Civil Procedure R30-38 2014 - Atty. Suarez (Cutie)

1
RULES OF CIVIL PROCEDURE (SY 2014-‐2015)

Based on the Lectures of Atty. Suarez
RULE 31 – RULE 38 [Notes taken during class – unedited]

Rule 31: CONSOLIDATION OR Section 2. Separate trials. — The court, in furtherance of
SEVERANCE convenience or to avoid prejudice, may order a separate trial
of any claim, cross-‐claim, counterclaim, or third-‐party
complaint, or of any separate issue or of any number of
Section 1. Consolidation. — When actions involving a claims, cross-‐claims, counterclaims, third-‐party complaints
common question of law or fact are pending before the or issues. (2a)
court, it may order a joint hearing or trial of any or all the
matters in issue in the actions; it may order all the actions Is this practical? Yes.
consolidated, and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs Can you conduct separate trials for one action? Yes, if there’s
or delay. (1) a 3rd party complaint, a 4th party complaint, etc. It’s easier if
they are tried separately.
Can you join together 2 pending cases? Yes, under this rule.
Under Section 1, consolidation is proper when actions involve Grounds:
a common question of law. 1. In furtherance of convenience or
2. To avoid prejudice
What are the things that the court may do when it orders
consolidation? CASES:

To be able to consolidate, you must be able to comply with & People v. Judge Mangrobang: Is there any “shall” in
the rules on permissive joinder of parties. the provision? No. So if you want to consolidate the
two cases, file the motion to either case where you
Can an ordinary civil case be consolidated with special civil want the case to be consolidate. But it is still
action? It depends, as long as there is a common question of discretionary on the part of the court.
law and fact between two cases.
& People vs. Sandiganbayan: Denial of the motion to
If one case is in Davao and if one case is in Tagum, then you consolidate was proper.
cannot consolidate. Dapat both from RTC of Davao, not from
different provinces. RTC in Tagum is already different. & Spouses De Vera v. Agloro: WON there should be
consolidation. No. The consolidation will cause
Rule 119, Section 22. Consolidation of trials of related prejudice to the party so there should be no
offenses. — Charges for offenses founded on the same facts consolidation. If it would prejudice the party or the
or forming part of a series of offenses of similar character court deems it not necessary, then the court may
may be tried jointly at the discretion of the court. (14a) deny the motion. The rights of BPI will be prejudiced
if it will be consolidated with the other case
Distinctions of consolidation between consolidation in: especially that it already presented its evidence.
Civil actions Criminal cases
One or more causes of action Only one offense can be the & Philippine Savings Bank v. Manalac: The court
may be embodied in one subject of one complaint or allowed here the writ of possession and the
complaint because when information, consolidation of foreclosure sale.
there is permissive joinder, criminal actions is exclusively
there is automatic for joint trial & PNB vs. Gotesco: The court has to look at the facts
consolidation and circumstances of each case. The case of PSB vs.
The opposite is consolidation The opposite of Manalac is not applicable.
is severance consolidation is separate trial
& Bank of Commerce v. Judge Bernabe: Conducting
Can you consolidate a criminal case and a civil case? Yes, as separate trials would only mean duplication of time
long as there is a common question of law and fact between and efforts, not only by the parties, but also of the
them. the court. One is a petition for certiorari and the
other one is receivership – you cannot join a special
How do you reconcile this since they require different proof? civil action with an ordinary civil action in joinder of
Rule 110. The court will still use different degrees of proof. causes of action. In consolidation, the rules on
2 RULES OF CIVIL PROCEDURE (SY 2014-‐2015)

joinder of causes of action do not apply. As long as
there is common question of fact and law, there is
no prejudice to parties, no duplication etc., pwede i-‐
consolidate. The certiorari case was born out of the
receivership case so consolidation was proper.


2. When the taking of an account is necessary for the
Rule 32: TRIAL BY COMMISSIONER information of the court before judgment, or for
carrying a judgment or order into effect.
3. When a question of fact, other than upon the
Section 1. Reference by consent. — By written consent of pleadings, arises upon motion or otherwise, in any
both parties, the court may order any or all of the issues in a stage of a case, or for carrying a judgment or order
case to be referred to a commissioner to be agreed upon by into effect.
the parties or to be appointed by the court. As used in these
Rules, the word "commissioner" includes a referee, an The example of the first ground – accounting cases will be
auditor and an examiner. (1a, R33) referred to a CPA. Expropriation as well is also one which is
better to be referred to a commissioner. In fact, under Rule
Example: We have P and D fighting over the boundaries of 67, it is mandatory on the part of the court to appoint a
the properties. They filed a case in court for accion commissioner to determine just compensation.
publiciana. Definitely, this is the kind of case that the court
cannot decide on without reference to a commissioner – Section 3. Order of reference; powers of the commissioner.
unless the judge is a geodetic engineer and he wants to go to — When a reference is made, the clerk shall forthwith
the area. This kind of case is referred to the commissioner. furnish the commissioner with a copy of the order of
reference. The order may specify or limit the powers of the
Reference by Consent: commissioner, and may direct him to report only upon
§ By written consent – the parties can agree to refer particular issues, or to do or perform particular acts, or to
the case to the commissioner; they can choose the receive and report evidence only and may fix the date for
engineer or the court may appoint one beginning and closing the hearings and for the filing of his
§ The court may order any or all of the issues in a case report. Subject to other specifications and limitations stated
to be referred to a commissioner in the order, the commissioner has and shall exercise the
power to regulate the proceedings in every hearing before
Commissioner – includes referee, auditor, examiner him and to do all acts and take all measures necessary or
proper for the efficient performance of his duties under the
When is the best time to refer? During pre-‐trial. Refer to Rule order. He may issue subpoenas and subpoenas duces tecum,
118. swear witnesses, and unless otherwise provided in the order
of reference, he may rule upon the admissibility of evidence.
Section 2. Reference ordered on motion. — When the The trial or hearing before him shall proceed in all respects
parties do not consent, the court may, upon the application as it would if held before the court. (3a, R33)
of either or of its own motion, direct a reference to a
commissioner in the following cases: Once it has been decided that the commissioner will be the
(a) When the trial of an issue of fact requires the one to handle the case, the clerk shall furnish the
examination of a long account on either side, in which case commissioner with a copy of the order of the reference.
the commissioner may be directed to hear and report upon
the whole issue or any specific question involved therein; The order may:
(b) When the taking of an account is necessary for § Specify or limit the powers of the commissioner (ex.
the information of the court before judgment, or for Mr. X, commissioner can only do this and that) and
carrying a judgment or order into effect. § Direct him to:
(c) When a question of fact, other than upon the o Report only upon particular issues ir
pleadings, arises upon motion or otherwise, in any stage of a o Do or perform particular acts
case, or for carrying a judgment or order into effect. (2a, o Receive and report evidence only
R33) § Fix the date

Here, the parties do not consent. What are the powers of the commissioner? It depends on
what the court says on the order. (Doesn’t need to be
Grounds: provided in the order)
1. When the trial of an issue of fact requires the § He has the power to regulate the proceedings in
examination of a long account on either side, in every hearing before him and do all acts
which case the commissioner may be directed to § Take all measures necessary or proper for the
hear and report upon the whole issue or any specific efficient performance of his duties under the order
question involved therein

§ Issue subpoenas (both kinds) § Adjourn the proceedings to a future day, giving
§ Swear in witnesses notice to the absent party or his counsel of the
adjournment.
Does a commissioner have the power to rule upon
admissibility of evidence? Section 7. Refusal of witness. — The refusal of a witness to
General rule: Yes obey a subpoena issued by the commissioner or to give
Exception: No, if provided in the order of reference. evidence before him, shall be deemed a contempt of the
court which appointed the commissioner. (7a R33)
The trial or hearing before him shall proceed in all respects as
it would if held before the court. The commissioner has to Section 8. Commissioner shall avoid delays. — It is the duty
conduct the hearing. His job is not limited to making the of the commissioner to proceed with all reasonable
inspection or report. He is authorized to conduct hearings. diligence. Either party, on notice to the parties and
commissioner, may apply to the court for an order requiring
Can a clerk of court be appointed as a commissioner? Yes. the commissioner to expedite the proceedings and to make
However, if he is appointed as such, he cannot receive his report. (8a, R33)
compensation. He is an officer of the court.
Section 9. Report of commissioner. — Upon the completion
Section 4. Oath of commissioner. — Before entering upon of the trial or hearing or proceeding before the
his duties the commissioner shall be sworn to a faithful and commissioner, he shall file with the court his report in
honest performance thereof. (14, R33) writing upon the matters submitted to him by the order of
reference. When his powers are not specified or limited, he
Before the commissioner enters into his duty, he shall be shall set forth his findings of fact and conclusions of law in
sworn to a faithful and honest performance thereof. his report. He shall attach thereto all exhibits, affidavits,
depositions, papers and the transcript, if any, of the
Section 5. Proceedings before commissioner. — Upon testimonial evidence presented before him. (9a, R33)
receipt of the order of reference and unless otherwise
provided therein, the commissioner shall forthwith set a The commissioner shall file with the court his report in
time and place for the first meeting of the parties or their writing. When his powers are not specified and limited, he
counsel to be held within ten (10) days after the date of the shall set forth his findings of fact and conclusions of law in his
order of reference and shall notify the parties or their report. There are times when some judges would allow the
counsel. (5a, R33) commissioner to make their own findings of fact and
conclusions of law. While other judges do not want that so
When he receives his order to act as a commissioner for a the commissioner will only submit the report in such case.
particular case, he shall set a time for the first meeting of the
parties which shall be held within 10 days after the date of Section 10. Notice to parties of the filing of report. — Upon
the order or reference. He shall notify the parties or their the filing of the report, the parties shall be notified by the
counsel. clerk, and they shall be allowed ten (10) days within which to
signify grounds of objections to the findings of the report, if
The commissioner, even if he is an order, perhaps he would they so desire. Objections to the report based upon grounds
like to get a more specific background of what’s really going which were available to the parties during the proceedings
on in that case. before the commissioner, other than objections to the
findings and conclusions therein, set forth, shall not be
Section 6. Failure of parties to appear before commissioner. considered by the court unless they were made before the
— If a party fails to appear at the time and place appointed, commissioner. (10, R33)
the commissioner may proceed ex parte or, in his discretion,
adjourn the proceedings to a future day, giving notice to the Upon filing of the report by the commissioner, the clerk of
absent party or his counsel of the adjournment. (6a, R33) court shall notify the parties. They shall be allowed 10 days
within which to signify grounds for their objections.
He has options if there is a failure of parties to appear. He
may: Take note: objections to the report based upon grounds
§ May proceed ex parte or which were available to the parties during the proceedings
before the commissioner xxx


