Rule 15
Motions must be in
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)
Kinds of Motions
1. Motion Ex Parte
is made without the presence or a notification to the
other party because it does not prejudice the other party
or the question generally presented is not debatable;
While a motion may be allowed to be filed ex parte and
is an exception to the 3-day notice rule, it does not
necessarily mean that the hearing thereof shall be
dispensed with. The court may still hear the same ex
parte, that is, in the absence of the opposing party, since
the court can very well see to it that the latters interests
will be duly protected. An ex parte proceeding merely
means that it is taken or granted at the instance and for
the benefit of one party, and without notice to or
contestation by any party adversely affected.
Ex.Motion for Extension of Time to File Pleadings; motion
for extension of time to file answer; motion for
postponement; motion for
extension of time to file record on appeal; motion to set
case for pre-trial.
3. Litigated Motion is one made with notice to the
adverse party to give an opportunity to oppose, like a
Motion to Dismiss); Litigated motion - compliance
with Rule 15 necessary. A litigious motion is one which
the court may not act upon without prejudicing the rights
of the adverse party.
Ex. Motion for reconsideration, motion to dismiss, motion
to declare defendant in default, motion for execution,
motion for judgment on the pleadings and motion for
summary judgment
Motion v. Pleading
General rule: A motion cannot pray for
judgment.
In a motion, the party is asking the court for
a relief other than what is contained in the
pleading. Pleadings per Sec. 1 R 6 are the
written statements of the respective claims
and defenses of the parties submitted to the
court for appropriate judgment. So the main
relief is prayed for in the pleading, like
Judgment be rendered in favor of the
plaintiff, or, The complaint be dismissed.
A pleading 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.
EXCEPTIONS to the rule that a motion
cannot pray for judgment:
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).
Requisites of a valid motion- Sections 2
to 6
Form of a motion-
JBD
Sec. 2.
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.
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.
Contents of a motion-
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)
Contents of a Motion:
Must state
1. the relief sought to be obtained;
2. the ground/s upon which it is based;
and
3. if required by the Rules or necessary to
prove facts alleged therein, shall be
accompanied by supporting affidavit
and other papers.
224

Examples of motion where supporting affidavits
are required by the Rules-
1. A motion for new trial or motion to lift order of default
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.
2. When 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
sheriffs return, to check when the defendant was served
with summons.
Hearing of a motion-
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)
Requisites of a litigated Motion (not made in open
court or in the course of hearing or trial) under
Sections 2 and 4:
1. it must be in writing (Sec. 2);
2. Hearing of Motion set by the applicant (Sec.
4);
3. Motion and notice of hearing must be
served at least 3 days before the date of
hearing. This is called the Three Day Notice
Rule (Sec. 4);
Exceptions to the 3-day notice rule:
1. ex-parte motions;
2. urgent motions;
3. Motions agreed upon by the parties to be
heard on shorter notice or jointly submitted
by the parties; and
4. Motions for summary judgment which
must be served at least 10 days before its
hearing.
Why the notice of hearing?
In Guzman v. Guzman, 693 SCRA 328, 328-
329, March 13, 2013, the Court said that the
requirement of notice is an integral
component of procedural due process that
seeks to avoid surprises that may be sprung
upon the adverse party who must be given
time to study and meet the motion before a
resolution by the court. A motion
unaccompanied by a notice of hearing is
considered a mere scrap of paper that does
not toll the running of the period to appeal.
However, a motion need not be set for
hearing if it is not a litigated 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 or a motion to set case
for pre-trial. So with this kind of motion, the
court can immediately grant your motion.
Why need to furnish a copy at least 3
days prior to hearing date-
Section 4, says 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
JBD
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, as a rule,
cannot be filed ex-parte, meaning, without
notice of hearing and without furnishing a
copy to the opponent.
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.
Why personal service is preferred-
This is a good reason of the requirement
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
will receive the motion 3 days before. But if it
is service by mail, we will not know, 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.
Effect if a party files a motion serving
upon the adverse party the motion in
less than three days-
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.
Excepted usually are urgent motions such as
moving for postponement because your
witness got sick one day or hours before the
trial.
