Transcribed By Nono, Furia, Verana

Before finality but after judgment;

 1. Motion for reconsideration (Rule 37)
 2.Motion for new trial  (Rule 37)
RULE 37  3. Appeal (Rule 40 or Rule 41)
NEW TRIAL OR RECONSIDERATION
Comment: An appeal is available even we have already resorted to
the remedy of motion for reconsideration or motion for new trial. Kay
Post Judgment Remedies kung ma deny imung motion for reconsideration or ma deny imung
Introduction motion for new trial, you can still file and appeal.

In every civil action, there is always a prevailing party or the party upon
whose favor the judgment is rendered. However, the defeated party is
not without any remedy. He is afforded further chances to prove that he
is entitled to prevail. This is where a thorough knowledge of post
judgment remedies comes in handy.
You when you say post judgment remedies, these are the remedies
available to the aggrieved party if he is defeated in an action. After trial,
the court will render judgment or decision, and if you are not satisfied
with the judgment or decision, there are remedies which are available
before the judgment or decision becomes final and executory, there
are also remedies which are still available even if the judgment has
already become final and executory.
Several means by which a party is allowed to attack a final judgment,
to wit:
a. Direct action or proceeding to annul the same, or by motion in
another case, if, in the latter case, the court had no jurisdiction to enter
the order or to pronounce the judgment. It is not incidental to, but is the
main object of the proceeding;
Comment: You file an action directly instituted to assail the particular
judgment. Eg. Petition for annulment of judgment, so you instituted
precisely for that purpose
b. Collateral attack, in which the purpose of the proceedings is to
obtain some relief, other than the vacation or setting aside of the
judgment and the attack is only incidental. (1 Freemen on Judgments,
Sec 306, pp. 607-608);
Comment: So in a collateral attack, it is not actually a proceeding
directed against the judgment, there is another proceeding but you
raise that as a defense like a motion for execution and then in that
motion you raise the defense that the decision which you sought to be
executed is actually null and void.  implemented already by filing a motion for a writ of execution by the
c. Petition for relief from judgment or order as authorized by statues or
by the rules, in the same action or proceeding in which the judgment or
order was entered. (Agustin Vs Bocalan, 135 SCRA 346)
After finality of the judgment.;
1. Petition for relief from judgment (Rule 38)
2. Annulment of judgment (Rule 47)
3. Petition for certiorari.
What we will discuss would be what are the ground for these remedies,
when can you avail of these remedies and what is the effect when you
avail  these remedies.
When does a judgment become final and executory.
A final judgment or order, or one that disposes of the action or
proceeding, becomes final and executory upon the expiration of the
period to appeal therefrom if no appeal has been duly perfected
(Section1, Rule 39).
Comment: When you say final judgment is it also synonymous to a
final and executory judgment? Now, when you say final judgment or
order, it does not necessarily mean na its already final and executory.
It is just called final judgment or order in the sense that it finally or
completely diposes of the action or proceeding. Once the court renders
that judgment, there is nothing else left for the court to do as
distinguish from an interlocutory order.
Going back  to a motion to dismiss when a motion to dismiss is
granted, that order of the court is a final order because when a motion
to dismiss is granted, the court will dismiss the case, so in that
particular situation, there is nothing else left for the court to do.
Everything is already disposed of, by dismissing the case. But when
the court denies a motion to dismiss, that is not final order because
after the court denies the motion, then the court will proceed the case.
So that already does not completely dispose of the case because there
is still something else for the court to do after it has issue that order.
When you say final and executory, the period to appeal or to file a
motion for reconsideration or motion for new trial has already lapse. 
So it cannot be amended or modified as a general rule thus it can be
prevailing party.
First post-judgment remedy (After judgment but before finality): 
Motion for new trial or reconsideration (Section 1 Rule 37):

Comment: It is the same court where you ask for relief but actually Section 1. Ground of and period for filing motion for new trial or
here it has become final and executory. Still you are  allowed some reconsideration.
measure of relief by having that judgment vacated. We discussed this
when we were in rule 9 in default, one of the remedies of the parties is Within the period for taking an appeal, the aggrived party may move
the other party is to be declared in default, you can set aside the order the trial court to set aside the judgment or final order and grant new
of default by filing a motion to lift or set aside the order of default or trial for one or more of the following causes materially affecting the
when there is already a default judgment then you can file a motion for substantial rights of said party:
consideration or motion for new trial or appeal or if the judgment has
already become and executory you can file a petition for relief from that a) Fraud , accident, mistake or excusable negligence which
judgment. ordinary prudence could not have guarded against and by reason of
which such aggrieved party has probably been impaired in his
Post Judgment Remedies rights; or
After Judgement but before its After Finality of the
finality judgment b) Newly discovered evidence, which he could not, with reasonable
The aggrieved party may file a The aggrieved party may file a diligence, have discovered and produced at the trial, and which if
motion for reconsideration under petition for relief from judgment presented would probably alter the result.
Rule 37; under Rule 38 on the grounds
of fraud, accident, mistake or Within the same period, the aggrieved party may also move for
excusable negligence; reconsideration upon the grounds that the damages awarded are
excessive, that the evidence is insufficient to justify the decision or
The aggrieve party may file a final order, or that the decision or final order is contrary to law.
annulment of judgment under
The aggrieved party party may Rule 47 for extrinsic fraud or
file a motion for new trial under lack of jurisdiction; or Comment: So diba nag trial and then the court now after presentation
Rule 37; and offer of evidence of parties, the court now renders a judgment or
He may also file a petition for decision. Now napildi si defendant, nadaog si plaintiff, ang remedy ni
certiorari if the judgment to defendant kay he can file within the reglementary period. He can file a
void on its face or by the motion for new trial` or he can file a  motion for reconsideration. The
The aggrieved party may appeal judicial record (Balangcad Vs rules says, within the period for taking an appeal, so 15 days pag
from the judgment under Rule 40 Justice of the Court of appeals, ordinary appeal and 30 days in cases where a record of appeal is
or Rule 41, as the case may be. G. R. No. 83888 February 12, required. 
1992, 206
If it is a motion for new trial, so mao ni siya ang grounds, fraud,
accident, mistake or excusable negligence. The law says which
ordinary prudence could not have guarded against and by reason of
Comment: Lets us categorize what are the post judgment remedies
which, such aggrieved party has probably been impaired in his rights. 
which are available. There are remedies which are available before the
judgment has become final and executory, but it does not mean that if
the judgment has already become final and executory, we have no
remedy anymore, there still is after the finality of judgment.  
Newly discovered evidence which he could not with reasonable Comment: So we already discussed na ang reglementary period
diligence have discovered or produced at the trial and which if will start from the time na na receive nato again in relation to rule 22
presented would probably alter the result. but remember, if a party is represented by counsel so from the time
of receipt by counsel. For example na receive sa party, wala na
You can also file for a motion for reconsideration, again same period receive sa counsel, magstart naba ug run ang period? dili pa,
with the period to file an appeal, unsa manpod ang grounds?  hulaton nato na madawat sa counsel. 

1. It could be that the damages awarded are excessive

2. That the evidence is insufficient to justify the decision or final order.
3. The decision or final order is contrary to law. Rationale: Because it is the counsel who know what to do, in case of
an adverse decision, because if it just a party who received what will i
Who may avail of the remedies? do with this judgment. unsaon ko mani? ipa frame? So it should be
from the time that the counsels receipt from the court a copy of such
Alaban Vs Court of Appeals decision.
G.R. No. 156021, September 23, 2005
Effect of Filing upon Period to Appeal

The filing of either motion interrupts the period to appeal For example,
A motion for new trial or reconsideration and a petition for relief
A received a copy of the judgment on March 10, 2010. He has 15 days,
from judgment are remedies available only to parties in the
or until March 25 to file an appeal However, On March 24, he filed a
proceedings where the assailed judgment is rendered. In face, it
motion for new trial. His motion was denied on April 10.
has been held that a person who was never a party to the case, or
even summoned to appear therein, cannot avail of a petition for
Can he still appeal? Yes, he may appeal from the judgment but not the
relief from judgment.
order denying the motion for new trial.
Comment:  ang maka avail atong remedies na motion for new trial
How much time does he have left?/
or motion for reconsideration of course kadto lang parties to the
case if you are stranger to the case, even if you think na the
a.15-14 = 1 day left? No.
decision of the court is against you, you cannot file for a motion for
new trial or motion for reconsideration kay diba ang remedy unta
Comment:  So period of appeal was interrupted by the filing of a
nimo would be an intervention either as an complainant or
motion for new trial or motion for Reconsideration. So asa ta mag
defendant or maybe siguro when the decision is enforced and it will
appeal? Mag appeal ta sa judgment dili sa denial of motion for new trial
affect you, ikaw diay ang actual possessor sa property pero wala ka
or motion for reconsideration. So we appeal from the judgment
diay na apil didto na case. so during the execution, you can
rendered by the court.  
question the decision on the ground na the court did not acquire the
jurisdiction over your person, so that what we consider now as a
Q: Diba on the 24th day of march nag file ka ug motion for new trial  or
collateral attack on the decision. So only parties to the case can
reconsideration so na interrupt, karun kay gi deny man imung MR, pila
avail of the remedies for Motion for new trial and Motion for
nalang nabilin na days to appeal? Is it 1 day nalang because on the
Reconsideration.
14th day mankag nag file sa imung Mnt Or MR?

