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.