Rule 37

NEW TRIAL OR RECONSIDERATION

The counterpart of Rule 37 in criminal procedure is Rule 121. In criminal procedure, there is also the remedy
of new trial and 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)

Q: When may an aggrieved party file a motion for new trial or a motion for reconsideration?
A: Within the period for taking an appeal. Meaning, before the judgment becomes final and executory.

We have not yet discussed the law on appeal but the general rule is just like in criminal cases. If you lose,
you have 15 days to file an appeal. If there is no appeal within 15 days, the judgment will become final and
executory.

Q: If I lose in a civil case, is there other remedy aside from appeal?

A: YES. You can file a motion for new trial but such motion must also be filed within 15 days. After 15
days, you can no longer file a motion for new trial because the judgment becomes final and executory.

Q: What is the effect when judgment becomes final and executory?

A: Under Rule 36, the court loses jurisdiction over the case. The decision cannot be changed anymore. But
as long as judgment is not yet final, the court can change the decision.

Q: What is the effect of filing a motion for new trial or reconsideration on the period to appeal?
A: The period to appeal is suspended. When your motion is denied, you still have the remaining balance of
the period to appeal. Period to appeal is suspended except if your motion for new trial or reconsideration is pro-
forma under Sections 2 and 5.

NEW TRIAL

Q: What are the grounds for a motion for new trial in civil cases?
A: Under Section 1, there are two (2) GROUNDS:

Fraud, Accident, Mistake, Excusable negligence (FAME);

Newly Discovered Evidence (NDE)
 FIRST GROUND: Fraud, Accident, Mistake, Excusable negligence (FAME)

Let us relate this to Rule 9, Section 3 [b] on Default. The ground to lift or set aside the order of default is also
FAME – that he failed to answer because of FAME. So, there is a connection between Rule 9 and the first
ground of a motion for new trial.

Q: How do you determine when to use Rule 9 or Rule 37 when one is declared in default?
A: Use Rule 9, Section 3 [b] after notice of the order of default but before judgment;
Use Rule 37 if there is already a judgment but not yet final and executory. Rule 37 is the remedy in case
the defendant who is declared in default failed to avail of Rule 9, Section 3 [b].

But Rule 37 on motion for new trial on the ground of FAME is broader. It applies to plaintiff or defendant
whether in default or not because a defendant can still lose the case through FAME although he is not in default.
Or, for example: The plaintiff, because of his failure to appear in the case, the court dismissed the case. But the
reason why the plaintiff failed to appear is because of FAME. So the remedy for plaintiff is to move to set aside
the dismissal and have the case continued by filing a motion for new trial on the ground of FAME.

But definitely, Rule 37 also applies to a defendant declared in default and that is the connection between Rule
37 and Rule 9.

FRAUD (Extrinsic)

What is FRAUD? In tagalog, naisahan ka or naloko ka. (Ilonggo: na-utis) Under the law, there are two (2)
TYPES of Fraud: EXTRINSIC FRAUD and INTRINSIC FRAUD

GARCIA vs. COURT OF APPEALS

202 SCRA 228 [1991]

HELD: EXTRINSIC FRAUD is that type of fraud which has prevented a party from having a
trial or from presenting his case in court. INTRINSIC FRAUD is based on the acts of a party in a
litigation during the trial, such as the use of forged instruments or perjured testimony, which did not
affect the presentation of the case, but did prevent the fair and just determination of the case.

Q: When is fraud a sufficient ground for new trial?

A: FRAUD, to be a ground for new trial, must be EXTRINSIC – where the aggrieved party was misled by
the adverse party, and by reason thereof, he was prevented from presenting his case properly. (Gisburne Supply
Co. vs. Quiogue, 34 Phil. 913; Almeda vs. Cruz, 84 Phil. 636; Sterling Investment Corp. vs. Ruiz, L-30694,
Oct. 31, 1969)

So, intrinsic fraud is not a ground for a new trial.

EXAMPLE: Suppose I am the lawyer of the plaintiff and you are the lawyer of the defendant. The case will
be tried tomorrow. I called you up and asked you to postpone the trial, “I will tell the court that I talked to you
and you agreed that the trial will be postponed.” The following day, I appeared in court. When the case is
called, I said that I’m ready. Court: “Saan ang defendant?” I said, “Wala! Awan!” I then moved to continue
the trial.

