1997 Rules on Civil Procedure Rule 15

2001 Edition Motions

Rule 15
MOTIONS
What is a motion? Define a motion.

SECTION 1. Motion defined. A motion is an application for relief other than

by a pleading. (1a)

In a motion, the party is asking the court for a favor other than what is contained in the pleading.
Usually, the main relief is prayed for in the pleading, like “Judgment be rendered in favor of the
plaintiff,” or, “Judgment be dismissed.” That is what you pray in your complaint or in your answer.

A pleading however is directly related to the cause of action or the defense. But a motion prays for
something else. In a motion, you are asking for another relief other than the main cause of action or the
main defense. Example is a motion to postpone trial or a motion for extension of time to file answer.
You do not do that by a complaint but by way of a motion because you are praying for a relief other
than by a pleading.

Pleadings are limited to those enumerated in Rule 6 such as complaint, answer, cross-claim,
counterclaim, etc. But if you look at a motion, it looks like a pleading. In form, it looks exactly like a
pleading but under the law, it is not a pleading.

However, there are three (3) well known EXCEPTIONS to this. Meaning you are praying, by way of
a motion, for a relief which normally should be prayed for in a pleading such as a motion is praying for
a judgment already. The exceptions are:

1.) Motion for Judgment to the Demurrer to Evidence (Rule 33);

2.) Motion for Judgment on the Pleadings (Rule 34); and
3.) Motion for Summary Judgment (Rule 35).

Those are the 3 exceptions to Section 1.

Q: What are the requisites of a valid motion.

A: They are found from Section 2 to Section 6:

Sec. 2. Motions must be in writing. All motions shall be in writing except

those made in open court or in the course of a hearing or trial. (2a)

As a rule, all motions must be in writing, “except those made in open court or in the course of a
hearing or trial” because for example, during the trial, pagtingin mo sa relo, quarter to twelve na. So
you can move orally for continuance. And the judge will not require you to have that typed pa. There
is no more time to do that. Anyway, it is officially recorded.

Sec. 3. Contents. A motion shall state the relief sought to be obtained and
the grounds upon which it is based, and if required by these Rules or necessary
to prove facts alleged therein, shall be accompanied by supporting affidavits
and other papers. (3a)

So a motion shall state the relief sought to be obtained and the grounds upon which it is based. For
example, you move to postpone the trial next week because you client is still abroad. So you cite the
ground/s upon which it is based.

Q: Is it necessary that a motion be accompanied supporting affidavits and other papers?

A: No, unless required by the Rules or necessary to prove facts alleged therein.

Q: Give an example of a motion where supporting affidavits are required by the Rules.
A: A motion for new trial on the ground of fraud, accident, mistake of excusable negligence. Under
Rule 37, Section 2, in order for a motion for new trial on that ground to be valid, there must Be
Affidavit Of Merits. If there is no affidavit of merits, the motion will be denied.
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And if necessary to prove facts alleged therein, then, the motion must be accompanied by affidavit
and other supporting papers. Example is when you are moving for the postponement of the trial
because your client is sick, the best supporting paper would be a medical certificate for that matter.

However, if it is not required by the Rules, or the facts are already stated on record, there is no need
of supporting affidavits or documents. Example is when you move to declare the adverse party in
default. There is no need to support your motion with affidavits because anyway the court can look at
the records, particularly the sheriff’s return, to check when was the defendant was served with
summons.

Sec. 4. Hearing of motion. Except for motions which the court may act upon
without prejudicing the rights of the adverse party, every written motion shall
be set for hearing by the applicant.
Every written motion required to be heard and the notice of the hearing
thereof shall be served in such a manner as to ensure its receipt by the other
party at least three (3) days before the date of hearing, unless the court for
good cause sets the hearing on shorter notice. (4a)

Now, under Section 4, it says there that you must furnish the adverse party a copy of your motion
at least three (3) days before date of hearing. So, you do not furnish him one day before the date of the
hearing. The reason there is to prevent surprise upon the adverse party and to enable the latter to study
the motion and file his opposition (Remante vs. Bonto, L-19900, Feb. 28, 1966). So a motion cannot be
filed ex-parte. Meaning, without notice of hearing and without furnishing a copy to the opponent.

However, a motion need not be set for hearing if it is not a controversial motion. Meaning, these
are motions “which the court may act upon without prejudicing the rights of the adverse party” such
as a motion for extension of time to file answer. So with this kind of motion, the court can immediately
grant your motion.

And the law says, you serve the motion in such a manner as to ensure its receipt by the other party
at least three (3) days before the date of hearing. In other words, you have to calculate that he will
receive it at least 3 days.

