REMEDIAL LAW

I. Amendment

II. Summons

3.7. Amendment

3.7.1 Amendment as a matter of right

a. Section 2. Amendments as a matter of right. A party may amend his pleading once as a
matter of right at any time before a responsive pleading is served or, in the case of a reply, at
any time within ten (10) days after it is served.

b. Amendments of pleadings may be made once as a matter of right:

1. At any time before responsive pleading is served.

2. In the case of a reply, anytime within 10 days after service.

c. A Plaintiff may amend complaint as a matter of right even after defendant files a Motion to
Dismiss, since the same is not a responsive pleading.

d. Amendment as a matter of right simply means that the party has the unconditional action or
right to amend his pleading. The court has no right to prevent him from amending. The
opposite party has no right to oppose the amendment. If the court refuses to admit the
amended pleading such refusal is correctible by mandamus.

e. If a motion to dismiss is filed, an amendment to the complaint would still be a matter of

right during the pendency of the motion to dismiss. Such a motion is not a responsive
pleading and its filing does not preclude the exercise of the plaintiffs right to amend his
complaint (Paeste vs. Jadrigue 94 Phil. 179; Republic vs. Ilao 4 SCRA 106; Remington
Industrial Salesvs. CA 382 SCRA 499).

3.7.2 Amendments by leave of court

a. Section 3. Amendments by leave of court. Except as provided in the next preceding section,
substantial amendments may be made only upon leave of court. But such leave may be refused if it
appears to the court that the motion was made with intent to delay. Orders of the court upon the
matters provided in this section shall be made upon motion filed in court, and after notice to the
adverse party, and an opportunity to be heard.

b. the amendment is a matter of judicial discretion when:

1. If the amendment must be substantial; and
2. . The adverse party has already filed and served a copy of his responsive pleading.

c. Under R 10 Sec. 3 of the 1997 Revised Rules of Court, the trial court is accorded sound discretion
to grant or deny the admission of any proposed substantial amendments to a pleading after a
responsive pleading has been filed. Generally, where the trial court has jurisdiction over the case,
proposed amendments are denied if such would result in delay, or would result in a change of a
cause of action or defense or change the theory of the case, or are inconsistent with the allegations
in the original complaint. (Vivian Locsin, et al., vs. Sandiganbayan, et al., GR No. 134458, August 9,
2007)

d. When can the court refuse to allow the amendment and when can you validly oppose it:
1. when the amendment is to delay the action (Section 3);
2. when the amendment is for the purpose of making the complaint confer jurisdiction
upon the court (Rosario vs. Carangdang, 96 Phil. 845);
3. when the amendment is for the purpose of curing a premature or non-existing cause of
action (Limpangco vs. Mercado, 10 Phil. 508; Wong vs. Yatco, 99 Phil. 791)
4. When the cause of action, defense or theory of the case is changed.

3.7.3. Formal amendments

a. Section 4.Formal amendments. A defect in the designation of the parties and other
clearly clerical or typographical errors may be summarily corrected by the court at any stage
of the action, at its initiative or on motion, provided no prejudice is caused thereby to the
adverse party.

b. When the amendment is fairly formal, it can be done anytime. As a matter of fact it can be
summarily corrected by the court at any stage of the action, upon motion or even without
motion because anyway that is a harmless correction.

3.7.4. Amendments to conform to or authorize presentation of evidence

a. Section 5. Amendment to conform to or authorize presentation of evidence. When

issues not raised by the pleadings are tried with the express or implied consent of the parties
they shall be treated in all respects as if they had been raised in the pleadings. Such amendment
of the pleadings as may be necessary to cause them to conform to the evidence and to raise these
issues may be made upon motion of any party at any time, even after judgment; but failure to
amend does not effect the result of the trial of these issues. If evidence is objected to at the trial
on the ground that it is not within the issues made by the pleadings, the court may allow the
pleadings to be amended and shall do so with liberality if the presentation of the merits of the
action and the ends of substantial justice will be subserved thereby. The court may grant a
continuance to enable the amendment to be made.

b. When issues not raised in the pleadings are tried with the express or implied consent of the
parties:
1. they shall be treated as if raised in the pleadings;
2. pleadings may be amended to conform to the evidence; and
3. failure to amend does not affect the result of the trial of these issues.

