Civil Procedure

Civil Procedure readers1 Normal RND GROUP 4 36 2002-01-09T23:56:00Z 2002-01-19T06:21:00Z 5 1950 11116 supreme court 92 22 13651 9.2720 110

8. REMEDIES AGAINST JUDGMENT AND FINAL ORDERS

1. Kinds of Remedies

1. Before Finality of Judgments or Final Orders:

(a) Motion for Reconsideration;

(b) Motion for New Trial; and

(c) Appeal.

2. After Finality of Judgments or Final Orders:

(a) Relief for Judgments or Final Orders;

(b) Petition for Certiorari ; and

(c) Annulment of Judgment.

2. Motion for Reconsideration and New Trial

1. Common Rules

1.1 Time to File

A motion for reconsideration or new trial may be filed within the period for taking appeal. Note that a pro forma motion for new trial or reconsideration shall not toll the reglementary period. A pro forma motion for reconsideration or new trial is one which does not comply with the requirements of Rule 37 and does not toll the reglementary period to appeal. 184

1.2 No motion for extension of time to file motion for reconsideration or new trial is allowed. 185

1.3 A motion for reconsideration or new trial suspends the running of the period to appeal but if denied, the movant has only the balance of the reglementary period within which to take his appeal. 186

1.4 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. An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order. 187

2. Motion for Reconsideration

Grounds:

(1) damages awarded are excessive;

(2) evidence is insufficient to justify the decision or final order; and

(3) decision or final order is contrary to law. 188

2.1 A motion for reconsideration shall point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. 189

2.2 No party shall be allowed a second motion for reconsideration. 190

3. Motion for New Trial

3.1 Grounds

Any of the following causes materially affecting the substantial rights of an aggrieved party:

3.1.1 Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or

3.1.2 Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. 191

3.2 Fraud, as a ground for new trial, must be extrinsic or collateral, that is, it is the kind of fraud which prevented the aggrieved party from having a trial or presenting his case to the court, or was used to procure the judgment without fair submission of the controversy. Instances of collateral fraud are acts intended to keep the unsuccessful party away from the court by a false promise of compromise, or purposely keeps him in ignorance of the suit, or where the attorney fraudulently pretends to represent a party and connives at his defeat, or corruptly sells out his client's interest. 192 It is to be distinguished from intrinsic fraud which refers to the acts of a party at the trial which prevented a fair and just determination of the case 193 and which could have been litigated and determined at the trial or adjudication of the cases, such as falsification, false testimony and so forth, and does not constitute a ground for new trial. 194

3.3 Mistake generally refers to mistakes of fact but may also include mistakes of law where, in good faith, the defendant was misled in the case. Thus, a mistake as to the scope and extent of the coverage of an ordinance, 195 or a mistake as to the effect of a compromise agreement upon the need for answering a complaint, 196 although actually constituting mistakes of law, have been considered sufficient to warrant a new trial.

3.4 Negligence must be excusable and generally imputable to the party but the negligence of counsel is binding on the client just as the latter is bound by the mistakes of his lawyer. 197 However, negligence of the counsel may also be a ground for new trial if it was so great such that the party was prejudiced and prevented from fairly presenting his case. 198

3.5 To warrant a new trial, newly discovered evidence:

(1) must have been discovered after trial;

(2) could not have been discovered and produced at the trial despite reasonable diligence; and

(3) if presented, would probably alter the result of the action. 199 Mere initial hostility of a witness at the trial does not constitute his testimony into newly discovered evidence. 200

3.6 A motion for new trial shall be supported by affidavits of merits which may be rebutted by affidavits. An affidavit of merits is one which states:

(1) the nature or character of the fraud, accident, mistake or excusable negligence on which the motion for new trial is based;

(2) the facts constituting the movant's good and substantial defenses or valid causes of action; 201 and

(3) the evidence which he intends to present if his motion is granted.

An affidavit of merits should state facts and not mere opinions or conclusions of law. 202 An affidavit of merits is required only if the grounds relied upon are fraud, accident, mistake or excusable negligence. 203 Affidavits of merits may be dispensed with when the judgment is null and void as where the court has no jurisdiction over the defendant or the subject matter, 204 or is procedurally defective as where judgment by default was rendered before the reglementary period to answer had expired, 205 or where the defendant was unreasonably deprived of his day in court 206 as when no notice of hearing was furnished him in advance. 207 Affidavits of merits are not required in motions for reconsideration. 208

3.7 Effect of Granting of Motion For New Trial

If a new trial is granted in accordance with the provisions of this Rule, the original judgment or final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial, in so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. 209

3. Appeal

Note: This subject shall be limited to appeal from first level courts to the Regional Trial Court 210 and appeals from the Regional Trial Court. 211 Trial courts are not concerned with the other kinds and modes of appeals.

