Civil Procedure- Finals Notes

Use Rule 9, Sec 3 (b) after notice of the order of default but
before judgment; Use Rule 37 if there is already a judgment
but not yet F &E

Rule 37- New Trial or Reconsideration

Extrinsic Fraud

Q: When may an aggrieved party file a Motion for New Trial or

a Motion for Reconsideration?

-where it prevents a party from having a trial or from

presenting his entire case to the court or where it operates
upon matters pertaining not to the judgment itself but to the
manner in which it is procured

A: Within the period for taking an appeal i.e. before the

judgment becomes final and executory

-is used to procure the judgment w/o fair submission of

the controversy, as when there is a false promise of a
compromise or when one is kept ignorant of the suit

Before a judgment becomes F & E, the aggrieved party may

avail of the ff remedies:

-Extrinsic Fraud is that type of fraud which has

prevented a party from having a trial or from presenting his
case in court

a.) Motion for Reconsideration

b.) Motion for New Trial
c.) Appeal

-I maneuvered a scheme in such a way that you will

not appear in court. You lost your opportunity to present your
sideExtrinsic FraudRemedy: Motion for NT

After the judgment becomes executory, the losing party may

avail of the ff:
a.) Petition for Relief from Judgment
b.) Annulment of Judgment
c.) Certiorari
d.) Collateral attack of judgment

Intrinsic Fraud
-is based on the acts of a party in a litigation during
the trial, such as the use of forged instruments or perjured
testimony, which did not affect the presentation of the case,
but did not prevent the fair and just determination of the
case

No Motion for Extension of time to file a motion for

new trial shall be allowed!

FRAUD TO BE GROUND FOR NT, MUST BE EXTRINSIC!!!

Grounds for New Trial
1.) Fraud, Accident, Mistake, Excusable Negligence
(FAME)
2.) Newly Discovered Evidence (NDE)

Accident
-something unforeseen, something unexpected or
unanticipated

-the defendant was declared in default because he did

not file an answer but actually he filed an answer through
mail, but somehow the post office did not deliver it to the
court. ACCIDENT. Move for New trial or Lift the Order of
default

Newly Discovered Evidence (Berry Rule)

1.) Evidence was discovered after trial;
2.) It could not have been discovered during trial even
with exercise of reasonable diligence; and
3.) Evidence is of such weight that if admitted, such
evidence would probably alter the result; and
4.) Must be material and not merely collateral,
cumulative or corroborative

Mistake
-defendant received summons & complaint. The
defendant instead of seeking assistance of a lawyer, went to
the plaintiff and asked for settlement. They kept on talking
about the settlement but in the meantime, the period to file
answer is also running. 15 days had passed by but they did
not settle yet. Plaintiff moved to declare defendant in default.
The court issued judgment on default

Newly Discovered Evidence vs Forgotten Evidence

-in the former, the evidence was not available to a
party during the trial, and was discovered only after the trial
while in forgotten evidence, the evidence was already
available to a party and was not able to present it through
inadvertence or negligence of counsel. The latter is not a
ground for NT

GR: A client is bound by the mistakes of his lawyer & he

cannot file a motion for NT on the ground of mistake of his
lawyer

That it could have been discovered during trial even w/

exercise of reasonable diligence

EX: People vs Manzanilla

Even if you try your best to look for it, you

would not have found it

-a new trial is sometimes granted when the

incompetency or negligence of the partys counsel in the
conduct of the case is so great that partys rights are
prejudiced and he is prevented from presenting his cause of
action or defense

Rule 37 applies only when there is already a

judgment!
So if the motion is filed after the judgment is rendered, it is
called Motion for New Trial. When the motion is filed
before a judgment is rendered, it should be called Motion
for Reopening of Trial

Newly Discovered Evidence

-is evidence which was discovered after trial, or cannot
be discovered during trial given the exercise of reasonable
diligence, and if admitted, such evidence would PROBABLY
alter the result of the case

Motion for Reconsideration

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When to file?

-fatal mistake, your motion for NT is classified as a ProForma Motion for NT

-within the period for taking an appeal

Grounds for Motion for Reconsideration

Pro-forma motion for New Trial or reconsideration shall NOT

toll the reglamentary period of appeal

1.) Damages awarded are excessive;

2.) Evidence is insufficient to justify the decision or
final order;
3.) The decision or order is contrary to law

The law is very strict about affidavits of merits. It is not

enough that you state your defense. You must
demonstrate that you have a meritorious claim of
defense so that the motion for new trial will be
granted.

Form
-It must be in writing. You must state the ground or
grounds for the motion, whether it is FAME or NEWLY
discovered evidence. Then, of course, you must serve a copy
of the motion to the adverse party
A motion for NT based on FAME must include an AFFIDAVIT
OF MERIT which states:

In reality, there should be two affidavitsone reciting the

FAME and one reciting the substantial cause of action. That is
why a motion for new trial on FAME should ordinarily be
accompanied by two affidavits. One setting forth the facts
and circumstances alleged to constitute FAME and the other
an Affidavit of Merits setting forth the particular claims to
constitute the movants meritorious defense or cause of
action. The real affidavit of merits is the second one.

1.) Nature or character of FAME

2.) Facts constituting the movants good and
substantial defense or valid cause of action; AND
3.) Evidence which he intends to present if his motion
is granted

Affidavit of Merit

Newly Discovered EvidenceSupported

-one which recites the nature & character of FAME on

which the motion is based and stating the movants good and
substantial cause of action or defense and the evidence he
intends to present if the motion is granted, which evidence
should be such as to warrant reasonable belief that the result
of the case would probably be otherwise

-when the ground is newly discovered evidence, the

motion shall be supported by affidavits alsoaffidavits of the
newly discovered witness OR a copy of the newly discovered
document. You have to state what is the NDE, what the
witness will say

Motion for Reconsideration considered as Pro-forma

Q. What happens if you file a motion WITHOUT affidavits of

merits?

