A motion is an application for relief other than by a pleading.
• A motion may be final or interlocutory. There are also motions which pray for a judgment on the merits.
• A motion seeks relief, but is not a pleading.
• It does not raise a claim, nor does it raise defenses in an answer.
• Hence, a MTD does not take the nature of an answer because it does not lead to a joinder of issues.
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.
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.
• What should the motion contain?
o The relief sought to be obtained o Grounds upon which it is based
o If required by the Rules or necessary to prove facts alleged therein, it should be accompanied by supporting affidavits
o Notice of hearing (see Sec 4)
• When are supporting affidavits necessary?
o If the facts alleged in the motion are not of record or of judicial notice
o A motion for setting aside a judgment by default must be accompanied by an affidavit of merit (to prove that there is a meritorious defense)
• When are they not necessary?
o When the grounds upon which the motion is based can be found in the record 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.
• What must be done with the notice of hearing?
o All litigated hearings shall be set for hearing by the applicant and,
o Shall be served together with the notice of hearing in such a manner as to insure receipt by the other party at least three days before he date of hearing.
o You need notice of hearing and proof of service.
Served AND received by the other party 3 days before the hearing.
• You serve the notice of hearing to the other party.
o But also give notice to the clerk of court because he schedules the hearing.
• The absence of a notice of hearing makes the motion a MERE scrap of paper.
o Implication: the reglementary period keeps running.
• What motions can be acted upon without hearing?
o Ex parte motions like motion for extension of time to file pleadings, motion for extension of time to file an answer, preliminary attachment (yes, it will adversely affect the other party, but to require a hearing for this will defeat the purpose of the motion. Baka tumakas lang yung other party)
o These can be acted upon immediately without prejudice to the adverse pary
• What motions should have a hearing?
o Litigated motions, like motion for reconsideration, motion to set aside order of default, preliminary injunction, temporary restraining order (with exceptions)
o These will substantially affect the adverse party
• Atty Tranquil: It is the court who will conclude whether a motion is a litigious one or not, so just put a notice of hearing on ALL motions.
o As long as in the trial court (either original or appellate capacity), you need a notice of hearing.
• Do you need notice of hearing in appellate courts?
o No. See Rule 49 and Rule 56.
o If you put pa, superfluous lang yan.
• How do you attack a court order arising from a motion?
o If it’s a final order (like an order granting a motion to dismiss, judgment on the pleadings, demurrer, summary judgment), your remedy is by appeal.
o If it’s interlocutory (like an order not granting a motion to dismiss), your remedy is by certiorari under rule 65.
• The 3-day notice rule, however, is NOT absolute. A liberal construction is proper where the lapse in the literal observance of the rule has not prejudiced the adverse party. (Presyler v Manila Southcoast, 2010, where the respondent received the notice of hearing after the scheduled hearing, but it did not prejudice him since the hearing was reset 3 time with due notice to both parties).
o Why? Since the 3-day notice rule is for fair play and to allow the other party a chance to prepare for the questions raised by the motion.
• Give an example of a motion which doesn’t follow the 3-day rule?
o Motion for summary judgment: must be served 10 days before the hearing42
42 Rule 35, Sec. 3. Motion and proceedings thereon.
The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as
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.
• When should the date of the hearing be set?
o Not later than 10 days after the filing of the motion.
The 10-day “no later” rule is mandatory to prevent dilatory tactics by the movant.
(Bacelonia v CA, 2010)
o You file for it Dec 6, the last day that you can set the hearing is on Dec 16.
• When should notice be given to the other party?
o It should be served three days before the motion day at the latest.
o Count backwards!
• Basically, notice should be received by the other party 3 days before the hearing which should be set not later than 10 days after the filing of the motion.
• The ordinary motion day is on a Friday.
o When should the notice be served to the other party?
It should be served by Tuesday at the latest.
o If you want to send the notice by ordinary mail, when should you do it? Ten days before Tuesday. (or prove that it was received on Tuesday)
o If you want to send the notice by registered mail, when should you do it? It should actually be received by Tuesday, or if not claimed from the post office, the date of the first notice of the postmaster should be at least 5 days before Tuesday.
Sec. 6. Proof of service necessary.
No written motion set for hearing shall be acted upon by the court without proof of service thereof.
• What is the effect of lack of notice and proof of service?
• It is nothing but a piece of paper filed with the court. It’s scrap.
• Legal implication is that it does not toll the running of the period of appeal
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.
• Friday afternoon is the designated motion day.
o If it is a holiday, set on the next working day.
• It is MANDATORY on the courts because of SC Circular passed in 2008.
Sec. 8. Omnibus motion.
Subject to the provisions of 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.
• Omnibus motion rule: include all grounds available, or else, it is deemed waived.
o EXCEPT:
Lack of jd over subject matter
Res judicata
Litis pendentia
prescription 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.
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.
• Do you need a certification for non-forum shopping in motions?
to any material fact and that the moving party is entitled to a judgment as a matter of law.
o No. It’s not an initiatory pleading.
• When is a motion “pro forma”?
o When there is FAILURE to
Serve a copy to the other party
Include a notice of hearing
Conform with the 3-day notice rule
Conform with the 10-day rule
RULE 16 MOTION TO DISMISS