1. General Principles

1.1 An appeal is a statutory right and part of due process. Perfection of an appeal in the manner and within the period laid down by law is not only mandatory but also jurisdictional. 212

1.2 Only parties can appeal from a decision. A surety on a bond to insure execution of judgment becomes a party when notice was served upon it for execution of the judgment and may appeal from the order of execution. 213

1.3 A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. 214 However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. 215

1.4 Those which cannot be appealed:

(1) An order denying a motion for new trial or reconsideration;

(2) An order denying a petition for relief or any similar motion seeking relief from judgment;

(3) An interlocutory order;

(4) An order disallowing or dismissing an appeal;

(5) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent;

(6) An order of execution;

(7) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and

(8) An order dismissing an action without prejudice.

In all of the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. 216

1.5 Difference between final order and an interlocutory order

A final order is one that completely disposes of a case or of a particular matter. An interlocutory order is one that does not finally dispose of a case and does not end the court's task of adjudicating the parties' contentions and determining the rights and liabilities as regards each other but obviously indicates that other things remain to be done by the court. 217

It does not, however, necessarily mean that an order is not final simply because there is something more to be done in the merits of the case. It is settled that a court order is final in character if it puts an end to the particular matter resolved, leaving thereafter no substantial proceeding to be had in connection therewith except its execution; and contrariwise, that a given court order is merely of an interlocutory character if it is provisional and leaves substantial proceedings to be had in connection with its subject in the court by whom it was issued. 218

Thus, the issue whether an order is a final order is its effect on the rights of the parties. A final judgment, order or decree is one that finally disposes of, adjudicates or determine the rights, or some rights of the parties, either on the entire controversy or some definite and separate branch thereof, and which concludes them until it is reversed or set aside. 219 This is best exemplified in actions where there are two stages, such as expropriation, 220 partition 221 and in special proceedings where there are several stages. 222

4. The Modes of Appeal

The three (3) modes of appeal are:

(1) ordinary appeal; 223

(2) petition for review; 224 and

(3) appeal by certiorari (petition for review on certiorari ). 225

5. Cognate Rules

1. As a general rule, in ordinary appeals, execution is stayed unless the rule or law provides otherwise. Among these are:

(1) Decision in Forcible Entry and Unlawful Detainer, unless appellant stays immediate execution by filing a notice of appeal, supersedeas bond and depositing in court a monthly rental or compensation for the occupation as fixed by the court which rendered the decision; 226

(2) Decision of the Metropolitan, Municipal or Municipal Circuit Trial Court or the Regional Trial Court where execution pending appeal has been granted by the court of origin or in a proper case by the appellate court upon good reasons to be stated in the order; 227

(3) Decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction on cases tried and decided by the court of origin under Summary Procedure; 228

(4) Decision of Quasi-Judicial Agencies under the Rules of Court, Rule 43, Section 12, unless otherwise provided for by the Court of Appeals;

(5) Decision in Cases of Injunction, Receivership, Support and Accounting. 229

2. Difference Between Question of Fact and Question of Law

When the question is the correctness or falsity of an alleged fact, the question is a question of fact. When the question is what law is applicable in a given set of facts, the question is a question of law. 230

3. Notice of Appeal

It need not be approved by the Court which rendered the decision. The court however may deny it due course if on its face, it was filed out of time or the appellate docket and other lawful fees have not been paid. The court which rendered the decision cannot however deny due course to the Notice of Appeal on the ground that the appeal is frivolous or dilatory. 231

4. Record on Appeal

A Record on Appeal is required in: (a) Special Proceedings; (b) Other cases of multiple or separate appeals where the law or the Rules so require. 232

5. Perfection of appeal

A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time.

A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time.

In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.

In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties. 233

6. Effect of Perfection of Appeal

The court which rendered the appealed decision loses its jurisdiction over the case. However, it may still do the following:

(1) issue an order for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal;

(2) approve compromise of the parties prior to the transmittal of the record on appeal to the appellate court;

(3) permit the prosecution of indigent appeals;

(4) order execution pending appeal in accordance with Section 2, Rule 39; and

(5) approve withdrawal of appeal. 234

7. Period of time to appeal must be strictly enforced on considerations of public policy. The period is mandatory and jurisdictional 235 and the failure to do so renders the questioned decision final and executory that deprives the appellate court of jurisdiction to alter the final judgment much less to entertain the appeal 236 or motion for new trial. 237 The decision of the Court of Appeals after expiration of the period to appeal is null and void. 238

184 Cledera v. Sarmiento, Nos. L-32450-51, June 10, 1971, 39 SCRA 552; Firme v. Reyes, No. L-35858, August 21, 1979, 92 SCRA 713.

