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8. MOTIONS

a. Motions in General

i. Definition of a Motion A motion is any application for relief other than by a pleading. [Sec.
1, Rule 15]

ii. Motions vs. Pleadings

Motion Contains allegations of facts [Sec. 3, Rule 15] Relates to ancillary matters

Pleading Contains allegations of the ultimate facts [Sec. 1, Rule 8] relates to the main action
or cause of action

Both Pray for a relief [Sec. 1, Rule 15]

Motion Generally in writing, except when made in open court or during the course of a
hearing or trial. [Sec. 2, Rule 15]

Always in writing [Sec. 1, Rule 6]

iii. Contents and Form of Motions Contents

a. Relief sought to be obtained,

b. Grounds upon which it is based, and

c. With supporting affidavits and other papers if

i. Required by the ROC, or

ii. Necessary to prove facts alleged therein. [Sec. 3, Rule 15]

Form General rule: In writing The rules applicable to pleadings shall apply to written motions
so far as concerns caption, designation, signature, and other matters of form. [Sec. 11, Rule
15]

Exceptions: Oral Motions made in:

1. Open court or

2. The course of a hearing or trial

Note: Such motions should be immediately resolved in open court, after the adverse party is
given the opportunity to argue his or her opposition.

However, when the motion is based on facts not appearing on record, the court may conduct
a hearing to:

1. Hear the matter on affidavits or depositions presented by the parties, or

2. The court may direct that the matter be heard wholly or partly on oral testimony or
depositions. [Sec. 2, Rule 15] 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. [Sec. 10, Rule 15]

iv. Litigious and Non-litigious Motions;

When Notice Of Hearing Necessary

What are Litigious Motions

One which requires the parties to be heard before a ruling on the motion is made by the
court. [1 Riano 368, 2011 Ed.]

Litigious motions include:

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a. Motion for bill of particulars;

b. Motion to dismiss;

Note: Since a motion to dismiss is now classified as a litigious motion, such motion should be
resolved within 15 calendar days from the filing of the opposition to the motion to dismiss.
[Sec. 5(c), Rule 15] Therefore, this clearly repeals Secs. 2 and 3, Rule 16 of the old Rules of
Court on hearing and resolution of a motion to dismiss.

c. Motion for new trial;

d. Motion for reconsideration;

e. Motion for execution pending appeal;

f. Motion to amend after a responsive pleading has been filed;

g. Motion to cancel statutory lien;

h. Motion for an order to break in or for a writ of demolition;

i. Motion for intervention;

j. Motion for judgment on the pleadings; k. Motion for summary judgment;

l. Demurrer to evidence;

m. Motion to declare defendant in default; and

n. Other similar motions. [Sec. 5(a), Rule 15]

The period to file an opposition would be 5 calendar days from the receipt of the litigious
motion. The court shall then resolve the motion within 15 calendar days from receipt of the
opposition or upon expiration of the period to file such opposition.

Note: No other submissions, other than the opposition, shall be considered by the court in
resolving the motion. [Sec. 5(c), Rule 15]

Service of Litigious Motions

Litigious motions shall be served by:

1. Personal service;

2. Accredited private courier;

3. Registered mail; or

4. Electronic means. [Sec. 5(b), Rule 15]

Note: Remember that electronic means of service may only be availed of with consent of the
other party or with authorization of the court. [Sec. 9, Rule 13]

No written motion shall be acted upon by the court without proof of service thereof
pursuant to Section 5(b). [Sec. 7, Rule 15]

Hearing on Litigious Motions

The court may call for a hearing if deemed necessary for the motion’s resolution and send
notice to all parties concerned, specifying the time and date of the hearing. [Sec. 6, Rule 15]

Note that the allowance for hearing only applies to litigious motions, since non-litigious
motions cannot be set for hearing. [Sec. 4, Rule 15]

Motion Day General Rule:

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Where the court decides to conduct a hearing on a litigious motion, it shall be set on a Friday.
Exception: When a motion requires immediate action. [Sec. 8, Rule 15]

What are Non-Litigious motions

Motions which the court may act upon without prejudicing the rights of adverse parties. Such
motions shall not be set for hearing and the court shall resolve the motion within 5 calendar
days from receipt of the motion.

Non-litigious motions include:

a. Motion for issuance of an alias summons;

b. Motion for extension to file an answer;

c. Motion for postponement;

d. Motion for the issuance of a writ of execution;

e. Motion for the issuance of an alias writ of execution

f. Motion for the issuance of a writ of possession;

g. Motion for the issuance of an order directing the sheriff to execute the final certificate of
sale; and

h. Other similar motions. [Sec. 4, Rule 15]

v. Omnibus Motion Rule General rule:

A motion attacking a pleading, order, judgment, or proceeding shall include all objections
then available. All objections not included in the motion are deemed waived [Sec. 9, Rule 15]

Purpose: To require the movant to raise all available exceptions for relief during a single
opportunity so that multiple and piece-meal objections may be avoided. [Manacop v. Court
of Appeals, G.R. No. 104875 (1992)]