The parties can only object to the matters which they could
not have objected to during the trial of the commissioner.

Section 11. Hearing upon report. — Upon the expiration of
the period of ten (10) days referred to in the preceding
section, the report shall be set for hearing, after which the
court shall issue an order adopting, modifying, or rejecting
the report in whole or in part, or recommitting it with
instructions, or requiring the parties to present further
evidence before the commissioner or the court. (11a, R33)

When the hearing upon the report shall be set – upon the
expiration of the period of 10 days referred to Section 10.

After the hearing – the court shall:
§ Issue an order adopting, modifying, or rejecting the
report in whole or in part
§ Recommitting it with instructions, or requiring the
parties to present further evidence before the
commissioner or the court

So can the findings of the commissioner on questions of fact
be questioned by the parties? Yes, under Section 11.

Is there an exception that the findings of the commissioner
can be objected? Check Section 12.

What happens when the parties stipulate that a
commissioner’s findings of fact shall be final? Only questions
of law shall thereafter be considered.

Section 12. Stipulations as to findings. — When the parties
stipulate that a commissioner's findings of fact shall be final,
only questions of law shall thereafter be considered. (12a,
R33)

Section 13. Compensation of commissioner. — The court
shall allow the commissioner such reasonable compensation
as the circumstances of the case warrant, to be taxed as
costs against the defeated party, or apportioned, as justice
requires. (13, R33)

CASES:

& Aljem’s Corporation v. CA: The proceedings taken by
the Commissioner were not in accordance with the
rules. One has to really follow this particular rule if
one is appointed as commissioner.

& Apo Fruits v. CA: It is up to the court to adopt the
findings of the commissioners. But most of the time,
as long as the commissioners are experts, the court
will adopt.

Rule 33: DEMURRER TO EVIDENCE reverses the order of accused has already been
dismissal, the appellate court acquitted. Otherwise, there

renders judgment will be a case of double

immediately in favor of P. jeopardy.
Section 1. Demurrer to evidence. — After the plaintiff
The court cannot on its own The court may dismiss the
has completed the presentation of his evidence, the
initiative, dismiss the case action in its own initiative
defendant may move for dismissal on the ground that upon
after P rests without any after giving the prosecution
the facts and the law the plaintiff has shown no right to
demurrer by D. There is no the chance to present its
relief. If his motion is denied he shall have the right to
such thing as motu proprio evidence.
present evidence. If the motion is granted but on appeal the
demurrer.
order of dismissal is reversed he shall be deemed to have

waived the right to present evidence. (1a, R35)
CASES:

What is demurrer to evidence?
& Radiowealth v. Del Rosario: The appellate court
It is a motion to dismiss filed by the defendant after the
which reverses the dismissal of the RTC shall render
plaintiff has rested his case, on the ground of insufficiency of
judgment immediately. It should render judgment on
evidence.
the basis of the evidence prepared by the plaintiff.

What can the D do after P has completed the presentation of
& Celino v. Heirs of Santiago: Lack of legal capacity is a
his evidence? D may move for dismissal of the complaint. On
ground for a motion to dismiss under Rule 16 but not
what ground? On the ground that upon the facts and the law,
a demurrer. Look at the evidence presented and if
P has shown no right to relief.
not sufficient, then file a demurrer.

Since it is a motion, the court may either deny or grant it.
& Park v. Choi: There is no automatic dismissal of the

civil aspect in case of acquittal of the accused in
What are the effects? If the motion is denied, D shall have the
criminal case. This civil aspect – you cannot apply
right to present evidence.
Rule 33. You continue with Rule 119. You apply the

provision. Since there was leave of court, then the
If D’s motion is granted but on appeal the order of dismissal
accused is allowed to present evidence. The case
is reversed, D shall be deemed to have waived the right to
was rightfully remanded back to the RTC for the
present evidence.
presentation of the evidence on the civil aspect.

What will P do if his action is dismissed? He can appeal that
& Manila Banking v. University of Baguio: You can see
dismissal. A dismissal of the case is a final order and a final
here the relationship of lack cause of action and
order is appealable. What if P appeals to an appellate court
failure to state of cause of action. The former is not a
saying that the RTC erred in granting the demurrer because
ground for dismissal under Rule 16 because those
he has presented sufficient evidence? What if the appellate
grounds are available before filing an answer. How
court agrees with him? What is the situation of D here? Was
do you know that the plaintiff has no cause of
he able to present evidence kasi pina-‐dismiss man niya? What
action? You know because as a defendant, you
if gi-‐reverse ng CA? The D can no longer present his own
hypothetically admit the cause of action of the
evidence to rebut. So be careful in filing a demurrer kay baka
plaintiff. During trial, you can already observe if
ma-‐dismiss ang case and you can no longer present evidence
indeed the plaintiff has no cause of action so that
in case ma-‐reverse siya.
could be a ground for dismissal – the same with

insufficiency of evidence – under Rule 33. Of course,
Distinctions of demurrer of evidence in:
Rule 33 can only be invoked after presentation of the
Civil Cases Criminal Cases
evidence. If it is presented before, then the motion
If the demurrer is denied, D If the demurrer of A is should be dismissed.
may present evidence to denied, A is no longer
prove his defense (no allowed to present evidence & RCL of Singapore v. The Netherlands: You know very
waiver). if he had no prior leave of well that in Transpo, in breach of contract, there is
court. this automatic presumption of negligence. We have
If demurrer is granted and If demurrer is granted, there the plaintiff here who is the shipper. In Transpo
the case is dismissed and P is no more appeal by the cases, the shipper is normally paid by the insurance
and on appeal, the court prosecution because the

company so the latter becomes the plaintiff. Because
of that presumption of negligence, there is really
nothing for the P to prove. Presumptions do not
require evidence. Because Netherlands Insurance
here had the presumption of negligence of the
carrier in its favor, it is incumbent upon the carrier to
rebut that presumption. It is very dangerous for a D
to file a demurrer if there is a presumption already
against it. That is what the SC is saying here. Diba if
ma-‐dismiss ang motion for demurrer of evidence,
then the D can no longer present evidence. So sorry
si defendant if this is the case.

& Uy v. Chua: The ground here was that the case was
barred by res judicata. There was already a trial and
the demurrer was filed after the presentation of the
evidence. The RTC granted the demurrer and
dismissed the case. If the appellate court reverses
the dismissal, will Rule 33 Section 1 apply? In the
sense that the defendant here has no longer right to
present evidence? No. What was filed was a motion
based on a wrong ground – not a ground for filing of
demurrer to evidence. The effects of demurrer will
not affect the defendant who filed the demurrer on
the wrong ground. It is not a demurrer but a motion
to dismiss. If what was filed was a motion to dismiss
and the grant is reversed, then the D is still allowed
to present evidence. The effect in demurrer is
different.


CASES:
Rule 34: JUDGMENT ON THE
PLEADINGS & Asian Construction v. CA: The defendant here
admitted that it owed the plaintiff some money but
it wasn’t able to pay the plaintiff kay this certain
Section 1. Judgment on the pleadings. — Where an person did not pay rental. So may admission but his
answer fails to tender an issue, or otherwise admits the defense has nothing to do with the plaintiff but with
material allegations of the adverse party's pleading, the a third party. The answer already admits the material
court may; on motion of that party, direct judgment on such allegations of the adverse party’s complaint. So what
pleading. However, in actions for declaration of nullity or will remain? The 3rd party complaint.
annulment of marriage or for legal separation, the material
facts alleged in the complaint shall always be proved. (1a, & Mongao v. Pryce: The defendant must squarely
R19) answer the allegations in the complaint.

