C2018 REVIEWER CIVIL PROCEDURE
VISTAN
PART EIGHT: REMEDIES FOR AN ADVERSE JUDGMENT
VIII. REMEDIES FOR AN
ADVERSE JUDGMENT
A. MOTION FOR
RECONSIDERATION AND
MOTION FOR NEW TRIAL
i. Grounds
Sec 1, Rule 37. Grounds of and period for
filing motion for new trial or
reconsideration.
Within the period for taking an appeal, the
aggrieved party may move the trial court to set
aside the judgment or final order and grant a new
trial for one or more of the following causes
materially affecting the substantial rights of said
party:
(a) 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
(b) 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.
Within the same period, the aggrieved party may
also move for reconsideration upon the grounds
that the damages awarded are excessive, that the
evidence is insufficient to justify the decision or
final order, or that the decision or final order is
contrary to law.
Sec 1, Rule 53 (New Trial). Period for Filing;
ground.
At any time after the appeal from the lower court
has been perfected and before the Court of
Appeals loses jurisdiction over the case, a party
may file a motion for a new trial on the ground of
newly discovered evidence which could not have
been discovered prior to the trial in the court
below by the exercise of due diligence and which
is of such a character as would probably change
the result. The motion shall be accompanied by
affidavits showing the facts constituting the
grounds therefor and the newly discovered
evidence.
PROF.
GROUNDS FOR MOTION FOR NEW TRIAL
(a) 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
(b) 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.
Motion must be accompanied by affidavits
showing the:
1. Facts constituting the grounds, and
2. The newly discovered evidence
GROUNDS FOR M OTION FOR
RECO NSIDERATIO N
(a) Damages are excessive;
(b) The evidence is insufficient to justify the
decision or final order
(c) Decision or final order is contrary to law
ii. Period of Filing
Sec 2, Rule 40. When to Appeal.
An appeal may be taken within fifteen (15) days
after notice to the appellant of the judgment or
final order appealed from. Where a record on
appeal is required, the appellant shall file a notice
of appeal and a record on appeal within thirty
(30) days after notice of the judgment or final
order.
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for
new trial or reconsideration shall be allowed.
Sec 3, Rule 41. Period of Ordinary Appeal.
The appeal shall be taken within fifteen (15) days
from notice of the judgment or final order
appealed from. Where a record on appeal is
required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30)
days from notice of the judgment or final order.
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for
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new trial or reconsideration shall be allowed.
Sec 1, Rule 52 (Motion for Reconsideration).
Period for Filing.
A party may file a motion for reconsideration of a
judgment or final resolution within fifteen (15)
days from notice thereof, with proof of service on
the adverse party.
Sec 1, Rule 53 (New Trial). Period for Filing;
ground.
At any time after the appeal from the lower court
has been perfected and before the Court of
Appeals loses jurisdiction over the case…
MOTION FOR RECON: Within 15 days from
notice, with proof of service on adverse party
MOTION FOR NEW TRIAL: At any time after
appeal from lower court has been perfected and
before the CA loses jurisdiction over the case
iii. Contents of Motion
Sec 2, Rule 37. Contents of motion for new
trial or reconsideration and notice thereof.
The motion shall be made in writing stating the
ground or grounds therefor, a written notice of
which shall be served by the movant on the
adverse party.
A motion for new trial shall be proved in the
manner provided for proof of motion. A motion
for the cause mentioned in paragraph (a) of the
preceding section shall be supported by affidavits
of merits which may be rebutted by affidavits. A
motion for the cause mentioned in paragraph (b)
shall be supported by affidavits of the witnesses
by whom such evidence is expected to be given,
or by duly authenticated documents which are
proposed to be introduced in evidence.
A motion for reconsideration shall point out a
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.
PROF. VISTAN
A pro forma motion for new trial or
reconsideration shall not toll the reglementary
period of appeal.
MOTION
(1) In writing
(2) Stating the ground/s
(3) A written notice of which shall be served by
movant on adverse party
AFFIDAVIT OF MERITS
An affidavit which states (a) nature of character of
the fraud, accident, mistake, or excusable
negligence on which the motion for new trial is
based; (b) facts constituting the movant’s good
and substantial defenses or valid causes of action;
and (c) the evidence which he intends to present
if his motion is granted. Such evidence must be
such to warrant a reasonable belief that if
presented, the result of the case would probably
be altered. (Regalado)
A MOTION FOR RECONSIDERATION MAY
BE CONSIDERED AS A MOTION FOR NEW
TRIAL; WHEN APPLICABLE
A Motion for Reconsideration, if based on the
same grounds as that for a new trial, is
considered a motion for new trial and has the
same effect (Rodriguez v Rovira). However, where
the motion for new trial is based on the last
paragraph of Sec.1, it is properly a motion for
reconsideration as the movant merely asks the
court to reevaluate its decision without a trial
being conducted again on the issues involved
(City of Cebu et al. v Mendoza)
PRO FORMA MOTIONS
Any motion for new trial or consideration which
fails to satisfy the requirement of Rule 37 is pro
forma. A motion which is pro forma or which is
without the requisite of service and notice of
hearing, does not interrupt the reglementary
period of appeal.
iv. Action on Motion
Sec 3, Rule 37. Action upon motion for new
trial or reconsideration.
The trial court may set aside the judgment or final
order and grant a new trial, upon such terms as
may be just, or may deny the motion. If the court
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finds that excessive damages have been awarded
or that the judgment or final order is contrary to
the evidence or law, it may amend such judgment
or final order accordingly.
COURT OF APPEALS SHALL CONSIDER
EVIDENCE ADDUCED AT TC AND
a) May grant new trial
b) Refuse a new trial
c) Make such order, with notice to both
parties, as to the taking of further
testimony either orally in court or by
deposition
d) Render such other judgment as ought to
be rendered upon such terms as it may
