NOTICE OF HEARING IN A MOTION: THE THREE DAY NOTICE RULE IS NOT ABSOLUTE

Sections 4, 5, and 6, Rule 15 of the Rules of Court read:

SECTION 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.

SECTION 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.

SECTION 6. Proof of service necessary. – No written motion set for hearing shall be acted upon by the court without proof of service thereof.

The three-day notice rule is not absolute. A liberal construction of the procedural rules is proper where the lapse in the literal observance of a rule of procedure has not prejudiced the adverse party and has not deprived the court of its authority (E & L Mercantile, Inc. v. Intermediate Appellate Court, 226 Phil. 299 (1986)). 

Indeed, Section 6, Rule 1 of the Rules of Court provides that the Rules should be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. Rules of procedure are tools designed to facilitate the attainment of justice, and courts must avoid their strict and rigid application which would result in technicalities that tend to frustrate rather than promote substantial justice (Strategic Alliance Development Corporation v. Radstock Securities Limited, G.R. Nos. 178158 and 180428, 4 December 2009).

            In Somera Vda. De Navarro v. Navarro, [76 Phil. 122 (1946)] the Court held that there was substantial compliance of the rule on notice of motions even if the first notice was irregular because no prejudice was caused the adverse party since the motion was not considered and resolved until after several postponements of which the parties were duly notified [1 J. Feria & M.C. Noche, Civil Procedure Annotated, 406 (2001)]

            Likewise, in Jehan Shipping Corporation v. National Food Authority, the Court held that despite the lack of notice of hearing in a Motion for Reconsideration, there was substantial compliance with the requirements of due process where the adverse party actually had the opportunity to be heard and had filed pleadings in opposition to the motion. The Court held:

The Supreme Court has indeed held time and again, that under Sections 4 and 5 of Rule 15 of the Rules of Court, mandatory is the requirement in a motion of a notice of hearing, which is rendered defective by failure to comply with the said requirement.

As a rule, a motion without a notice of hearing is considered pro forma and does not affect the reglementary period for the appeal or the filing of the requisite pleading.

As an integral component of the procedural due process, the three-day notice required by the Rules is not intended for the benefit of the movant. Rather, the requirement is for the purpose of avoiding surprises that may be sprung upon the adverse party, who must be given time to study and meet the arguments in the motion before a resolution of the court. Principles of natural justice demand that the right of a party should not be affected without giving it an opportunity to be heard.

The test is the presence of opportunity to be heard, as well as to have time to study the motion and meaningfully oppose or controvert the grounds upon which it is based. x x x

A close perusal of the records reveal that the trial court gave petitioner ten days within which to comment on respondent’s Motion for Reconsideration. Petitioner filed its Opposition to the Motion on November 26, 2001. In its 14-page Opposition, it not only pointed out that the Motion was defective for not containing a notice of hearing and should then be dismissed outright by the court; it also ventilated its substantial arguments against the merits of the Motion and of the Supplemental Motion for Reconsideration. Notably, its arguments were recited at length in the trial court’s January 8, 2002 Joint Resolution. Nevertheless, the court proceeded to deny the Motions on the sole ground that they did not contain any notice of hearing.

The requirement of notice of time and hearing in the pleading filed by a party is necessary only to apprise the other of the actions of the former.

In Fausto Preysler, Jr. vs. Manila Southcoast Development Corporation, the Court of Appeals ruled that petitioner failed to comply with the three-day notice rule. However, the Court of Appeals overlooked the fact that although respondent received petitioner’s Motion for Reconsideration six days after the scheduled hearing on 26 February 2004, the said hearing was reset three (3) times with due notice to the parties. Thus, it was only on 6 August 2004, or more than five months after respondent received a copy of petitioner’s Motion for Reconsideration, that the motion was heard by the RTC. Clearly, respondent had more than sufficient time to oppose petitioner’s Motion for Reconsideration. In fact, respondent did oppose the motion when it filed its Motion to Dismiss dated 9 August 2004. In view of the circumstances of this case, we find that there was substantial compliance with procedural due process. Instead of dismissing petitioner’s Motion for Reconsideration based merely on the alleged procedural lapses, the RTC should have resolved the motion based on the merits. 

Under the circumstances of the present case, the purpose of a notice of hearing was served (Id. at 788-790). (Emphasis supplied)

Section 4 of Rule 15 provides that "[e]very 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 the hearing, unless the court for good cause sets the hearing on shorter notice."

Thus, the date of the hearing should be at least three days after receipt of the notice of hearing by the other parties. In this case, the petitioner’s Omnibus Motion was set for hearing on 12 November 2004.

Thus, to comply with the notice requirement, respondent should have received the notice of the hearing at least three days before 12 November 2004, which is 9 November 2004. Clearly, respondent’s receipt on 9 November 2004 (Tuesday) of the notice of hearing of the Omnibus Motion which was set to be heard on 12 November 2004 (Friday), was within the required minimum three-days’ notice.

As explained by Retired Justice Jose Y. Feria in his book, Civil Procedure Annotated, when the notice of hearing should be given:

The ordinary motion day is Friday. Hence, the notice should be served by Tuesday at the latest, in order that the requirement of the three days may be complied with.

If notice be given by ordinary mail, it should be actually received by Tuesday, or if not claimed from the post office, the dat(Emphasis supplied) e of the first notice of the postmaster should be at least five (5) days before Tuesday [1 J. Feria & M.C. Noche, Civil Procedure Annotated, 405-406 (2001)]. (FAUSTO R. PREYSLER, JR. vs. MANILA SOUTHCOAST DEVELOPMENT CORPORATION, G.R. No. 171872, June 28, 2010, CARPIO, J.)