One good example of this requirement is one which is mentioned in Rule 13, Section 11, that
personal service is preferred to service by registered mail because if it is personal service, it is assured
that the adverse party received the motion 3 days before. But if it is service by mail, we do not know eh,
unless you mail it very much earlier because let us say, hearing on the motion will be on Friday, and
then you will mail the motion on Monday, or 5 days before, it is possible that the motion will reach the
opponent on Sunday or two days later.

That is the reason why personal service is preferred because if there is no explanation why you
resorted to by mail rather than personal service, the motion is deemed not filed.

Q: What is the effect if a party files a motion serving upon the adverse party the motion in less than
three days?
A: The court may refuse to take action on a motion which does not comply with the rule requiring a
three-day notice to the adverse party, “unless the court for good cause sets the hearing on shorter
notice.” Usually these are urgent motions such as moving for postponement because your witness got
sick one day or hours before the trial.

Sec. 5. Notice of hearing. The notice of hearing shall be addressed to all

parties concerned, and shall specify the time and date of the hearing which
must not be later than ten (10) days after the filing of the motion. (5a)

Q: Now, what happens if a motion does not contain a notice of hearing?

A: A motion that does not contain a notice of hearing is but a mere scrap of paper; it presents no
question which merits the attention and consideration of the Court. It is not even a motion for it does
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not comply with the rules. A motion without notice of hearing is nothing but a piece of paper filed in
court, which should be disregarded and ignored. (Prado vs. Veridiano II, (204 SCRA 651 [1991])

Q: To whom should the notice of hearing be addressed?

A: It is addressed to all parties concerned. So, normally ganito iyan:

Atty. Johnny Bravo

Counsel for plaintiff

Greetings! Please take notice that the undersigned is

submitting the foregoing motion for the reconsideration of the
Honorable Court on Friday, November 28, 1997 at 8:30 in the
morning.
(Signed) Atty. Hong Hunks
Counsel for the defendant

Now, some lawyers, when they prepare a notice of hearing will state: “TO THE CLERK OF COURT,
Please set the foregoing for the consideration of the court…” Now, the law says, the
notice of hearing should be addressed to the parties and not to the clerk of court. So, the common
practice of addressing the notice of hearing to the clerk of court is technically wrong.

The SC has already commented on that several times. One of them was the case of

PRADO vs. VERIDIANO II

204 SCRA 654 [1991]

HELD: “Sections 5, Rule 15 of the Rules of Court which explicitly provide that the notice
shall be served by the applicant to all parties concerned and shall state the time and place
for the hearing of the motion. A notice of hearing addressed to the Clerk of Court and not to
the parties is no notice at all.” So it is very technical.

Sometimes, lawyers just ignore that. What is important is I know when you are going to set it. But
some lawyers are very technical. He will look for loopholes in the motion on the ground that you did
not address the notice of hearing to him but to the clerk of court. Is he correct? Tama man iyan ba! Even
the SC said that do not address it to the clerk of court. You address it to the party. The law is very clear.

Now, take note that the new rule added the phrase that you “must specify the time and the date of
the hearing which must not be later than ten (10) days after the filing of the motion.” That is not found
in the prior rule.

Before, some lawyers are mischievous. When they received the complaint, instead of filing an
answer, they will file a motion to dismiss just to delay. And the motion to dismiss is denied. But at least
the period to answer is stretch. And too make it worse, they will file it in November and they will set it
for hearing in December. One month from now.

Now, you cannot do that. Pag-file mo ng motion, maximum ten (10) days only. You cannot say, “I
will set if for hearing 2 months from now.” It is now very clear that it must not be later than 10 days
after the filing of the motion. And see to it that the party receives it 3 days before the hearing because of
Section 4. The minimum is 3 days. So that is a new requirement found in 1997 Rules.

Sec. 6. Proof of service necessary. No written motion set for hearing shall
be acted upon by the court without proof of service thereof. (6a)

Proof of service of the motion is required – “No written motion et for hearing shall be acted upon
by the court without proof of service hereof.” This is related to Rule 13. As a general rule, you cannot
file anything in court without furnishing a copy to your opponent. A motion cannot be filed ex-parte.

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The only exception here are motions which can be filed ex-parte because they are not controversial.
Normally, there are motions which can be filed without proof of service, which generally the court will
grant anyway. Another example is Rule 23, Section 21 on indigent or pauper litigants – a party may be
authorized to litigate his action, claim or defense as a indigent upon ex-party motion together with the
complaint and a hearing. Therefore, there is no need to furnish copy of the motion to the other party.

But those are the only exceptions. So, as a rule, every motion must be served to the opposite party.

So, we will outline Sections 2 to 6

Q: What are the requisites of a valid motion?