deem just
v. Period of Resolution
Sec 4, Rule 37. Resolution on Motion.
A motion for new trial or reconsideration shall be
resolved within thirty (30) days from the time it is
submitted for resolution.
Sec 3, Rule 52. Resolution on Motion.
In the Court of Appeals, a motion for
reconsideration shall be resolved within ninety
(90) days from the date when the court declares it
submitted for resolution.
Sec 3, Rule 53. Resolution on Motion.
In the Court of Appeals, a motion for new trial
shall be resolved within ninety (90) days from the
date when the court declares it submitted for
resolution.
COURT PERIOD FOR RESOLUTION
MTC/RTC 30 days from time it is submitted
for decision
CA Within 90 days from the date when
the court declares it submitted for
resolution
SC Not applicable
vi. Second motion for new trial
Sec 5, Rule 37. 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
PROF. VISTAN
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.
Sec 2, Rule 52. Second motion for
reconsideration.
No second motion for reconsideration of a
judgment or final resolution by the same party
shall be entertained.
GENERAL RULE: No second motion for
reconsideration shall be entertained
EXCEPTION: In cases before the SC
Ground: higher interest of justice granted by
the Court en banc upon vote of at least 2/3 of
its actual membership (Sec. 3, Rule 15,
Internal Rules of the SC)
There is reconsideration “in the higher interest of
justice” when the assailed decision is not only
legally erroneous, but is likewise patently unjust
and potentially capable of causing unwarranted
and irremediable injury or damage to the parties;
Can only be entertained before the ruling by
operation of law or by the Court’s declaration.
vii. Partial new trial or
reconsideration
Sec 7, Rule 37. Partial new trial or
reconsideration.
If the grounds for a motion under this Rule
appear to the court to affect the issues as to only
a part, or less than an of the matter in
controversy, or only one, or less than all, of the
parties to it, the court may order a new trial or
grant reconsideration as to such issues if
severable without interfering with the judgment
or final order upon the rest.
viii. Effect of grant of new trial, partial
new trial
Sec 6, Rule 37. Effect of granting of motion
for new trial.
If a new trial is granted in accordance with the
provisions of this Rules the original judgment or
final order shall be vacated, and the action shall
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stand for trial de novo; but the recorded
evidence taken upon the former trial, insofar as
the same is material and competent to establish
the issues, shall be used at the new trial without
retaking the same.
Sec 8, Rule 37. Effect of order for partial
new trial.
When less than all of the issues are ordered
retried, the court may either enter a judgment or
final order as to the rest, or stay the enforcement
of such judgment or final order until after the new
trial.
MOTION FOR NEW TRIAL TAKES
PRECEDENCE OVER AN APPEAL FROM A
DECISION
Where one party files a motion for new trial or
reconsideration and the other party seeks to
perfect an appeal from the said decision, the
court should withhold action on the appeal until
after the motion for new trial or reconsideration
shall have been resolved. (Simsion v Belmonte)
ix. Remedy when motion is denied
Sec 9, Rule 37. Remedy against order
denying a motion for new trial or
reconsideration.
An order denying a motion for new trial or
reconsideration is not appealed, the remedy
being an appeal from the judgment or final order.
REMEDY: Appeal from the judgment or final
order
RULES APPLICABLE
Sec 2, Rule 56. Rules Applicable.
The procedure in original cases for certiorari,
prohibition, mandamus, quo warranto and
habeas corpus shall be in accordance with the
applicable provisions of the Constitution, laws,
and Rules 46, 48, 49, 51, 52 and this Rule, subject
to the following provisions:
(a) All references in said Rules to the Court of
Appeals shall be understood to also apply
to the Supreme Court;
(b) The portions of said Rules dealing strictly
with and specifically intended for appealed
cases in the Court of Appeals shall not be
applicable; and
PROF. VISTAN
(c) Eighteen (18) clearly legible copies of the
petition shall be filed, together with proof
of service on all adverse parties.
The proceedings for disciplinary action against
members of the judiciary shall be governed by
the laws and Rules prescribed therefor, and those
against attorneys by Rules 139­B, as amended.
The applicable provision of the 1987 Constitution
are Sections 4, 5, 13, 14 and 15 of Article VIII.
[Feria]
Sec 4, Rule 56. Procedure.
The appeal shall be governed by and disposed of
in accordance with the applicable provisions of
the
Constitution, laws, Rules 45, 48, sections 1, 2,
and 5 to 11 of Rule 51, 52 and this Rule.
354 PNB v. Paneda
(February 14, 2007, Austria-Martinez, J.)
Facts: RTC ruled against PNB, and ordered it to
pay its co-defendant in a third-party complaint
filed against the bank. PNB filed a Motion for
New Trial and Reconsideration. CA dismissed the
Motion for being pro forma.
Held: SC ruled that the Motion for New Trial is
pro forma, because no new evidence was
presented. But the Motion for Reconsideration
was not pro forma. Mere reiteration of arguments
does not mean pro forma, because the purpose
of MR is to make the court reconsider an
allegedly erroneous ruling. Court also listed down
Doctrine: Mere reiteration of arguments does not
mean pro forma, because the purpose of MR is to
make the court reconsider an allegedly erroneous
ruling.
Instances where Motion is pro forma:
1. it is a second MR;
2. it did not comply with the rule that the
motion must specify the findings and
conclusions alleged to be contrary to law
and evidence;
3. it failed to substantiate the alleged errors;
4. it merely alleged that the decision was
contrary to law;
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5. the adverse party was not given notice of the
motion.
355 Republic v. Asuncion
(Sept 15, 2006, Carpio, J.)
Facts: Petition for Review of the CA Decision
denying PET’s MR re the RTC order declaring
PET’s MR pro forma, and the subsequent order
dismissing the notice of appeal.
The SolGen files for an MR regarding a land
registration case, but the CA denies the same,
ruling that the former is in fact asking for a new
trial.
Held: The Court disagrees, as the ground in the
MR is not a ground for a motion for new trial.
Doctrine: The ruling, however, that the MR is not
pro forma does not mean that it is meritorious.
Public policy would be better served by
