1. New Trial or Reconsideration (Rule 37)

R. Remedies before Finality of Judgment (part 1 of 4)

• Motion for New Trial or Reconsideration – Rule 37
• Appeals and Other Modes of Review – Rules 40-45; Rule 64

RULE 37: NEW TRIAL OR RECONSIDERATION

Section 1. 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. (1a) Section 2. 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 motions. 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 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. A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. (2a) Section 3. 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 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. (3a, R37) Section 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. (n) Section 5. Second motion for new trial. – A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial, based on a ground not existing nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. No party shall be allowed a second motion for reconsideration of a judgment or final order. (4a, R37; 4, IRG) Section 6. 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. (5a) Section 7. 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 all 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. (6a) Section 8. 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. (7a) Section 9. Remedy against order denying a motion for new trial or reconsideration. – An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order. (n)

RULE 40: APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS

Section 1. Where to appeal. – An appeal from a judgment or final order of a Municipal Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains. The title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee. (n) Section 2. 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. (n) Section 3. How to appeal. – The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from. The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals. The form and contents of the record on appeal shall be as provided in section 6, Rule 41. Copies of the notice of appeal, and the record on appeal where required, shall be served on the adverse party. (n) Section 4. Perfection of appeal; effect thereof. – The perfection of the appeal and the effect thereof shall be governed by the provisions of section 9, Rule 41. (n) Section 5. Appellate court docket and other lawful fees. – Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from the full amount of the appellate court docket and other lawful fees. Proof of payment thereof shall be transmitted to the appellate court together with the original record or the record on appeal, as the case may be. (n) Section 6. Duty of the clerk of court. – Within fifteen (15) days from the perfection of the appeal, the clerk of court or the branch clerk of court of the lower court shall transmit the original record or the record on appeal, together with the transcripts and exhibits, which he shall certify as complete, to the proper Regional Trial Court. A copy of his letter of transmittal of the records to the appellate court shall be furnished the parties. (n)

Section 7. Procedure in the Regional Trial Court. –

(a) Upon receipt of the complete record or the record on appeal, the clerk of court of the Regional Trial Court shall notify the parties of such fact. (b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. Within fifteen (15) days from receipt of the appellant’s memorandum, the appellee may file his memorandum. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal. (c) Upon the filing of the memorandum of the appellee or the expiration of the period to do so, the case shall be considered submitted for decision. The Regional Trial Court shall decide the case on the basis of the entire record of the proceedings had in the court of origin and such memoranda as are filed. (n) Section 8. Appeal from orders dismissing case without trial; lack of jurisdiction. – If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. In case of reversal, the case shall be remanded for further proceedings. If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. (n) Section 9. Applicability of Rule 41. – The other provisions of Rule 41 shall apply to appeals provided for herein insofar as they are not inconsistent with or may serve to supplement the provisions of this Rule. (n)

RULE 41: APPEAL FROM THE REGIONAL TRIAL COURTS

Section 1. Subject of appeal. – An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from:

(a) An order denying a petition for relief or any similar motion seeking relief from judgement; (b) An interlocutory order; (c) An order disallowing or dismissing an appeal; (d) 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; (e) An order of execution;

(f) 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 (g) An order dismissing an action without prejudice.

In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in Rule 65. (As amended by A.M. No. 07-7-12-SC, December 1, 2007.) Section 2. Modes of appeal. –