A: Its not 1 day.

Within the Period to Appeal
Fresh Period Rule
Under Rules 40 and 41 (Section 2 and 3 respectively), an appeal
may be taken within 15 days after notice to the appellant of the
judgment or final order appealed from, Where are record on appeal is
Sumiran vs Spouses Damaso
required, the appellant shall file a notice of appeal and a record on
G.R. No. 162517, August 19, 2009
appeal within thirty (30) days after notice of the judgment or final order.
As early as 2005, the Court categorically declared in Neypes vs
Under Section 3 of Rule 40, a record on appeal shall be required only
Court of Appeals that by virtue of the power of the Supreme Court
in special proceedings and other cases of multiple or separate appeals.
to amend, repeal and create new procedural rules in all courts, the
Court is allowing a fresh period of 15 days within which to file a
Comment: 15 days jud na siya however there are cases na record on
notice of appeal in the RTC, counted from receipt of the order
appeal is required, this applies kadtong several judgment, in civil
dismissing or denying a motion for new trial or motion for
actions dili na siya usually mahitabo, isa lang jud ang decision dra na
reconsideration. This would standardize the appeal period provided
you will appeal from but in special proceedings, diba i mentioned
in the Rules and do away with the confusion as to when the 15-day
before na possible ang multiple appeals so here, a record of appeal
appeal period should be counted. Thus, the court stated:
would be required so ang period to appeal would be 30 days. 
To recapitulate, a party-litigant may either file his notice of appeal
Reckoning point
within 15 days from receipt of the Regional Trial Court's decision or
file it within 15 days from receipt of the order (the "final order")
From the time that the aggrieved party received copy of the judgment
denying his motion for new trial or motion for reconsideration.
or decision. Dili siya from the time sa gi issue sa court kundi from the
Obviously, the new 15-day period may be availed of only if either
time from na receive. We count 15 days. Dba under rule 22, we
motion is filed; otherwise, the decision becomes final and executory
already discussed how to compute, so kung nadawat nimo sa May 18
after the lapse of the original appeal period provided in Rule 41
magstart tag compute sa 15 days sa May 19 so June 2 and deadline
Section 3.
nato to file a motion for new trial or motion for reconsideration because
that is also the period within which you can file an appeal.
The foregoing ruling of the Court was reiterated in Makati Insurance
Co., Vs Reyes to Wit;
Counted from what date
Propitious to petitioner is Neypes vs Court of Appeals promulgated
The period to appeal begins to run upon receipt of the judgment or final
on September 14, 2005 while the present petition was already
order. The next question is: upon receipt by whom?
pending before us.
De Los Santos Elizalde
With the advent of the "Fresh period rule," parties who availed
February 2, 2007
themselves of the remedy of motion for reconsideration are now
allowed to file a notice of appeal within fifteen days from the denial
Such period has been considered to begin upon receipt of notice by
of that motion.
the counsel of record, which is considered notice to the parties.
Service of judgment on the party is prohibited and is not considered
The "Fresh period Rule" is not inconsistent with Rule 41, Section 3
the official receipt of the judgment
of the Revised Rules of Court which stataes that the appeal shall be
taken "within 15 days from notice of judgment or final order
To reiterate, service upon the parties' counsel of record is
appealed from." The use of the disjunctive word "or" signifies
tantamount to service upon the parties themselves, but service
disassociation and independence of one thing from another. It
upon the parties themselves is not considered service upon their
should, as a rule be construed in the sense which it ordinarily
lawyers. The reason is simple--the parties, generally, have no
implies. Hence, the use of "or" in the above provision supposes that
formal education or knowledge of the rules of procedure,
the notice of appeal may be filed within 15 days from the notice of
specifically, the mechanics of an appeal or availment of legal
judgment or within 15 days from notice of the " final order," X X X.
remedies, thus, they may also be unaware of the rights and duties
of a litigant relative to the receipt of a decision. More importantly, i is
The Fresh period rule finally eradicates the confusion as to when
best for the courts to deal only with one person in the interest of
the 15-day appeal period should be counted from receipt of notice
orderly procedure-- either the lawyer retained by the party
of judgment or from receipt of notice of final order appealed from.
him/herself if s/she does not intent to hire a lawyer.

Fresh Period Counted From?
Taking our bearings from Neypes, in Sumaway vs Urban Bank, Inc.,
we set aside the denial of a notice of appeal which was purportedly
filed five days late. With the fresh period rule, the 15-day period within
which to file the notice of appeal was counted from notice of the denial
of the therein petitioner's motion for reconsideration.
We followed suit in Elbina vs Ceniza, wherein we applied the principle
granting a fresh period of 15 days within which to file the notice of
appeal, counted from receipt of the order dismissing a motion for new
trial or motion for reconsideration or any final order or resolution.
Thereafter, in First Aqua Sugar Traders, Inc v Bank of the Philippine
Islands, we held that a party litigant may now file his notice of appeal
either within 15 days from receipt of the original decision or with fifteen
days from the receipt of the order denying the motion for
reconsideration.
Retroactive Effect
De los Santos vs Vda. De mangubat
We applied the same principle of fresh period rule, expostulating
that procedural law refers to the adhective law which prescrives
rules and froms of procedure in order that courts may be able to
administer justice. Procedural laws do not come within the legal
conception of a retroactive law, or the general rule against the
retroactive operation of statutes. The fresh period rule is irrefragably
procedural, prescrbiing the manner in which the appropriate period
for appeal is to be computer or determined and, therefore, can be
made applicable to actions pending upon it effectivity, such as the
present case, without danger of violating anyong else's rights.
Comment: The Supreme Court also clarified the retroactive of this
fresh period rule because the neypes ruling was decided on
september 14, 2005 before that, there were cases where the court
considered these cases final and executory because wala pa nila gi
apply ang neypes na naay 15 days fresh period. So ma apply ba
nato retroactively? The Court said Yes we can apply retroactively
because we are referring here to procedural rules.  forma (meaning wala diay siya'y affidavit of merits kay wala nimu gi-
The retroactivity of the Neypes rule in cases where the period for
appeal had lapsed prior to the date of promulagation of Neypes on
September 14, 2005, was clearly explained by the Court in Fil-
estate Properties, Inc. Vs Homena-Valencia, stating thus:
The determinative issue is whether the fresh period rule announced
in Neypes could retroactively apply in cases where the period for
appeal had lapsed prior to September 14, 2005 when Neypes was
promulgated. That question may be answered with the guidance of
the general rule that procedural ;aws may be given retroactive
effect to actions pending and undetermined at the time of their
passage, there being no vested rights in the rules of procedure.
Amendments to procedural rules are procedural or remedial in
character as they do not create new or remove vested rights, but
only operate in furtherance of the remedy or confirmation of rights
already existing.
Comment: The reason for giving that fresh period rule a retroactive
effect is because there are no vested rights in the rules of
procedure.
Since this case was already pending in this Court at the time of
promulgation of Neypes, then, ineluctable, the Court must apply the
foregoing rulings to the present case. Petition is entitled to a "Fresh
period" of 15 days - counted from May 19, 2003, the date of
petitioner's receipt of the Order denying his motion for
reconsideration of the RTC Decision - within which he filed said
notice on May 29, 2003, or only 10 days after receipt of the Order
denying his motion for reconsideration, his period to appeal had not
yet lapsed.
Comment: Considering that this case of Sumeran vs spouses Damaso
was already pending with the Supreme Court at the time of the
promulgation of the Neypes Ruling, then the court must also apply the
ruling in neypes to this case. So here entitled sila sa fresh period rule
15 days counted from May 19, 2003.
APPLICABILITY OF NEYPES DOCTRINE
Now, para mas klaro pa dyud, sa asa nga appeals
applicable ang "fresh period rule", kaning Neypes ruling, because
there are several kinds of appeals (like from the MTC you appeal to the
RTC, and then from the RTC you appeal to the CA. Or, original from
the RTC deretso ka sa CA). So, unsa man na appeals ang applicable?
APPLICABILITY OF NEYPES DOCTRINE
NEYPES, ET AL. vs. COURT OF APPEALS
G.R. No. 141524, September 14, 2005
(EN BANC)
 