according the appellate court an effective
opportunity to review the decision of the TC on
the merits, rather than by aborting the right to
appeal by a literal application of the procedural
rule relating to pro forma MRs.
356 Yap v. Tañada
(July 18, 1988, Ponente)
Facts:
Held:
Doctrine:
357 Capuz v. CA
(June 27, 1994, Quaison, J.)
Facts: PET received (on the same day) an Order
declaring him in default and a Decision holding
him liable in case for sum of money filed by
PRESP. Instead of appealing, PET filed a verified
motion to lift the order of default, which the RTC
denied. PET filed a petition for certiorari under
Rule 65 contending that his verified motion
should be considered as a motion for new trial.
CA dismissed but the SC reversed and remanded
the case back to the RTC.
Held: SC reversed and remanded the case back
to the RTC. When a motion to lift an order of
default contains the reasons for the failure to
answer as well as the facts constituting the
PROF. VISTAN
prospective defense of the defendant and it is
sworn to by said defendant, neither a formal
verification nor a separate affidavit or merit is
necessary.
Doctrine: The allegation contained in an affidavit
of merit required to be attached to a motion to
lift an order of default or for a new trial need not
be embodied in a separate document but may
incorporated in the petition itself.
358 Pantig v. Baltazar
(December 3, 1990, Ponente)
Facts:
Held:
Doctrine:
359 Cansino v. CA
(August 21, 2003, Puno, J.)
Facts: The RTC reversed its decision in an
ejectment complaint after the plaintiffs adduced
additional documentary evidence showing
ownership through a motion for reconsideration.
Held: The Court held that Sec. 5, Rule 135 does
not contemplate amendments that are substantial
in nature. They merely cover formal changes or
such that will not affect the crux of the decision,
like the correction of typographical or clerical
errors.
Doctrine: Courts will violate due process if they
make substantial amendments in their decisions
without affording the other party the right to
contest the new evidence presented in a motion
for reconsideration.
360 Acampado v. Sps Cosmilla
(September 28, 2015, Perez, J.)
Facts: MR filed without notice to other party, and
without opportunity for other party to examine
and meaningfully oppose the motion.
Held: TC correct in denying MR for failure to
meet the requirements of the Rule. Adverse party
had a right to resist the motion it might result in
the reversal of a previous favorable decision.
Doctrine: A Motion for Reconsideration is a
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litigated motion, the admission of which affects
the right of the adverse party.
361 National Commercial Bank of Saudi
Arabia v. CA
(January 31, 2003, Carpio-Morales, J.)
Facts: NCBSA filed a case against PBC for
recovery of the alleged double payment of the
proceeds of a letter of credit. RTC ruled in favor
of NCBSA. PBC filed and MR but the motion did
not contain a notice of hearing. RTC did not act
on the MR for lack of notice and ordered the
striking of he same from the records. CA reversed
and directed RTC to resolve the PBC’s MR.
Held: The CA erred in ordering the MR because
1. the lack of notice was fatal
2. even if procedural rule is relaxed, the MR
still will not prosper, it being a pro forma:
a mere reiteration of reasons and
arguments raised before the RTC for the
dismissal of NCBSA’a complaint, which
reasons and arguments has already been
considered and resolved against it on the
merits by the RTC
Doctrine: Requirement of notice of under
Sections 4 and 5, Rule 15 in connection with
Section 2, Rule 37 is mandatory. Absence of a
notice of hearing is fatal. But assuming that PBC
had presented exceptional reason for its failure to
comply with the notice requirement, the MR
would still be denied on the ground that it is pro
forma.
362 Casalla v. People
(October 29, 2002, Quisumbing)
Facts: Casalla was convicted in the MTC for
violation of BP 22. RTC affirmed. Casalla’s MR in
the RTC was denied for lack of notice of hearing.
2nd MR was likewise denied. CA dismissed the
petition for review interposed by Casalla for
being filed out of time.
Held: CA did not err in dismissing the petition.
Casalla’s appeal was filed out of time. The MR
did not contain a notice of hearing, hence it is
mere scrap of paper and did not interrupt the
filing period for filing a petition before the CA.
The defect was not cured by the filing of the 2nd
MR, which is prohibited under the Rules.
PROF. VISTAN
Moreover, petitioner’s claim that the requirement
did not apply to the MR since the RTC was acting
only in its appellate jurisdiction is without merit.
The Rules of Court apply to ALL courts. And RTCs
are not precluded from conducting hearings,
even in the exercise of its appellate jurisdiction.
Doctrine: Notice of hearing is mandatory. If not
religiously complied with, they render the motion
pro forma. As such the motion is a useless piece
of paper that will not toll the running of the
prescriptive period.
363 Gonzales v. People
(October 29, 2002, Ponente)
Facts:
Held:
Doctrine:
364 Obando v. CA
(October 5, 2001, Ynares-Santiago)
Facts: Felizardo and Eduardo were co-
administrators in the probate proceedings.
Felizardo was subsequently removed as an
administrator he was convicted of falsification of
the said will. He filed 3 MRs, all of which were
denied. He then filed a Notice of Appeal but the
probate court dismissed the same for filing out of
time.
Held: SC held that a 2nd MR is prohibited and
that the running of the reglementary period for
the appeal.
Doctrine: ROC explicitly states that a 2nd MR
shall not be allowed. The period to appeal begins
to run from denial of the 1st MR.
B. APPEAL
Codal provisions to be discussed in PART IX
365 Heirs of Garcia v. Municipality of Iba,
Zambales
(July 22, 2015, Ponente)
Facts:
Held:
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Doctrine:
366 Abedes v. CA
(October 15, 2007, Chico-Nazario)
Facts: Judgment was rendered against Wilfredo
for support. Sheriff levied against the property
owned by his current wife, Emelinda. Emelinda
filed an action for injunction claiming that her
property should not be liable for Wilfredo’s
obligation. RTC agreed with her, CA reversed.
She filed a petition for certiorari under Rule 65.
Held: SC says she should have appealed since
appeal would have been the speedy and
adequate remedy.
Doctrine: A petition for certiorari under R65 is
proper if a tribunal, board or officer exercising
judicial or quasi-judicial functions has acted
without or in excess of jurisdiction or with GAD
amounting to lack or excess of jurisdiction and