185 Habaluyas Enterprises, Inc. v. Japson, No. L-70895, May 30, 1986, 142 SCRA 208.

186 Rules of Court, Rule 41, Sec. 3.

187 Ibid , Sec. 4.

188 Rules of Court, Rule 37, Sec. 1.

189 Ibid , Sec. 2.

190 Rules of Court, Rule 37, Sec. 5.

191 Ibid , Sec. 2.

192 Magno v. Court of Appeals, No. L-28486, September 10, 1981, 107 SCRA 285.

193 Palanca v. American Food Manufacturing Co., Inc., No. L-22822, August 30, 1968, 24 SCRA 819.

194 Tarca v. Vda. De Carretero, 99 Phil. 419 [1956]; Conde v. Intermediate Appellate Court, No. L-70443, September 15, 1986, 144 SCRA 144.

195 City of Iloilo v. Pinzon, 97 Phil 968 [Unreported] [1955].

196 Salazar v. Salazar, 8 Phil. 183 [1907].

197 Gaba v. Castro, No. L-56171, January 31, 1983, 120 SCRA 505; Ayllon v. Sevilla, No. L-79244, December 10, 1987, 156 SCRA 257.

198 People v. Manzanilla, 43 Phil. 167 [1922]; cf. Republic v. Arro, No. L-48241, June 11, 1987, 150 SCRA 625.

199 National Shpiyards and Steel Corporation v. Asuncion, 103 Phil. 67 [1958].

200 Arce v. Arce,

201 Ferrer v. Yap Sepeng, No. L-39373, September 30, 1974, 60 SCRA 149.

202 Malipol v. Tan, No. L-27730, January 2, 1974, 55 SCRA 202; Ferrer v. Yap Sepeng, supra , note 201.

203 Ganaban v. Bayle, No. L-28804, November 27, 1969, 30 SCRA 365.

204 Republic v. De Leon, 101 Phil. 773 [1957].

205 Gonzalez v. Francisco, supra , note 62.

206 Valerio v. Tan, 99 Phil. 419 [1956].

207 Soloria v. Cruz, G. R. No. 20738, January 31, 1966, 16 SCRA 114; Gattoc v. Sarrenas, 104 Phil. 221 [1958].

208 Mendoza v. Bautista, No. L-45885, April 28, 1983, 121 SCRA 760.

209 Rules of Court, Rule 37, Sec. 6.

210 Rules of Court, Rule 40.

211 Rules of Court, Rules 41 and 42.

212 Villanueva v. Court of Appeals, G. R. No. 99357, January 27, 1992, 205 SCRA 537; Borre v. Court of Appeals, No. L-57204, March 14, 1988, 158 SCRA 560.

213 People's Homesite and Housing Corporation v. Jeremias, G. R. No. 43252, September 30, 1976, 73 SCRA 239.

214 Medina v. Court of Appeals, G. R. No. 98334, May 8, 1992, 208 SCRA 887.

215 Espina v. Court of Appeals, G. R. No. 102128, November 6, 1992, 215 SCRA 484.

216 Rules of Court, Rule 41, Sec. 1.

217 Investments, Inc. v. Court of Appeals, No. L-60036, January 27, 1987, 147 SCRA 334.

218 De La Cruz v. Paras, G. R. No. 41053, February 27, 1976, 69 SCRA 556 cited in Republic v. Tacloban City Ice Plant, Inc., G. R. No. 106413, July 5, 1996, 258 SCRA 145.

219 De la Cruz v. Paras, Ibid. ; Gold City Integrated Port Services, Inc. (INPORT) v. Intermediate Appellate Court, G. R. Nos. 71771-73, March 31, 1989, 171 SCRA 579.

220 Municipality of Bi�an v. Garcia, G. R. No. 69260, December 22, 1989, 180 SCRA 576.

221 Miranda v. Court of Appeals, G. R. No. 80030, October 26, 1989, 178 SCRA 702.

222 Rules of Court, Rule 109, Sec. 1.

223 Rules of Court, Rules 40 and 41.

224 Rules of Court, Rules 42 and 43.

225 Rules of Court, Rule 45.

226 Rules of Court, Rule 70, Sec. 19.

227 Rules of Court, Rule 39, Sec. 2.

228 Revised Rules on Summary Procedure, Sec. 21.

229 Rules of Court, Rule 39, Sec. 4.

230 Cheesman v. Intermediate Appellate Court, G. R. No. 74833, January 21, 1991, 193 SCRA 93.

231 Ortigas & Co. Ltd. Partnership v. Velasco, G.R. No.109645, August 15, 1997, 277 SCRA 342.

232 Rules of Court, Rule 41, Sec. 2.

233 Rules of Court, Rule 41, Sec. 9.

234 Ibid.

235 Government Service Insurance System v. Gines, G. R. No. 85273, March 9, 1993, 219 SCRA 724.

236 De Castro, Jr. V. Court of Appeals, No. L-36021, February 29, 1988, 158 SCRA 288.

237 Velaso v. Ortiz, G. R. No. 51973, April 16, 1990, 184 SCRA 303.

23 8 Antonio v. Court of Appeals, No. L-77656, August 31, 1987, 153 SCRA 592.