To standardize the appeal periods provided in the Rules
and to afford litigants fair opportunity to appeal their
cases, the Court deems it practical to allow a fresh period
of 15 days within which to file the notice of appeal in the
Regional Trial Court, counted from receipt of the order
dismissing a motion for a new trial or motion for
reconsideration.
 
Henceforth, this “fresh period rule” shall also apply
to  Rule 40 governing appeals from the Municipal Trial
Courts to the Regional Trial Courts ;  Rule 42 on
petitions for review from the Regional Trial Courts to
the Court of Appeals;  Rule 43 on appeals from quasi-
judicial agencies to the Court of Appeals  and  Rule 45
governing appeals by certiorari to the Supreme
Court. The new rule aims to regiment or make the appeal
period uniform, to be counted from receipt of the order
denying the motion for new trial, motion for
reconsideration (whether full or partial) or any final order
or resolution. 
Comment: So, kana sila tanan applicable ang 'fresh period
rule'. Para uniform siya.
Now, ang problema is if ang motion nimu is pro-forma.
IF THE MOTION IS PRO-FORMA, HE HAS NO TIME
LEFT TO FILE AN APPEAL
 
Rule 37, Section 2. XXX A pro forma motion for new trial
or reconsideration shall not toll the reglementary period
of appeal.
 
The rule is the same with respect to pro-forma motions.
They are treated as mere scraps of paper.
Example: Again, on March 10, nadawat nimu ang adverse
decision sa court. You have 15 days within which to appeal. That
would be March 25, ang imung deadline. But instead of filing an
appeal, you filed a Motion for Reconsideration or a Motion for New
Trial on March 24. Pero ang problema, ang imuhang motion is pro-
cite didto kung unsa ang fraud, accident, mistake, excusable
negligence. Wala ka nagcite kung unsa to'ng newly discovered
evidence, kung halimbawa mao imung ground, or Motion for
Reconsideration - wala ka nagcite ug any specific reason nganu nag
MR ka, excessive damages ba, contrary to law, kay wala kay gi-
mention or maybe wala nimu gifurnish ang imung kalaban sa copy sa
imuhang motion). So, that is considered as a pro-forma motion.
Question: So, what is the effect of the kind of motion (pro-forma
motion)?
Answer: It will not interrupt the running of the appeal period. So,
meaning pagfile nimu sa imuhang MR or MNT, katong March 24, wala
na interrupt. Nidagan lang gihapon na siya ug padayun.
Question: And of course, the court will deny your motion because it if
pro-forma. What will happen now?
Answer: Wala na, naglapse na. So, the judgment has already become
final and executory.
Question: Can you still appeal?
Answer: No more! You cannot appeal a decision which is final and
executory. Although, maybe, naa kay other remedies, kung available
man siya naa kay ground. But again, you cannot appeal anymore. So,
most likely, wala na dyud kay remedy.
So, you have to remember these principles because it will also
prejudice your client. Kung wala kay alam sa mga reglementary
periods, unsay effect ana, unsa pagcompute sa time.
GROUNDS: MOTION FOR NEW TRIAL
So, now we go to specific grounds for a Motion for New Trial and then
a Motion for Reconsideration.
NOTE: Do not interchange these grounds. Lahi
ang grounds sa Motion for New Trial.
GROUNDS: MOTION FOR NEW TRIAL
 