Exceptions: Non-waivable grounds under Sec. 1, Rule 9, namely:

a. Lack of jurisdiction over subject matter

b. Litis pendentia

c. Res judicata

d. Prescription [Sec. 9, Rule 15]

vi. Prohibited Motions

The following motions shall not be allowed:

1. Motion to dismiss except on the following grounds:

2. • Lack of jurisdiction over the subject matter,
3. • Litis pendentia, or
4. • That the action is barred by res judicata or the statute of limitations. [Sec. 12, Rule
15]

Motion to Dismiss

The Amended Rules of Court have deleted Rule 16 of the old Rules of Court, which formerly
dealt with motions to dismiss. Despite this, the Amended Rules do allow the filing of a
motion to dismiss. The grounds, however, are limited only to lack of jurisdiction over the
subject matter, litis pendentia, res judicata, and prescription. [Sec. 12, Rule 15]
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Notably, the Amended Rules empower the court to dismiss a case motu proprio if the
aforementioned nonwaivable grounds are apparent on the face of the complaint. [Sec. 1,
Rule 14]

The other grounds for a motion to dismiss under Rule 16 of the old Rules (i.e. lack of
jurisdiction over the person, improper venue, lack of capacity to sue, payment/release,
unenforceability under the statute of frauds, failure to comply with condition precedent) can
now only be raised as affirmative defenses. [Sec. 12, Rule 8, citing Sec. 5(b), Rule 6]

When a Motion to Dismiss can be Filed Under the old Rules, a motion to dismiss should be
filed within the time for filing an answer to the complaint. [Sec. 1, Rule 16, 1997 Rules of Civil
Procedure] If a motion to dismiss was denied, the old Rules provided that the movant may be
allowed to file an answer within the balance of the period to file an answer, but not less than
5 days in any event. [Sec. 4, Rule 16, 1997 Rules of Civil Procedure] However, with the repeal
of Rule 16 under the Amended Rules, it seems that the Rules do not provide specifically
when a motion to dismiss can be filed.

It is therefore submitted that it is unnecessary for the rules to provide a period for filing a
motion to dismiss, since the grounds under Sec. 1, Rule 9 are non-waivable. Thus, a motion
to dismiss can be filed at any time during the proceedings, subject to the exception of
estoppel by laches provided for in Tijam v. Sibonghanoy [23 SCRA 29 (1968)].

Remedies from the Denial of a Motion to Dismiss.

Recall that affirmative defenses, if denied, cannot be the subject of a motion for
reconsideration, or petition for certiorari, prohibition, or mandamus. [Sec. 12, Rule 8]

However, if the non-waivable grounds under Sec. 1, Rule 9 are raised not as affirmative
defenses, but in a motion to dismiss, it is submitted that the movant may still file a motion
for reconsideration or a petition for certiorari, mandamus, or prohibition against the order of
denial of the motion to dismiss. This is because there is no prohibition against its filing, as
opposed to if the ground is set forth as an affirmative defense in the answer and the
affirmative defense is denied.

Note: The remedy of a petition for certiorari under Rule 65 is available only when the denial
of the motion to dismiss is tainted with grave abuse of discretion. Generally, the proper
remedy against the denial of a motion to dismiss would be going through the usual trial
process, and later, filing a timely appeal against an adverse judgement. [1 Riano 412, 2016
Bantam Ed.]

2. Motion to hear affirmative defenses;

Note: Such motion is prohibited since under the Amended Rules, the court is required to act
on the affirmative defenses set out in the answer within 30 calendar days if the affirmative
defense is among those listed in Sec. 12, Rule 8. The court is also allowed to avail of a
summary hearing within 15 calendar days from the filing of the answer, and is thereafter
mandated to resolve the affirmative defense within 30 calendar days from the termination of
the summary hearing if the affirmative defenses are those set forth in the first paragraph of
Sec. 5(b), Rule 6. [Sec. 12, Rule 8]

3. Motion for reconsideration of the court’s action on affirmative defenses;

Note: The denial of an affirmative defense shall not be the subject of a motion for
reconsideration or a petition for certiorari, prohibition, or mandamus. [Sec. 12, Rule 8]
However, it is not clear from the amended rules whether the court’s action of approving an
affirmative defense cannot be the subject to a motion for reconsideration, since Sec. 12(c),
Rule 15 merely provides that a motion for reconsideration of the court’s action on an
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affirmative defense is a prohibited pleading. It does not distinguish whether between the
court’s act of either denying or approving the affirmative defense.