Form of notice of hearing-
225
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)
Requisites of a proper notice of hearing-
1. It shall be addressed to all parties concerned;
2. Should specify the time and date of hearing;
3. The date of hearing must not be later than 10 days
from the filing of the motion (Section 5);
Effect of lack of notice of hearing-
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 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])
Example of notice of hearing:
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
Effect:
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.
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.
The general rule is that the
three-day notice requirement in
motions under Sections 4 and 5
of Rule 15 is mandatory. It is an
integral component of procedural
due process. But when the
adverse party has actually had
the opportunity to be heard, and
has, indeed, been heard through
pleadings filed in opposition to
the motion, the purpose behind
the rule is deemed duly served.
The requirements of due process
are substantially complied with.
(Jehan Shipping Corporation vs.
NFA, GR No. 159750, Dec. 14,
2005)
Motions, which do not
comply with requirements of
setting the motion for
hearing and notice of
hearing mere scrap of
paper
The Court has consistently held
that a motion which does not
meet the requirements of
Sections 4 and 5 on hearing and
JBD
notice of 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 Co., Inc.
vs. Cheng GR 170232-170301,
December 5, 2006).
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)
Rule: Proof of service of the motion
required-
This is related to Rule 13, which, as a general
rule, provides that you cannot file anything in
court without furnishing a copy to your
opponent.
A motion cannot be filed ex-parte.
Exception
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 an indigent upon ex-
parte motion together with the complaint and
a hearing. Therefore, there is no need to
furnish copy of the motion to the other party.
226
But those are the only exceptions. So, as a rule, every
motion must be served to the opposite party.
Outline of requisites under Sections 2 to 6:
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 (Sec. 4);
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 (Sec. 5); and
6.) There must be proof of service of
the motion on the adverse party Sec. 6).
Effects of failure to set the motion for hearing
(Sec. 4), to include a notice of hearing (Sec. 5)
and to serve the motion (Sec. 6 of Rule 15)-
1. Any motion that does not comply with Sections
4, 5 and 6 is a mere scrap of paper.
2. It does not interrupt the reglementary period
for the filing of the requisite pleading.
The well-settled rule is that a motion which fails to
comply with such requirements is a useless piece of
paper (Neri vs. de la Pena 457 SCRA 438). It is pro
forma presenting no question which the court
could decide (Boiser vs. Aguirre, Jr. 458 SCRA
430). If filed, such motion is not entitled to
judicial cognizance and does not stop the
running of the period for filing the requisite
pleading (Cruz vs. CA 388 SCRA 72). A
motion which does not comply with the rules
on motion is considered pro forma and thus,
will be treated as one filed merely to delay
the proceedings (Marikina Development
Corporation vs. Flojo 251 SCRA 87).
Note:
*** As to Sections 4, 5, and 6, Rule 15 of
the Rules of Court, they provide that the
notice of hearing shall be directed to the
parties concerned, and shall state the time
and place for the hearing of the motion, are
mandatory. If not religiously complied with,
they render the motion pro forma. As such,
the motion is a useless piece of paper that
will not toll the running of the prescriptive
period. However, jurisprudence such as the
case of Philippine National Bank v. Paneda,
515 SCRA 639 (2007) have allowed for the
liberal interpretation of such rules when there
is substantial compliance. Thus, even if the
motion may be defective for failure to
address the notice of hearing of said
motion to the parties concerned , the
defect was cured by the (a) courts
taking cognizance thereof and the fact
that the (b) adverse party was otherwise
notified (thru registered mail) of the
existence of said pleading. (Dumaguete v.
Philippine Ports Authority, G.R. No. 168973;
August 24, 2011) TDC
Motion for leave to file
motion-
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)
JBD
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 with 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.
Under the PRESENT RULE, when you file a
motion, the pleading to be admitted must
already be included in your motion.
Motion day-
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 motions which
require urgent action.
Note that there is no motion day in the
Supreme Court.
OMNIBUS MOTION RULE
Sec. 8. Omnibus motion.
Subject to the provisions of
227
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.
Omnibus motion defined-
The OMNIBUS MOTION rule is a procedural principle
which requires that every motion attacking a pleading,
order, judgment, or a proceeding, which shall include all
grounds then available, and objections not so included
shall be 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. 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.