The following grounds for a new trial must affect the
substantial rights of the aggrieved party:
1. Fraud, accident, mistake or excusable negligence
(FAME) which ordinary prudence could not have guarded
against and by reason of which such aggrieved party has
probably been impaired in his rights; or
2. Newly discovered evidence (NDE), which he could not,
with reasonable diligence, have discovered and produced
at the trial, and which if presented would probably alter
the result.
Note that the grounds for new trial are not available
as grounds for reconsideration (CO vs. PEOPLE, G.R.
 No. 160265, July 13, 2009). default under order of default on default, he may also
  Rule 9 the ground of FAME avail of Rule 37 or a
FAME (Fraud, accident, mistake or excusable because he and that he has a motion for new trial
negligence) failed to file an meritorious defense. because, on the ground
Comment: Dili nimu siya pwede gamiton as a ground for your Motion answer This must be availed of FAME, he was not
for Reconsideration. because of of after receipt of able to appear or
FAME. order declaring him in present evidence. This
Now, if you remember these grounds of fraud, accident, mistake, or default but before can be filed after receipt
excusable negligence, we actually discussed them in Rule 9. Diba, in a judgment. of judgment but before
Motion to Set Aside the Order of Default.   the same attains finality
Party (whether Remedy is to file a If he fails to file a motion
Example: There was a defendant who was declared in default because plaintiff or motion for new trial for new trial and the
he failed to file an answer. But the reason why he failed to file an defendant) lost on the ground of judgment had become
answer because he was prevented from doing so because of F.A.M.E. in the case FAME. final and executory, he
because of   may still file a petition
Question: So, if he learned of the order placing him in default (Order FAME for relief from judgment
of Default), what can he do? under Rule 38.
Answer: The defendant can file a Motion to Lift or Set Aside the Order
of Default. KINDS OF FRAUD
Ground/s: FAME and he has a meritorious defense. When you say fraud, as a ground for MNT, what kind of fraud are we
referring to? There are two (2) kinds of fraud:
Question: Now, halimbawa wala siya kabalo na naa'y order placing
him in default and then there is already a default judgment. Then the KINDS OF FRAUD
reason nganu wala siya naka-answer ato was again FAME. So, what  
is his remedy now, na naa nama'y judgment? GARCIA vs. COURT OF APPEALS
Answer: His remedy is to file a Motion for New Trial. 202 SCRA 228 [1991]
Grounds: FAME, because for that reason he was not able to appear,  
to file his answer, or to present his evidence. EXTRINSIC FRAUD (a.k.a Collateral Fraud) is that type
of fraud which has prevented a party from having a trial or
Question: Kanus-a man ni niya i-file ang MNT? from presenting his case in court. INTRINSIC FRAUD is
Answer: As we have already said withing the period to appeal. After based on the acts of a party in litigation during the trial,
the judgment has been rendered (Default Judgment) and then within such as the use of forged instruments or perjured
the reglementary period.  testimony, which did not affect the presentation of the
case, but did prevent the fair and just determination of the
Question: What if right after he learned na he was ordered in default, case.
and then nagfile siya ug Motion to Set Aside the Order of Default
because of FAME. Gi-deny sa court. Unsa man iyang buhaton, FRAUD, to be a ground for new trial, must be EXTRINSIC
pasagdaan na lang niya, and then hulaton na lang niya na sige – where the aggrieved party was misled by the adverse
pag trial mo diha. Now, there is the judgment rendered against him party, and by reason thereof, he was prevented from
which is, most likely, adverse. So, after sa judgement ba, pwede pa presenting his case properly (GISBURNE SUPPLY CO.
siya magfile ug MNT again because of FAME? vs. QUIOGUE, 34 Phil. 913; ALMEDA vs. CRUZ, 84 Phil.
Answer: This time, dili. Diba we already discussed na these remedies 636; STERLING INVESTMENT CORP. vs. RUIZ, L-
actually are exclusive. So, di pud pasabot na kung available na sa 30694, Oct. 31, 1969). Intrinsic fraud is not a ground for a
imuha ang Motion to Set Aside the Order of Default, gi-take nimu and new trial.
then napildi ka, then buhaton na pud nimu. Dili nimu pwede
balikbalikon. So, kung gi-deny sa court ang imuhang Motion to Set Comment: Meaning, kani si Extrinsic Fraud, wala dyud ka kapresent
Aside the Order of Default, what you can do is to elevate that (like filing sa imuhang evidence in court. Whereas, sa Intrinsic Fraud,
a Petition for Certiorari on the ground maybe of grave abuse of naa'y evidence, nakapresent ka'g evidence, although ang evidence sa
discretion, amounting to lack or excess of jurisdiction). So, that would pikas kay fraudulent and because of that nalahi ang decision sa court.
be your remedy.
Question: So, what is the fraud that we are referring to, as a ground
Now, the remedy of MNT is not only available to a defaulted defendant. for a MNT?
Actually, whether a plaintiff or a defendant can avail of this remedy of Answer: It is actually, Extrinsic Fraud. So, that kind of fraud which is
MNT, on the ground of FAME. committed outside of the trial of the case whereby the defeated party
has been prevented from exhibiting fully his side of the case by fraud
Example: Whether si defendant nagfile siya ug answer pero because or deception practiced on him by his opponent.
of FAME wala siya nakaparticipate in a trial or wala siya nakapresent
ug evidence on his behalf, or wala niya nahuman ang presentation of MEANING OF EXTRINSIC FRAUD
evidence on his behalf. Or maybe the plaintiff during trial, again, MEANING OF EXTRINSIC FRAUD
because of FAME wala siya kasipot sa court so wala siya kapresent It also known as collateral fraud.
ug evidence, and judgment is rendered against the plaintiff. The  
plaintiff here can move for new trial on the ground of FAME within the Fraud is extrinsic when it is committed to deprive a party
reglementary period to file an appeal.  of his day in court, thereby preventing him from asserting
his rights to property.  Fraud is regarded as extrinsic
Now, what if, kani ha? Akong situation na gina-ingun is, whether you when it prevents a party from having a trial or from
are a defendant declared in default, or whether you are a plaintiff who presenting his entire case to the court, or where it
because of FAME was not able to participate in the trial, or maybe a operates upon matters pertaining not to the judgment
defendant was not declared in default pero because of FAME he was itself but to the manner in which it is procured (Alarcon v.
not able to participate in the trial. So, there was already a decision Court of Appeals, et al., G.R. No. 126802, prom. January
rendered by the court. Then supposedly, diba, kung naa 28, 2000).
na'y decision ang remedy would be to file a MNT on the ground of
FAME. So, that would, if granted, pwede ka magpresent ug evidence It refers to any fraudulent act of the prevailing party which
on your behalf. is committed outside the trial of the case, the effect of
which prevents a party from having a trial, a real contest,
Example: Wala pud siya kabalo nga naa na'y decision si court. So, or from presenting all of his case to the court, or where it
actually, nahimu ng final and executory ang decision. But, in reality operates upon matters pertaining, not to the judgment
you were not able to, maybe, file your answer or participate in the itself, but to the manner in which it was procured so that
proceedings because of FAME. there is not a fair submission of the controversy.  (Strait
Times, etc. v. Court of Appeals, et al., G.R. No. 126673,
Question: Naa pa ba kay laing remedy? prom. August 28, 1998) 
Answer: Well, there is still another remedy. So, we have the Petition
for Relief from Judgment under Rule 38. So, kaning Petition for Relief CIRCUMSTANCES WHERE EXTRINSIC FRAUD PRESENT
from Judgment, again, dili na ni
1. Where the unsuccessful party had been prevented from
siya available sa defendant nga declared in default. Remedy ni
exhibiting fully his case by fraud or deception practiced
siya available sa all parties who were not able to present their case
on him by his opponent, as by keeping him away from
because of FAME. 
court, a false promise of a compromise; or
Discussion: Ni-ingun si plaintiff kay defendant; 'Sige, i-
These incidents comprising the first ground were previously discussed
settle na nato ang case. Okay ra ko. Ayaw na ug appear
in Rule 9 on Default, where the ground relied upon to lift an order of
sa court today kay anyway i-settle man nato.' Unya pag-
default is the same (fraud, accident, mistake, or excusable negligence).
abot diay didto kay ning-appear diay si plaintiff, and
Take note of the following relation between the two rules:
then gipa-declare niya (for example, sa pre-trial, wala
Defendant Remedy is to file a If he fails to file a motion naka-adto si defendant), ni-declare
declared in motion for relief from for relief from order of ang court na: Defendant is now prevented from
 presenting evidence, like in default. So, pildi si defendant
because of that. All along he thought that they will enter
into a compromise.
2. Where the defendant never had knowledge of the
suit, being kept in ignorance by the acts of the plaintiff; or
where an attorney fraudulently or without authority
assumes to represent a party and connives at his
defeat; or
Discussion: Wala dyud kabalo si defendant na naa'y
kaso sa iyaha kay wala dyud siya gipabalo ni plaintiff.
3. Where the attorney regularly employed corruptly sells
out his client's interest to the other side.  (Straits
Times, Inc. etc. v. Court of Appeals, et al., G.R. No.
126673, prom. August 28, 1998)
Discussion: Naa siya'y lawyer pero iyang lawyer
nakipagconnive sa iyahang kalaban.Comment: So, mao
ni siya ang instances of extrinsic fraud. So, these are
examples of extrinsic fraud mentioned in these cases.  employed who could allege and show that prior
Comment: So, these are the examples of Extrinsic Fraud mentioned in
these cases.
ACCIDENT
What is ACCIDENT? It is something unforeseen,
something unexpected or unanticipated.
Question: When is accident a sufficient ground for new
trial?
Answer: Well, when it also prevented the party from appearing in
court, from presenting his case. So, that would be a ground for a new
trial.
Example: Literally, padulong na si plaintiff ug iyahang lawyer sa court,
because it is pre-trail and there is an accident. So, nadisgrasya sila
- car accident. But wala kabalo ang court. So, in that particular
case kay wala man ka ka-appear si plaintiff ug iyahang counsel, then
the defendant moves for the dismissal of the case, which a
consequence of non-appearance during pre-trial by plaintiff and
counsel. So, they can move, and then, for example, dugay pa nahibal-
an na ing-ana diay ang nahitabo, and then the dismissal became final.
The plaintiff can move for new trial on the ground of accident.
NOTE: Please read the case of Philippine Engineering Co. vs.
Argosino (49 PHIL 983)
EXAMPLE 1: 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. That is an accident. With that, he
can move for new trial or lift the order of default. (Ong
Guan Can vs. Century Ins. Co., 45 Phil. 667).
 
EXAMPLE 2: The trial was this morning. But I received
only the notice of trial on March 9, 1998 stating that the
trial is on March 5. So, the notice of hearing was received
days after the scheduled date. That is an accident which
is a ground for new trial. (Soloria vs. Dela Cruz, L-20738,
Jan. 31, 1966)
MISTAKE
So, when is mistake a ground for a new trial? Like in this case of
Salazar vs. Salazar.  defeated party would have to do to salvage his case
MISTAKE
 
EXAMPLE: Defendant received summons and complaint.
The defendant, instead of seeking assistance of a lawyer,
went to the plaintiff and asked for settlement. They kept
on talking with the settlement but in the meantime, the
period to file answer is also running. Fifteen days had
passed but they did not settle yet. Plaintiff moved to
declare defendant in default. The court issued judgment
on default. Defendant’s counsel filed a motion for new
trial on the ground of MISTAKE. The court granted it.
(Salazar vs. Salazar, 8 Phil. 183)
Comment: The SC said that this is actually a mistake, which is a
ground for an MNT. Here, defendant can still ask for the court to
reopen the case and try and hear because of mistake.
Question: How about the mistake of the lawyer? Will it be a ground for
a MNT?
Answer: Of course, you already know that, general rule the mistake of
the lawyer binds the party. So, you cannot invoke that as a ground for
new trail. Otherwise, it would be easy to secure a new trial, if you are
the aggrieved and defeated party by just alleging that your counsel was
mistaken, hence entitled to a new trial. In that case, litigation will not
end. So, the SC said the mistake of the lawyer binds the client.
LAWYER’S MISTAKE BINDS THE PARTY
SPOUSES RAGUDO vs. FABELLA ESTATE TENANTS
ASSOCIATION, INC.
G.R. No. 146823, August 9, 2005
 