After the pleadings have been filed and the answer has been & Sunbanon v. Go: In this case, the D filed a motion for
joined, can the court render judgment without trial? Yes judgment on the pleading saying that the complaint
under Rule 34. is this and that. The court rendered judgment on the
pleadings but against the D. Is this proper? The SC
What is the ground? Where an answer fails to tender an issue, said that it is unusual that the court will render a
or otherwise admits the material allegations of the adverse judgment on the pleading when it is the D who filed
party's pleading. the motion. This is kinda weird. The SC here said that:
Go ahead, Rule 34. (DON’T MIND THIS CASE – this is
This is normally filed by the plaintiff. an exception).

When the court may direct judgment on the pleadings:
§ A motion for judgment on the pleadings is filed
§ The motion must be based on either of the following
grounds:
o The answer fails to tender an issue, or
o The answer otherwise admits the material
allegations of the adverse party’s pleading

When an answer fails to tender an issue:
§ When it neither admits not denies the allegation in
the complaints
§ When all the denials in the answer are general
denials and not specific

If that kind of answer fails to tender an issue, then the
plaintiff can file a motion for judgment on the pleadings.

When judgments on the pleadings not proper:
§ In actions for declaration of nullity or annulment of
marriage
§ In actions for legal separation
§ When the issue is the amount of unliquidated
damages because there must always be evidence to
prove such amount
Exception: Under Summary Rule, the court
may award unliquidated damages even if no
evidence is presented
§ When the only conclusions of law are being alleged


In actions for declaration of nullity or annulment of
Rule 35: SUMMARY JUDGMENTS §
marriage
§ In actions for legal separation

Section 1. Summary judgment for claimant. — A party Section 2. Summary judgment for defending party. — A
seeking to recover upon a claim, counterclaim, or cross-‐ party against whom a claim, counterclaim, or cross-‐claim is
claim or to obtain a declaratory relief may, at any time after
asserted or a declaratory relief is sought may, at any time,
the pleading in answer thereto has been served, move with
move with supporting affidavits, depositions or admissions
supporting affidavits, depositions or admissions for a for a summary judgment in his favor as to all or any part
summary judgment in his favor upon all or any part thereof. thereof. (2a, R34)
(1a, R34)

The defending party can also file the motion under Rule 35.
Summary judgment procedure – a method for promptly At any time, even before filing his answer. Instead of filing an
disposing of actions in which there is no genuine issue as to answer, he can file a motion for summary judgment.
any material fact.

What are the motions that can be filed before filing the
You have to be able to distinguish Rule 35 and Rule 36. In the answer?
former, there are two grounds. Normally, it is filed by the § Motion to dismiss
plaintiff because of the defendant’s answer. § Motion for bill of particulars
§ Motion to strike pleading or a part thereof
Unlike judgments in the pleadings where it is the plaintiff § Motion for extension of time to file answer
who files the motions, for summary judgment, either of the
§ Motion for summary judgment
party may file. According to Section 1, he can file the motion

at any time after the pleading in answer thereto has been
Section 3. Motion and proceedings thereon. — The motion
served. The P should attach supporting affidavits, depositions
shall be served at least ten (10) days before the time
or admissions.
specified for the hearing. The adverse party may serve

opposing affidavits, depositions, or admissions at least three
P files a collection case against D. D, in his answer, alleged
(3) days before the hearing. After the hearing, the judgment
that he already paid when he really did not. P knows that D is
sought shall be rendered forthwith if the pleadings,
lying. D also knows that he is lying. So nag-‐sinungaling siya.
supporting affidavits, depositions, and admissions on file,
What can P do? He can file a motion for summary judgment
show that, except as to the amount of damages, there is no
and attach proof that D did not pay him. He can execute an
genuine issue as to any material fact and that the moving
affidavit, under oath, that P did not pay and attach it to his
party is entitled to a judgment as a matter of law. (3a, R34)
motion.

The motion, whether filed by P or D, shall be served within 10
D knows that if P executes an affidavit stating that what D is
days before the time specified for the hearing. You should
saying is false in his answer… If P knows that he is right that
give the adverse time.
D has not paid him, then P can ask for an immediate decision.

Basically, what the defendant is saying in his answer is not
The adverse party may serve opposing affidavits, depositions,
true and the plaintiff has proof of that, he can file a motion
or admissions at least three (3) days before the hearing. Then
under Rule 35 and attach his proof.
there will be a hearing. After the hearing, the judgment

sought shall be rendered forthwith.
What if P is able to get an admission from the wife of D and

the wife states in his affidavit that “actually my husband only
Under the rule on depositions, P can take the deposition of D
said he paid because that is the advice of the lawyer but he
and based on D’s deposition, P can prove that D’s defense is
really did not pay.” Such is already enough. There will no trial
false and vice versa. So depositions can be used not only
na. The court will based its decision on the pleadings,
during trial but also to support motion for summary
affidavits, etc.
judgment.

What another term for summary judgment? Accelerated
What is the ground for granting the motion?
judgment.
The pleadings, supporting affidavits, depositions and

admissions on file, show, that, except as to the amount of
Take note that this does not also apply to:
damages, there is no genuine issue as to any material fact

and that moving party is entitled to judgment ad a matter of
law. What should the court do at the hearing of the motion?
During the hearing, the court will determine what issues will
Example: Bus accident between the driver and the be resolved and what issues have to be tried. It shall ascertain
pedestrian. Who was negligent? Suppose P files a motion for what material facts exist without substantial controversy and
summary judgment and the court decides in favor of P xxx. what are actually and in good faith controverted.
When summary judgment is issued by the court, the issue on
negligence is no longer an issue because the court, from the How? By examining the pleadings xxx.
pleadings and the attached affidavits, already believes one
side. Maybe in this case, the movant P. There is already a What then? After the determination?
judgment that D was negligent. How much is D liable? That is
yet to be determined. It shall thereupon make an order: specifying the facts that
appear without substantial controversy, including the extent
There can be a judgment on the particular matter and a trial to which the amount of damages or other relief is not in
for another matter. A motion for summary judgment can controversy, and directing such further proceedings in the
produce partial judgment wherein only the main issue is action as are just.
resolved. The matter of damages will still be subjected to
trial. Effects: The facts so specified shall be deemed established,
and the trial shall be conducted on the controverted facts
What are liquidated damages? Damages to be paid by D in accordingly.
case of breach. Example: Ticket issued by the airline. If your
luggage is lost or destroyed, the airline is only liable to pay Section 5. Form of affidavits and supporting papers. —
$20/kilo under the WARSAW Convention. It doesn’t need to Supporting and opposing affidavits shall be made on
be proven because it is already agreed upon by the parties. personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
Remember earlier, we were talking about lack of cause of affiant is competent to testify to the matters stated therein.
action. What if the complaint of P is all fabrication but the Certified true copies of all papers or parts thereof referred
complaint states a cause of action pero lahat to in the affidavit shall be attached thereto or served
kasinungalingan. Of course, the rule is that the defendant therewith. (5a, R34)
hypothetically admits the allegations in the complaint. But
what if the D is very sure that the complaint is fabricated and When you talk about partial summary judgment, is it a final
he can present evidence, then D can file a motion for judgment that can be appealed? It is merely interlocutory.
summary judgment on the ground that the complaint has no Why? Because there is still trial on the controverted facts.
genuine issue.
The affidavits must be certified true copies and not just mere
Section 4. Case not fully adjudicated on motion. — If on photocopies. If you file a motion for summary judgment, you
motion under this Rule, judgment is not rendered upon the attach supporting affidavits. If you oppose, file a counter-‐
whole case or for all the reliefs sought and a trial is affidavit.
necessary, the court at the hearing of the motion, by
examining the pleadings and the evidence before it and by Section 6. Affidavits in bad faith. — Should it appear to its
interrogating counsel shall ascertain what material facts satisfaction at any time that any of the affidavits presented
exist without substantial controversy and what are actually pursuant to this Rule are presented in bad faith, or solely for
and in good faith controverted. It shall thereupon make an the purpose of delay, the court shall forthwith order the
order specifying the facts that appear without substantial offending party or counsel to pay to the other party the
controversy, including the extent to which the amount of amount of the reasonable expenses which the filing of the
damages or other relief is not in controversy, and directing affidavits caused him to incur including attorney's fees, it
such further proceedings in the action as are just. The facts may, after hearing further adjudge the offending party or
so specified shall be deemed established, and the trial shall counsel guilty of contempt. (6a, R34)
be conducted on the controverted facts accordingly. (4a,
R34) What is the effect if the movant attaches affidavit executed
in bad faith? The court may forthwith order the offending
Situation: Judgment is not rendered upon the whole case or party or counsel to pay to the other party the amount of the
for all the reliefs sought and a trial is necessary. reasonable expenses which the filing of the affidavits caused

him to incur including attorney's fees and after hearing
further adjudge the offending party or counsel guilty of
contempt.