c. GR: a defendant during the trial is not allowed to prove a defense that is not raised in the
pleadings based on Rule 9, Section 1. The court has no jurisdiction over the issue.
Thats why there is no such thing as surprise defense because a defense that is not raised is
deemed waived.
 EXC: Section 5 is a relaxation of the rule specifically the first sentence: when issues not raised in
the pleadings are tried with the express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings.

d. The curing effect under Sec. 5 R 10 is applicable only if a cause of action in fact exists at the
time the complaint is filed. Unless the plaintiff has a valid and subsisting cause of action at
the time his action is commenced, the defect cannot be cured or remedied by the
acquisition or accrual of one while the action is pending, and a supplemental complaint or
an amendment setting up such after accrued cause of action is not permissible. The action
in the case at bar is prematurely brought and is, therefore, a groundless suit, which should
be dismissed by the court upon proper motion seasonably filed by the defendant. The
underlying reason for this rule is that a person should not be summoned before the public
tribunals to answer for complaints which are premature. (Swagman Hotels and Travel, Inc.
vs. CA and Neal Christian, GR No. 161135, April 8, 2005)

3.7.5. Different from supplemental pleadings

a. Sec. 6. Supplemental pleadings. - Upon motion of a party the court may, upon reasonable
notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth
transactions, occurrences or events which have happened since the date of the pleading sought to
be supplemented. The adverse party may plead thereto within ten (10) days from notice of the
order admitting the supplemental pleading.

b. A supplemental pleading is one which avers facts occurring after the filing of the original
pleadings and which are material to the matured claims and/or defenses therein alleged (Herrera
vol. 1 p. 603)

c. The cause of action stated in the supplemental complaint must be the same as that stated in
the original complaint. Otherwise, the court should not admit the supplemental complaint (Asset
Privatization Trust vs. CA GR No. 121171, Dec. 29, 1998)

d. How do you distinguish an AMENDED pleading from a SUPPLEMENTAL pleading?

FIRST DISTINCTION: As to the allegations

An AMENDED pleading contains transactions, occurrences or events which already
happened at the time the original pleading was filed and could have been raised at the
original pleading, but which the pleader failed to raise in the original pleading
because, oversight or inadvertence or inexcusable negligence. If he wants to raise it,
he must amend the pleading. Whereas,
A SUPPLEMENTAL pleading contains transactions, occurrences or events which were not in
existence at the time the original pleading was filed but which only happened after
the filing of the original pleading and therefore, could not have been raised in the original
pleading.

SECOND DISTINCTION: As to effect

In an AMENDED pleading, the amended pleading supersedes the original pleading. The
original pleading is deemed erased. The amended substitutes the original. So from the
viewpoint of the law, the original pleading no longer exists. Whereas,
 When a SUPPLEMENTAL pleading is filed, it does not supersede the original pleading.
In effect, there are now two (2) pleadings which stand side by side in the case the
original and the supplemental pleadings

THIRD DISTINCTION:
The filing of an AMENDED pleading could be a matter of right or of judicial discretion under
Sections 2 and 3; whereas
The filing of a SUPPLEMENTAL pleading is always a matter of judicial discretion under
Section 6. There is always leave of court.

3.7.6. Effect of amended pleading

a. Section 8. Effect of amended pleadings. - An amended pleading supersedes the pleading that
it amends. However, admissions in superseded pleadings may be received in evidence against
the pleader; and claims and defenses alleged therein not incorporated in the amended pleading
shall be deemed waived.

b. Effect of Amended Pleading

1. An amended pleading supersedes the pleading that it amends;
2. Admissions in the superseded pleading can still be received in evidence against the pleader;
3. Claims or defenses alleged therein but not incorporated or reiterated in the amended
pleading are deemed waived.

c. Admissions made in the original pleadings cease to be judicial admissions (Ching vs. CA 331
SCRA 16). They are to be considered as extrajudicial admissions (Bastida vs. Menzi & Co., Inc.,
58 Phil. 188; Torres vs. CA 131 SCRA 224). However, admissions in superseded pleadings may
be received in evidence against the pleader (Sec. 8 Rule 10) and in order to be utilized as
extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence
(Ching vs. CA, 331 SCRA 16).