So, naisahan kita. I maneuvered a scheme in such a way that you will not appear in court. You lost your
opportunity to present your side. That is EXTRINSIC FRAUD. Your remedy now is to file a motion for new
trial on the ground that you have been a victim of EXTRINSIC FRAUD by the plaintiff’s lawyer.

EXAMPLE: There is a case between you and me. During the trial, I presented witnesses to prove my cause
of action. All my witnesses were lying – they testified falsely. I presented falsified documents to prove my case.
And I won the case because of those perjured testimonies and falsified documents. You file a motion for new
trial alleging FRAUD – that the testimonies and documents were falsified.
Q: Should your motion for new trial be granted?
A: NO. Your motion will be denied because the FRAUD is INTRINSIC because you were not prevented
you from going to court. So, your remedy is to expose my perjured and falsified evidence. You can present
rebuttal evidence. It is your obligation to prove that my witnesses are lying and my documents are false.
Definitely, you cannot ask a motion for a new trial.

ACCIDENT

What is ACCIDENT? It is something unforeseen, something unexpected or unanticipated. When is accident a

sufficient ground for new trial?

EXAMPLE: A party failed to appear in court because he got sick at the last minute. Or, in the middle of the
trial, the lawyer of the party becomes sick. With that, the complaint was dismissed or there was a judgment
against you. You can move for new trial on the ground of accident. (Phil. Engineering Co. vs. Argosino, 49
Phil. 983)

EXAMPLE: The defendant was declared in default because he did not file an answer but actually he filed an
answer through mail, but somehow the post office did not deliver it to the court (baka may anthrax). That is an
accident. With that, I can move for new trial or lift the order of default. (Ong Guan Can vs. Century Ins. Co., 45
Phil. 667)

EXAMPLE: The trial was this morning. But I received only the notice of trial on March 9, 1998 stating that
the trial is on March 5. So the notice of hearing was received days after the scheduled date. That is an accident
which is a ground for new trial. (Soloria vs. Dela Cruz, L-20738, Jan. 31, 1966)

MISTAKE

What is MISTAKE? Mistake(n) is nagkamali – I was wrong. Sa bisaya pa, ‘nasayop.’

EXAMPLE: Defendant received summons and complaint. The defendant, instead of seeking assistance of a
lawyer, went to the plaintiff and asked for settlement. They kept on talking with the settlement but in the
meantime, the period to file answer is also running. Fifteen days had passed by they did not settle yet. Plaintiff
moved to declare defendant in default. The court issued judgment on default. Defendant said, “Layman man
ako. Anong malay ko diyan sa ‘default-default’ na yan.” The lawyer said, “Sana answer muna before you settle
with the plaintiff.” So the lawyer filed a motion for new trial on the ground of MISTAKE. The court granted it.
(Salazar vs. Salazar, 8 Phil. 183)

GENERAL RULE: A client is bound by the mistakes of his lawyer and he cannot file a motion for
new trial on the ground of mistake of his lawyer. In the case of

BELLO vs. LABONG

L-10788, April 30, 1959

HELD: “The mistake of an attorney is not generally a ground for new trial. The mistake or lack of
foresight or preparation on the part of the attorney cannot be admitted as reason for new trial in civil
cases, otherwise there would never be an end to a suit so long as a new counsel could be employed
who could allege and show that the prior counsel had not been sufficiently diligent, or experienced, or
learned.”

What the SC is trying to say is this: Suppose we will grant a new trial for the party on the ground of mistake
of his first lawyer, and after the new trial, the party still lost. So such party will now hire a third lawyer who will
say, “Do you know why you lost? That is because of the mistake of your second lawyer so we will file a motion
for new trial.” So the third lawyer will allege mistake of the second lawyer and then we will grant again a new
trial and then he loses again. Then he gets a fourth lawyer and the fourth lawyer will allege the ground of mistake
of the third lawyer.
So, there will never be an end to a case. So the general rule to remember is, a client is bound by the mistakes
of his lawyer and he cannot file a motion for new trial on the ground of mistake of his lawyer. So that is not the
type of mistake contemplated by Rule 37.