Distinctions:
Summary Judgment on the
Judgment Pleadings
There is no Ground There is no issue
genuine issue of of fact at all to be
fact to be tried tried at the
answer fails to
tender an issue
Facts appearing in Basis for judgment Pleadings only
pleading xxx
Both claimant and Who can file Only the claimant
defendant

CASES:

& Garcia v. CA: When shall the court determine
whether or not there is a genuine issue? After the
hearing of the motion. Kaya nga there has to be a
hearing for summary judgment. Unlike in judgment
on the pleadings, it is very easy to look at the
pleadings and the answer whether or not it fails to
tender an issue. As to the genuine issue, it cannot be
seen by simply looking at the pleadings. In summary
judgment, the hearing is indispensable. The court
cannot determine the existence of the genuine issue
without conducting the hearing.

& Garcia v. Llamas: There is a lot of confusion between
Rule 34 and 35. Is it for judgment on the pleadings or
for summary judgment? In this case, what was filed
was motion for judgment on the pleadings. There
was nothing attached on the motion but the SC and
the CA are saying that it should be treated as a
motion for summary judgment. The effect is the
same. There is a judgment rendered. The thing is, if
you treat it as a summary judgment, what will
happen to the requirements? Yung attachments na
wala? Just be aware of this. What I want you to focus
on is the distinctions between the two.


In writing – the judge cannot render judgment orally;
Rule 36: JUDGMENTS, FINAL ORDERS §
all judgments must be in writing even if given orally –
AND ENTRY THEREOF it
§ Personally and directly prepared by the judge – does
not mean that it is the judge himself who will write
Judgments or final orders. They always come together. That’s the judgment, what is required is that he must be the
why Rule 36 does not only talk about judgments but also one who makes the decision
§ State clearly and distinctly the facts and the law on
There are three stages in civil action: which it is based – state the facts and the legal basis
1. Issue Formulation Stage (Rule 1-‐29) – filing of § Signed by the judge
pleadings, pre-‐trial § Filed with the clerk of court – hindi pwede mag-‐issue
2. Stage of Proof (Rule 30) – after the termination of lang ng judgments sa parties tapos walang kopya
the pre-‐trial, trial, both sides are given the ang clerks of court
opportunity (as a general rule) to present evidence
3. Judgment Stage (Rule 36) The most controversial requisite is the 3rd one. This requisite
is based on a constitutional provision – Article 8, Section 14.
Judgment – Final consideration and determination by a court
of the rights of the parties as those rights presently exists, Illustration: After the meticulous study of the evidence of
upon matters submitted to it in an action or proceeding both sides, the court is of the opinion that the side of the
(Gotamco vs. Chang Seng) plaintiff is more logical therefore the defendant should pay
the loan. -‐-‐-‐ There is no legal basis here. The RTC must comply
Essential requisites for a valid judgment: with this requisite.
§ The court rendering judgment must:
o Have jurisdiction over the subject matter For appellate court, there is what we call as a memorandum
o Have jurisdiction over the person of D (In decision. It is only allowed in the appellate court where it
case D is a non-‐resident, it must have affirms the judgment of the lower court. So it will just adopt
jurisdiction over the res) the findings of the trial court. But if the decision of the
o Have jurisdiction over the issues appellate court is to reverse the judgment of the trial court,
o Be validly constituted court and the judge then the appellate court has to explain why and give its legal
thereof, a judge de jure or de facto basis. Memorandum decision is allowed under BP 129 and
§ The judgment must be rendered after lawful hearing incorporated in Rule 51.
(due process must be observed, the essence of due
process is the fact that the parties are given the Note: Read the cases cited in LA Transcription re: nicely
opportunity to be heard) written decisions

ABC Supply vs. CA: When the judgment was promulgated, the Distinctions:
judge hearing the case was already assigned to Mati. Is the § Decision – the entire written effort from the
judgment valid? Yes. He was still a judge upon promulgation. sentence, “This is an action for a sum of money”
He was only moved from another court. He did not retire or until the end. It contains everything from the
died; as long as he is a judge, it is valid judgment. findings of facts, discussion of evidence.
§ Judgment (sometimes called the fallo) – usually the
Section 1. Rendition of judgments and final orders. — A last paragraph – the “WHEREFORE” part – the
judgment or final order determining the merits of the case dispositive portion or the decretal portion
shall be in writing personally and directly prepared by the § Ratio Decidendi (the reasoning) – the decisions,
judge, stating clearly and distinctly the facts and the law on findings of facts, conclusion of law to justify the
which it is based, signed by him, and filed with the clerk of fallow (Contreras vs. Felix, 78 Phil 570)
the court. (1a)
In case of conflict between the judgment and decision, which
Section 1 refers to the formal requisites. shall prevail? The judgment shall prevail in case of such
conflict, for it is an elementary rule of procedure that the
Formal requisites of a valid judgment or final order resolution of the court in a given issue, as embodied in the
determining the merits of the case: dispositive part of the decisions, is the controlling factor that

determines and settles the rights of the parties and the issues § One that remedies errors or
presented therein. (Manalang vs. Rickards, July 27, 1959) omission in an imperfect or
improper judgment
Note: There is an exception to this general rule. Read the LA § One that changes the judgment in
transcription re: NLRC case (1998) any material respect
§ One that corrects judicial errors,
Types of judgments however flagrant and glaring they
may be
§ Sin perjucio judgments – one which contains only the
dispositive portion of the decision and reserves the § Judgment upon a compromise or amicable
making of findings of fact and conclusions of law in a settlement – rendered with the consent of the
subsequent judgment parties for the purpose of effecting a compromise or
o Walang conclusion settlement of action
o There is a wherefore without a ratio o Compromise – Article 2028 of the CC
o It does not state how the court arrived at o Encouraged by the law and rules
the decision o The court only approves the compromise
o A sin perjucio judgment is a void judgment agreement; it is not the court which renders
because it violates Section 14 of Article 8 the decision
o If there is a fallo and no ratio, sin perjuicio o The court is not required to make findings of
o If there is a decision and no fallo, lalo na sin fact and conclusions of law
perjuicio o In contemplation of law, the court is
deemed to have adopted the statement of
§ Conditional judgment – one which is subject to the facts and conclusions of law made and
performance of a condition precedent and is not resolved by the parties themselves in their
final until the condition is performed compromise agreement; and their consent
o Not a valid decision, null and void has made it both unnecessary and improper
for the court to make a preliminary
§ Incomplete judgment – one which leaves certain adjudication of the matters thereunder
matters to be settled in a subsequent proceeding covered (Palarca vs. Anzon)
o This judgment can never become final, it o Not appealable and it is immediately
having left certain matters to be settled for executor
its completion in a subsequent proceeding o Cannot be annulled unless it is vitiated with
o So the judgment is defective error, deceit, violence or forgery of
documents (Article 2038)
§ Judgment nunc pro tunc – literally means a o Constitutes res judicata – the same subject
‘judgment now for then’ matter or cause of action can no longer be
o Its function is to record some act of the reopen in the future in another litigation
court done at a former time which was then o If you want to undo a judgment upon a
carried into the record compromise, you apply the provisions of the
o The power to make such entries is restricted Civil Code because a compromise
to placing upon the record evidence of agreement is a contract [ex: if your consent
judicial action which has actually been taken was vitiated, you can have it annulled]
o It may be used to make the record speak the
truth, but not to make it speak what it did § Judgment upon a confession – one entered against a
not speak but ought to have spoken person upon his admission or confession of liability
o What the judge added to the decision is without the formality, time and expense involved in
something which he should have added in an ordinary proceeding
the first place o Also known as “cognovit judgment”
o There are proper and improper judgments
nunc pro tunc Note: Read LA Tsn for distinctions between judgment upon a
o Improper judgments nunc pro tunc compromise and judgment by confession