1.) It was a SECOND Motion for Reconsideration; OR

-immediately denied
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2.) Did not comply with the rule that the motion must
specify the findings and conclusions alleged to be
contrary to law or not by the evidence; OR
3.) It failed to substantiate the alleged errors; OR
4.) It merely alleged that the decision in question was
contrary to law; OR
5.) The adverse party was not given notice thereof

Bar Q: If Choco files a Motion for NT and it is granted, will

there always be a trial de novo?
A: It depends on the ground:
a.) If the ground is FAME, there will be a trial de novo
because the proceedings will be set aside
b.) If the ground is NDE, there is no trial de novo. The
evidence admitted which is based on the same
decision will remain. The case will be opened only
for the purpose of admitting the new evidence

You must point out what finding is not supported by evidence

what conclusion is contrary to law. Do not let the judge look
for it. The judge will never bother to look for it. You tell him
what portion of the decision is wrong. You have to cite the
evidence too and the law which is violated or what provisions
apply

Bar Q: If Cholo files a MR and it is granted, will there be a trial

de novo?
A: there is NO trial de novo. The court will simply amend its
judgment. It is only a re-study of provision. The court will
study its decision and go over the evidence and find out
whether it made a mistake or not

When you file a motion for reconsideration on the ground

that the judgment is contrary to law, it is not enough for you
to say that you must always point out clearly why is it
contrary to law, otherwise your motion will be denied or
treated as pro-forma

Sec. 4 Resolution of motion.- A motion for new trial or

reconsideration shall be resolved within thirty (30) days
from the time it is submitted for resolution.

What makes it pro-forma is, if your motion for reconsideration

does not specifically point out why the judgment is wrong

-if the motion is denied, the movant has a fresh period of 15

days from receipt or notice of the order denying or dismissing
the motion for NT within which to file a notice of appeal for
the same grounds as the fresh period rule governing a denial
of a motion for reconsideration

It is not enough that a motion for reconsideration should

state what part of the decision is contrary to law or the
evidence; it should also point out why it is so. Failure to
explain why will render the motion for reconsideration proforma

ORDER DENYING A MOTION FOR RECONSIDERATION OR

NT IS NOT APPEALABLE!!

Trial de novo= new trial

The remedy from an order denying a motion for

reconsideration is not to appeal from the order of denial
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because such order is not appealable. The remedy is to

appeal from the judgment or final order itself subject of the
motion.

denied because of failure to raise it earlierthe

second ground is deemed waived for failure to raise
the same
b.) However, if the ground for the second motion for
NT is something not known or not existing or not
available when the party filed the first motion, then
the 2nd motion is allowed. The 2nd motion is not a
pro-forma motion

An order of denial of a motion for NT or MR is no longer

assailable by certiorari because of the amendment to Rule 41
by AM-07-7-12 SC.

Motion for New Trial is an example of Omnibus Motion

-a motion attacking a pleading, order, judgment, or
proceeding shall include all objections then available, and all
objections not so included shall be deemed waived

Sec. 5 Second motion for new trial.- A motion for new

trial shall include all grounds then available and those not so
included shall be deemed waived. A second motion for new
trial, based on a ground not existing nor available when the
first motion was made, may be filed within the time herein
provided excluding the time during which the first motion
had been pending.

No party shall be allowed a second motion for

reconsideration of a judgment or final order. Therefore, a 2 nd
motion for reconsideration is always treated as a pro-forma
motion because it is totally prohibited by Sec. 5

No party shall be allowed a second motion for

reconsideration of a judgment or final order.
Distinguish Motion for New Trial and Motion for
Reconsideration
Single Motion Rule

Distinctions
As to Grounds

New Trial
Grounds: FAME
and NDE

As to trial

If granted, there
could be a trial de
novo
Allowed if the
ground was not

-a party shall not be allowed to file a 2nd MR of

judgment or of a final order

Q. Suppose a motion for NT, which is based only on FAME,

was denied, can there be a 2nd motion for NT on the ground
of NDE?
A: It Depends:

As to 2nd motion

a.) If the NDE is already existing when the first motion

was filed, then the second motion for NT will be
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Motion for Recon

Grounds:
Excessive
damages awarded;
decision is not
supported with
evidence; or
decision is
contrary to law
No trial de novo.
Court will only
amend its decision
Always
PROHIBITED

Q. When there is partial new trial, what will happen to the

judgment on the undisputed facts?

existing when the

first motion for NT
was filed

A. Either:
a.) the court will enter judgment on it; OR

Sec.7 Partial NT or Recon (see codal)

b.) the court may stay the enforcement until after the
new trial

Q: Is there such a thing as motion for partial NT or a motion

for partial recon?
A: yes, if the party is questioning only one aspect or portion
of the case. Therefore, the rest can become only one aspect
or portion of the case. Therefore, the rest can become final
while the disputed portion does not become final

Outline of the Process

1.) Decision/ Judgment
2.) Motion for NT/ Recon
3.) If denied, court makes an order denying your
motion for NT or recon
4.) Appeal based on the decision/ judgment and not
based on the order denying your motion

Example: if the cross-claim or 3rd party complaint is tried

separately, there will be different judgments. And in effect,
you can file a partial motion for NT or reconsideration to the
facts contemplated by the case
Sec. 8 see codal