3.8 Summons

3.8.1. Nature and purpose of summons in relation to action in personam, in rem and
quasi in rem

a. Purpose of summons:

Jurisdiction over the person of the defendant in a civil case is acquired either by his
voluntary appearance or service of summons upon him

In actions in personam:

In action in personam, the purpose of summons is not only

a) to notify the defendant of the action against him
b) but also to acquire jurisdiction over his person (Umandap vs. Sabio, Jr. 339 SCRA
243).

The mere filing of the complaint does not enable the court to acquire jurisdiction over
the person of the defendant. By the filing of the complaint and the payment of the
 required filing and docket fees, the court acquires jurisdiction only over the person of
the plaintiff, not over the person of the defendant. Acquisition of jurisdiction over the
latter is accomplished by a valid service of summons upon him assuming he does not
make a prior voluntary appearance in the action. Service of summons logically follows
the filing of the complaint.

Service of summons is required even if the defendant is aware of the filing of the action
against him. His knowledge of the existence of a case is not one of the modes by which a
court acquired jurisdiction over the person of the defendant (Haban vs. Vamenta)

In actions in rem or quasi in rem

In an action in rem or quasi in rem, jurisdiction over the defendant is not mandatory and
the court acquires jurisdiction over an action as long as it acquires jurisdiction over the
res. The purpose of summons in these actions is not the acquisition of jurisdiction over
the defendant but mainly to satisfy the constitutional requirements of due process
(Gomez vs. CA 420 SCRA 98; Biaco vs. Phil. Countryside Rural Bank 515 SCRA 106; PCI
Bank v. Alejandro 533 SCRA 738)

3.8.2. Voluntary appearance

a. Section 20 now provides that the inclusion in a motion to dismiss of other grounds aside
from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary
appearance. The emplacement of this rule clearly underscores the purpose to enforce strict
enforcement of the rules on summons. Accordingly, the filing of a motion to dismiss, whether or
not belatedly filed by the defendant, his authorized agent or attorney, precisely objecting to the
jurisdiction of the court over the person of the defendant can by no means be deemed a
submission to the jurisdiction of the court.

There being no proper service of summons, the trial court cannot take cognizance of a case for
lack of jurisdiction over the person of the defendant. Any proceeding undertaken by the trial
court will consequently be null and void(La Naval Drug Corporation vs CA).

b. The first mode of acquiring jurisdiction over the person of the defendant is service of
summons. However, even when there is no service of summons, or if there is improper service
of summons, if the defendant files an answer, then in effect, he is submitting himself to the
jurisdiction of the court and the court acquires jurisdiction over his person by voluntary
appearance.

Voluntary appearance is not necessarily an answer. Like a motion for an extension of time to file
an answer, or a motion for bill of particulars that is indicative of his submission to the
jurisdiction of the court.

That is why we said, lack of jurisdiction over the person of the defendant because of absence of
service of summons or improper service of summons, can be waived by voluntary appearance.
That is the second mode.
Any form of appearance in court, by the defendant, by his agent authorized to do so, or by
attorney, is equivalent to service of summons, except where such appearance is precisely to
object to the jurisdiction of the court over the person of the defendant.

3.8.3. Personal Service

a. Personal service is effected by

(a) handing a copy thereof to the defendant in person, or
(b) if he refuses to receive and sign for it, by tendering it to him.

The summons must be served in person. This is literal, the summons must be served upon the
defendant himself not to anybody else.

Q: Now suppose, normally, you give the copy and you ask him to sign the original summons but
he refuses, what will I do?

A: I will write here in my return that I saw you, I offered but you refused. That is enough. Under
the law, you are served. The court has already acquired jurisdiction over your person.

The common impression of laymen is if it is not received then there is no proper service. No,
that is of course false. You cannot defeat a court process by refusing to accept it. And under the
law, from that moment, you are bound.

b. In an action strictly in personam, service in person on the defendant is the preferred mode of
service (Hamilton vs. Levy 344 SCRA 821). This is done by handing a copy thereof to the
defendant in person. If he refuses to receive and sign for it, the remedy of the server is to tender
the summons to the defendant. If the defendant refuses the service, the server should not resort
to substituted service immediately. He must tender the summons to him. Tender of summons
is not a separate mode of service. It is a part of service in person.