The only EXCEPTION is based on equity decision like the case of

PEOPLE vs. MANZANILLA

43 Phil. 167

HELD: “A new trial is sometimes granted where the INCOMPETENCY or NEGLIGENCE of

the party’s counsel in the conduct of the case IS SO GREAT that party’s rights are prejudiced and he
is prevented from presenting his cause of action or defense.”

EXCUSABLE NEGLIGENCE

EXCUSABLE NEGLIGENCE. Obviously, inexcusable negligence is not a ground for new trial. But
sometimes, it is difficult to determine whether the negligence is excusable or inexcusable. That is also very
difficult because there is negligence whether you like it or not.

When is negligence excusable and when is it inexcusable? Our only guide here is decided cases because there
are many cases where the SC said that, it is excusable so we will grant a new trial. Or sometimes naman, wala,
that is not excusable so no new trial. So, we can go on the pattern and find out what type of negligence
warranted a new trial and what type does not warrant a new trial.

INEXCUSABLE NEGLIGENCE; Examples:

EXAMPLE #1: If a defendant lost a case because his lawyer failed to file an answer. And the excuse of the
lawyer was, “I forgot about the deadline. Nalimutan ko. I did not keep tract of the deadline to file an answer.”
And the SC said, “No dice. That is not excusable on the part of the lawyer.”

EXAMPLE #2: Your case was dismissed because you failed to appear in court. Here comes now your
lawyer asking for new trial on the ground of excusable negligence, “I failed to appear in court because I again
forgot about that schedule” or “because I failed to wake-up because the night before, I and my friends went to a
(Wigmore) party and I went home drunk.” Do you think the SC will honor that? Is that excusable? Of course
not!

EXAMPLE #3: In many cases, the reason is, “I failed to appear in court because my secretary in my law
office failed to inform me about that notice. Hindi niya nalagay ‘yung notice that I have to appear in court
today.” SC said, “You are bound by the mistake of your secretary and the client is also bound by that mistake
of the lawyer. In the first place, why did you hire that kind of secretary?”

EXAMPLE #4: In some cases, “Well, you see your honor, I failed to appear in court because my secretary
did not calendar it.” O, bakit niya hindi inilagay? “Well, she’s just a newly hired secretary, she does not know
yet the importance of these things. First time niya.” The SC said, “Hung hang! Pasensiya ka! Why did you not
orient her before hiring her.”

So all these things hindi lumusot. All these things failed to convince the SC that the negligence of the party
of the lawyer if excusable.

EXCUSABLE NEGLIGENCE; Examples:

EXAMPLE #1: The answer has to be filed the following day. The lawyer told the secretary, “I’m leaving
tonight. I’ll come back one week later. You better file tomorrow the answer because tomorrow is the deadline.”
Then he left but the secretary failed to file it because she also got sick. Ayan. Nagkapatong-patong na ang malas.
Excusable iyan.

EXAMPLE #2: “I failed to appear in court because I had to come from Manila and the plane was delayed
or the flight was cancelled. But if the flight proceeded on time I would have been in Davao City by 7:00 A.M. and
I would have been in court at 8:30 A.M.” Sometimes that happens eh where the flight is cancelled or delayed.
Ano ngayon yan? Sabihin, you should have taken the flight the night before para sigurado. “Eh, the night before
fully booked na! Anong magagawa ko?” Ayan.

So in other words, these things, you could also consider it as what? Parang accident din no? Magkahawig
eh! In other words you should use your common sense. Whether the negligence is forgivable or not.

And to borrow the language of the SC, “The standard of care required of a party is that which an ordinarily
prudent man bestows on his important business.” (Fernandez vs. Tan Tiong Tick, L-15877, April 28, 1961)

So, for EXAMPLE: You are a businessman and you have an appointment with somebody who will give you
a deal of P50 million. And you are scheduled to see him on this date and on this time. Can you afford to forget
that transaction? I think there is something wrong with you if you forgot it. You do not know what is important
and what is not important. (Ang importante is yung mahalaga! Di ba?)

There are things which you forget and somehow in forgetting it you cannot be blamed because it’s not really
important. But there are things which you cannot afford to forget.