there is no appeal, or any plain, speedy and
adequate remedy in the ordinary course of law.
Rule 65 cannot be a substitute for Rule 45.
367 People v. Ang Gioc
(October 31, 1941, Abad-Santos)
Facts: RESP was found guilty of murder by the
CFI. However, RESP jumped bail, was only found
13 years after the scheduled date for the reading
of the decision. RESP appealed and filed a
motion for new trial, which was granted by the
CA.
Held: SC reversed and declared the CFI decision,
final and executory. The right of appeal is a
statutory right which may be waived, even by the
defendant himself. By RESP’s failure to appear for
trial, he is deemed to have waived his right to
appeal.
Doctrine: The accused has the right of appeal;
but this is a purely statutory, not a constitutional,
right. This right of appeal is granted solely for the
benefit of the accused. He may avail of it or not,
as he pleases. He may waive it either expressly or
by implication. When the accused flees after the
case has been submitted to the court for
decision, he will be deemed to have waived his
right to appeal from the judgment rendered
PROF. VISTAN
against him.
368 Cu-Unjieng v. CA
(January 24, 2006, Garcia)
Facts: Cu-Unjieng filed an appeal with the CA
from an adverse decision of the RTC. However,
he only paid the docket and other lawful fees 4
months after the reglementary period.
Held: SC held that this is fatal to his appeal, as
the payment of docket and other lawful fees is a
mandatory and jurisdictional requirement.
Doctrine: Payment of docket fees and other
lawful fees within the prescribed period is both
mandatory and jurisdictional, noncompliance with
which is fatal to an appeal.
369 Land Bank v. Sps. De Leon
(September 10, 2002, Ponente)
Facts: A decision was rendered by RTC fixing the
compensation; DAR filed a petition for review.
Land Bank initiated an appeal by notice of
appeal. DAR petition was given due course, the
Land Bank appeal was denied.
Held: SC said the mode of appeal followed by
the bank was erroneous since RA 6657
categorically states that a petition for review is
the proper mode.
Doctrine: Section 60 of RA 6657 clearly and
categorically states that a petition for review is
the proper mode of appeal that should be
adopted.
370 Neypes v. CA
(September 14, 2005, Ponente)
Facts: Neypes, et al. filed an action for annulment
of judgment and titles of land and/or
reconveyance and/or reversion with preliminary
injunction before the RTC. Respondents Land
Bank of the Philippines and Heirs of del Mundo
filed a motion to dismiss. RTC initially denied the
motion to dismiss, but later granted the same
after the Heirs filed an MR. Neypes, et al.
received a copy of the order of dismissal on
March 3, 1998 and filed an MR on March 18,
1998. RTC denied MR and Neypes, et al.
received notice on July 22, 1998. On July 27,
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Neypes, et al. filed a notice of appeal, which was
denied for supposedly being filed 8 days late.
Neypes, et al. then filed a petition for certiorari
and mandamus under Rule 65, arguing that upon
denial of the MR, they had a fresh 15- day period
to file the notice of appeal.
Held: SC granted.
Doctrine: 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 RTC, counted from receipt of the order
dismissing a motion for a new trial or motion for
reconsideration.
This “fresh period rule” shall also apply to Rule
40 (appeals from MTC to RTC); Rule 42 (petitions
for review from RTC to CA); Rule 43 (appeals
from quasi-judicial agencies to CA) and Rule 45
(appeals by certiorari to SC). 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.
371 Fajardo v. CA
(March 20, 2001, Puno)
Facts: RESP sued PET for unpaid legal fees. RTC
ordered PET to pay. RESP filed a Motion for
Correction of Judgment. PET filed a Notice of
Appeal, but said notice was denied for being
premature due to the pendency of the Motion.
RTC amended the original decision, still ordering
PET to pay RESP. RESP prayed for and was
granted writ of execution of judgment. PET filed
a petition for certiorari before the CA, which
affirmed the RTC.
Held: SC held that FAJARDO’s Notice of Appeal
was timely filed. The 15-day period is counted
not from the receipt of a certain GLORIA
FAJARDO in PET’s address on Dec 15, 1997, but
from the receipt by FAJARDO’s counsel on
January 19, 1998. Notice of Appeal was filed on
February 3, 1998.
Doctrine: Filing of said notice tolled the finality of
PROF. VISTAN
the assailed RTC decision, and the Motion was
considered a mere scrap of paper for not having
a proper notice of hearing.
C. RELIEF FROM JUDGMENTS,
ORDERS OR OTHER
PROCEEDINGS
i. Grounds
• Fraud;
• Accident;
• M istake; or
• Excusable negligence
M ISTAKE
Refers to mistake of fact, not of law, which relates
to the case
FRAUD
Must be extrinsic or collateral, that is, the kind
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
EXCUSABLE NEGLIGENCE
One which ordinary diligence and prudence
could not have guarded against
Must be generally imputable to the party not to
the counsel
ii. Petition for relief from judgment,
final order or other proceeding
Sec 1, Rule 38. Petition for relief from
judgment, order, or other proceedings.
When a judgment or final order is entered, or any
other proceeding is thereafter taken against a
party in any court through fraud, accident,
mistake, or excusable negligence, he may file a
petition in such court and in the same case
praying that the judgment, order or proceeding
be set aside.
WHEN TO FILE: When a judgment, final order is
entered, or any other proceeding is taken against
a party in any court through F.A.M.E
WHERE TO FILE: In such court and in the same
case
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PRAYER: That the judgment, order of proceeding
be set aside
It is available only to parties in the proceedings
where the assailed judgment is rendered
It is allowed only in exceptional cases when there
is no available or adequate remedy; i.e. when
neither a motion for new trial nor appeal from the
adverse decision of the lower court is available
It is NOT authorized in summary proceedings
such as forcible and unlawful detainer cases
iii. Petition for relief from denial of
appeal
Sec 2, Rule 38. Petition for relief from denial
of appeal.
When a judgment or final order is rendered by
any court in a case, and a party thereto, by fraud,
accident, mistake, or excusable negligence, has
been prevented from taking an appeal, he may
file a petition in such court and in the same case
praying that the appeal be given due course.
WHEN TO FILE: When judgment/final order is