3.8.4. Substituted Service

a. If the defendant cannot be served in person within a reasonable time, only then may
substituted service under Sec. 7 be availed of. The sheriff or server must first exert all efforts
to serve the defendant in person. If this effort fails, then substituted service can be made.
This effort must be stated in the proof of service. This is required because substituted
service is in derogation of the usual mode of service (Laus vs. CA 219 SCRA 688; Umandap
vs. Sabio, Jr. 339 SCRA 243; Samartino vs. Raon 383 SCRA 66; Hamilton vs. Levy 344 SCRA
821.

b. If the defendant cannot be served personally or in person under Section 6, the sheriff may
resort to what is known as SUBSTITUTED SERVICE OF SUMMONS under Section 7. This
time, you can course it to somebody else. The place is important and the person to whom
you will serve it.

On service in person under Section 6, it is immaterial where you find the defendant.
What is important is it is served in person.
 But if you want resort to substituted service under Section 7, you better have to do it by leaving
copies of the summons:

1.) at the defendants residence with some person of suitable age and discretion residing
therein; or
2.) in his office or regular place of business with some competent person in charge thereof, like
the manager or the foreman.

So, if the server cannot serve you the summons personally, because he cannot find you
despite several attempts, then he can served it on your wife or child, who is around, or the
housemaid or houseboy, provided they are of suitable age and discretion.

c. For substituted service of summons to be valid, it is necessary to establish the following:

1) The impossibility of the personal service of summons within a reasonable time;

2) The efforts exerted to locate the person to be served; and
3) Service upon a person of sufficient age and discretion residing in the same place as defendant or
some competent person in charge of his office or regular place of business.

d. The case of Manotoc vs. CA 499 SCRA 21, is more specific:

.Reasonable time is defined as so much time as is necessary under the circumstances for a
reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that
should be done.Under the Rules, the service of summons has no set period.Since the defendant
is expected to try to avoid and evade service of summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the process on the defendant. For substituted service to
be available there must be several attempts by the sheriff to personally serve the summons within a
reasonable periodSeveral attempts means at least three (3) tries, preferably on at least two
different dates. In addition the sheriff must cite why such efforts were unsuccessful. It is only then
that impossibility of service can be confirmed or accepted.

The Sheriff must describe in the Return of Summons the facts and circumstances surrounding the
attempted personal service (citing Domagas vs. Jensen, 448 SCRA 663). The efforts made to find the
defendant and the reason behind the failure must be clearly narrated in detail in the Return. The
date and time of the attempts on personal service, the inquiries made to locate the defendant, the
name/s of the alleged occupants of the alleged residence or house of the defendant and all other
acts done, though futile, to serve the summons on the defendant must be specified in the Return to
justify substituted service.

A mere general claim or statement in the Sheriffs Return that the server had made several
attempts to serve the summons, without making reference to the details of facts and circumstances
surrounding such attempts, does not comply with the rules on substituted service (Manotoc vs. CA,
supra). A Return which merely states the alleged whereabouts of the defendants without indicating
that such information was verified and without specifying the efforts exerted to serve the summons
is not enough for compliance. So is a mere general statement that such efforts were made (Jose vs.
Boyon 414 SCRA 216).

e. A person of suitable age and discretion is one who has attained the full age of full legal capacity
(18 years old) and is considered to have enough discernment to understand the importance of
summons. The Manotoc case explains:
Discretion is defined as the ability to make decisions which represent a responsible choice and for
which an understanding of what is lawful, right or wise may be presupposed. Thus, to be of
sufficient age and discretion, such person must know how to read and understand English to
comprehend the import of the summons, and fully realize the need to deliver the summons and
complaint to the defendant at the earliest possible time for the person to take appropriate action.
Thus, the person must have a relation of confidence to the defendant, ensuring that the latter
would receive or at least be notified of the receipt of summons. The sheriff must therefore,
determine if the person found in the alleged dwelling or residence of defendant is of legal age, what
the recipients relationship with the defendant is, and whether said person comprehends the
significance of the receipt of the summons and his duty to deliver it to the defendant or at least
notify the defendant of said receipt of summons. These matters must be clearly and specifically
described in the Return of Summons.

f. A competent person in charge of the office or regular place of business must be the one
managing the office or business of defendant, such as the president or manager; and such individual
must have sufficient knowledge to understand the obligation of the defendant in the summons, its
importance, and the prejudicial effects arising from inaction on the summons. Again, the details
must be contained in the Return (Manotoc vs. CA)