In this jurisdiction, well-entrenched is the rule that the
mistake and negligence of counsel to introduce, during
the trial of a case, certain pieces of evidence bind his
client. For sure, in Aguila vs. Court of First Instance
of Batangas, 160 SCRA 352 [1988], we even ruled that
the omitted evidence by reason of counsel’s mistake or
negligence, cannot be invoked as a ground for new trial:
 
On the effects of counsel’s acts upon his client, this Court
has categorically declared:
It has been repeatedly enunciated that ‘a client is bound
by the action of his counsel in the conduct of a case
and cannot be heard to complain that the result
might have been different had he proceeded
differently.  A client is bound by the mistakes of his
lawyer.  If such grounds were to be admitted and
reasons for reopening cases, there would never be
an end to a suit so long as new counsel could be
counsel had not been sufficiently diligent or
experienced or learned. x x x Mistakes of attorneys
as to the competency of a witness, the sufficiency,
relevancy or irrelevancy of certain evidence, the
proper defense, or the burden of proof, x x x failure
to introduce certain evidence, to summon witnesses
and to argue the case are not proper grounds for a
new trial, unless the incompetency of counsel is so
great that his client is prejudiced and prevented from
properly presenting his case.’ (Vol. 2, Moran,
Comments on the Rules of Court, pp. 218, 219-220,
citing Rivero v. Santos, et al., 98 Phil. 500, 503-504;
Isaac v. Mendoza, 89 Phil. 279; Montes v. Court, 48 Phil.
64; People v. Manzanilla, 43 Phil. 167; U.S. v. Umali, 15
Phil. 33; see also People v. Ner, 28 SCRA 1151, 1164). 
In the 1988 case of Palanca v. American Food, etc. (24
SCRA 819, 828), this principle was reiterated.  (Tesoro v.
Court of Appeals, 54 SCRA 296, 304). [Citations in the
original; Emphasis supplied].
This is, as it should be, because a counsel has the
implied authority to do all acts which are necessary or, at
least, incidental to the prosecution and management of
the suit in behalf of his client. And, any act performed by
counsel within the scope of his general and implied
authority is, in the eyes of the law, regarded as the act of
the client himself and consequently, the mistake or
negligence of the client’s counsel may result in the
rendition of an unfavorable judgment against him.
A contrary rule would be inimical to the greater interest of
dispensing justice. For, all that a losing party will do is to
invoke the mistake or negligence of his counsel as a
ground for reversing or setting aside a judgment adverse
to him, thereby putting no end to litigation.  Again, to
quote from our decision in Aguila:
Now petitioner wants us to nullify all of the antecedent
proceedings and recognize his earlier claims to the
disputed property on the justification that his counsel was
grossly inept.  Such a reason is hardly plausible as the
petitioner’s new counsel should know.  Otherwise, all a
is claim neglect or mistake on the part of his counsel
as a ground for reversing the adverse judgment. 
There would be no end to litigation if this were
allowed as every shortcoming of counsel could be
the subject of challenge by his client through another
counsel who, if he is also found wanting, would
likewise be disowned by the same client through
another counsel, and so on ad infinitum.  This would
render court proceedings indefinite, tentative and subject
to reopening at any time by the mere subterfuge of
replacing counsel.
Admittedly, the rule thus stated admits of
exceptions.  Thus, in cases where the counsel’s
mistake is so great and serious that the client is
prejudiced and denied his day in court or when he is
guilty of gross negligence resulting in the client’s
deprivation of his property without due process of
law, the client is not bound by his counsel’s mistakes
and the case may even be reopened in order to give
the client another chance to present his case.
Comment: However, you also learned that there is an exception to
that, now when the counsel's mistake is so grave and serious that the
client is prejudice and denied his day in court, or the counsel is guilty of
gross negligence resulting in the client’s deprivation of his property
without due process of law. So, it all boils down to deprivation of
property, of rights, without due process of law. By reason of the gross
negligence of the lawyer. So, Kung muabot na gain ta diha
nga point na, nakulong na si client, nawala na iyang balay, iyahang
yuta because ang lawyer niya nagpataka lang and it appears that
because of that wala dyud nakapresent si client sa iyahang case. So,
deprivation of due process, mao na atong tan-awon. So, here the client
is not bound by his counsel's mistake and he can ask for a reopening
of the case and present evidence. So, MNT.
EXCUSABLE NEGLIGENCE
Excusable Negligence, as a ground for a new trial. So, diba, dapat we
have to exercise due diligence.  reasonable diligence, have discovered and produced it at
EXCUSABLE NEGLIGENCE
 
The standard of care required a (party) is that which an
ordinarily prudent man bestows upon his important
business (GAYLORD v. BERRY, 169 N.C. 733) The client
must, with regard to his case, exercise that standard of
case which an ordinary prudent man bestows upon his
important business (SPOUSES ADECER vs. AKUT, May
3, 2006).
WHOSE NEGLIGENCE?
Comment: Actually, in our dealings we have to observe the diligence
of a good father of the family. We learned that also in ObliCon. So,
again that degree of care which an ordinarily prudent man would
bestow upon his usual affairs, or everyday business concerns. So, if
you fall short of that degree of diligence, you will be considered as
negligent. Now, the negligence here has to be excusable. So, it should
not be inexcusable, it should not be gross negligence. It would be a
kind of negligence na, well we are just human beings, we are not
perfect. So, at times we can really negligent. In that case, at least man
lang ma-tolerate pa ni court ang imuhang negligence.
Question: WHOSE NEGLIGENCE Are we referring to as a ground for
a MNT?
Answer: So, here as excusable and to be utilized as a ground for an
MNT must be imputable to the party. Because if it is imputable to the
counsel, the general rule, like in mistake, mistake of counsel is
imputable to the client. So, also negligence of counsel is binding on the
client. Otherwise, it would be very easy to delay the proceedings
rendered them indefinite, just by the mere expedient of changing one’s
counsel.
QUE vs. COURT OF APPEALS
G.R. No. 150739, August 18, 2005
 
Under Section 1, the “negligence” must be excusable
and generally imputable to the party because if it is
imputable to the counsel, it is binding on the
client. To follow a contrary rule and allow a party to
disown his counsel’s conduct would render proceedings
indefinite, tentative, and subject to reopening by the mere
subterfuge of replacing counsel. What the aggrieved
litigant should do is seek administrative sanctions against
the erring counsel and not ask for the reversal of the
court’s ruling.
 
Admittedly, this Court has relaxed the rule on the binding
effect of counsel’s negligence and allowed a litigant
another chance to present his case “(1) where [the]
reckless or gross negligence of counsel deprives the
client of due process of law; (2) when [the rule’s]
application will result in outright deprivation of the
client’s liberty or property; or (3) where the interests
of justice so require.” [emphasis supplied]
Comment: So, if you are really aggrieved by the negligence of your
counsel then file a case against the counsel. But not as for the reversal
of the ruling of the court. So, that is insofar as negligence is concern.
Although, there are cases when the court has also relaxed the rule on
the binding effect of the counsel's negligence and allowed the litigant a
chance to present his case. So, what are these instances? (provided
above, 2nd paragraph)
NEGLIGENCE OF CLERKS AND MEMBERS OF
LAWYER’S STAFF
 
YUJUICO vs. ATIENZA
G.R. No. 164282, October 12, 2005
 
Reiterated in numerous cases is the rule that the clerks’
faults are attributable to the handling lawyers. Thus,
excuses offered based on the former’s negligence are not
deemed excusable.
NEWLY DISCOVERED EVIDENCE
Another ground for a MNT is newly discovered evidence. So, just
remember what the requisites are. So, that the evidence can be
considered, as a newly discovered evidence that will allow you to have
a new trial on your case. 
 