rendered by a court in a case and a party thereto,
by FAME, has been prevented from taking an
appeal
WHERE TO FILE: In such court and in the same
case
PRAYER: That appeal be given due course
Petition for relief under this section should be
directed against the order preventing the
perfection of the appeal and not against the
judgment on the merits [Bracamonte and
Calderon v. CA (1952)].
iv. Period for Filing
Sec 3, Rule 38. Time for filing petition;
contents and verification.
A petition provided for in either of the preceding
sections of this Rule must be verified, filed within
sixty (60) days after the petitioner learns of the
judgment, final order, or other proceeding to be
set aside, and not more than six (6) months after
PROF. VISTAN
such judgment or final order was entered, or such
proceeding was taken, and must be accompanied
with affidavits showing the fraud, accident,
mistake, or excusable negligence relied upon,
and the facts constituting the petitioner's good
and substantial cause of action or defense, as the
case may be.
PERIO D FO R FILING
(1) Within 60 days after petitioner learns of the
judgment, final order, or other proceeding to
be set aside, AND
(2) Not more than 6 months after judgment or
final order was entered, or such proceeding
was taken
v. Form and contents; affidavits
Sec 3, Rule 38. Time for filing petition;
contents and verification.
A petition provided for in either of the preceding
sections of this Rule must be verified, filed within
sixty (60) days after the petitioner learns of the
judgment, final order, or other proceeding to be
set aside, and not more than six (6) months after
such judgment or final order was entered, or such
proceeding was taken, and must be accompanied
with affidavits showing the fraud, accident,
mistake, or excusable negligence relied upon,
and the facts constituting the petitioner's good
and substantial cause of action or defense, as the
case may be.
REQ UIREM ENTS
(1) Petition must be verified
(2) Filed
a. Within 60 days after petitioner learns
of the judgment, final order, or other
proceeding to be set aside, AND
b. Not more than 6 months after
judgment/final order was entered, or
such proceeding was taken
(3) Accompanied with affidavits showing:
a. The FAME relied upon, and
b. The facts constituting the petitioner's
good and substantial cause of action
or defense, as the case may be.
vi. Answer
Sec 4, Rule 38. Order to file an answer.
If the petition is sufficient in form and substance
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to justify relief, the court in which it is filed, shall
issue an order requiring the adverse parties to
answer the same within fifteen (15) days from the
receipt thereof. The order shall be served in such
manner as the court may direct, together with
copies of the petition and the accompanying
affidavits.
ORDER TO FILE ANSW ER
• Shall require adverse parties to file and
answer within 15 days from receipt of
order
• Shall be served in such manner as the
court may direct, together with copies of
the petition and the accompanying
affidavits
vii. Preliminary injunction pending
proceedings
Sec 5, Rule 38. Preliminary injunction
pending proceedings.
The court in which the petition is filed may grant
such preliminary injunction as may be necessary
for the preservation of the rights of the parties,
upon the filing by the petitioner of a bond in
favor of the adverse party, conditioned that if the
petition is dismissed or the petitioner fails on the
trial of the case upon its merits, he will pay the
adverse party all damages and costs that may be
awarded to him by reason of the issuance of such
injunction or the other proceedings following the
petition, but such injunction shall not operate to
discharge or extinguish any lien which the
adverse party may have acquired upon the
property of the petitioner.
WHEN MAY PRELIMINARY INJUNCTION
ISSUE
1. When it is necessary for the preservation of
the rights of the parties;
2. Upon filing by the petitioner of a BOND in
favor of the adverse party
a. Conditioned that if the petition is
dismissed or the petitioner fails on the
trial of the case upon the merits, he
will pay the adverse party ALL
DAMAGES and COSTS that may be
awarded to him by reason of the
issuance of such injunction or the
other proceedings following the
petition
PROF. VISTAN
CAVEAT: Injunction Shall NOT discharge or
extinguish any lien which the adverse party may
have acquired upon the property of the
petitioner
viii. Proceedings when petition is
granted
Sec 6, Rule 38. Proceedings after answer is
filed.
After the filing of the answer or the expiration of
the period therefor, the court shall hear the
petition and if after such hearing, it finds that the
allegations thereof are not true, the petition shall
be dismissed; but if it finds said allegations to be
true, it shall set aside the judgment or final order
or other proceeding complained of upon such
terms as may be just. Thereafter the case shall
stand as if such judgment, final order or other
proceeding had never been rendered, issued or
taken. The court shall then proceed to hear and
determine the case as if a timely motion for a new
trial or reconsideration had been granted by it.
PRO CEEDINGS AFTER FILING OF
ANSW ER
• Court shall hear the petition
• Two possible outcomes after hearing:
o If court finds allegations are not
true – Petition shall be dismissed.
o If court finds allegations to be
true –
Court shall set aside the assailed
judgment/final order/proceeding
upon such terms as may be just.
Thereafter, case shall stand as if
such assailed judgment/final
order/proceeding had never
been rendered, issued, or taken.
Court shall then proceed to
determine the case as if a timely
Motion for New Trial or
Reconsideration had been
granted by it
INSTANCES W HEN TRIAL O N THE
M ERITS IS NOT NECESSARY [Feria]
• Relief sought may be the allowance of an
appeal after the expiration of the
reglementary period
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• Relief sought may be the staying of
immediate execution despite failure to
pay or deposit the rents due to FAME
NATURE OF ORDER
GRANTING/DENYING RELIEF UNDER
RULE 38
• Denying relief: Final and appealable
• Granting relief: Interlocutory and not
immediately appealable. Certiorari lies if
there is GAD.
ix. Procedure when denial of appeal is
set aside
Sec 7, Rule 38. Procedure where the denial
of an appeal is set aside.
Where the denial of an appeal is set aside, the
lower court shall be required to give due course
to the appeal and to elevate the record of the
appealed case as if a timely and proper appeal
had been made.
x. Courts where available