It is not necessary that the person in charge of the defendants regular place of business be
specifically authorized to receive the summons. It is enough that he appears to be in charge
(Guanzon v. Arradaza 510 SCRA 309).

g. Where the substituted service has been validly served, its validity is not affected by the
defendants failure to actually receive the summons from the person with whom the summons had
been left. It is immaterial that the defendant does not in fact receive actual notice. The rule does not
require the sheriff or any authorized server to verify that the summons left in the defendants
residence or office was actually delivered to the defendant (Montalban vs. Maximo, supra).

The proof of service of summons must

(a) indicate the impossibility of service of summons within a reasonable time;
(b) specify the efforts exerted to locate the defendant; and
(c) state that the summons was served upon a person of sufficient age and discretion who is
residing in the address, or who is in charge of the officer or regular place of business of the
defendant.

It is likewise required that the pertinent facts proving these circumstances be stated in the proof of
service or in the officers return. The failure to comply faithfully, strictly and fully with all the
foregoing requirements of substituted service renders the service of summons ineffective (Jose vs.
Bayon 414 SCRA 216; Miranda vs. CA 326 SCRA 278).

3.8.4. Service of Summons by publication

a. Publication is a notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort against the right sought to
be established. It is the publication of such notice that brings in the whole world as a party in
the case and vests the court with jurisdiction to hear and decide it (Cynthia Alaban vs. CA 470
SCRA 697). Publication is likewise not a mode of service in an action in personam against a
defendant except under certain situations (Sections 14 and 16).
b. to avail of summons by publication, there must be leave of court. You must file a motion,
under Rule 14, for permission to have defendant summoned by publication and the court will
issue an order allowing the defendant be served with summons by publication where the
complaint and the summons be ordered published. The service may be effected upon him by
publication in a newspaper of general circulation and in such places and for such time as the
court may order.

Section 14 allows service of summons by publication, if the whereabouts of the defendant is

unknown, after diligent inquiry and with leave of court. However, Section 17 requires that the
application for leave to effect service by publication must be accompanied by a motion in
writing, supported by an affidavit setting forth the grounds for the application (Pacana-Gonzales
vs. CA, GR No. 150908, Jan. 21, 2005)

c. Summons by way of publication may with leave of court be availed of where a defendant
involved in any action (in rem, quasi in rem and in personal) is designated as an unknown
owner or whenever his whereabouts are unknown and cannot be ascertained. The summons
shall be effected through publication in a newspaper of general circulation and in such places
and for such time as the court sets.

In Santos vs. PNOC GR No. 170943, Sept. 23, 2008) the Supreme Court held that the in rem/in
personal distinction was significant under the old rule because it was silent as to the kind of
action to which the rule was applicable. Because of this silence, the court limited the application
of the old rule to in rem actions only. This has been changed. The present rule expressly states
that it applied to any action where the defendant is designated as unknown owner, or the like,
or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry. Thus,
it now applies to any action, whether in personal, in rem or quasi in rem.

If property is attached and later the defendant appears (and voluntarily submits to the
jurisdiction of the court), the case becomes mainly a suit in personam ( Villareal vs. CA GR No.
107314, Sept. 17, 1998)

d. Q: Can you sue in the Philippines a defendant who is not residing in the Philippines and who
is not around physically?

A: NO, you cannot because there is no way for the court to acquire jurisdiction over his person
EXCEPT when action is in rem or quasi in rem, like when the action is the personal status of the
plaintiff who is in the Philippines or the properties of the defendant are in the Philippines. And
the venue is where the plaintiff resides or where the property is situated. That is found in
Section 3, Rule 4:

Rule 4, SEC. 3. Venue of actions against nonresidents If any of the defendants do not reside and
is not found in the Philippines, and the action affects the personal status of the plaintiff or any
property of said defendant located in the Philippines, the action may be commenced and tried in
the court of the place where the plaintiff resides, or where the property or any portion thereof is
situated or found.

3.8.5. Extra-territorial Service

a. A fundamental concept to be remembered in extraterritorial service of summons is that it does
not apply to a defendant who is a resident of the Philippines. It does not also apply to an action in
personam (Kawasaki Port Service Corporation vs. Amores 199 SCRA 230; Banco do Brasil vs. CA
333 SCRA 545 [2000] .