(a) Ordinary appeal. – The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (b) Petition for review. – The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42. (c) Appeal by certiorari. – In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. (n) Section 3. Period of ordinary appeal; appeal in habeas corpus cases. – 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 appellants shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. However, on appeal in habeas corpus cases shall be taken within forty-eight (48) hours from notice of the judgment or final order appealed from. (A.M. No. 01-1-03-SC, June 19, 2001.) 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. (n) Section 4. Appellate court docket and other lawful fees. – Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal. (n) Section 5. Notice of appeal. – The notice of appeal shall indicate the parties to the appeal, specify the judgment or final order or part thereof appealed from, specify the court to which the appeal is being taken, and state the material dates showing the timeliness of the appeal. (4a) Section 6. Record on appeal; form and contents thereof. – The full names of all the parties to the proceedings shall be stated in the caption of the record on appeal and it shall include the judgment or final order from which the appeal is taken and, in chronological order, copies of only such pleadings, petitions, motions and all interlocutory orders as are related to the appealed judgment or final order for the proper understanding of the issue involved, together with such data as will show that the appeal was perfected on time. If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the evidence, testimonial and documentary, taken upon the issue involved. The reference shall specify the documentary evidence by the exhibit numbers or letters by which it was identified when admitted or offered at the hearing, and the testimonial evidence by the names of the corresponding witnesses. If the whole testimonial and documentary evidence in the case is to be included, a statement to that effect will be sufficient without mentioning the names of the witnesses or the numbers or letters of exhibits. Every record on appeal exceeding twenty (20) pages must contain a subject index. (6a) Section 7. Approval of record on appeal. – Upon the filing of the record on appeal for approval and if no objection is filed by the appellee within five (5) days from receipt of a copy thereof, the trial court may approve it as presented or upon its own motion or at the instance of the appellee, may direct its amendment by the inclusion of any omitted matters which are deemed essential to the determination of the issue of law or fact involved in the appeal. If the trial court orders the amendment of the record, the appellant, within the time limited in the order, or such extension thereof as may be granted, or if no time is fixed by the order within ten (10) days from receipt thereof, shall redraft the record by including therein, in their proper chronological sequence, such additional matters as the court may have directed him to incorporate, and shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like manner as the original draft. (7a) Section 8. Joint record on appeal. – Where both parties are appellants, they may file a joint record on appeal within the time fixed by section 3 of this Rule, or that fixed by the court. (8a) Section 9. Perfection of appeal; effect thereof. – 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. In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal. (9a) Section 10. Duty of clerk of court of the lower court upon perfection of appeal. – Within thirty (30) days after perfection of all the appeals in accordance with the preceding section, it shall be the duty of the clerk of court of the lower court:

Period to file MNT or MR

It should be filed within 15 days from notice of judgment or final order.

If an appeal has already been perfected, a motion for new trial on the ground of newly discovered evidence may be filed in the appellate court.

Motion for Reconsideration; New Trial; and Reopening of the Case

Requirements

Motion for new trial

• The motion must be in writing and served with written notice to the adverse party (Rule 37, Sec. 2).
• When based on fraud, accident, mistake, or excusable negligence, it must be supported by an affidavit of merit stating the particular facts that constitute a meritorious cause of action.
• When based on newly discovered evidence, it must be supported by affidavits of the new witnesses and duly authenticated documents intended to be introduced.

An affidavit of merit need not be a separate document: its allegations may appear in the petition itself. If a defendant’s sworn motion to lift an order of default states both why the defendant failed to answer and the facts supporting the proposed defense, neither a separate affidavit of merit nor formal verification is necessary. (Capuz vs. CA, G.R. No. 112795, 1994)

Motion for reconsideration

• The motion must be in writing and served with written notice to the adverse party (Rule 37, Sec. 2).
• It must specifically identify the challenged findings or conclusions in the judgment or final order, with express reference to the testimonial or documentary evidence or provisions of law relied upon.
• Its grounds are excessive damages, insufficient evidence to justify the decision or final order, or a decision or final order contrary to law (Rule 37, Sec. 1).

Effect of Filing of Motion for New Trial or Reconsideration

The filing of either motion interrupts the period for perfecting an appeal from the time of its filing until notice of the order overruling the motion shall have been served upon the accused or his attorney.

Formal Requirements

• In writing;
• Filed in court;
• States the grounds on which it is based;
• If MNT is based on newly discovered evidence, it must be supported by the affidavits of the witness by whom such evidence is expected to be given or duly authenticated copies of documents which it is proposed to introduce in evidence. (Sec. 4, Rule 121).

Note: The defect of lack of affidavit of merit may be cured by the testimony under oath of the defendant at the hearing of the motion. (Paredes v. Borja, 1961).

Notice of the MNT or MR shall be given to the prosecutor, (Sec. 4, Rule 121)

Affidavit of Merit (for MNT)

One which recites the nature and character of FAME on which the motion for new trial is based. It must state the movant’s good and substantial cause of action or defense and the evidence he/she intends to present if the motion is granted which evidence should be as such as to warrant reasonable belief that the result of the case would probably be otherwise.

Effect of Motion for New Trial or Reconsideration and Notice Thereof

A motion suspends or tolls the running of the reglementary period to appeal EXCEPT when it is pro-forma.

PRO-FORMA MOTION (Rule 37, Section 2)

A motion that does NOT comply with Rule 15 (mandatory requirement of notice and hearing) and Rule 37 (requirement that the motion must point out specifically the findings or conclusions of the judgment as are contrary to law, fails to make express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions, and is merely intended to delay the proceedings or if there is no affidavit of merit).