Illustration of the Rules already discussed: A and B are of clerical errors and omissions plainly due to
owners of lands with creek in between. B filed a case for inadvertence or negligence
quieting of title against A. If you are the lawyer of A, what will § The principle of res judicata applies
you do? Assign a commissioner. In the commissioner report,
the geodetic engineer will find out that the creek is a natural What do you mean by “The date of finality of the judgment or
boundary. Then, A will file a motion for summary judgment final order shall be deemed to be the date of its entry”?
on the ground that there is no genuine issue re: cloud which At the end of the decision, you will see there the date when
is one of the requisites for quieting of title. the judge signed the decision. The date in the decision is not
really reckoning date because it has to become final. It
General rule: Final and executor judgments are immutable becomes final if there is no appeal within 15 days. In civil
and unalterable. cases, there is no promulgation unlike in criminal cases. For
civil cases, that date doesn’t really matter. It is the service
Exceptions: that matters – when the parties receive the copy of the
§ Clerical errors decision. So from there ka mag-‐count.
§ Nunc pro tunc entries which cause no prejudice to
any party The problem is that the clerks of court forget to enter the
§ Void judgments judgment. Paminsan, the date of finality does not coincide
§ Judgment for support – never immutable because with the date of entry. Minsan one year later pa ini-‐enter. The
the amount of support will depend on the capability date the decision became final which is 15 days from the date
of the person ordered to pay support of service is the date of finality. Date of finality is also the
date of entry. Itong date of entry is very important and we
Section 2. Entry of judgments and final orders. — If no will go back to this when we reach Rule 39.
appeal or motion for new trial or reconsideration is filed
within the time provided in these Rules, the judgment or Section 3. Judgment for or against one or more of several
final order shall forthwith be entered by the clerk in the parties. — Judgment may be given for or against one or
book of entries of judgments. The date of finality of the more of several plaintiffs and for or against one or more of
judgment or final order shall be deemed to be the date of its several defendants. When justice so demands, the court may
entry. The record shall contain the dispositive part of the require the parties on each side to file adversary pleadings
judgment or final order and shall be signed by the clerk, as between themselves and determine their ultimate rights
within a certificate that such judgment or final order has and obligations. (3)
become final and executory. (2a, 10, R51)
Diba we have joinder of parties? What if there is a joinder of
Final order example: granting of motion to dismiss. If the defendants? Of plaintiffs? According to Section 3, judgment
plaintiff does not refile, it becomes final. It is an order that did may be given for or against one or more of several plaintiffs
not go through any trial. That is included under Section 2. and for or against one or more of several defendants.
Final orders – where the court has nothing else to do.
When justice so demands, the court may require the parties
Take note: The date of finality of the judgment or final order on each side to file adversary pleadings as between
shall be deemed to be the date of its entry. themselves and determine their ultimate rights and
obligations.
What shall the record contain? The dispositive part of the
judgment or final order and shall be signed by the clerk, The court does not have necessarily have to rule for all the
within a certificate that such judgment or final order has defendants. Same with plaintiffs. Just because may joinder
become final and executor. does not mean na all plaintiffs will win. Some of the plaintiffs
will win, some will not.
Effects of finality of judgment:
§ The prevailing party is entitled to have the judgment Section 4. Several judgments. — In an action against several
executed as a matter of right and the issuance of the defendants, the court may, when a several judgment is
corresponding writ of execution becomes a proper, render judgment against one or more of them,
ministerial duty of the court (Rule 39) leaving the action to proceed against the others. (4)
§ The court rendering the judgment loses jurisdiction
over the case so that it can no longer correct the The court may render judgment already against A and B and
judgment in substance, except to make corrections continue the trial against C and D. This provision applies when

there are several defendants and implies that liability is its enforcement until the rendition of a subsequent
separable and could be subject to separate suits. judgment.

If they have different defenses, then judgment can be Section 6. Judgment against entity without juridical
rendered against some and the others can continue. personality. — When judgment is rendered against two or
more persons sued as an entity without juridical personality,
Distinction: the judgment shall set out their individual or proper names,
Section 5 Section 4 if known. (6a)
Involves several parties Involves several claims
between the same parties CASES:
The result on the trial on the Results when some matters
merits are resolved on motion for & Borromeo v. CA: Appellate courts, especially the SC,
summary judgment and has the option to issue a resolution instead of a
others require trial decision. It is usually issued in cases involving simple
Note: Just take note lang daw. Not really important. issues (if the case is factual in nature or when . This
practice has already been used or very popular
Section 5. Separate judgments. — When more than one among appellate courts. They call it the minute
claim for relief is presented in an action, the court, at any resolution. Minute resolutions need not be signed by
stage, upon a determination of the issues material to a the judges of the SC who took part in making the
particular claim and all counterclaims arising out of the decision or in the deliberation. It can be signed by
transaction or occurrence which is the subject matter of the the clerk of court.
claim, may render a separate judgment disposing of such
claim. The judgment shall terminate the action with respect & Consolidated Bank v. IAC: How is promulgation
to the claim so disposed of and the action shall proceed as to done? Unfortunately, it’s not here in the rules when
the remaining claims. In case a separate judgment is the decision or a resolution of an appellate court can
rendered the court by order may stay its enforcement until be promulgated. Wala pang date yung decision pero
the rendition of a subsequent judgment or judgments and napirmahan na. The date of signing is not the date of
may prescribe such conditions as may be necessary to secure promulgation. We will assume that it is the date
the benefit thereof to the party in whose favor the written on the decision or on the date it is sent.
judgment is rendered. (5a) There is no difference between the appellate courts
and the trial courts. So, ano yan? Ulitin? Parang
Situation: more than one claim for relief is presented in an impractical diba kay namatay na siya?
action. [ex: joinder of causes of action]
& Marchadesch v. De Yepes: Even if he resigned and
Requisites for rendering separate judgments (read LA Tsn) was reappointed on the same court so he can still
render a decision. Section 1 does not say that the
Effects of the separate judgment on the action: decision shall be made by the judge who heard the
§ The judgment shall terminate the action with respect case. The next judge can write the decision based on
to the claim so disposed of and the action shall the records. It is also possible that there are judges
proceed as to the remaining claims. who would like to finish their cases. The important
§ The court, by order, may: thing is that the decision is rendered by the judge of
o Stay its enforcement until the rendition of a that court – whether or not he resigned it between
subsequent judgment or judgments and or whether or not it was him who heard the decision.
o Prescribe such conditions as may be
necessary to secure the benefit thereof to & Mocorro v. Ramirez: Mocorro wanted it to be open-‐
the party in whose favor the judgment is ended. This was due to inadvertence. Everything was
rendered. stated in the records. Besides, there are many laws
which say that one is only obliged to pay damages
Earlier, we learned that if a judgment becomes final and when there is damage incurred on the other party.
executor, execution is matter of right. Meaning, the winner Pag-‐wala na, alangan bayaran pa siya? It doesn’t
can have the judgment enforced or executed. That is a make sense. This is an example of a nunc pro tunc
general rule. But if there is a separate judgment, the judgment which can be amended even if it has
execution is not a matter of right because the court may stay

already become final. It is only for the purpose of
clarification of the judgment.


NDE:
Rule 37: NEW TRIAL OR §
o Which he could not, with reasonable
RECONSIDERATIONS diligence, have discovered and produced at
the trial, and
o Which if presented would probably alter
Section 1. Grounds of and period for filing motion for new the result
trial or reconsideration. — Within the period for taking an
appeal, the aggrieved party may move the trial court to set FAME provisions available to one who is declared in default:
aside the judgment or final order and grant a new trial for § Rule 9, Section 3 (b) – after notice of the order of
one or more of the following causes materially affecting the default but before judgment
substantial rights of said party: § Rule 37 – after judgment but before it becomes final
(a) Fraud, accident, mistake or excusable negligence and executor
which ordinary prudence could not have guarded against
and by reason of which such aggrieved party has probably Is MNT available only to defendants declared in default? No.
been impaired in his rights; or Any party as long as there are grounds, like the party was not
(b) Newly discovered evidence, which he could not, able to present evidence due to FAME. Again, MNT is
with reasonable diligence, have discovered and produced at available to all parties who have been prejudiced because of
the trial, and which if presented would probably alter the FAME.
result.
Within the same period, the aggrieved party may Example: P failed to appear during the presentation of his
also move for reconsideration upon the grounds that the evidence in chief. RTC dismissed the complaint pursuant to
damages awarded are excessive, that the evidence is Rule 17, Section 3. But the reason why P failed to appear is
insufficient to justify the decision or final order, or that the because of FAME. So the remedy is for P is to move for new
decision or final order is contrary to law. (1a) trial on the ground of FAME.

Section 1 tells us when to file and what are the grounds for 2 Types of Fraud
filing. 1. Extrinsic -‐ that which has prevented a part from
having a trial or form presenting his case in court
When do you file it? Within the period for taking an appeal. 2. Intrinsic – acts committed by a party in litigation
Meaning, before the judgment becomes final and executory. during the trial
You start counting from the receipt of judgment. If it is
served via a registered mail, upon receipt or yung 5 days. Only extrinsic fraud is a ground for new trial – where the
Know your rules. aggrieved party was misled by the adverse party, and by
reason thereof, he was prevented from presenting his case
What is the effect when the judgment becomes final and properly.
executory? Under Rule 36, the court loses jurisdiction over
the case. The decision can no longer be modified anymore. What is accident? Something unforeseen, unexpected or
But as long as judgment is not yet final, the court can change unanticipated such as last minute illness. (Phil Engineering vs.
its decision. Argosino)

What is the effect of filing a MNT or MR during the period to Whose mistake are we talking about? Not the mistake of the
appeal? The period to appeal is suspended, except if the MNT lawyer but mistake of the party. Mistake is different from
or MR is pro-‐forma under Section 2 and 5 (a motion which excusable negligence.
does not comply with Rule 15).
General rule: A client is bound by the mistakes of his lawyer
Grounds for filing MNT: and he cannot file a MNT on the ground of mistake of his
When for one or more of the following causes materially lawyer.
affecting the substantial rights of the parties:
§ FAME Exception: Where the incompentency or negligence of the
o Which ordinary prudence could not have party’s counsel is so great that party’s right are prejudiced
guarded against and and he is prevented from presenting his cause of action or
o By reason of which such aggrieved party defense. It really depends on the court to determine the level
has probably been impaired in his rights of mistake.

