H. MOTIONS Flashcards
Definition of a motion
a motion is any application for relief other than a pleading
Motions versus pleadings
A motion contains allegations of facts.
A pleading contains allegations of the ultimate facts.
Both pray for a relief.
A motion is generally in writing except when made in open court or during the course of a hearing or trial.
A pleading is always in writing.
Non-litigious motions
These are 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]
Litigious motions
A litigious motion is one which requires the parties to be heard before a ruling on the motion is made by the court.
Litigious motions include:
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]
Prohibited motions
The following motions shall not be allowed:
1. Motion to dismiss except on the following grounds:
• Lack of jurisdiction over the subject matter,
• Litis pendentia, or
• That the action is barred by res judicata or the statute of limitations. [Sec. 12, Rule 15]
- Motion to hear affirmative defenses;
- Motion for reconsideration of the court’s action on affirmative defenses;
- Motion to suspend proceedings without a TRO or injunction issued by a higher court;
- 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;
- 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]
Hearing of motions and resolution thereof
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]
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]
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]
Motion to dismiss (formerly Rule 16)
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] Notably, the Amended Rules empower the court to dismiss a case motu proprio if the aforementioned non-waivable grounds are apparent on the face of the complaint. [Sec. 1, Rule 14]
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.]
Motions for bill of particulars (Rule 12)
- Purpose and when applied for
- Actions of the court
- Compliance with the order and effect of noncompliance
- Effect on the period to file a responsive pleading
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]
- Purpose: To enable the movant to prepare his or her responsive pleading. [Sec. 1, Rule 12].
When applied for
- Before responding to a pleading.
- If the pleading is a reply, within 10 calendar days from service thereof. [Sec. 1, Rule 12]
- 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
- Deny, or
- Grant the motion outright, or
- Allow the parties the opportunity to be heard. [Sec. 2, Rule 12]
- Compliance with the Order
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
- 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] - 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]
- 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.]
- 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
- After
a. Service of the bill of particulars or of a more definite pleading, or
b. Notice of denial of his motion - 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]