NEWLY DISCOVERED EVIDENCE:
REQUISITES
 
1. The evidence was discovered after trial. This means that
the evidence was not negligently omitted or forgotten
during trial;
Discussion: So, meaning, before wala dyud mo
kabalo about that evidence. You did not just omit or
forgot about the evidence. So, after the trial. 
2. The evidence must be such that the party could not, with
the trial; and
Discussion: So, that kind of evidence na wala pud
kay way of knowing before, na it existed diay. So,
something dyud na even if you exercise reasonable
diligence dili nimu mahibal-an na naa diay ana na kalse
na evidence. So, that would be a ground. 
3. If presented, the evidence would probably alter the result.
Discussion: Because if it just evidence that is
corroborative lang diay sa mga evidence which you
presented during the trial, that will not change the
outcome of the trial. So, it should be a different one,
something which will excite the court. The court may think
twice, the court changes mind. That should be the nature
of that evidence. 
REOPENING OF TRIAL
Q: Is there such a remedy as a motion for reopening of trial?
ANS: Yes. This is recognized under the Rules of Summary
Procedure (and even in the Rules for Small Claims Cases), to wit:
Sec. 19. Prohibited pleadings and motions. – The following
pleadings, motions, or petitions shall not be allowed in the cases
covered by this Rule:
xxx
c. Motion for new trial, or for reconsideration of a judgment, or for
opening of trial;
d. Petition for relief from judgment;
xxx
DISCUSSION: We mentioned in several cases that we discussed
about reopening of a trial. Is this the same as Motion for New Trial? Is
this even recognized as a reopening of trial? So this was mentioned in
the Rules of Summary Procedure and Rules for Small Claims.
Although they are prohibited pleadings, they are recognized, and
they exist.
NEW TRIAL REOPENING OF TRIAL
Takes place after judgment Done before judgment
Based on grounds defined in Dictated by the interest of
the Rules justice
Always on motion by the May be done by the court
aggrieved party motu proprio
DISCUSSION: The remedy of reopening of trial is not found in the
Rules of Court. Although mentioned na siya sa Summary Procedure,
but as a prohibited pleading. However, jurisprudence recognizes the
existence of this remedy. So how do we distinguish a New trial from
Reopening of trial?
1. New trial, diba, takes place after judgment. When you say
reopening of trial, this is done before judgment. Wala pay
judgment pero gusto nimo ipa reopen ang trial because you
would like to maybe introduce new evidence, or introduce
evidence because these pieces of evidence were not
presented due to FAME.
2. Now new trial is based on the grounds defined in the Rules.
reopening of trial is not solely because of what we have
mentioned, but on grounds na pwede pud dictated by the
interest of justice.
3. New trial is always on motion by the aggrieved party,
whereas reopening of trial may be done by the court motu
proprio.
In the case of Arce vs. Arce (L-13035, November 28, 1959):
New Trial should be distinguished from the exercise of discretionary
power of the court, to reopen a trial for the introduction of additional
evidence, to clarify its doubts on material points. So ang discretionary
power to reopen a trial is subject to no rule, other than the paramount
interest of justice, and will not be reviewed on appeal unless the
exercise thereof is abused. So that’s for the reopening of trial vis-à-vis
new trial.
GROUNDS: MOTION FOR RECONSIDERATION
1. The damages awarded are excessive;
2. The evidence is insufficient to justify the decision or final
order;
 3. The decision or final order is contrary to law. DISCUSSION: Take note of Section 2, on what are the contents of a
Motion for New Trial or Reconsideration. Ofcourse the motion should
Note that this is not the same as a motion for reconsideration of be:
interlocutory orders as a precursor to the filing of a petition for  In writing;
certiorari.  And you should serve a copy of your motion on the adverse
party.
DISCUSSION: The other post-judgment remedy would be a Motion for
Reconsideration. Again what are the specific grounds? Now take note of the distinctions on what a Motion for New Trial should
contain, and Motion for Reconsideration should contain. As I have
First, The damages awarded are excessive. already discussed before, if a motion is pro forma, it will not toll the
Maybe the plaintiff is given title to damages, kaya lang dako ra kaayo- reglementary period of appeal. Again, by reason of that, pwede na siya
either not in accordance with the evidence presented, or beyond the mahimong final and executory, so dili naka maka appeal. Although
maximum allowed by law. you’re entitled to other remedies, but chances are 90% pilde na gyud
ka.
Second, The evidence is insufficient to justify the decision or final
order. PROVED IN THE MANNER PROVIDED FOR PROOF OF MOTION
So meaning ang facts of the case as proved by evidence, dili siya
enough to arrive at such position. Or maybe in such case you would SUPPORT/ A motion for new trial A motion for
need clear and convincing evidence, like for example, to overturn the AFFIDAVITS shall be proved in the reconsideration
presumption of regularity of official acts. Pero bisan pag, diba ang manner provided for shall point out
clear and convincing evidence, under the hierarchy of evidence second proof of motions. A specifically the
na siya. Ang pinakataas kay proof beyond reasonable doubt sa motion for cause findings or
criminal cases. And then next, second is clear and convincing based on: conclusions of the
evidence. Then third ang preponderance of evidence. Kanang sa judgment or final
timbangan pa, kung asa mas bug-at, mao to siya ang mudaog. Not 1. FAME, shall be order which are not
necessarily na bug-at kaayo, basta kay mas bug-at lang. Substantial supported by supported by the
evidence in administrative cases. So dili siya clear and convincing affidavits of merits evidence or which
evidence, substantial lang siya, pero since na overturn nimo ang which may be are contrary to law,
presumption, that’s a ground for Motion Reconsideration. rebutted by making express
affidavits; reference to the
And third, The decision or final order is contrary to law. testimonial or
Here, wala tay dispute as to the evidence and as to the facts. Ang atua 2. NDE, shall be documentary
lang dispute dahil mali ang application of law na gibuhat sa court. That supported by the evidence or to the
is why we are filing a Motion for Reconsideration. affidavits of the provisions of law
witnesses by alleged to be
Ang Motion for Reconsideration actually, we are giving the court a whom such contrary to such
second chance to look at the case. So we are asking the court to evidence is findings or
please take another look and maybe this time, naa lang kay na-miss, expected to be conclusions.
so can you please reverse your decision? We are also giving the court given, or by duly
an opportunity to correct itself. So that’s actually the function of a authenticated
Motion for Reconsideration. documents which
are proposed to
No requirement of new evidence for the filing of MFR be introduced in
So if you notice pud, under what we have discussed, Dili kinahanglan evidence.
ng mga bago na evidence ha sa Motion for Reconsideration becase
again, as is lang ta, kung unsa man ang gipresent sa court during trial, DISCUSSION: Now in case of the motion for new trial, the rule says na
mao na to siya. Didto lang ta magdaog sa giunsa pag-arrive sa court it shall be proved in the manner provided for proof of motions. So that’s
sa iyahang decision. So based on the evidence already presented. So the same as we have discussed before. The motion shall state the
that is the nature of a Motion for Reconsideration. relief sought to be obtained, and the grounds for which it is based. Kay
kung naa kay motion pero wala kay relief, it is again, a pro forma
Motion for Reconsideration of Interlocutory Orders motion. And it shall be accompanied by affidavits and other supporting
Naa pud tay Motion for Reconsideration of Interlocutory Orders. Here, papers.
ang atong Motion for Reconsideration is on a final judgment, a final
decision- that which completely disposes of a case already and there is Q: So specifically, under Section 2, How do you prove the Motion for
nothing more left to do. But sa katung lahi na Motion for New Trial?
Reconsideration as a precursor for the filing of a Petition for Certiorari, ANS: It depends kung unsa ang imohang ground for the Motion for
Prohibition, or Mandamus, kato sila, Motion for Reconsideration of New Trial.
Interlocutory Order. Katung mga orders na dili pa final na wala pa
completely nag dispose sa case because the court still has something  If it is based on fraud, accident, mistake, or excusable negligence,
to do regarding the case. But still, because we want the court to take a the motion shall be supported by affidavits of merits. So affidavits sa
second look, we file a Motion for Reconsideration. And maybe because katung mga tao who can substantiate on accident, mistake, or
also there’s Grave abuse of discretion, before we go to the mas excusable negligence; which can also be rebutted by the affidavits of
malupit na remedy of Certiorari, you first file a Motion for the other party.
Reconsideration. Para tagaan pud chance sa court so you don’t have
to go to the higher court.  If the ground is Newly Discovered Evidence, the motion shall be
supported by the affidavits of the witnesses by whom such
Section 2. Contents of motion for new trial or reconsideration evidence is expected to be given, or by duly authenticated
and notice thereof. — The motion shall be made in writing stating documents which are proposed to be introduced in evidence. So mao
the ground or grounds therefor, a written notice of which shall be na siya an attachment sa imohang motion.
served by the movant on the adverse party.
Now if it is a Motion for Reconsideration walay gina mention ang rule
A motion for new trial shall be proved in the manner provided for ng attachments of affidavits. Because here, as is lang yang evidence
proof of motion. A motion for the cause mentioned in paragraph (a) which is already on record. Ang imohang gina question is again ang
of the preceding section shall be supported by affidavits of merits damages kay dako na kaayo, or ang conclusion sa court is not in
which may be rebutted by affidavits. A motion for the cause accordance with the evidence, or that mali gyud ang conclusion sa
mentioned in paragraph (b) shall be supported by affidavits of the court. Tama man ang iyahang determination, iyahang appreciation sa
witnesses by whom such evidence is expected to be given, or by evidence, pero mali lang gid ang iyahang gi apply na law.
duly authenticated documents which are proposed to be introduced
in evidence. Q: So what do you need for a Motion of Reconsideration?
ANS: You have to point out specifically the findings or conclusions of
A motion for reconsideration shall point out a specifically the the judgment or final order which are not supported by the evidence or
findings or conclusions of the judgment or final order which are not which are contrary to law. So you have to cite unsa tung portion sa
supported by the evidence or which are contrary to law making decision na mali. So making that express reference to the testimonial
express reference to the testimonial or documentary evidence or to or documentary evidence (halimbawa kung muingon ka na ang
the provisions of law alleged to be contrary to such findings or evidence does not support the findings of the court), you have to cite
conclusions. what is that evidence or provision of law which is contrary. You then
have to cite the correct, applicable law. Mao na siya ang requirement
A pro forma motion for new trial or reconsideration shall not toll the sa Motion for Reconsideration.
reglementary period of appeal.
OTHER INSTANCES WHEN AN AFFIDAVIT IS REQUIRED TO
BE ATTACHED TO A MOTION OR APPLICATION

