed. As a rule, a
preliminary hearing is not authorized when a motion to dismiss has been filed. An
exception previously carved out as if the trial court had not categorically
resolved the motion to dismiss. Another exception would be justified under the
liberal construction rule as when it is evident that the action is barred by res
judicata. A strict application of Sec. 6 would accordingly lead to absurdity when
an obviously barred complaint continues to be litigated. The denial of a motion
to dismiss does not preclude any future reliance on the grounds relied
thereupon (Sps. Rasdas vs. Sps. Villa, GR 157605, Dec. 13, 2005).

Bar by dismissal
(1) Res judicata as a ground for dismissal is based on two grounds, namely: (a)
public policy and necessity, which makes it to the interest of the State that there
should be an end to litigation (republicae ut sit litium); and (b) the hardship on
the individual of being vexed twice for the same cause (nemo debet bis vexari
et eadem causa). Accordingly, courts will simply refuse to reopen what has
been decided. They will not allow the same parties or their privies to litigate
anew a question once it has been considered and decided with finality.
Litigations must end and terminate sometime and somewhere. The effective
and efficient administration of justice requires that once a judgment has
become final, the prevailing party should not be deprived of the fruits of the
verdict by subsequent suits on the same issues filed by the same parties (Fells,
Inc. vs. Prov. of Batangas, GR 168557, Feb. 19, 2007).
(2) Res judicata comprehends two distinct concepts: (a) bar by a former
judgment, and (b) conclusiveness of judgment (Heirs of Wenceslao Tabia vs.CA,
GR 129377 & 129399, Feb. 22, 2007). The first concept bars the prosecution of a
second action upon the same claim, demand or cause of action. The second
concept states that a fact or question which was in issue in a former suit and
was there judicially passed upon and determined by a court of competent
jurisdiction, is conclusively settled by the judgment therein as far as the parties to
that action and persons in privity with them are concerned and cannot be
again litigated in any future action between such parties or their privies, in the
same court or any other court of concurrent jurisdiction on either the same or
different cause of action, while the judgment remains unreversed by proper
authority (Moraga vs. Spouses Somo, GR 166781, Sept. 5, 2006).
(3) Grounds for dismissal that bar refiling

(a) cause of action is barred by a prior judgment;

(b) cause of action is barred by the statute of limitations;

(c) claim or demand set forth in the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise extinguished;

(d) claim is unenforceable under the statute of frauds.

Distinguished from Demurrer to Evidence (Rule 33)

(1) Demurrer to evidence is a motion to dismiss filed by the defendant after
the plaintiff had rested his case on the ground of insufficiency of evidence. It
may be filed after the plaintiff has completed the presentation of his evidence.
It is an aid or instrument for the expeditious termination of an action similar to a
motion to dismiss, which the court or tribunal may either grant or deny.

(2) Distinctions:

(a) A motion to dismiss is usually filed before the service and filing of the
answer; a demurrer to evidence is made after the plaintiff rests his case;

(b) A motion to dismiss is anchored on many grounds; a demurrer is anchored

on one ground—plaintiff has no right to relief; and

(c) If a motion to dismiss is denied, the defendant may file his responsive
pleading; in a demurrer, the defendant may present his evidence.