Inexcusable negligence is not a ground for new trial. But Section 2. Contents of motion for new trial or
sometimes, it is difficult to determine whether the negligence reconsideration and notice thereof. — The motion shall be
is excusable or inexcusable. made in writing stating the ground or grounds therefor, a
written notice of which shall be served by the movant on the
When is negligence excusable and when is it inexcusable? adverse party.
Jurisprudence will determine on a case to case basis. A motion for new trial shall be proved in the
manner provided for proof of motion. A motion for the
Note: Read the examples in LA Tsn cause mentioned in paragraph (a) of the preceding section
shall be supported by affidavits of merits which may be
NDE – Evidence which: rebutted by affidavits. A motion for the cause mentioned in
§ The aggrieved party could not, with reasonable paragraph (b) shall be supported by affidavits of the
diligence, have discovered and produced at the trial witnesses by whom such evidence is expected to be given,
and or by duly authenticated documents which are proposed to
§ If presented would probably alter the result be introduced in evidence.
A motion for reconsideration shall point out a
Requisites: specifically the findings or conclusions of the judgment or
§ The evidence was discovered after trial final order which are not supported by the evidence or
§ It could not have discovered during trial even with which are contrary to law making express reference to the
exercise of reasonable diligence testimonial or documentary evidence or to the provisions of
§ If admitted, such evidence would probably alter the law alleged to be contrary to such findings or conclusions.
result A pro forma motion for new trial or reconsideration
shall not toll the reglementary period of appeal. (2a)
But, it does not presuppose that the evidence did not exist at
the time of trial. If you want to file MNT or MR, it must be in writing. It must
state the ground or grounds therefore and must be served on
Distinctions: the adverse party.
New Trial Reopening of Trial
Takes place after judgment Done before judgment How MNT shall be proved:
Based on grounds defined in Dictated by the interest of § In the manner provided for proof of motion
the rules – FAME and NDE justice and rests on court’s § If grounded on FAME – supported by affidavits of
discretion merit which may be rebutted by affidavits (affidavit
Always on motion of Maybe done on the court’s of merit – it recites the nature and character of the
aggrieved party – the court initiative FAME; you have to allege with particularity)
will not suggest § If grounded on NDE – supported by:
o Affidavits of witnesses by whom such
What are the grounds for motion for reconsideration? evidence is expected to be given (newly
1. That the damages awarded are excessive, discovered testimonial evidence; his
2. That the evidence is insufficient to justify the testimony will be attached noh so the court
decision or final order, or will determine if such is necessary)
3. That the decision or final order is contrary to law o Duly authenticated documents which are
proposed to be introduced in evidence
Lawyers seem to forget that the rules provides for the
specific grounds for a MR. Diba I told you about that case You must show the court if you have a meritorious cause of
wherein P was not present during pre-‐trial and the lawyer action or defense to be entitled to new trial. In other words,
was there but he did not have special authority so I moved to an affidavit of merits is part and parcel of a MNT. If you do
dismiss under Rule 18. Failure to appear at the pre-‐trial has not attach an affidavit of merits, what is that motion that you
the same effect… basta dismissal is with prejudice. Note that file? It will be considered pro-‐forma. If you don’t follow the
the interest for justice is not a ground for MR. requirements under Rule 15, then pro-‐forma na ang motion
mo.
What is the period for filing MR? 15 days from receipt of
judgment or final order. This is common between MNT and When you file an ordinary motion, does your motion have to
MR. be supported by affidavits or documents? Not always but

there are times when it is necessary like if you want to reset once served to the movant, will start the
the hearing. Like if you want to reset on certain date kasi you running of the period again to appeal.
are going to Manila, attach your tickets. For MNT, it is always If your MNT or MR is denied, mag-‐appeal ka nalang. You have
supported by affidavits. the chance pa to put your evidence in your memorandum or
brief as the case may be.
For MNT, there are additional grounds for a motion to be
considered pro-‐forma: Not attaching the affidavit of merit If a motion for reconsideration is filed before the court, the
court may:
What is pro-‐forma motion for new trial? One that does not § Deny the motion, or
comply in substance or in form with Sections 1 and 2 of Rule § Amend such judgment or final order accordingly if
37. So you have to know the two sections. You cannot just the court finds that
attach a narration. Dapat duly authenticated. Dapat sundin o Excessive damages have been awarded or
lahat ng requirements. o That the judgment or final order is contrary
to the evidence or law
If the motion is pro-‐forma, it will not toll, suspend or affect
the running of the period to appeal. That is under Section 2. Can the court reverse itself? Of course, it still has the power.
It did not yet lose jurisdiction of the case because the
If you file an MR, you also have to follow Section 2. You have decision has not yet become final and executory.
to point out specifically the findings or conclusions of the
judgment or final order which are not supported by the Section 4. Resolution of motion. — A motion for new trial or
evidence or which are contrary to law making express reconsideration shall be resolved within thirty (30) days
reference to the testimonial or documentary evidence or to from the time it is submitted for resolution. (n)
the provisions of law alleged to be contrary to such findings
or conclusions. In other words, you need to have a discussion Take note that betweent he filing and the submission of the
why you are saying that the decision is contrary to law or the resolution, there must be a hearing. A motion, if not ex-‐parte,
evidence is insufficient. You cannot just say na wrong ang it must be set for hearing. Then the parties or the lawyers will
decision. You have to specifically point out why. have some arguments with both the judge and the judge will
then submit the motion for resolution. That is when you start
What happens if the aggrieved party files a MR without counting the 30 day period.
making any reference, exhibit, etc? Meaning, he did not
comply with sections 2 and 3? The MR is considered as pro-‐ Section 5. Second motion for new trial. — A motion for new
forma. It shall not toll the reglementary period of appeal. trial shall include all grounds then available and those not so
included shall be deemed waived.
Section 3. Action upon motion for new trial or A second motion for new trial, based on a ground
reconsideration. — The trial court may set aside the not existing nor available when the first motion was made,
judgment or final order and grant a new trial, upon such may be filed within the time herein provided excluding the
terms as may be just, or may deny the motion. If the court time during which the first motion had been pending.
finds that excessive damages have been awarded or that the No party shall be allowed a second motion for
judgment or final order is contrary to the evidence or law, it reconsideration of a judgment or final order (4a, 4, IRG)
may amend such judgment or final order accordingly. (3a)
Are you allowed to file a second MNT? If you have all the four
So the motion has been filed (MR or MNT) with the court, grounds (FAME) or NDE, isali mo na sa motion mo. Iinclude
what are the options of the court upon receiving the motion? mo na because if you don’t do so, according to the provision:
Here, the court has the discretion whether to grant or deny A second motion for new trial, based on a ground not
the motion. existing nor available when the first motion was made, may
be filed within the time herein provided excluding the time
Options of the court when MNT is filed before it: during which the first motion had been pending.
§ Set aside the judgment or final order and grant a
new trial, or What is the ground for second MNT? Ang ground lang dito is
§ May deny the motion NDE. Kasi it must be based on a ground not existing or not
o Effect: The judgment stands. You are no available when the first MNT was filed.
longer allowed to present evidence. Denial,

General rule: A MNT shall include all grounds then available Take note: Do not forget the requirements under Section 15.
and those not so included shall be deemed waived.
Section 6. Effect of granting of motion for new trial. — If a
Exception: A second motion for new trial, based on a ground new trial is granted in accordance with the provisions of this
not existing nor available when the first motion was made, Rules the original judgment or final order shall be vacated,
may be filed within the time herein provided excluding the and the action shall stand for trial de novo; but the recorded
time during which the first motion had been pending, evidence taken upon the former trial, insofar as the same is
material and competent to establish the issues, shall be used
Presumptions under Section 5: at the new trial without retaking the same. (5a)
§ The first MNT is NOT pro-‐forma
§ The ground is NDE What happens now if the court will grant your motion for
§ Time to file 2nd MNT – only the balance so the fresh new trial?
period rule does not apply
o Let’s say that the judgment was received on Effects if new trial is granted:
March 1. The MNT was filed on March 5. So, § The original judgment or final order shall be vacated,
it was denied on April 10. Let us assume na and
may 11 days pa. If you file a second MNT, you § The action shall stand for trial de novo (new trial)
file based on NDE discovered after you filed § BUT the recorded evidence taken upon the former
the first MNT. For 2nd MNT, the fresh period trial, insofar as the same is material and competent
rule does not apply. You file within the to establish the issues, shall be used at the new trial
balance. As long as it is not pro-‐forma, without retaking the same
pwede. If denied na ang 2nd MNT, mag-‐fresh o In other words, the new trial is dagdag lang.
period rule na. It does not mean that because it’s a new
trial need na magpresent ulit ni other party.
What happens if the aggrieved party files a 2nd MNT on a Si movant lang ang magpresent dito; they
ground that was available when the 1st MNT was filed. The 2nd don’t have to go back to square 1.
MNT is pro form and will not interrupt the remaining balance
of the period to appeal after the 1st MNT was denied. This is a Definitely, the judgment will be vacated or set aside whether
clear violation of the omnibus motion rule. its NDE or FAME. Then the court will render a new judgment
after trial.
You have to prove the way you prove the first MNT. You tell
the court that you could not have discovered the evidence Section 7. Partial new trial or reconsideration. — If the
even if you exerted efforts. grounds for a motion under this Rule appear to the court to
affect the issues as to only a part, or less than an of the
2 types of pro forma MNT: matter in controversy, or only one, or less than all, of the
§ A MNT which is not supported by affidavit of merits parties to it, the court may order a new trial or grant
– one which does not comply in substance or in form reconsideration as to such issues if severable without
with Section 2 interfering with the judgment or final order upon the rest.
§ A 2nd MNT on a ground available to the party when (6a)
the 1st MNT was filed (Rule 37, Section 5)
Will there be new trial for MR? No, the court will simply
Rules on 2nd MR: review its decision and compare it to the motion. Find out if
§ 2nd MR of a judgment or final order – not allowed indeed he or she made a mistake in rendering the judgment.
§ 2nd MT of an interlocutory order – this is If the court is persuaded by the motion, then it can amend or
questionable; normally, nagpa-‐file sila reverse its own judgment.