1. Motion to lift order of default under Rule 9;

 2. Rule 14 (summons), Section 19 which provides that:
Section 19. Leave of Court. – Any application to the court under this
Rule for leave to effect service in any manner for which leave of
court is necessary shall be made by motion in writing, supported by
affidavit of the plaintiff or some person on his behalf, setting forth
the grounds for the application.
3. Petition for relief from judgment under Rule 38;
4. Motions to postpone trial under Rule 30, Section 3 (illness
of party or counsel);
5. Motion for summary judgment under Rule 35;
6. Prayer for preliminary attachment under Rule 57, Section
3;
7. Prayer for preliminary injunction under Rule 58;
8. Application for replevin under Rule 60;
9. Support pendent lite under Rule 61.
DISCUSSION: What are the other instances when an affidavit is
required to be attached to a motion or application? So we have already
discussed some of them.
AFFIDAVIT OF MERITS
An affidavit of merits is one setting forth that the defendant has a
meritorious defense (substantial and not technical) and stating the
facts constituting the same (Black’s Law Dictionary, 4th ed., p.80)
DISCUSSION: Now talking about an affidavit. What do you mean by
an affidavit of merit? So as defined, an affidavit of merit is one setting
forth that the defendant has a meritorious defense. Meritorious
defense. So meaning, he has substantial, and not merely technical
facts constituting the same.
So in our discussion, when is an affidavit of merit applicable? Actually
we discussed that in a Motion for New Trial.
Q: How Many Affidavits Are Required Under Rule 37? (Motion For
New Trial)?
ANS: There are two.
First, there should be an affidavit stating which recites the nature
and character of the absolutory cause (fraud, accident mistake, or
excusable negligence) on which a motion seeking relief is based.
Second, there should also be an Affidavit of Merits, setting forth the
movant’s good or substantial cause of action or defense where he
must also describe the evidence which the movant intends to
present should the motion be granted, which evidence should be
such as to warrant a reasonable belief that the result of the case
would probably be otherwise.
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK vs. ORTIZ,
ET. AL
GR No. L-49223
May 29, 1987
A motion for new trial grounded on FAME should thus be ordinarily
accompanied by two (2) affidavits: one, setting forth the facts and
circumstances alleged to constitute such FAME; and the other, an
affidavit of merits, setting forth the particular facts claimed to
constitute the movant’s meritorious cause of action or defense.
The reason for the first is quite obvious: It is to enable the court to
determine if the movant’s claim of fraud, etc., is not a mere
conclusion, but is indeed borne out by the relevant facts.
The reason for the second is equally evident: it would be useless, a
waste of time to set aside the judgment and reopen the case to
allow the movant to adduce evidence when he has no valid cause
of action or meritorious defense.
DISCUSSION: As discussed in this case, when you file a Motion for
New Trial on the ground of FAME, you actually have 2 kinds of affidavit
accompanying the motion.
1. First, the affidavit setting forth the facts and circumstances
alleged to constitute the fraud, accident, mistake, or
excusable negligence. So describe nimo didto what are
those facts constituting the FAME.
2. And then the other, an affidavit of merits. So you set forth the
particular facts claimed to constitute the movant’s
meritorious cause of action or defense. Dili ni siya katung
mga facts constituting the FAME. Katung fraud, accident, or
mistake, mao lang to siya ang facts na magpakita why you
were not able to file your answer, or why you were not able
to participate in the trial. Kaning mga affidavits of merits,
mao na ni siya ang magpakita na naa kay chance na
mudaog: if you are the plaintiff, that you have a meritorious
action, or if you are the defendant, you have a meritorious
defense.
Q: What is the reason why there should be an affidavit of merits?
ANS: Ofcourse, because even if you were prevented by FAME from
presenting your case, but still if you were able to present your case
mapildi gihapon ka because dili man diay substantial ang imong cause
of action or defense. So it’s just a useless exercise, a waste of time.
Why would the court set aside its judgment and then give you a chance
to present your case when in fact wala man diay kay case in the first
place. So that’s the reason why there should be an affidavit of merit.
Q: Kinahanglan ba gyud na separate affidavits ni sila?
ANS: Well it depends. Kay kung for example ang imohang person who
will attest on the FAME is also the same who will attest the meritorious
defense, so naa siyay personal knowledge in all of these things, pwede
na siya nalang ang mag execute sa tanan. Isahon nalang ang affidavit.
But you have to make it clear in the affidavit the FAME and the
meritorious cause of action or defense.
Where therefore, a motion for new trial on the ground of FAME is
unaccompanied by either or both affidavits, the motion is pro forma
a scrap of paper, as it were, and will not interrupt the running of the
period of appeal. But where, as here, the motion for new trial is
founded not only on FAME, but also on the ground of “award of
excessive damages” as to which no affidavit of fraud, etc., or merits
is required, what being required of the movant being to “point out
specifically the findings or conclusions of the judgment”
demonstrating the invoked ground, the motion cannot be denied as
pro forma simply because no affidavit of merits is appended thereto,
provided that there be a specification of the findings or conclusions
of the judgment alleged to be erroneous because awarding
excessive damages. The tenability of the grounds is dependent
upon different premises. The untenability of one does not by itself,
render the other unmeritorious.
DISCUSSION: So the SC said that the Motion for New Trial on the
ground of fame is unaccompanied by either or both affidavits, the
motion is pro forma.
GEN RULE: So again, it will not interrupt the running of the appeal.
Pero here, in this particular case, the SC noted that actually and
Motion for New Trial niya kay aside from FAME, nag cite pud siyag
ground na excessive damages awarded. So here, actually, this is a
ground for Motion for Reconsideration. And if it a Motion for
Reconsideration, any of the grounds allowed by law for a Motion for
Reconsideration, the Rule does not require an affidavit of merit. What
the law requires merely is to point out specifically the findings or
conclusions of the judgment demonstrating na mao ni ang imohang
ground. So kung gi combine nimo ang imohang motion, bisan pag
Motion for New Trial ang title ana but in the body of the motion the
movant also invoked award of excessive damages, here, even if wala
ng affidavit of merit but it pointed out specifically showing that there
was award of excessive damages and demonstrating the findings and
conclusions of the judgment na ground nimo for the motion, here the
court cannot deny the motion on the ground na simply it is allegedly
pro forma. Again, as long as nay specification of the judgment alleged
to be erroneous because there is an award of excessive damages, you
cannot consider that motion of pro forma, EVEN IF assuming for the
sake of the argument that it is indeed pro forma.
If it is sufficient as a Motion for Reconsideration, then it will not be
considered as a pro forma. The untenability of one does not by itself,
render the other unmeritorious.
EXCEPTION: So here, bisan pa ma deny pa later on ang motion pero
it is not pro forma, ang consequence ana is it will toll or interrupt the
reglementary period of appeal. So if I deny ng court, then you can still
appeal within the fresh period for appeal.
DISTINCTIONS BETWEEN THE 2 KINDS OF AFFIDAVITS
REQUIRED IN A MOTION FOR NEW TRIAL