A: The REQUISITES OF A VALID MOTION are the following:

1.) It must be in writing except those made in open court or in the course of hearing or
trial;
2.) It shall state the relief sought to be obtained and the ground upon which it is based;
3.) It must be accompanied by supporting affidavits and other papers, if required by
these Rules or necessary to prove facts alleged therein. However, if the facts are
already stated on record, the court can check the records;
4.) There must be a notice of the hearing attached to the motion and the adverse party
must receive the motion at least three (3) days before the date of hearing, unless
the court for good cause sets the hearing on shorter notice;
5.) There must be notice of hearing addressed to all parties concerned, and shall specify
the time and date of the hearing which must not be later than ten (10) days after
the filing of the motion; and
6.) There must be proof of service of the motion on the adverse party.

Sec. 7. Motion day. Except for motions requiring immediate action, all
motions shall be scheduled for hearing on Friday afternoons, or if Friday is a
non-working day, in the afternoon of the next working day. (7a)

Motion hearings are scheduled on Friday afternoons except those motion which require urgent
action. So if today is Friday and it’s a holiday, sa Monday pa ang hearing. But again, some judges do
not follow this. Ang iba pa nga, everyday eh.

OMNIBUS MOTION RULE

Sec. 8. Omnibus motion. Subject to the provisions of section 1 of Rule 9, a

motion attacking a pleading, order, judgment, or proceeding shall include all
objections then available, and all objections not so included shall be deemed
waived. (8a)

The word “omnibus” means “all embracing or all encompassing.”

Q: Define omnibus motion.

A: An OMNIBUS MOTION is one attacking a pleading, order, judgment, or a proceeding which
shall include all objections then available and objections not so included shall not deemed waived.
(Section 8; Ins. Co. of North America vs. Delgado Brokerage, L-22974, Oct. 28, 1966)

EXAMPLE #1: Motion to Dismiss. In effect, it attacks a proceeding. Where a party is not allowed to
file a motion to based on one ground, if denied, second motion to dismiss based on the second ground,
denied, third motion to dismiss. Meaning, ini-installment mo. That is not allowed. If you have two or
more grounds, you file only one motion to dismiss invoking those grounds because the rule is, any
ground not so invoked is deemed waived.

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EXAMPLE #2: Rule 37 on New Trial. A second motion for new trial under Section 5 of Rule 37
prohibits the filing of a second motion for new trial based on grounds available to the movant when he
filed his first motion. Well, if the grounds came later, that is different.

So, the principle there is, if you have two or more grounds you should only file one motion where
you invoke all your grounds.

Now, obviously there is an EXCEPTION because the opening clause of section 8 is “Subject to the
provision of Section 1 of Rule 9.”

Rule 9, Section 1. Defenses and objections not pleaded. Defenses and

objections not pleaded either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from the pleadings or the evidence on
record that the court has no jurisdiction over the subject matter, that there
is another action pending between the same parties for the same cause, or that
the action is barred by a prior judgment or by statute of limitations, the
court shall dismiss the claim. (2a)

Under Rule 9, There are four (4) exceptions. Meaning, they are not deemed waive even if you do
not raise them in a motion to dismiss, which can be even motu propio proceeded by the court.

Q: What are the grounds not deemed waived even if not raised in a motion to dismiss or answer.
(Exceptions to the omnibus motion rule)?
A: The following:
1.) Lack of jurisdiction over the subject matter;
2.) Litis pendentia;
3.) Res adjudicata; and
4.) Prescription.

Sec. 9. Motion for leave. A motion for leave to file a pleading or motion
shall be accompanied by the pleading or motion sought to be admitted. (n)

EXAMPLE: Under the OLD rules, if you want to file an amended compliant, there are two (2)
Options under the old rules. The first option is to file a motion for leave to file amended complaint.
And when it is granted, that is the time for to you file your amended complaint. The second option is
you file your amended complaint together with the motion to admitted it.

The same thing iyong sa intervention under the OLD rules. In a motion to intervene, “Motion to
intervene. Granted, I will file my pleading in intervention.” The same thing for certain types of motion
like motion for leave to file third-party complaint: “Motion for leave. Granted, I will file my third-party
complaint.” That is under the previous rule.

NOW, hindi na puwede yan. Under the PRESENT RULE, when you file a motion, the pleading to
be admitted must already be included in your motion. Pag-file mo nng motion, kasama na iyong
pleading. The pleading sought to be amended must already be included in the motion. One-time filing
ba!!

Sec. 10. Form. The Rules applicable to pleadings shall apply to written
motions so far as concerns caption, designation, signature, and other matters
of form. (9a)

The rule on pleadings also applies to written motion as far as caption, designation, signature and
other matters of court. So in appearance there is difference between the appearance of a pleading and
the appearance of a motion. But definitely, a motion is not a pleading although it looks like a pleading.

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