The provision provided: No party shall be allowed a second Note: Check LA Tsn for distinctions between MR and MNT
motion for reconsideration of a judgment or final order
Situation: The grounds for MNT or MR appear to the court to
What happens if the aggrieved party files a 2nd MR? It will be affect:
considered as pro forma. It will not interrupt the period to file § The issues as to only a part, or
appeal. § Less than all of the matter in controversy, or

§ Only one, or less than all, of the parties to it only has 1 day to file the notice of appeal and instead
of filing such, it filed a second MR which is pro forma
Effect: The court may order a new trial or grant so it did not toll the running of the period of the
reconsideration as to such issues if severable without appeal.
interfering with the judgment or final order upon the rest.
& Multi Trans v. Oriental: This is an exception. In this
case, clearly, it was pointed out by the movant in the
Section 8. Effect of order for partial new trial. — When less MNT how negligent Atty. Austria was and how
than all of the issues are ordered retried, the court may prejudiced the client was due to his acts. So the
either enter a judgment or final order as to the rest, or stay movant was allowed a new trial.
the enforcement of such judgment or final order until after
the new trial. (7a) & Co vs. People: Because even if they are both in
Section 1, this section segregates what are the
CF: Rule 39, Section 2B grounds for MNT and what are the grounds for MR.
x x x It could have been a typo error. But the SC said that
(b) Execution of several, separate or partial it is stupid because you filed an MR but your ground
judgments. — A several, separate or partial is extrinsic fraud. But then, if you file MNT pero wala
judgment may be executed under the same terms kang affidavit of merits, so wala pa rin. In MR, hindi
and conditions as execution of a judgment or final mo na kailangan ng affidavit. The point here is know
order pending appeal. the grounds for your motion and follow the
requirements.
It falls under discretionary execution.
& RP v. Yang Chi Hao: If an MR is filed, the court has
Section 9. Remedy against order denying a motion for new options. If it feels that it has to reverse its earlier
trial or reconsideration. — An order denying a motion for judgment, then they can do it. It is not against the
new trial or reconsideration is not appealed, the remedy rules.
being an appeal from the judgment or final order. (n)
& Terana v. Judge Sagun: If the judgment is rendered
What if your motion is denied? You just appeal the judgment under the Summary Rule, you just have to appeal the
or final order for which you file a MNT or MR. Hindi ang denial ruling. New trial is not allowed precisely because the
of the MR or MNT ang i-‐appeal mo ha. purpose of summary rule is to fast track the
proceeding. If you are going to be allowed, it will
This is related to Rule 41, Section 1: only cause delay. Under the Summary Rule, there is
x x x no trial – only filing of position paper. In this case,
(b) An order denying a petition for relief or any Terana wanted to remand the case back to the RTC
similar motion seeking relief from judgment. and he wanted to file additional position papers. Sabi
[BUT this is already deleted by an AM. We will discuss this ng SC, hindi yan pwede. That is why the SC said na
when we reach Rule 41.] not allowed: 1. Prohibited; 2. Will cause delay in the
proceedings. So it is a circumvention on a Rule on
Did you know that the WARSAW Convention is no longer Summary Procedure. A position paper is not an
applicable? May MONTREAL Convention na, nung 2010. Hindi indispensable to the court’s authority to render
pa siya approved kasi we did not adhere yet. Nasa pending judgment under the Summary Rule. If you want a
resolutions pa siya sa Senate. What I’m telling you is that MNT, you want to present your evidence. A position
when you reach 4th year, you might be taking the MONTREAL paper is not a submission of evidence – it is telling
Convention and not the WARSAW Convention. the story of the entire case from beginning to end so
lalo na hindi talaga MNT ang dapat dito.
CASES:
& Jaban v. City of Cebu: This is an application of
& RP v. Hidalgo: The motion here was pro forma. What Section 9. This is very easy.
did the RP do when the MNT was denied? It filed an
MR. What kind of a motion is that – the MR after the
denial of the MNT? It’s pro forma. The SC said that
the fresh period rule here cannot be applied. RP here

Rule 38: RELIEF FROM JUDGMENTS, What to file Motion for NT Petition for Relief
from Judgment
ORDERS OR OTHER PROCEEDINGS When to file Before the After judgment
judgment or final byt within 60 days
order becomes and 6 months
You are in a situation where you a lawyer of the defendant final and
who lost the case. The judgment was rendered against D and executory
you were not able to appeal for one reason or another. Is Grounds FAME and NDE FAME
there anything else that you can do as the lawyer of the D?
There is this option under Rule 38. Here, the judgment is Can the party file a PfRJ after denial of the MNT? As a general
already final and executory. So the 15-‐day period lapsed. rule, NO. If your MNT is denied, you still have the remedy of
appeal. From the denial of the MNT, you have 15 days to
Section 1. Petition for relief from judgment, order, or other appeal. The SC said in one case: Where another remedy is
proceedings. — When a judgment or final order is entered, available… what X should have done is to take the higher
or any other proceeding is thereafter taken against a party court such denial. These two remedies are exclusive of each
in any court through fraud, accident, mistake, or excusable other.
negligence, he may file a petition in such court and in the
same case praying that the judgment, order or proceeding Can a petition for relief from judgment be filed with the CA?
be set aside. (2a) While Section 1 uses “any court”, it only refers to MTC and
RTC. CA has the Revised Internal Rules of the CA which does
Under Section 1, when a judgment or final order is entered not provide for any petition for relief.
(may entry of judgment na), or any other proceeding is
thereafter taken against a party in any court through FAME, Section 2. Petition for relief from denial of appeal. — When
he may file a petition in such court and in the same case a judgment or final order is rendered by any court in a case,
praying that the judgment, order or proceeding be set aside. and a party thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented from taking an
Requisites for filing petition for relief: appeal, he may file a petition in such court and in the same
§ A judgment or final order is entered, or any other case praying that the appeal be given due course. (1a)
proceeding is thereafter taken against a party in any
court Let’s go back to our example. D was declared in default.
§ Through FAME (no more NDE) Judgment in default was rendered. He filed MNT pero denied
pa rin so nag-‐appeal nalang sila. Read Section 2. What is the
Let’s go back to the defaulted defendant. He was declared in ground for denial of an appeal? You normally file your notice
default because he didn’t know that he has to go to a lawyer of appeal with the court which renders the judgment. So let’s
pala. The P filed a motion to declare him in default. He say RTC. Let’s say the appeal was filed out of time. If such
received the order of default but he did not understand it. was the case, the court that rendered the judgment may
The P was able to present evidence ex-‐parte. He received the deny the motion right away on the ground that it was file on
judgment against him. Hindi niya alam na pwede niya pala time.
iappeal so the 15-‐day period lapsed and the judgment
attained finality. Then, he realized na he needs to go to a Section 2 says that the party was not able to file an appeal
lawyer pala. The lawyer will tell him na may chance pa – file a within the period provided because of FAME, he can pray
petition for relief. Here, may mistake of the party so FAME. with the court that he be allowed to appeal. He can plead to
allow him to appeal. Parang “please allow me nalang to
Where shall the petition be filed? On the court which appeal.” Here, wala naka-‐appeal because of FAME ha. So iask
rendered the judgment. mo ang court na i-‐allow ka to appeal.