AFFIDAVIT SETTING AFFIDAVIT OF
FORTH ABSOLUTORY MERITS
CAUSES
Content The facts and The particular facts
circumstances alleged to claimed to constitute
constitute such fraud, the movant’s
accident, mistake, or meritorious cause of
excusable negligence. action or defense.
Basis Rule 15 on proof of Rule 37, Sections 1 and
motions, i.e., by 2 (second paragraph)
“affidavits or
depositions”
Rational To enable the court to It would be useless, a
e determine if the waste of time, to set
movant’s claim of fraud, aside the judgment and
etc. is not a mere reopen the case to
conclusion but is indeed allow the movant to
borne out by the adduce evidence when
 relevant facts. he has no valid cause for new trial on a
of action or meritorious ground already
defense. available to the
movant when he
filed his first motion
INSTANCES WHEN AN AFFIDAVIT OF MERITS IS REQUIRED for new trial (Rule
37, sec. 5).
1. Motion to lift order of default under Rule 9;
2. Motion for new trial on the ground of Fame under Rule DISCUSSION: So more on pro-forma motions, just look at table and
37; see what are examples of pro-forma motions: whether it is a motion in
3. Petition for relief from judgment under Rule 38; general, a motion for new trial, or a motion for reconsideration.
4. Prayer for preliminary attachment under Rule 57, Section
3; and PHILIPPINE ADVERTISING COUNSELORS, INC. vs. REVILLA
5. Petition for the correction of clerical or typographical GR No. L-31869
errors and change of first name or nickname under August 8, 1973
Implementing rules and regulations of RA 9048:
Among the ends to which a motion for reconsideration is
The petition shall be in the prescribed form of an affidavit, addressed, one is to convince the court that its ruling is erroneous
subscribed and sworn to before any person authorized by law to and improper, contrary to the law or the evidence, and in so doing,
administer oath. The affidavit shall set forth facts necessary to the movant has to dwell on necessity upon issues passed upon by
establish the merits of the petition and shall show affirmatively that the court. The disallowance of pro forma motions for
the petitioner is competent to testify to the matters stated. The reconsideration or new trial is mainly predicated upon their being
petitioner shall state the particular erroneous entry or entries sought resorted to solely to gain time and delay the proceedings. In this
to be corrected or the first name sought to be changed, and the connection, We have already held that “it is not enough that a
correction or change to be made. motion should state what part of the decision is contrary to law or
the evidence; it should also point out why they are so.
DISCUSSION: We discussed before what are those instances when
an affidavit is required. Here, these are those specific instances under
the Rules and existing law when the affidavit of merit is required. DISCUSSION: It is also important also to remember in this case that
regarding a Motion for Reconsideration, we don’t have affidavits
attached, but we should state and specify in the motion what part of the
PRO-FORMA MOTIONS: LAW AND JURISPRUDENCE TABLE decision is contrary to law. And not only that, it should also point out
DEFINITION It is a motion filed for the sake of form or why they are contrary to law or evidence. You should also tell the court
compliance. It is one which does not satisfy unsa ang tama, not only na mali siya. You should say na mali siya and
the requirements of the Rules and which will kani ang tama as a ground for your Motion for Reconsideration.
be treated as a motion intended to delay the
proceedings. (Marikina Valley Dev. Corpo. REHASHES: TREATMENT
vs. Flojo, GR No. 110801, December 8,
1995) MARIKINA VALLEY DEVELOPMENT CORPORATION vs.
Effect of Filing A pro forma motion for new trial or FLOJO
under Rule 37 reconsideration shall not toll the reglementary GR No. 110801
period of appeal. December 8, 1995
MOTIONS IN MOTION FOR NEW MOTION FOR EN BANC
GENERAL TRIAL RECONSIDERATIO
N The question in every case is therefore, whether a motion for
1. A motion which 1. A “so-called motion 1. A second motion for reconsideration is properly regarded as having satisfied
does not state for new trial based reconsideration; requirements, noted above, of Rule 37 of the Rules of Court. As
the relief sought exactly on the very already pointed out, the Court of Appeals took the position that
to be obtained ground alleged in 2. A one sentence where a motion for reconsideration merely “reiterates” or “repleads”
(Marcial vs. Hi- the defendant’s motion for the same arguments which had been previously considered and
Cement, GR No. first motion for reconsideration that resolved in the decision sought to be reconsidered, the motion is a
144900, reconsideration does not point out pro forma one.
November 18, (Samudio vs. Mun. specifically the
2005); of Gainza, 100 Phil findings or It should however, be noted that the circumstances that a
1013, 1957); conclusions of the
motion for reconsideration deals with the same issues and
2. A motion which is judgment or final
arguments posed and resolved by the trial court in its decision
not properly 2. The absolutory order which are not
addressed to the cause is mistake of supported by the does not necessarily mean that the motion must be
parties law (Reyes vs. CA, evidence or which characterized as merely pro forma. More than two decades ago,
concerned GR No. L-48960, are contrary to law Mr. Justice JBL Reyes had occasion, in Guerra Enterprises
(Prado vs. June 29, 1943); (Crisostomo vs. CA, Company, Inc. vs. Court of First Instance of Lanao del Sur, to point
Veridiano, 204 32 SCRA 54, 1970); out that a pleader preparing a motion for reconsideration must of
SCRA 651, 3. A motion for new necessity address the arguments made or accepted by the trial
December 6, trial on the ground 3. A motion for court it its decision:
1991) of fraud, etc., reconsideration
unaccompanied by which failed to DISCUSSION: Now how about mga rehash? Like in this case. Sa
the required substantiate the Motion for Reconsideration, the motion merely reiterated or repleaded
affidavits (PCIB vs. alleged errors the same arguments which had already been previously considered
Ortiz, GR No. L- (Luzon Stevedoring and resolved by the court in its decision. So niana ang pikas party na
49223, May 29, vs. CIR, 8 SCRA “Ah, that motion is pro forma because it is a mere rehash of arguments
1987); 447, 1963);
which should not anymore be considered by the court.”
4. A motion for new 4. A motion which
trial on the ground merely alleges that However the SC said, when you mean Motion for Reconsideration, it
of NDE, etc., the decision in deals with the same issues and arguments posed and resolved by the
unaccompanied by question is contrary trial court in its decision. It does not necessarily mean that the motion
the required to law or the facts of must be characterized as merely pro forma. Because again, when you
affidavits of the case (Villarica file a Motion for Reconsideration, as I said, you are asking the court to
witnesses under vs. CA, 57 SCRA take a second look at your case. You’re not arguing about, for
Rule 37, Section 2; 24, 1974); example, the entitlement of the plaintiff to damages, but rather na dako
ra kaayo ang damages na gi-award sa court. You’re not disputing the
5. One that is clearly 5. One without prior findings of facts, but dili siya sufficient to justify the decision. Or maybe
intended for delay; notice to the the facts are actually correct, but mali na law or ruling ang gi-apply to
adverse party; that particular set of facts. So it does not mean na ang motion should
6. One that does not include new matters.
satisfy the formal 6. A motion which has
the formal no other purpose
requirements of than to gain time
Rue 15 and Rule (Estrada vs. Sto.
37 (Manila Surety Domingo 28 SCRA
and Fidelity Co. vs. 890, 1969).
Bath Construction,
GR No. L-16636,
June 24, 1965);

7. A second motion