CIVPRO - RULE 15-22

Question 1

What is a Motion?

Answer 1

Section 1. Motion defined. - A motion is an application for relief other than by a pleading. (1)

Question 2

What is the form of a motion?

Answer 2

Section 2. Motions must be in writing. -

[GR] All motions shall be in writing
[XPN] except those made in open court or in the course of a hearing or trial.

Question 3

When shall motions made in open court be resolved?

Answer 3

Section 2. Motions must be in writing. - [xxx]

A motion made in open court or in the course of a hearing or trial should immediately be resolved in open court after the adverse party is given the opportunity to argue his or her opposition thereto.

Question 4

What may the court do when a motion is based on facts not appearing on record?

Answer 4

Section 2. Motions must be in writing. - [xxx]

When a motion is based on facts not appearing on record,

the court may hear the matter on affidavits or depositions presented by the respective parties,

but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (2a)

Question 5

What shall be the contents of a motion?

Answer 5

Section 3. Contents. - Amotion 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. (3)

Question 6

What are the kinds of non-litigious motions?

Answer 6

Section 4. Non-litigious motions. - Motions which the court may act upon without prejudicing the rights of adverse parties are non-litigious motions. These motions include:

a) Motion for the issuance of an alias summons;

b) Motion for extension to file 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.

These motions shall not be set for hearing and shall be resolved by the court within five (5) calendar days from receipt thereof. (n)

Question 7

What are non-litigious motions?

Answer 7

Non-litigious motions are motions which the court may act upon without prejudicing the rights of adverse parties are non-litigious motions. These motions shall not be set for hearing and shall be resolved by the court within five (5) calendar days from receipt thereof. (R15S4)

Question 8

What are litigious motions?

Answer 8

Litigios motions are those which the court may not act upon without prejudicing the rights of the adverse party

NOTE: All motions shall be served by personal service, accredited private courier or registered mail. or electronic means so as to ensure their receipt by the other party. (R15S5)

Question 9

What are the kinds of litigious motions?

Answer 9

1) Motion for bill of particulars;

2) Motion to dismiss;

3) Motion for new trial;

4) Motion for reconsideration;

5) Motion for execution pending appeal;

6) Motion to amend after a responsive pleading has been filed;

7) Motion to cancel statutory lien;

8) Motion for an order to break in or for a writ of demolition;

9) Motion for intervention;

10) Motion for judgment on the pleadings;

11) Motion for summary judgment;

12) Demurrer to evidence;

13) Motion to declare defendant in default; and

14) Other similar motions.

Question 10

Period by which an opposing party shall file his or her opposition to a litigous motion.

Answer 10

The opposing party shall file his or her opposition to a litigious motion within five (5) calendar days from receipt thereof. No other submissions shall be considered by the court in the resolution of the motion. (R15S5c)

Question 11

Period by which court shall resolve a litigious motion

Answer 11

The motion shall be resolved by the court within fifteen (15) calendar days from its receipt of the opposition thereto, or upon expiration of the period to file such opposition. (R15S5)

Question 12

Is notice of hearing for a litigious motion mandatory?

Answer 12

Section 6. Notice of hearing on litigious motions: discretionary. - The court may, in the exercise of its discretion, and if deemed necessary for its resolution, call a hearing on the motion. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing. (5a)

Question 13

Necessity of proof of service before acting upon a written motion

Answer 13

Section 7. Proof of service necessary. - No written motion shall be acted upon by the court without proof of service thereof, pursuant to Section 5(b) hereof. (6a)

Question 14

Motion day

Answer 14

Section 8. Motion day. -

[XPN] Except for motions requiring immediate action,
[GR] where the court decides to conduct hearing on a litigious motion, the same shall be set on a Friday. (7a)

Question 15

What is the Omnibus Motion Rule?

Answer 15

The omnibus motion rule embodied in Section 9 Rule 15, in relation to Section 1, Rule 9, demands that all available objections to a pleading be included in a party’s motion, otherwise, said objections shall be deemed waived; and the only grounds the court could take cognizance of, even if not pleaded in said motion are:
1. lack of subject matter jurisdiction
2. Litis pendentia - existence of another action pending between the same parties for the same cause; and
3. Res judicata / Prescription - Bar by prior judgment or by statute of limitations

Question 16

What must the Motion for Leave be accompanied with?

Answer 16

Section 10. 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. (9)

Question 17

What is the required form for motions?

Answer 17

Section 11. Form. - The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. (10)

Question 18

Enumerate the prohibited motions

Answer 18

Mnemonic: DARSEP –> 6 kinds of prohibited motions

Section 12. Prohibited motions. - The following motions shall not be allowed:

(a) Motion to dismiss except on the following grounds:

1) That the court has no jurisdiction over the subject matter of the claim;

2) That there is another action pending between the same parties for the same cause; and

3) That the cause of action is barred by a prior judgment or by the statute of limitations.

(b) Motion to hear affirmative defenses;

(c) Motion for reconsideration of the court s action on the affirmative defenses;

(d) Motion to suspend proceedings without a temporary restraining order or injunction issued by a higher court;

(e) 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 Section 11, Rule 11; and

(f) 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.

Question 19

Effect when a motion for postponement is granted by the court

Answer 19

If the motion for postponement is granted based on such exceptions (acts of God, force majeure or physical inability of the witness to appear and testify),

the moving party shall be warned that the presentation of its evidence must still be terminated on the dates previously agreed upon.