Is this a new proceeding with a new case number? No, it’s the Section 3. Time for filing petition; contents and verification.
same case. The petitioner shall pray that the order, — A petition provided for in either of the preceding sections
proceeding or judgment be set aside. So this is another of this Rule must be verified, filed within sixty (60) days
remedy of the D who was declared in default. after the petitioner learns of the judgment, final order, or
other proceeding to be set aside, and not more than six (6)
Distinctions: months after such judgment or final order was entered, or
As to: Rule 37 Rule 38 such proceeding was taken, and must be accompanied with

affidavits showing the fraud, accident, mistake, or excusable judgment, you will see later that execution is a matter of
negligence relied upon, and the facts constituting the right.
petitioner's good and substantial cause of action or defense,
as the case may be. (3) What is the remedy of the party who filed a petition for relief
from a final and executory judgment? He can ask for a
When can you file your petition for relief? preliminary injunction. He can file it at the court where the
petition for relief was filed.
Note: Read the discussion – LA Tsn [Nag-‐crash ang MSWord
L] Requisite: P must file a bond on the adverse party
conditioned that:
Section 4. Order to file an answer. — If the petition is § The petition is dismissed, or
sufficient in form and substance to justify relief, the court in § P fails on the trial of the cause upon its merits
which it is filed, shall issue an order requiring the adverse
parties to answer the same within fifteen (15) days from the Effect: P will pay the adverse party all damages and costs that
receipt thereof. The order shall be served in such manner as may be awarded to him by reason of the issuance of such PI
the court may direct, together with copies of the petition or the other proceedings following the petition.
and the accompanying affidavits. (4a)
Take note that if a writ of PI is issued shall not operate to
Procedure when petition is sufficient in form and substance discharge or extinguish any lien which the adverse party
to justify relief: may have acquired upon, the property, of the petitioner/.
§ The court in which it is filed, shall issue an order
requiring the adverse parties to answer the same Section 5 is a provisional remedy – while the petition is
within fifteen (15) days from the receipt thereof pending.
§ The order shall be served in such manner as the
court may direct Section 6. Proceedings after answer is filed. — After the
§ Copies of the petition and the accompanying filing of the answer or the expiration of the period therefor,
affidavits shall be attached to the order the court shall hear the petition and if after such hearing, it
finds that the allegations thereof are not true, the petition
We already know that Rule 38 is a remedy that may be shall be dismissed; but if it finds said allegations to be true, it
availed of if one was not able to avail of other remedies shall set aside the judgment or final order or other
because of FAME. Section 1 is a petition for relief from proceeding complained of upon such terms as may be just.
judgment or final order. Section 2 is a petition for relief from Thereafter the case shall stand as if such judgment, final
the denial of the appeal. When an appeal is denied, one can order or other proceeding had never been rendered, issued
also file a petition for relief from relief of judgment. or taken. The court shall then proceed to hear and
determine the case as if a timely motion for a new trial or
Section 5. Preliminary injunction pending proceedings. — reconsideration had been granted by it. (6a)
The court in which the petition is filed may grant such
preliminary injunction as may be necessary for the Remember that the winning party, in the final judgment or
preservation of the rights of the parties, upon the filing by order, will be ordered by the court to file his or her answer.
the petitioner of a bond in favor of the adverse party, After the answer is filed, what is the procedure? Section 6.
conditioned that if the petition is dismissed or the petitioner
fails on the trial of the case upon its merits, he will pay the Situation: An answer has been filed or the period for filing an
adverse party all damages and costs that may be awarded to answer has expired.
him by reason of the issuance of such injunction or the other
proceedings following the petition, but such injunction shall Procedure:
not operate to discharge or extinguish any lien which the § The court shall hear the petition
adverse party may have acquired upon, the property, of the § After the hearing, if the court finds that the
petitioner. (5a) allegations of the petition are not:
o Not true – Dismiss the petition
When this kind of petition is filed, there is already a judgment o True – set aside the judgment or final order
or final order. There is already a winner. Now, according to or other proceeding complained of upon
Section 5, one can avail of a provisional remedy of preliminary such terms as may be just
injunction. Because there is already a winner and a final

Effect of setting aside the judgment or final order:
§ The case shall stand as if such judgment, final order CASES:
or other proceeding had never been rendered,
issued or taken. & Cerezo v. Tuazon: One can only file a petition for
§ The court shall then proceed to hear and determine relief from judgment if there is no other remedy. If
the case as if a timely motion for a new trial or one was not able to file a remedy because of
reconsideration had been granted by it. negligence, that is not excusable. Generally
speaking, remedy of appeal is the one which is a
Just because the judgment has been set aside, it doesn’t matter of right. Petition for relief is not. The
mean that the court has to change its judgment. It still has judgment in this case is already final and executory
the discretion to stick with its judgment but most of the time, but there are times when the lawyers fail to file an
the court will grant the petition for relief if indeed there is a appeal so they file a petition for relief. Most of the
possibility xxx. time, the petition is dismissed.

2 hearings are conducted by the court when petition for relief & Afdal v. Carlos: Afdal here was not able to file an
is filed: answer. Under the Summary Rule, the effect is
§ Hearing to determine won judgment or order immediate judgment against him. What should he
complained of should be set aside have done? The period to appeal has already lapsed
§ If granted – a hearing on the merits of the principal so that is why the petition for relief was filed.
case Petition for relief is a prohibited petition under the
o Note: There are parties who do not need Summary Rule. You cannot file it with the MTC. Lalo
new trial but only a review on the judgment. na sa RTC because Section 1 says that you should file
it in the court which rendered the decision.
Section 7. Procedure where the denial of an appeal is set
aside. — Where the denial of an appeal is set aside, the & PCI Bank v. CA: What happened was the MR of the
lower court shall be required to give due course to the judgment was pro forma so it did not suspend the
appeal and to elevate the record of the appealed case as if a running of the period of appeal. The period lapsed so
timely and proper appeal had been made. (7a) no more lapse. They did not appeal. Dapat nag-‐
appeal sila even if the period has already lapsed. File
Section 7 is connected to Section 2. Under Section 2, the an appeal and if the appeal is denied, file a petition
party filed an appeal but the appeal was denied. Like what I for relief under Section 2. If this petition for relief is a
told you, the ground for denial is normally: it was filed out of petition can only be availed of under exceptional
time. So the party can file a petition for relief from the denial circumstances, lalo na ang petition for certiorari
of the appeal. If this is granted, the court is required to give under Rule 65. You have to avail of the remedies first
due course to the appeal and to elevate the record of the under the Rules. The best thing to do is appeal even
appealed case as if a timely and proper appeal had been if it is filed out of time. This case is procedural – avail
made. of the procedures allowed by the rules.

Situation: RTC rendered judgment in the exercise of its & Mercury Drug v. CA: The SC was explicit in saying
original jurisdiction in favor of P. D filed an appeal but it was that the reglementary period is reckoned from the
filed late. The first appeal is always a matter of right. Appeal time the party’s counsel receives notice of the
is a statutory right. The loser D will just file a notice of appeal decision for notice to counsel of the decision is
with the RTC, the court that rendered judgment. It is a notice notice to the party for purposes of Section 3 of Rule
because he is merely informing the court that he is appealing, 38. Notice of the counsel is notice to the party for
not with the RTC, but with the CA. CA has no authority has no purposes of Rule 38. There was already a judgment
authority to dismiss the appeal because it is a matter of right. rendered and there was a counsel in record. If that
But if it is filed out of time, pwede niya i-‐deny. lawyer is no longer the lawyer of the party, he has to
inform the court. If he does not inform the court his
So nagfile si D ng petition for relief with the said court for the withdrawal, then the court will not know so the
denial of the appeal. If the RTC grants the petition, what shall summons or papers will be sent to him. To whom the
it do? It shall give due court to the appeal and elevate the court should mail the decision? To the counsel on
record of the case to the CA as if a timely and proper appeal record. So that is the reckoning point: from the date
had been made. of notice of the lawyer. Since the lawyer already

received a copy of the decision on March 3 and the finality. The other party cannot file a petition for
petition for relief was only filed on May X (so 60 relief. Obviously, the petition here was filed because
days) and the petition was filed out of time even if he was not able to file the appeal. So wait for the
xxx from date of entry. appeal to be settled and wait for the judgment to
attain finality and that is the only time that you will
& Manipor v. Ricafort: Here, the parties entered into a file the petition for relief.
compromise agreement and there was a judgment
on the compromise render on July 30, 1999. The
judgment upon a compromise became final and
executor without any appeal taken by the parties.
They realized later that the period for appeal already
lapsed. On August 15, 2000, they filed a petition for
relief which is more than one year from the
judgment. What was violated here? The first period
was violated. When did the parties know about the
judgment? They knew on the compromise
agreement na pina-‐approve nila. Count from July 30,
1999 when the court approved the compromise
agreement. What about the second period? Yung 6
months? Even if the entry is made later, you know
very well that the date of service is deemed to be the
date of entry. So you count again 6 months from July
30. So both periods were violated. So the petion was
filed out of time.

& Purcon v. MRM: A petition for review on certiorari
under Rule 45 is an appeal. The period is only 15 days
from the date of receipt of the judgment or order.
Since the petition for review on certiorari was denied
since it was filed out of time, they filed a petition for
relief because of the 60 days and 6 months. They are
wrong. As we have already learned, petitions for
relief are only available with the MTC and RTC, not
with the CA and SC.

& Samonte v. Naguiat: Take note that the SC said: If
you have a verified petition and you already
discussed specifically the circumstances behind the
FAME that prevented you from presenting evidence
and you discussed thoroughly the facts constituting
your good or substantial cause of action or defense,
you do not need to attach an affidavit of merits. If
your petition is verified and you stated everything
there, that is already an affidavit. Superfluous na if
dalawa ang i-‐file mo. According to the SC, the term
“be accompanied” should not be taken literally in
the sense that there is an attached affidavit of merit.
As long as it is meritorious and verified, that is
enough.
“It's not the load that breaks you down,
& Valencia v. CA: Take note that there are times that it's the way you carry it.”
after judgment is rendered, both parties are not ― Lou Holtz
happy. If one party appeals, the case will not reach

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