EXAMPLE: Your classmate tells you, “This coming Saturday you go to the house.” “Why? Is there a
(Wigmore) party there?” “Wala man. I’m just inviting you to come ha?” And by Monday, “I was waiting for
you, you did not show up!” “Tama ‘no? Sorry nalimutan ko.” Now, is forgetting your appointment with your
classmate two days before forgivable or not? I think forgivable iyan. Anyway, istorya-istorya man lang. Para
bang, “O, sige, di sa susunod na Sabado na lang.” Meaning, madaling ma-erase sa mind mo yang mga ganyang
klaseng appointment ba!

EXAMPLE: But suppose on Saturday morning you are supposed to go to church for your wedding, hindi ka
nakasipot. And then you tell your bride or the groom, “Pasensiya ka na ha? Kasal pala natin, nakalimutan ko
eh. (Sana t-in-ext mo ako. Wala kang load ‘no? hahaha!)” I think he or she will kill you for that kind of
reasoning.

EXAMPLE: If a lawyer says, “I forgot that this is the day I should file an answer for my client.” Or, “I
forgot to appear in court on the day of his trial.” Is the court’s schedule or the schedule of a lawyer something
important for him or not? I think you know the answer ‘no?

Ayan! Kaya iyan ang guide. That is the meaning of excusable negligence.

NEWLY DISCOVERED EVIDENCE

Section 1(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.

Q: What is Newly Discovered Evidence (NDE)?

A: NDE is evidence which was discovered after trial, or cannot be discovered during trial given the exercise
of reasonable diligence, and if admitted, such evidence would probably alter the result of the case. There is a
fighting chance ba! So, you could not have discovered the evidence even with exercise of due diligence.

This is also one of the grounds for new trial in criminal cases. You lost a case maybe because you do not
have enough evidence to prove your cause of action. Kulang ba! Kulang ka ng ebidensiya kaya natalo ka. Then
after you lost the case, you came across an important evidence, maybe a witness or a document and you learned
about it for the first time. Ang sayang ‘no? If I was able to present this evidence baka panalo ako.

EXAMPLE: You are a defendant being sued because of non-payment of an account. Ang depensa mo, bayad
na. Pero saan ang resibo? “Basta binayaran ko siya, ok naman. Sabi nga niya wala na raw akong utang.”
Now, so it’s your word against his word and the court did not believe you. Then eto naman ang sabi ni X,
“Natalo ka? Bayad naman yan ba.” Kung ganun, bakit alam mo? X: “Nandoon man ako ba. I was there
watching when you paid him.” Meaning, kung nagtestify ka (X) noon, baka daug ako because my defense
would have been corroborated by you. Yaaann!

Q: What are the REQUISITES for NDE?

A: The following:

That the evidence was discovered after trial;

That it could not have been discovered during trial even with exercise of reasonable diligence; and
That if admitted, such evidence would probably alter the result.

THAT THE EVIDENCE WAS DISCOVERED AFTER TRIAL;

Q: What happens if evidence is there all along and you failed to present it?
A: That is not NDE. That is forgotten evidence and not a ground for new trial.

EXAMPLE: There was a case where a party, through his lawyer filed a motion for new trial based on this
document. Bakit hindi mo pre-ni-sent sa trial? “I misplaced it in my drawer. Nalimutan ko na meron pala akong
resibo. So, let’s have a new trial because I will now introduce a ground for new trial.” Obviously, it was
discovered after trial. It was in your possession for so long. And according to the SC, that is not a newly
discovered evidence. (That is katangahan!) That is forgotten evidence which is not a ground for new trial.

THAT IT COULD NOT HAVE BEEN DISCOVERED DURING TRIAL

EVEN WITH EXERCISE OF REASONABLE DILIGENCE

Meaning, even if you try your best to look for it, you would not have found it. Now na natalo ka, you
suddenly found it.

Now, because there are clients who are lazy eh. So, meron ka bang dokumento? “Wala eh. You see, marami
akong file diyan pero tingin ko wala eh.” “Wala gyud?” “Wala.” So, talo. Walang ebidensiya eh! After a while
pag-halungkat, “Atty., naa man diay.” “My golly! Nganong karon man lang. I gave you several months to look
for that. You’re so lazy. Now, that you lost, you only find it for an hour.” In this case, you did not comply with
the second requisites – that it could not have been discovered before trial even with the exercise of reasonable
diligence.