• Old rule: Petition for relief from judgment
of a municipal court may be filed in the
RTC of the place where the original
judgment was rendered.
• Present rule: Such petition may be filed in
the same court which rendered the
judgment and in the same case. This is in
accordance with the uniform procedure
rule for municipal and regional trial
courts.
372 Tuason v. CA
(April 10, 1996, Puno)
Facts: RTC granted the annulment filed by
Victoria against Emilio on the ground of
psychological incapacity. Emilio failed to appear
during the hearing, as well as to subsequently
appeal due to his lack of notice. Thus, the
decision became final. Emilio filed a petition for
relief from the said judgment but the RTC denied
it. CA likewise denied his appeal.
Held: SC, agreeing with the lower courts, said
that the negligence committed by Emilio was not
excusable under Rule 38.
Doctrine: The failure of counsel to notify a party
PROF. VISTAN
on time of the adverse judgment to enable him
to appeal therefrom is negligence which is not
excusable. Notice sent to counsel of record is
binding upon the client and the neglect or failure
of counsel to inform him of an adverse judgment
resulting in the loss of his right to appeal is not a
ground for setting aside a judgment valid and
regular on its face.
373 Madarang v. Sps Morales
(July 22, 2015, Leonen, J.)
Facts: PETs failed to file its Notice of Appeal on
time making the judgment on the foreclosure of
the mortgage final. They file a petition for relief
from judgment but TC and CA both hold that it
was filed beyond the reglementary period of 60
days from day petitioner learns of the judgment,
final order or proceeding, and within 6 months
from finality of the judgment or order.
Held: Failure of PET’s counsel to file Notice of
Appeal was not excusable negligence (reason
relied upon was old age). CA correctly denied the
petition for certiorari for failure to file an MR.
Doctrine: Rule 38, Section 3 is clear that the 60-
day period must be counted after petitioner
learns of the judgment or final order. The period
counted from the finality of judgment or final
order is the six-month period. The double
period required is jurisdictional and should be
strictly complied with. A petition for relief from
judgment filed beyond the reglementary period
is dismissed outright. The period must be taken
as ‘absolutely fixed, inextendible, never
interrupted and cannot be subjected to any
condition or contingency.
374 City of Dagupan v. Maramba
(July 2, 2014, Ponente)
Facts: Maramba leased a parcel of land from City
of Dagupan where a commercial fishing center
was later built. The City demolished the
improvement, prompting Maramba to file for
damages. The RTC awarded P11M in favor of
Maramba, though Maramba’s complaint was
fraught with handwritten intercalation that
resulted in jacking up the price to said award.
The City’s MR was denied for lack of notice of
hearing. Since the MR is now a mere scrap of
paper, the appeal period was not stalled by the
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filing of MR and the decision has attained finality.
The City blames its counsel, City Legal Counsel,
for the formal but fatal defect. It argues that the
merit of City’s case nevertheless exhibits extrinsic
fraud for which R 38 Petition for Relief should be
granted in favor of the City.
Held: Petition for Relief should be granted. The
gross disparity between the award of actual
damages and the amount actually proved during
the trial, the magnitude of the award, the nature
of the “mistake” made, and that such negligence
did not personally affect the legal officer of the
city all contributed to a conclusion that the
mistake or negligence committed by counsel
bordered on extrinsic fraud.
Doctrine: Mistake as used in Rule 38 means
mistake of fact and not mistake of law. A wrong
choice in legal strategy or mode of procedure will
not be considered a mistake for purposes of
granting a petition for relief from
judgment. Mistake as a ground also “does not
apply and was never intended to apply to a
judicial error which the court might have
committed in the trial [since] such error may be
corrected by means of an appeal.”
375 Phil Phosphate Fertilizer Group v. CIR
(June 28, 2005, Austria-Martinez, J. )
Facts: Philphos filed for tax refund but it only
presented the summary schedule and not the
invoices. CTA denied the claim because allegedly
refund was not substantially proven. Company
filed for MR to be allowed to present the
evidence required by CTA because apparently its
previous similar cases did not require
presentation of invoices.
Held: While the “invoices” do not count as
“newly discovered evidence,” which may warrant
new trial, new trial is not barred because
Philphos’s situation may still be classified as
“mistake or excusable negligence.”
Doctrine:
Mistake – one which ordinary prudence could not
have guarded against.
Excusable negligence – ordinary diligence and
prudence could not have guarded against, by
PROF. VISTAN
reason of which rights of aggrieved party have
probably been impaired. The test is: WON a
party has acted with ordinary prudence while
transacting important business.
376 Sps Regalado v. Regalado
(February 28, 2006, Ponente.)
Facts:
Held:
Doctrine:
377 Purcon v. MRM Philippines
(September 26, 2008, Reyes, R.T., J)
Facts: Purcon was hired as a seaman but was
repatriated as he was diagnosed with hernia.
When the company physician declared him fit to
resume to work, he went back to his ER but the
latter said that
there was no vacancy. He filed a complaint
before the NRLC for reimbursements and
damages. LA ruled in favor of his ER. He
eventually filed a petition for relief from judgment
under Rule 38 from the resolution of the SC
denying his petition for review.
Held: Such petition is not those included in the
list of cases originally cognizable by the SC, the
phrase “any court” in Rule 38 pertains to MTCs
and RTCs, and that such petition raises questions
of facts so SC has no jurisdiction.
Doctrine: If a petition for relief from judgment is
not among the remedies available in the
CA, with more reason that this remedy cannot
be availed of in the Supreme Court. This Court
entertains only questions of law. A petition for
relief raises questions of facts on fraud, accident,
mistake, or excusable negligence, which are
beyond the concerns of this Court
D. ANNULMENT OF JUDGMENTS,
FINAL ORDERS AND
RESOLUTIONS
i. Coverage, when filed with CA, when
with RTC
Sec 1, Rule 47. Coverage.
This Rule shall govern the annulment by the
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PART EIGHT: REMEDIES FOR AN ADVERSE JUDGMENT