Question 20

What must be attached to a motion for postponement

Answer 20

A motion for postponement, whether written or oral. shall. at all times, be accompanied by the original official receipt from the office of the clerk of court evidencing payment of the postponement fee under Section 21 (b), Rule 14 L to be submitted either at the time of the filing of said motion or not later than the next hearing date. The clerk of court shall not accept the motion unless accompanied by the original receipt. (n)

Question 21

Is it possible to file several motions to dismiss successively without violating the omnibus motion rule?

Answer 21

Yes, successive motion to dismiss may be filed if the grounds are under the four non-waivable grounds (R9S1)

Question 22

What is a motion for bill of particulars?

Answer 22

A bill of particulars can be filed when any matter which is not averted with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. The said motion must be filed within 10 days from service thereof where the defects complained of shall be pointed and the other details desired. (R12S1)

Question 23

How is a motion for bill of particulars complied with?

Answer 23

If the motion for bill of particulars is granted, either in whole or in part, the compliance therewith must be effected within 10 days from notice of the order, unless a different period is fixed by the court (R12S3)

Note: Non compliance of the motion for bill of particulars shall ahve an effect of striking out of the pleading or the portions to which the order was directed (R12S4)

Question 24

Effect of an order granting a motion to dimiss or an affirmative defense

Answer 24

Section 13. Dismissal with prejudice. - Subject to the right of appeal, an order granting a motion to dismiss or an affirmative defense that the cause of action is barred by a prior judgment or by the statute of limitations: that the claim or demand set forth in the plaintif’ s pleading has been paid, waived, abandoned or otherwise extinguished: or that the claim on which the action is founded is unenforceable under the provisions of the statute of frauds, shall bar the refiling of the same action or claim. (5, R16)

Question 25

What are the differences between dismissalw ith prejudice and dismissal without prejudice?

Answer 25

The following are the distinctions between a dismissal with prejudice and a dismissal without prejudice.
1. As to nature –> dismissal with prejduice is one made by the court after adjudication on the merits while dismissal without prejudice is not an adjudication on the merits.
2. As to remedy –> Remedy for dismissal with prejduice is an appeal (R41S1). Remedy for dismissal without prejudice is to refile, unless the order dismissing without prejduice may be the subject of an appropriate special civil action under Rule 65, provided that the requirements for a Rule 65 petition are present. [Note: if the dismissal was made in the inferior court and it was due to lack of jurisdiction over the subject mater, the remedy of appeal may be taken).

Question 26

What are the instances where a dismissal is with prejudice?

Answer 26

The following are the instances where a dismissal is with prejudice:
[1] An order granting a motion to dismiss or an affirmative defense:

[a] That the cause of action is barred by a prior judgment; or
[b] That the cause of action is barred by the statute of limitations;
[c] That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned or otherwise extinguished; or
[d] That the claim on which the aciotn is founded is unenforceable under the provisions of the statute of frauds (ROC R15S13).

[2] A notice of dimissal when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim [ROC R17S1]
[3] A dismissal due to the fault of the plaintiff unless otherwise declared by the Court [R17S3]
[4] If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice;
[5] When there is failure to appear in pre-trial, unless otherwise ordered by the court [R18S5].

Question 27

When can a plaintiff file a notice for the dismissal of his complaint?

Answer 27

The plaintiff, at any time before the service of an answer or a motion for summary judgment, may file an otice of dismissal of his complaint. Upon its filing, the court shall issue an order confirming such dismissal [R17S1].

NOTE: This dismissal is a matter of right on the part of the plaintiff

Question 28

What is the nature of dismissal of complaint upon notice by the plaintiff?

Answer 28

The dismissal upon notice by the plaintiff shall be without prejudice to the re-filing of the complaint except when:
1. The notice of dismissal provides that the dismissal is with prejudice; or
2. The plaintiff has previously dismissed the case in a court of competent jurisdiction [R17S1]

Question 29

When is the Two-Dismissal Rule applicable?

Answer 29

[TCC]
This rule applies when the plaintiff has:
1. [T]wice dismissed the action;
2. Based on or including the same [C]laim; and
3. In a court of [C]ompetent jurisdiction [ROC, R17S1]

Note: In such case, the dismissal is with prejudice and the complainant cannot file the same complaint because of res judicata

Question 30

When can the plaintiff file a motion to dismiss his complaint?

Answer 30

If an answer has already been filed by the defendant, the plaintiff cannot dismiss his complaint at his own instance save upon approval of the court and upon such terms and conditions as the court deems proper [R17S2]

Note: Unless otherwise specified in the order, a dismissal upon motion of the plaintiff shall be without prejudice [R17S2]

Question 31

What is the effect of a dismissal of the complaint through a motion by the plaintif to an existing counterclaim filed by the defendant?

Answer 31

If a counterclaim has been pleaded by a defendant prior to the service upon him or her of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his or her counterclaim in a separate action unless within 15 calendar days from notice of the motion he or she manifests his or her preference to have his or her counterclaim resolved in the same action [R17S]

Question 32

When is a dismissal due to the fault of the plaintiff?

Answer 32

[APC]
The dismissal due to the fault of the plaintiff in the following instances:
1. Plaintiff fails to [A]ppear for not justifiable cause on the day of hte presentation of his or her evidence in chief on the complaint;
2. Plaintiff fails to [P]rosecute his or her action for an unreasonable lenght of time; or
3. Plaintiff fails to [C]omply with the Rules or any order of the court [R17S3]

Note: The dismissal shall be with prejudice since they have an effect of an adjudication on the merits, unless the corut provides otherwise.