THAT IF ADMITTED, SUCH EVIDENCE WOULD PROBABLY ALTER THE RESULT

Meaning, if there is a new trial and the newly discovered evidence will be admitted, it would probably alter
the result. Probably lang. May fighting chance, pero ‘chance’ lang. You are not saying that if the new evidence
will be admitted, you will automatically win. There is a probability that you will win. And the court will say, “I
think probable. Ok, new trial granted. Then defendant, PASOK!” (cguro, d jdge hir is myk enriquez?) Then, the
evidence will be presented and we will find out if you can win.

NEW TRIAL vs. REOPENING OF TRIAL

The SC has already made pronouncements on what the reopening of trial meant. Reopening of trial is not
found in the law. There is no express rule, but it is admittedly allowed. Now give an example of reopening of
trial.

EXAMPLE: Tapos na ang trial. What will come next is decision and then the party said, “Your honor, could
we reopen the trial? Meron kaming nakalimutan eh. I forgot an important piece of evidence.” Now, that cannot
be new trial because wala pa man ang judgment. Rule 37 applies only when there is already a judgment. In the
example, is that a motion for new trial? No. It should be called a motion for reopening of trial.

So if the motion is filed after the judgment is rendered, it is called motion for new trial. When the motion is
filed before a judgement is rendered, it should be called a motion for reopening of trial.

EXAMPLE: A judge after trying the case, “Alright, I will not decide yet. I want to go to the area and look at
the property.” Meaning, the court, on its own, would like to conduct an ocular inspection. That is a reopening of
the trial. Now, was there any motion by anybody? Wala man ba. The court itself initiated it. And that is allowed
said by the SC. Reopening of trial is bound by no rules. The judge with or without a motion can do it. The only
ground for reopening of trial is interest of justice. And that is very broad. So there are no rules.

The SC said: New trial should be distinguished from the exercise of the discretionary power of the court to
REOPEN a trial for the introduction of additional evidence, to clarify its doubts on material points. This
discretionary power is subject to no rule other than the paramount interest of justice and will not be reviewed on
appeal unless the exercise thereof is abused. (Arce vs. Arce, L-13035, Nov. 28, 1959) So it is one of the inherent
powers of the court.

MOTION FOR RECONSIDERATION

Q: What is the ground for a motion for reconsideration?

A: Third paragraph of Section 1:

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)

Q: When do you file a motion for reconsideration?

A: Within the same period for filing a motion for new trial. Meaning, within the period for taking an appeal.

Q: What are the grounds for a motion for reconsideration?

A: The following are the GROUNDS for a motion for reconsideration:

The damages awarded are excessive;

The evidence is insufficient to justify the decision or final order;
The decision or order is contrary to law. (in effect, the decision is wrong)

Motion for reconsideration is more common. Motions for new trial are very rare.

In a motion for reconsideration, you convince the court that the decision is wrong, “Dapat panalo ako, hindi
siya.” You convince the court, that its decision is wrong, that the decision is contrary to law. If you can convince
the court, the court will issue another decision reversing itself where from a loser [loooosseer!], you are now the
winner and the original winner is now the loser [loooosseer!]. Ganyan man yan ba, very common.

MOTION FOR NEW TRIAL; FORMAL REQUIREMENTS

Sec. 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)

Q: What should be the form of a motion for new trial?

A: It must be in writing. You must state the ground or grounds for the motion, whether it is FAME or newly
discovered evidence. Then, of course, you must serve a copy of the motion to the adverse party. Meaning, you
comply with all the requisites of a valid motion.

PEOPLE vs. COURT OF APPEALS

296 SCRA 418 [Sept. 25, 1998]

FACTS: Inday filed a motion for new trial without a notice of hearing (this is a violation of
paragraph of Section 2). But she filed the motion within 15 days. Inday filed a supplemental motion
with notice of hearing but filed beyond the 15-day period. Should the court deny the motion?

HELD: The motion should be denied. “A supplemental pleading subsequently filed to remedy the
previous absence of notice will not cure the defect nor interrupt the tolling of the prescribed period
within which to appeal.”
“We are not impressed by the argument that the supplement filed by the appellants on May 30
should be deemed retroactive as of the date the motion for reconsideration was filed and, therefore,
cured the defect therein. To so consider it would be to put a premium on negligence and subject the
finality of judgments to the forgetfulness or whims of parties-litigants and their lawyers. This of
course would be intolerable in a well-ordered judicial system.”