Court of Appeals of judgments or final orders and - DEFINITION: Fraudulent act committed
resolutions in civil actions of Regional Trial Courts by the prevailing party outside of the trial
for which the ordinary remedies of new trial, of the case, whereby the defeated party
appeal, petition for relief or other appropriate was prevented from exhibiting fully his
remedies are no longer available through no fault side of the case by deception practiced
of the petitioner . on him by the prevailing party. [Alba v.
CA, c/o BOC]
Sec 10, Rule 47. Annulment of Judgments or - Extraneous evidence is admitted.
final orders of Municipal Trial Courts.
An action to annul a judgment or final order of a LACK OF JURISDICTION
Municipal Trial Court shall be filed in the Regional - COVERED: Lack of jurisdiction over the
Trial Court having jurisdiction over the former. It subject matter, or over defendant
shall be treated as an ordinary civil action and - Must show absolute lack of jurisdiction,
sections 2, 3, 4, 7, 8 and 9 of this Rule shall be not mere abuse of judicial discretion
applicable thereto. o Grave abuse of discretion
supports a petition for certiorari,
CASES GOVERNED BY RULE 47 not an action for annulment
Rule 47 (annulment by the CA) applies when: - Only evidence on record can justify
(1) It is a judgment or final order and nullity.
resolution in a civil action;
(2) Rendered by the RTC; and iii. Period of Filing
(3) Ordinary remedies of new trial, appeal, Sec 3, Rule 47. Period for filing action.
petition for relief or other appropriate If based on extrinsic fraud, the action must be
remedies are no longer available, filed within four (4) years from its discovery; and if
through no fault of the petitioner. [Sec. 1] based on lack of jurisdiction, before it is barred
by laches or estoppel.
ANNULM ENT O F JUDGM ENTS OR
ORDERS OF M TC PERIOD FOR FILING
- Filed with the RTC having jurisdiction EXTRINSIC FRAUD LACK OF
over the MTC; JURISDICTION
- Treated as an ordinary civil action; and 4 years from discovery Before barred by
- Applicable provisions: Secs. 2, 3, 4, 7, 8, laches or estoppel
9 of Rule 47. [Sec. 10] NOTE: There must be [Tijam v. Sibanghoy,
a manifest showing c/o BOC]
ii. Grounds with petition that it was
Sec 2, Rule 47. Grounds for annulment. filed during the 4 year
The annulment may be based only on the period.
grounds of extrinsic fraud and lack of jurisdiction. iv. Forms and Contents
Sec 4, Rule 47. Filing and Contents of
Extrinsic fraud shall not be a valid ground if it was petition.
availed of, or could have been availed of, in a The action shall be commenced by filing a
motion for new trial or petition for relief. verified petition alleging therein with
particularity the facts and the law relied upon
GROUNDS FOR ANNULM ENT for annulment, as well as those supporting the
(1) Extrinsic fraud; petitioner's good and substantial cause of action
(2) Lack of jurisdiction; [Sec. 2] or defense, as the case may be.
(3) Denial of due process. [Jurisprudence,
BOC] The petition shall be filed in seven (7) clearly
legible copies, together with sufficient
copies corresponding to the number of
EXTRINSIC FRAUD
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respondents. A certified true copy of the
judgment or final order or resolution shall be
attached to the original copy of the petition
intended for the court and indicated as such by
the petitioner.
The petitioner shall also submit together with the
petition affidavits of witnesses or documents
supporting the cause of action or defense and a
sworn certification that he has not theretofore
commenced any other action involving the same
issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any
other tribunal or agency if there is such other
action or proceeding, he must state the status of
the same, and if he should thereafter learn that a
similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any
other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and other
tribunal or agency thereof within five (5) days
therefrom.
FORM AND CONTENTS OF THE
PETITIO N [Sec. 3, Rule 47]
(1) Verified petition, alleging:
(a) Facts and the law relied upon,
with particularity;
(b) Petitioner’s good and substantial
cause of action/defense
(2) Filed following the Efficient Use of Paper
Rule, 7 copies + # of respondents;
(3) Certified true copy of the judgment or
final order or resolution attached to the
original copy of the petitioner;
(4) Affidavits of witnesses or documents
supporting the cause of action/defense;
(5) Certificate of non-forum shopping.
(a) Not commenced any other action
involving the same issues;
(b) If he has, state the status;
(c) Learn that an action has been
filed, inform within 5 days.
v. Initial Action; ensuing proceedings as
in ordinary civil action
Sec 5, Rule 47. Action by the Court.
Should the court find no substantial merit in the
petition, the same may be dismissed outright
with specific reasons for such dismissal.
PROF. VISTAN
Should prima facie merit be found in the petition,
the same shall be given due course and summons
shall be served on the respondent.
Sec 6, Rule 47. Procedure.
The procedure in ordinary civil cases shall be
observed. Should trial be necessary, the
reception of the evidence may be referred to a
member of the court or a judge of a Regional
Trial Court.
TW O STAGES IN THE DISPO SITIO N
OF THE PETITION
(1) Preliminary evaluation of the petition for
prima facie merit;
This rule allows CA to dismiss the petition
outright (like a special civil action);
(2) If prima facie merit is found, petition is
griven due course and the procedure in
ordinary civil cases is observed.
NOTE: Prima facie determination is not available
in annulment or judgments or final orders of
MTCs before RTCs.
vi. Suspension of prescriptive period
Sec 8, Rule 47. Suspension of Prescriptive
Period.
The prescriptive period for the refiling of the
aforesaid original action shall be deemed
suspended from the filing of such original action
until the finality of the judgment of annulment.
However, the prescriptive period shall not be
suspended where the extrinsic fraud is
attributable to the plaintiff in the original action.
WHEN SUSPENDED
Deemed suspended from: The filing of such
original action, until finality of the judgment of
annulment;
- Where prescriptive period is not
suspended: Extrinsic fraud is attributable
to the original action.
vii. Effect of judgment, relief
available
Sec 7, Rule 47. Effect of Judgment.
A judgment of annulment shall set aside the
questioned judgment or final order or resolution
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and render the same null and void, without
prejudice to the original action being refiled in
the proper court. However, where the judgment
or final order or resolution is set aside on the
ground of extrinsic fraud, the court may on
motion order the trial court to try the case as if a
timely motion for new trial had been granted
therein.
Sec 9, Rule 47. Relief Available.
The judgment of annulment may include the
award of damages, attorney's fees and other
relief. If the questioned judgment or final order or
resolution had already been executed the court
may issue such orders of restitution or other relief
as justice and equity may warrant under the
circumstances.
BASED ON EXTRINSIC FRAUD
(1) Judgment set aside, considered null and
void;
(2) Upon motion of the prevailing party on
justifiable grounds, may be allowed to no
longer refile (TC who will be ordered to
try the case anew).
BASED ON LACK OF JURISDICTION
(1) Judgment set aside, considered null and
void;
(2) Aggrieved party may refile the action in
the proper court (this may involve a
different court of competent jurisdiction);
(3) IF: Lack of jurisdiction over defendant,
action may be refiled in the same original
court, provided it has proper jurisdiction
and venue.
378 Lazaro v. Rural Bank of Francisco
Balagtas
(August 15, 2003, Quisumbing, J.)
Facts: The Rural Bank of Francisco Balagtas, Inc.
(RFBI) sued Lazaro for failure to pay a loan
obtained by the latter from the former. Lazaro
was held in default for failure to answer RFBI’s
services of summons. Lazaro filed petition for
annulment of judgment on the grounds of fraud
and misrepresentation, alleging that the
summonses were not served at his true address.
Held: SC denied Lazaro’s petition. Lazaro failed
to avail of the ordinary and appropriate remedies
PROF. VISTAN
in assailing the questioned judgments, and also
failed to show that he could not have availed of
the ordinary and appropriate remedies under the
Rules. (Lazaro could have moved to quash the
writs of execution. Instead, he merely alleged
that he approached RFBI’s counsel for
clarification and assistance – not one of the
ordinary and appropriate remedies in the Rules.
Failure to explain why he failed to avail of
remedies still available to him at the time is fatal
to his cause.)
Doctrine: Before a party can avail of the reliefs
provided for by Rule 47, i.e., annulment of
judgments, final orders, and resolutions, it is a
condition sine qua non that one must have failed
to move for new trial in, or appeal from, or file a
petition for relief against said issuances or take
other appropriate remedies thereon, through no
fault attributable to him. If he failed to avail of
those cited remedies without sufficient
justification, he cannot resort to the action for
annulment provided in Rule 47, for otherwise he
would benefit from his own inaction or
negligence.
379 Veneracion v. Mancilla
(July 20, 2006, Callejo, J.)
Facts: Elizabeth secured a loan from Mancilla,
and mortgaged her property. Elizabeth failed to
pay, so Mancillas had the property foreclosed.
RTC ordered its foreclosure. Children of Elizabeth
now contest the RTC order, and filed a petition
for annulment. However, they failed to append to
the petition the necessary documents. CA denied
their petition.
Held: SC upheld the dismissal, saying that the
requirement of appending relevant documents is
so that the CA can make a finding of prima facie
merit of the petition. Absent this, the petition
may be dismissed.
Doctrine: Petitioners are required to allege with
particularity the facts and law relied upon for
annulment, and those supporting their cause of
action or defense. This must be coupled with the
original copy of the petition, the affidavits of their
witnesses, and other documents. The
requirement of these documents is designed to
convince the CA of the substantive merit of their
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PART EIGHT: REMEDIES FOR AN ADVERSE JUDGMENT