EXAMPLE #2: Rule 37 on New Trial. 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.
EXCEPTION to Omnibus motion especially with
reference to a motion to dismiss: This is stated in the
opening clause of section 8 thus: 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) grounds for
a motion to dismiss, which are not deemed
waived even if you do not raise them in the
motion and which can even be motu propio
proceeded by the court. These grounds are:
1.) Lack of jurisdiction over the subject
matter;
2.) Litis pendentia;
3.) Res adjudicata; and
4.) Prescription.
Prohibited motions-
Please refer to the rules on
Summary Procedure and for
Small Claims Cases
Reviewer-
Motions (Rule 15)
1.Motions in general
a. Definition of a motion
Rule 15, Section 1. Motion defined.
A motion is an application for relief other
than by a pleading.
b. Motions versus pleadings
Rule 6, Section 1. Pleadings defined.
Pleadings are the written statements of the
respective claims and defenses of the parties
submitted to the court for appropriate
judgment.
JBD
c. Contents and form of motions
Rule 15, 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.
Rule 15, Sec. 3. Contents.
A motion shall state the
(a) relief sought to be obtained and the
(b) 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.
d. Notice of hearing and hearing of
motions
Rule 15, 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.
Rule 15, 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.
Rule 15, Sec. 6. Proof of service
necessary. No written motion set for
hearing shall
be acted upon by the court without proof of
service thereof.
> e. Omnibus motion rule
Rule 15, Sec. 8. Omnibus motion.
Subject to the provisions of section 1 of Rule
9, a MOTION attacking a pleading, order,
228
judgment, or proceeding shall include all objections then
available, and all objections not so included shall be
deemed WAIVED.
Gen. Rule: All available grounds for objection in attacking
a p leading, o rder, j udgment,
or p roceeding [POJP ] should be invoked at one time;
otherwise, they shall be deemed
waived
Exc. The court may dismiss the case motu proprio
based on:
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia
3. Res judicata; and
4. Prescription [LLRP ] (Rule 9, Sec. 1)
f. Litigated and ex parte motions
Litigated motion - compliance with Rule 15 necessary.
A litigious motion is one which the court may not act
upon without prejudicing the rights of the adverse party.
Ex. Motion for reconsideration, motion to dismiss, motion
to declare defendant in default, motion for execution,
motion for judgment on the pleadings and motion for
summary judgment
Ex parte motions - While a motion may be allowed to
be filed ex parte and is an exception to the 3-day notice
rule, it does not necessarily mean that the hearing
thereof shall be dispensed with. The court may still hear
the same ex parte, that is, in the absence of the
opposing party, since the court can very well see to it
that the latters interests will be duly protected. An ex
parte proceeding merely means that it is taken or
granted at the instance and for the benefit of one party,
and without notice to or contestation by any party
adversely affected.
Ex. motion for extension of time to file answer; motion
for postponement; motion for
extension of time to file record on appeal; motion to set
case for pre-trial.
g. Pro-forma motions
A motion that does not comply with Rule 15, particularly
Sections 4, 5 and 6 (hearing ,
notice of hearing , proof of service ), is a mere scrap
of paper, should not be accepted for filing and is not
entitled to judicial cognizance and does not
affect any reglementary period involved for
the filing of the requisite pleading.
*** As to Sections 4, 5, and 6, Rule 15 of
the Rules of Court, they provide that the
notice of hearing shall be directed to the
parties concerned, and shall state the time
and place for the hearing of the motion, are
mandatory. If not religiously complied with,
they render the motion pro forma. As such,
the motion is a useless piece of paper that
will not toll the running of the prescriptive
period. However, jurisprudence such as the
case of Philippine National Bank v. Paneda,
515 SCRA 639 (2007) have allowed for the
liberal interpretation of such rules when there
is substantial compliance. Thus, even if the
motion may be defective for failure to
address the notice of hearing of said
motion to the parties concerned , the
defect was cured by the (a) courts
taking cognizance thereof and the fact
that the (b) adverse party was otherwise
notified (thru registered mail) of the
existence of said pleading. (Dumaguete v.
Philippine Ports Authority, G.R. No. 168973;
August 24, 2011) TDC
JBD 229