The second paragraph says, “A motion for new trial shall be proved in the manner provided for proof of
motions…” What does that mean? What is the proof of motions? The manner or proving motions is also found
in Rule 15, Section 3:

Rule 15, Sec. 3. Contents. - A motion shall state the relief

sought to be obtained and the grounds upon which it is based, and
if required by these Rules or necessary to prove facts alleged
therein, shall be accompanied by supporting affidavits and other
papers. (3a)

Q: Everytime you file a motion, is it necessary that the ground for your motion is supported by affidavits or
other papers?
A: If it is necessary –YES. If it is not necessary – NO NEED. If necessary, you must attach documents or
supporting affidavits like a medical certificate for a motion to postpone due to illness.

Q: Is it necessary that when you file motion for new trial, you must attach affidavits?
 REQUIREMENTS WHEN THE GROUND IS F.A.M.E.

Section 2, second paragraph says, “A motion for the cause mentioned in paragraph [a] of the preceding
section shall be supported by affidavits of merits…” Paragraph [a] is FAME. So, a motion for new trial on the
ground of FAME must be accompanied by affidavits of merits.

Q: What is an affidavit of merits?

A: An AFFIDAVIT OF MERITS is one which recites the nature and character of FAME on which the
motion is based and stating the movant’s good and substantial cause of action or defense and the evidence he
intends to present if the motion is granted, which evidence should be such as to warrant reasonable belief that the
result of the case would probably be otherwise. (Paz vs. Inandan, 75 Phil. 608; Manila Surety vs. Del Rosario,
101 Phil. 412)

Meaning, you must state the facts surrounding FAME and your meritorious cause of action or defense
whether you are the plaintiff or the defendant. You explain why you are a victim of fraud, etc. and that you have a
good cause of action or defense which if there will be a new trial, you might win. It is not enough that you are a
victim of FAME, you must also have a meritorious cause of action or defense.

Q: What happens if you file a motion without affidavit of merits?

A: Then, your motion for new trial will be immediately denied. It is a fatal mistake. Your motion for new trial
is classified as a PRO-FORMA motion for new trial.

Q: Briefly, how do you classify a pro-forma motion for new trial?

A: It is a motion for new trial which does not comply in substance or in form with Sections 1 and 2 of Rule
37.

Q: What is the EFFECT of a pro-forma motion for new trial?

A: The period to appeal is NOT interrupted by the filing of such motion for new trial. Even the right to appeal
may be forfeited because of this defect. The effect is now stated in the last paragraph of Section 2:

A pro forma motion for new trial or reconsideration shall not

toll the reglementary period of appeal. (2a)

When you lose a case you have exactly 15 days to appeal. Let’s say on the tenth day, I file a motion for new
trial under Rule 37. And the motion was acted after one month. Shempre lampas na yung 15 days. Meaning,
pag-tanggap ko ng decision, ten days na ang nakaraan, and then another one month so 40 days na. But no
problem because when you filed your motion on the 10th day, the running of the period to appeal is interrupted.
If denied, meron ka pang limang araw to appeal.

But, if the court says, “Your motion is denied because it is pro forma, there is no affidavit of merits.” Then,
you cannot appeal anymore because when you filed your motion, the period to appeal keeps on running. So by
the time your motion is denied, even the right to appeal is also lost. Iyan ang epekto ng pro-forma motion for
new trial. It never interrupts the period to appeal. [Trivia: PRO-FORMA means, PuRO pORMA lang, wala
namang sinabi]

Q: Suppose a movant will file a motion for new trial in the ground of FAME with the affidavits of merits and
says “I am a victim of fraud and if such motion is granted, I have a good and meritorious cause of action or
good and meritorious defense.” Is the affidavit sufficient?
A: SC –No, those are generalities, you must recite the facts constituting the FAME. You must describe
exactly what happened to you. To say that you have good cause of action or defense is INSUFFICIENT.