The possible exception to this rule is provided for under Sec. 16 (residents temporarily out of
the Philippines) where service may, by leave of court, be effected out of the Philippines as under
the preceding section. The preceding section is Section 15. Note also that Sec. 16 refers to any
action, hence, either in rem or in personam.

b. Extraterritorial service of summons under this Section 15 applies when he following requisites
concur:

(a) the defendant is a non-resident;

(b) he is not found in the Philippines; and
(c) the action against him is either in rem or quasi in rem (Jose vs. Boyon 414 SCRA 216).

c. There are four (4) instances when a defendant who does not reside and is not found in the
Philippines may be sued and summons served by extraterritorial service, provided the case is in
rem or quasi in rem:

1.) the action affects the personal status of the plaintiff;

2.) when the action relates to or the subject of which is, property within the Philippines, in which
the defendant has or claims a lien or interest, actual or contingent;
3.) when the action relates to or the subject of which is, property within the Philippines in which the
relief demanded consists, wholly or in part, in excluding the defendant from any interest therein;
4.) When the property of the defendant has been attached within the Philippines. In these instances,
service of summons may be effected by:
a. personal service out of the country, with leave of court;
b. publication, also with leave of court; or
c. any other manner the court may deem sufficient.

In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has
jurisdiction over the res, i.e., the personal status of the plaintiff who is domiciled in the Philippines
or the property litigated or attached. Service of summons in the manner provided in Section 15,
Rule 14 of the Rules of Court is not for the purpose of vesting the court with jurisdiction, but for
complying with the requirements of fair play or due process, so that the defendant will be informed
of the pendency of the action against him; and the possibility that property in the Philippines
belonging to him, or in which he has an interest, might be subjected to a judgment in favor of the
plaintiff and he can thereby take steps to protect his interest if he is so minded. (Regner v. Logarta,
GR No. 168747, Oct. 27, 2007).

d. It must be noted that extra-territorial service of summons or summons by publication applies

only when the action is in rem or quasi in rem. The first is an action against the thing itself instead
of against the defendant's person; in the latter, an individual is named as defendant and the purpose
is to subject the individual's interest in a piece of property to the obligation or loan burdening it. An
action for specific performance is an action in personam, hence summons by publication is
improper. (Sps. Jose vs. Sps. Boyon, GR No. 147369, Oct. 23, 2003).

3.8.6. Service of summons upon a prisoner and minors

 a. Q: How do you serve summons to somebody who is a prisoner?

A: Under Section 9, summons shall be served through the person in-charge of the jail like the
jail warden. The jail warden is automatically considered as deputized to serve it to the prisoner.
It is is not necessary for the court officer to go into the jail and look for the prisoner.

b. Q: When you sue a minor or an insane, how is summons served?

A: You serve the summons to the father or mother in the case of minor. For a legal guardian,
in the case of incompetent people or to the minor himself.

3.8.7. Proof of Service

a. Sec. 18. Proof of service. The proof of service of a summons shall be made in writing by the
server and shall set forth the manner, place, and date of service; shall specify any papers
which have been served with the process and the name of the person who received the
same; and shall be sworn to when made by a person other than a sheriff or his deputy.

b. Q: Must the return be sworn to?

A: NO NEED, except when made by a person other than a sheriff or his deputy. Remember
that summons can be served by other person authorized by the court to do so.

3.9 Motions

3.9.1 Motion in General

3.9.1.1 Definition of Motion

a. SECTION 1. Motion defined. A motion is an application for relief other than by a pleading.

3.9.1.2 Motion vs. Pleading

a. In a motion, the party is asking the court for a favor other than what is contained in the
pleading. Usually, the main relief is prayed for in the pleading, like Judgment be rendered in
favor of the plaintiff, or, The complaint be dismissed. That is what you pray in your complaint
or in your answer.

A pleading however 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.

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.
However, there are three (3) well known EXCEPTIONS to this. Meaning you are praying, by way
of a motion, for a relief which normally should be prayed for in a pleading such as a motion is
praying for a judgment already. The exceptions are:

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).

3.9.1.3 Contents and forms of Motions

a. Contents of motions:

1) the relief sought to be obtained;

2) the ground 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.