A pro forma motion is a worthless piece of paper which the clerk of court has no right to receive and which the court has no authority to act upon.

A motion for reconsideration is NOT pro forma just because it reiterated the arguments earlier passed upon and rejected by the appellate court. This is because a movant may raise the same arguments, precisely to convince the court that its ruling was erroneous. (Security Bank v. Cuenca, GR No. 151914, 2002)

Moreover, the rule (that a motion is pro forma if it only repeats the arguments in the previous pleadings) will NOT apply if said arguments were not squarely passed upon and answered in the decision sought to be reconsidered. (Ong Yong v. Tiu, GR No. 144476, 2003) Where the circumstances of a case do not show an intent on the part of the pleader to merely delay the proceedings, and his motion reveals a bona fide effort to present additional matters or to reiterate his arguments in a different light, the courts should be slow to declare the same outright as pro forma. The doctrine relating to pro forma motions has a direct bearing upon the movant’s valuable right to appeal. It would be in the interest of justice to accord the appellate court the opportunity to review the decision of the trial court on the merits than to abort the appeal by declaring the motion pro forma, such that the period to appeal was not interrupted and had consequently lapsed (Philippine National Bank v. Paneda, 515 SCRA 639, 649.

A motion for reconsideration is deemed pro forma if the same does not specify the findings or conclusions in the judgment, which are not supported by the evidence or contrary to law, making express reference to the pertinent evidence or legal provisions. It is settled that although a motion for reconsideration may merely reiterate issues already passed upon by the court that by itself does not make it pro forma and is immaterial because what is essential is compliance with the requisites of the Rules.

GROUNDS FOR MOTION FOR NEW TRIAL

• Extrinsic fraud, accident, mistake, or excusable negligence that ordinary prudence could not have guarded against and that probably impaired the aggrieved party’s rights.
• Evidence that could not, with reasonable diligence, have been discovered and produced at trial and that would probably alter the result if presented.

GROUNDS FOR MOTION FOR RECONSIDERATION

• The damages awarded are excessive;
• The evidence is insufficient to justify the decision or final order (factual question); or
• The decision or final order is contrary to law (legal question)

Elements of Newly Discovered Evidence

• New evidence discovered after trial
• It could not have been previously discovered and produced at the trial even with reasonable diligence
• It is new and material evidence
• If introduced and admitted, it would probably change judgment (Ybiernas v. TancoGabaldon, G.R. No. 179825, 2011)

Note: The Rules do not give an exact definition of due diligence, and whether the movant has exercised due diligence depends upon the particular circumstances of each case.

Nonetheless, it has been observed that the phrase is often equated with “reasonable promptness to avoid prejudice to the defendant.” In other words, the concept of due diligence has both a time component and a good faith component. (People v. Chua, G.R. No. 196853, 2015)

A new trial may not be had on the basis of evidence which was available during trial but was not presented due to its negligence. (People v. Senit, G.R. No. 192914, 2016).

Period Suspended

The period for appeal is suspended from the time the motion for new trial or reconsideration is filed up to the service to the accused or his counsel of the notice of the order overruling the motion.

Mistake

The general rule is that only mistakes of “fact” (as opposed to mistake of “law”) may be a ground for new trial.

Thus, the petitioner’s claim of having committed an “honest mistake” in not filing an answer to respondent’s petition for prohibition and declaratory relief because of its belief that the RTC did not acquire jurisdiction over it was held to be a “mistake of law” which cannot be a ground for new trial. (De Leon, Appellate Remedies, 2013, p.21, citing Viking Industrial Corporation v. CA GR No. 143794, 2004)

However, the Supreme Court has on occasion recognized a mistake in “law”, made in good faith, and where such mistake misled a party, as a ground for new trial. Regalado gives as examples of mistake of “law” a mistake as to the scope and extent of the coverage of an ordinance (citing City of Iloilo vs. Pinzon, L-7552, May 31, 1955) and a mistake of a defendant who failed to file an answer to the complaint (and consequently declared in default) because the defendant relied on a compromise agreement with the plaintiff. The defendant failed to properly appreciate the effect of the compromise agreement on the pending case. (Salazar vs. Salazar G.R. No. L-2995, 1907)

Excusable Negligence

Depends upon the circumstances of the case.