You must state what is the nature of that cause of action or defense and evidence you intend to present. So,
there is an affidavit of merit but it is fatally defective. Again what will happen to the motion. It will be treated as
pro-forma. The affidavit of merit is defective.
 MANIPOL vs. LIM TAN
55 SCRA 202

FACTS : A defendant in an action for damages based on quasi-delict filed a motion for new trial
citing FAME. He says, “I have a good and meritorious cause of action or defense. I intend to prove
that I exercised due diligence in the selection or supervision of my drivers and which if proven
relieves the employer from liability.”

HELD: Affidavit of merits is defective. It is pro-forma motion. It does not state the meritorious
defense. There is only a general statement or conclusion of the defendant. The defendant should state
the details of how he supervised his employees. You go to specifics.

The law is very strict about affidavits of merits. It is not enough that you state your defense. You must
demonstrate that you have a meritorious claim of defense so that the motion for new trial will be granted. What is
the used of granting a new trial if after the new trial you will still end up losing the case? It would be a waste of
time. According to SC, “ It would be pointless to reopen a case if a party does not have a meritorious cause of
action of defense for like a mirage it would merely raise false hopes and at the end avail the movant
nothing.” (Arcilla vs. Arcilla, L-46674, Sept. 16, 1985) It would raise false hope if you will grant a new trial
when in fact the movant has no meritorious cause of action. It’s like a mirage or illusion – seeing things which
are not there. [malayo ang tingin, hindi naman duling…]

It seems that there are really two affidavits. Normally when a lawyer files motion for new trial, there is one
affidavit reciting FAME and reciting the meritorious cause of action or defense. If you follow the SC there are
two (2) affidavits: FIRST – affidavit regarding the FAME; and SECOND – affidavit regarding the meritorious
cause of action of defense.

But in the case of PCIB vs. ORTIZ (150 SCRA 382), the SC implied that the real Affidavit Of Merits should
be the second one – that I have a good and meritorious defense. In reality, there should be two (2) affidavits –
one reciting the FAME and one reciting the substantial cause of action. That is why a motion for new trial on
FAME should ordinarily be accompanied by two affidavits. One setting forth the facts and circumstances alleged
to constitute FAME and the other an Affidavit of Merits setting forth the particular claims to constitute the
movant’s meritorious defense or cause of action. The real Affidavit of Merits is the second one.

REQUIREMENTS WHEN THE GROUND IS NEWLY DISCOVERED EVIDENCE

Q: Suppose your ground for new trial is newly discovered evidence (NDE). What is the requirement?
A: Section 2, 2nd paragraph, 3rd sentence provides, “A motion for the cause mentioned in (Section 1)
paragraph [b] (NDE) 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.”

Meaning, when the ground is newly discovered evidence, the motion shall be supported by affidavits also –
affidavits of the newly discovered witness – or a copy of the newly discovered document. You have to state what
is the newly discovered evidence, what the witness will say.

Q: What happen when such requirement is not complied with?

A: The motion for new trial on the ground of NDE is treated as PRO-FORMA and it never tolled the
reglementary period to appeal.

MOTION FOR RECONSIDERATION; FORMAL REQUIREMENTS

Q: Again, what are the grounds for a motion for reconsideration?

A: The following are the GROUNDS for a motion for reconsideration:
 The damages awarded are excessive;
The evidence is insufficient to justify the decision or final order;
The decision or order is contrary to law. (in effect, the decision is wrong)

Q: Can you file a motion for reconsideration by just simply stating that “the decision is wrong or contrary to
law,” or “the findings of the judge are not supported by evidence”?
A: NO. Under Section 2, 3rd paragraph, you must 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.

So, you must point out what findings is not supported by evidence – what conclusion is contrary to law. Do
not let the judge look for it. The judge will never bother to look for it. You tell him what portion of the decision
is wrong. You have to cite the evidence too and the law which is violated or what provisions – ituro mo yan!
Point it out clearly.

Q: What happen when you file a motion for reconsideration without making any reference, exhibit etc?
Meaning, you did not comply with the 3rd paragraph.
A: You motion will be denied because it is PRO-FORMA. Thus, it will never interrupt the reckoning of the
prescriptive period.

The SC once defined a pro forma motion as one filed for the sake of form. (Dapin vs. Dionaldo, G.R. No.
55488, May 15, 1992)

Another POINT: when you file an motion for reconsideration on the ground that the judgment is contrary to
law, it is not enough for you to say that. You must always point out clearly why it is contrary to law, otherwise
your motion will be denied or treated as pro-forma.