4. Motion to suspend proceedings without a TRO or injunction issued by a higher court;

Note: The principle of judicial courtesy justifies the suspension of proceedings before the
lower courts even without an injunctive writ or order from the higher court. However, this
remains an exception and may be applied only if there is a strong probability that the issues
before the higher court would be rendered moot and moribund as a result of the
continuation of the proceedings in the lower court. [Trajano v. Uniwide Sales Warehouse
Club, G.R. No. 190253, (2014)]

5. Motion for extension of time to file pleadings, affidavits, or any other papers, except a
motion for extension to file an answer as provided by Sec. 11, Rule 11; Any pleading may still
be filed out of time without seeking for motion for extension of time, and it will depend on
the court whether it will be admitted. The Rules authorizes the court, in its discretion, to
accept a pleading, although filed late. [Sec. 11, Rule 11]

6. Motion for postponement intended for delay, except if it is based on: • Acts of god, •
Force majeure, or • Physical inability of the witness to appear and testify. [Sec. 12, Rule 15]
Allowed motions for postponement If the motion for postponement is granted, the
presentation of evidence by the moving party must still be terminated on the dates
previously agreed upon. [Sec. 12, Rule 15] Note: The dates previously agreed upon refer to
those set forth in the schedule of trial as required under Sec. 1, Rule 30. The motion for
postponement, whether written or oral, shall be accompanied by the original official receipt
from the clerk of court evidencing payment of the postponement fee. Such receipt
evidencing payment of the fee shall be submitted at the time of the filing of the motion or
not later than the next hearing date. The clerk shall not accept the motion unless
accompanied by said receipt. [Sec. 12, Rule 15] Note: Sec. 3, Rule 30 allows postponement of
trial due to illness of party or counsel, provided that their presence is indispensable and that
the character of illness is such as to render the non-attendance excusable

b. Motions for Bill of Particulars Before responding to a pleading, a party may move for a
definite statement or for a bill of particulars of any matter which is not averred with
sufficient definiteness or particularity to enable him properly to prepare his responsive
pleading. [Sec. 1, Rule 12] An action cannot be dismissed on the ground that the complaint is
vague or indefinite. The remedy of the defendant is to move for a bill of particulars, or avail
of the proper mode of discovery. [Galeon v. Galeon, G.R. No. L30380 (1973)]

i. Purpose and When Applied For Purpose:

To enable the movant to prepare his or her responsive pleading. [Sec. 1, Rule 12]. It is not to
enable the movant to prepare for trial. When this is the purpose, the appropriate remedy is
to avail of Discovery Procedures under Rules 23 to 29 [1 Riano 419, 2011 Ed.]

When applied for

1. Before responding to a pleading.

2. If the pleading is a reply, within 10 calendar days from service thereof. [Sec. 1, Rule 12]

Contents The motion shall point out

1. The defects complained of,

2. The paragraph wherein they are contained, and 3. The details desired. [Sec. 1, Rule 12]

The only question to be resolved in such motion is whether the allegations in the complaint
are averred with sufficient definiteness or particularity to enable the movant to properly
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prepare his responsive pleading and to prepare for trial. [Tantuico, Jr. v. Republic, G.R. No.
89114 (1991)]

What cannot be done in a bill of particulars

a. To supply material allegations necessary to the validity of a pleading

b. To change a cause of action or defense stated in the pleading

c. To state a cause of action or defense other than the one stated

d. To set forth the pleader’s theory of his cause of action or a Rule of evidence on which he
intends to reply

e. To furnish evidentiary information [Virata v. Sandiganbayan, G.R. No. 103527 (1993)]

ii. Actions of The Court

Upon the filing of the motion, the clerk of court must immediately bring it to the attention of
the court, which may either

1. Deny, or

2. Grant the motion outright, or

3. Allow the parties the opportunity to be heard. [Sec. 2, Rule 12]

iii. Compliance with the Order and Effect of Non-compliance

If motion is granted, either in whole or in part, the pleader must file a bill of particulars or a
more definite statement, within 10 calendar days from notice of order, unless the court fixes
a different period.

The bill of particulars or a more definite statement ordered by the court may be filed either
in a separate pleading or in an amended pleading, serving a copy thereof on the adverse
party [Sec. 3, Rule 12]

A bill of particulars becomes part of the pleading for which it was intended [Sec. 6, Rule 12]

Effect of non-compliance

1. If the order is not obeyed, or in case of insufficient compliance therewith, the court may

a. Order the striking out of the pleading or the portions thereof to which the order is
directed, or

b. Make such an order as it may deem just. [Sec. 4, Rule 12] 2.

If the plaintiff fails to obey, his complaint may be dismissed by the court. This dismissal shall
have the effect of an adjudication upon the merits, unless otherwise declared by the court.
[Sec. 3, Rule 17]

3. If the defendant fails to obey, his answer will be stricken off and his counterclaim
dismissed, and he will be declared in default upon motion of the plaintiff. [Sec. 3, Rule 9; Sec.
4, Rule 12; Sec. 4, Rule 17] [1 Riano 422, 2011 Ed.]

iv. Effect on The Period To File A Responsive Pleading

Provided that the Motion for Bill of Particulars is sufficient in form and substance, it
stays the period for the movant to file his responsive pleading. [1 Riano 422, 2011 Ed.]

When to file responsive pleading

1. After a. Service of the bill of particulars or of a more definite pleading, or

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b. Notice of denial of his motion

2. The moving party may file his responsive pleading

a. Within the period to which he was entitled at the time of filing his motion,

b. Which shall not be less than 5 calendar days in any event. [Sec. 5, Rule 12]