Note: The test of excusable negligence is whether a party has acted with ordinary prudence while transacting important business. (Philippine Phosphate Fertilizer Corporation v. Commissioner of Internal Revenue G.R. No. 141973, 2005)

General Rule: Negligence of counsel is binding upon the client.

Exception: Such negligence of counsel may be a ground for new trial if it was so great that the party was prejudiced and prevented from fairly presenting his/her case, viz:

• Where the gross negligence of counsel deprives the client of due process of law;
• When the application of the rule will result in the outright deprivation of clienthe party was prejudiced; and
• Where the interest of justice so requires. (Redena vs. CA, G.R. No. 146611, 2007)
• Where gross negligence of counsel will deprive or has deprived the party of his substantial rights.

For a claim of counsel’s negligence to prosper, nothing short of clear abandonment of the client’s cause must be shown. (Multi-trans Agency v. Oriental Assurance G.R. No. 180817, 2009)

Requisites to be Considered as Newly Discovered Evidence:

• The evidence was discovered after trial;
• Such evidence could not hav been discovered and produced at trial despite the exercise of reasonable diligence; and
• It is material, not merely cumulative, corroborative or impeaching; and
• It is of such weight that, if admitted, will probably change the judgment. (Tumang v. CA, G.R. Nos. 82346-47, 1989)

Otherwise, it is barred and called Forgotten Evidence.

Newly discovered evidence need not be newly created evidence. It may and does commonly refer to evidence already in existence prior or during trial. (Tumang v. CA, G.R. Nos. 82346-47, 1989)

The question of whether evidence is newly discovered has two aspects: a temporal one (where was the evidence discovered), and a predictive one (when should or could it have been discovered). (Dinglasan v. CA, G.R. No. 145420, 2006)

If the documents belatedly submitted are public records, they cannot be considered as “newly discovered” since these could be secured during trial. (Heirs of Emilio Santioque v. Heirs of Emilio Calma, GR No. 160832, 2006)

COMMENTARY: GROUNDS FOR MOTION FOR RECONSIDERATION

• Damages awarded are excessive;
• Evidence is insufficient to justify the decision or final order; and
• Decision or final order is contrary to law.

A motion for reconsideration must point out specifically the findings or conclusions of the judgment or final order which are not supported by evidence or which are contrary to law, making specific reference to the testimonial or documentary evidence presented or to the provisions of law alleged to be violated. (Cansino v. CA, G.R. No. 125799, 2003)

A winning litigant may also move for reconsideration of a part or parts of a decision or final order. (Balanoba v. Madriaga, GR No. 160109, 2005)

As a rule, a motion for reconsideration seasonably filed in the Court of Appeals will NOT necessarily preclude a motion for new trial as long as it was also filed on time. Further, a denial of a motion for reconsideration entitles the party who filed said motion another 15 days to appeal by certiorari – the same period within which a motion for new trial may be filed. (Tiongco v. Deguma, GR No. 133619, 1990)

Note: MOTIONS FOR EXTENSION OF TIME to file a motion for reconsideration may be filed only in connection with cases pending before the Supreme Court, which may in its sound discretion either grant or deny the extension requested. (Habaluyas Enterprises v Japson, GR No. 70895, 1986)

The Habaluyas ruling applies even if the motion is filed before the expiration of the reglementary period. (Fernandez v. CA, GR No. 131094, 2005)

No motion for extension may be filed before any lower courts, as stated in Sec. 2(2), Rule 40 and Sec. 2, Rule 41.

WHEN TO FILE

Modification of Judgment vs. New Trial

GRANT OF THE MOTION; EFFECT

Effect of filing an appeal and a petition for review on certiorari in the Supreme Court

No Motion for Reconsideration or New Trial shall be acted upon if the movant has filed a notice of appeal with the Sandiganbayan, or petition for review on certiorari or a motion for extension of time to file such petition with the Supreme Court. The Motion for Reconsideration or New Trial pending with the Sandiganbayan shall be deemed abandoned upon the filing of the appeal or petition (Rule X, Sec. 8, 2018 Revised Internal Rules of the Sandiganbayan)

Appeal

Notice of Appeal within fifteen (15) days from notice of denial of motion for reconsideration or new trial.

No appeal shall be allowed unless a motion for reconsideration or new trial is filed. (Sec. 19, A.M. NO. 03-04-04-SC)

After Judgment and Before Judgment Becomes Final and Executory

The defendant may file a MOTION FOR NEW TRIAL/RECONSIDERATION under Rule 37 of the Rules of Court. He may also appeal from the judgment as being contrary to the evidence or the law.