Is Tuesday "at least three days before" Friday?

Alan F. Paguia
Former Professor of Law
Ateneo Law School
University of Batangas
Pamantasan ng Lungsod ng Maynila
alanpaguia@yahoo.com
July 7, 2011



Is Tuesday at least three (3) days before Friday?

It is respectfully submitted the answer is NO.

1. When the law sets a period of time within which a party or counsel may file a pleading or motion, such period of time must be observed. Otherwise, the right to file the pleading or motion is lost.

2. When the law says a party has fifteen (15) days to file his answer to a complaint, he must do so within the period. Otherwise, the right is generally lost.

3. Under the law, a losing party has fifteen (15) days from receipt of a copy of the decision within which to appeal or file an appropriate motion for reconsideration or new trial. Otherwise, the decision becomes final and executory and no longer appealable.

4. To illustrate: Where a copy of the decision is received by a losing party’s counsel, say, on June 30, 2011, he has fifteen (15) days therefrom, or July 1-15, within which to appeal or file a motion for reconsideration or new trial. If he fails to do that, the reglementary period will not be interrupted and the decision, by operation of law, shall become final and executory at the close of office hours on July 15, 2011. In such event, the right to appeal is LOST.

5. What is the three (3)-day motion rule? It states:

“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.” (2nd par., Sec. 4, Rule 15)

Since motions are ordinarily heard on Friday afternoons, the question is: On what day – Monday or Tuesday – must a copy of the motion be received by the other party for the purpose of complying with the three-day motion rule?

6. The resolution of this issue is important because non-compliance with the rule renders the motion a mere scrap of paper which the court may not act upon, and which does not suspend the period to answer a complaint or to appeal (Sembrano v. Ramirez, 166 SCRA 30).

7. According to the Supreme Court, the answer to the question is Tuesday.

In Preysler v. Manila Southcoast Development Corporation, G.R. No. 171872, June 28, 2010, the Court ruled:

“…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 on 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 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 five (5) days before Tuesday.”

8. With all due respect, it is submitted that the correct answer to the question is Monday.

9. Is the law clear or not clear? CLEAR. There appears no reasonable doubt as to its meaning. As to the copy of the motion, the rule requires the movant to “ensure its RECEIPT by the other party at least three (3) days before the date of HEARING.” The rule contemplates two (2) events:

a. Date of RECEIPT, and
b. Date of HEARING.

In between these two events is the period of three (3) days.

10. If, as the SC ruled, the date of RECEIPT may be Tuesday, there will only be two (2) days – Wednesday and Thursday – before the date of HEARING, or Friday.

11. Hence, the date of RECEIPT must be Monday in order that there will be at least three (3) days – Tuesday, Wednesday and Thursday – before the date of HEARING, or Friday.

12. In computing any period of time prescribed or allowed by law: “…the day of the act or event from which the designated period of time begins to run is to be excluded…” (Sec. 1, Rule 22, RULES OF COURT). Consequently, the date of RECEIPT from which the minimum three-day period begins to run – is EXCLUDED.

13. In Preysler, the OPPOSITE was done. The date of RECEIPT from which the minimum three-day period of time begins to run – was INCLUDED.

14. It would thus appear that Preysler illustrates the danger of CONSTRUING, instead of simply applying, a CLEAR provision of law.

15. The question that naturally arises among law students and legal practitioners is:

WHETHER THE PREYSLER RULING IS GOOD OR BAD FOR THE RULE OF LAW?
Candidly, not good.