Q: Is it necessary that a motion be accompanied by supporting affidavits and other papers?

A: No, unless required by the Rules or necessary to prove facts alleged therein

3.9.1.4 Notice of Hearing and Motions

a. Notice of Hearing shall be addressed to all parties concerned. Date of hearing must not be
later than 10 days from the filing of the motion (Section 5);

b. 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])

c. 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. (PRADO vs. VERIDIANO II 204 SCRA 654 [1991] )

3.9.1.5 Omnibus Motion

a. An OMNIBUS MOTION is one attacking a pleading, order, judgment, or a proceeding which

shall include all objections then available and objections not so included shall not deemed
waived. (Section 8; Ins. Co. of North America vs. Delgado Brokerage, L22974, Oct. 28, 1966)

b. Now, obviously there is an EXCEPTION because the opening clause of section 8 is Subject to
the provision of Section 1 of Rule 9.

Under Rule 9, There are four (4) exceptions. Meaning, they are not deemed waive even if you do
not raise them in a motion to dismiss, which can be even motu propio proceeded by the court.
The following:

1) Lack of jurisdiction over the subject matter;

2) Litis pendentia;
3) Res adjudicata; and
4) Prescription

3.9.1.6 Litigated and Ex parte Motions

a. 1) Motion Ex Parte is made without the presence or a notification to the other party because
the question generally presented is not debatable, like a Motion for Extension of Time to File
Pleadings;
2) Motion of Course is where a movant is entitled to the relief or remedy sought as a matter of
discretion on the part of the court;
3) Litigated Motion is one made with notice to the adverse party to give an opportunity to
oppose, like a Motion to Dismiss);
4) Special Motion is a one addressed to the discretion of the court.

3.9.1.7 Pro-Forma Motion

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

b. 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.

3.9.2 Motion for Bill of Particulars

3.9.2.1 Purpose and when applied

a. The purpose of the motion is to seek an order from which court directing the pleader to
submit a bill of particulars which avers matters with sufficient definiteness or particularity to
enable the movant to prepare his responsive pleading (Sec. 1), not to enable the movant to
prepare for trial. Where the purpose of the movant is to enable him to prepare for trial, the
appropriate remedy is to avail of the discovery procedures from Rules 23 to 29 and even of a
pre-trial under Rule 18.

In less technical terms, a 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.

b. As long as the allegations of a complaint make out a cause of action, the ambiguity in some
allegations of the complaint or the failure to allege facts with sufficient particularity does not
justify the filing of a motion to dismiss. The proper remedy is to file a motion for a bill of
particulars.
3.9.2.2 Actions of the court

a. 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.
3.9.2.3 Compliance with the order and effect of non-compliance

a. Sec. 3. Compliance with order. If the motion is granted, either in whole or in part, the
compliance therewith must be effected within ten (l0) days from notice of the order, unless a
different period is fixed by the court. The bill of particulars or a more definite statement
ordered by the court may be filed either in a separate or in an amended pleading, serving a copy
thereof on the adverse party.

b. The Bill of Particulars may be filed either in a separate or in an amended pleading serving a
copy thereof to the adverse party.

c. Effect of Non-Compliance

1) If the order is not obeyed or in case of insufficient compliance, therewith, the court:

a) may order the striking out of the pleading or the portion thereof to which the order is directed;
or b) make such order as it may deem just.

2) If the plaintiff fails to obey, his complaint may be dismissed with prejudice unless otherwise
ordered by the court (R 12, Sec. 4; R 17, Sec. 3);

3) If 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 (R 12, Sec. 4; R 17, Sec. 4; R 9, Sec. 3)

3.9.2.4 Effect on the period to file a responsive pleading

a. Sec. 5. Stay of period to file responsive pleading. After service of the bill of particulars or of a
more definite pleading, or after notice of denial of his motion, the moving party may file his
responsive pleading within the period to which he was entitled at the time of filing his motion,
which shall not be less than five (5) days in any event.

b. Effects of Motion

1) If the motion is granted, in whole or in part, the movant can wait until the bill of particulars is
served on him by the opposing party and then he will have the balance of the reglementary
period within which to file his responsive pleading; and

2) If his motion is denied, he will still have such balance of the reglementary period to file his
responsive pleading, counted from service of the order denying his motion.