petition, and for CA to make a finding of prima essential is that he can prove his allegation that
facie merit. An action for annulment of judgment the judgment was obtained by the use of fraud
is an extraordinary remedy, and this must not be and collusion and that he would be adversely
granted indiscriminately. affected thereby.

380 De Pedro v. Romasan Devt Corp 383 Dare Adventure Farm v. CA

(November 26, 2014s, Leonen, J.) (September 24, 2012, Ponente)
Facts: A complaint for nullification of title is filed Facts:
against De Pedro. The service of summons upon
her is improperly conducted, but instead of filing Held:
for an action to annul judgment, she files a
motion for new trial. After being denied the Doctrine:
motion, she files an action to annul judgment.

Held: The court rules that she is barred from filing

an action for annulment of judgment as she was
abusing legal remedies to achieve a favorable
judgment.

Doctrine: An action for annulment may not be

invoked where
1) the party has availed of the remedy of new
trial, appeal, petition for relief, or other
appropriate remedy and lost, or
2) where he has failed to avail of those remedies
through his own fault or negligence.

381 Carillo v. CA
(September 26, 2006, Ponente)
Facts:

Held:

Doctrine:

382 Bulawan v. Aquende

(June 22, 2011, Carpio, J.)
Facts: The trial issued a writ of execution against
RESP when it held that Bulawan was the rightful
owner of a property. RESP Aquende filed a third
party claim against the writ claiming that he
owned the same property however, this was
denied. Aquende then filed a petition for
annulment of the TC decision claiming existence
of extrinsic fraud and that the TC did now acquire
jurisdictionover his person.

Held: CA and SC ruled in Aquende’s favor.

Doctrine: A person need not be a party to the

judgment sought to be annulled. What is
16