Q: When you file an motion for reconsideration and it is denied, does it mean to say that your motion is pro-
forma?
A: NO, because maybe the judge was not convinced but you tried your best. The denial of motion for
reconsideration on the ground that the decision or judgment is wrong does not automatically make the motion a
pro-forma. What makes it pro-forma is, if your motion for reconsideration does not specifically point out why
judgment is wrong. But if you comply with Section 2, that is already sufficient.

In the case of
MARIKINA VALLEY DEV’T. CORP. vs. FLOJO
251 SCRA 87 [1995]

HELD: “A motion for reconsideration merely reiterates or repleads the same arguments which
had been previously considered and resolved in the decision sought to be reconsidered, the motion is
a pro forma one.”
“The circumstance that a motion for reconsideration deals with the same issues and arguments
posed and resolved by the trial court in its decisions does not necessarily mean that the motion must
be characterized as merely pro forma. A pleader preparing a motion for reconsideration must of
necessity address the arguments made or accepted by the trial court in its decision. The movant is very
often confined to the amplification or further discussion of the same issues already passed upon by
the trial court.” Precisely, when I filed a motion for reconsideration, we will go over the same points
which the court has already discussed.
“Where the circumstances of a case do not show an intent on the part of the movant merely to
delay the proceedings, our Court has refused to characterize the motion as simply pro forma. The
doctrine relating to pro forma motions for reconsideration impacts upon the reality and substance of
the statutory right of appeal, that doctrine should be applied reasonably, rather than literally. The right
to appeal, where it exists, is an important and valuable right.”
“A motion for reconsideration which is not as starkly bare but which, as it were, has some flesh
 on its bones, may nevertheless be rendered pro forma where the movant fails to make reference to the
testimonial and documentary evidence on record or the provisions of law said to be contrary to the
trial court’s conclusions. In other words, the movant is also required to point out succinctly why
reconsideration is warranted.”
“It is not enough that a motion for reconsideration should state what part of the decision is
contrary to law or the evidence; it should also point out why it is so. Failure to explain why will
render the motion for reconsideration pro forma.” Meaning, when I point out part of the decision that
is contrary to the law, it is not pro forma. But still it is pro forma if I will not state that it is contrary to
law.
“Where a substantial bonafide effort is made to explain where and why the trial court should be
regarded as having erred in its main decision, the fact that the trial court thereafter found such
argument unmeritorious or as inadequate to warrant modification or reversal of the main decision,
does not, of course, mean that the motion for reconsideration should have been regarded, or was
properly regarded, as merely pro forma.”

So, I point the decision but the court does not agree with me. That does not mean that my motion is
automatically pro forma because there was attempt to convince the court why it is wrong.

EFFECTS WHEN MOTION IS GRANTED

Sec. 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)

Sec. 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)

Q: In Section 3, how will the court resolved your motion for new trial?
A: The court may either deny or may set aside the judgment or final order and grant a new trial. Literally, if
the judgment is set aside, there will be a trial de novo, a Latin word for new trial.

BAR QUESTION: If Cholo files a Motion For New Trial and it is granted, will there always be a trial de
novo?
A: It DEPENDS on the ground for the motion:
If the ground is FAME, there will be a trial de novo because the proceeding will be set aside;
If the ground is NDE, there is no trial de novo. The evidence admitted which is based on the same
decision will remain. The case will be opened only for the purpose of admitting the new evidence.

Q: If Cholo files a Motion For Reconsideration and it is granted, will there be a trial de novo?
A: There is NO trial de novo. The court will simply amend its judgment. It is only a re-study of provision.
The court will study its decision and go over the evidence and find out whether it made a mistake or not.

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

reconsideration shall be resolved within thirty (30) days from the
time it is submitted for resolution. (n)
 There is now a deadline for the court to act on the motion – within 30 days from the time it is submitted for
resolution.

SECOND MOTION FOR NEW TRIAL OR RECONSIDERATION

Sec. 5. Second motion for new trial. A motion for new trial
shall include all grounds then available and those not so included
shall be deemed waived. A second motion for new trial, based on a
ground not existing nor available when the first motion was made,
may be filed within the time herein provided excluding the time
during which the first motion had been pending.
No party shall be allowed a second motion for reconsideration
of a judgment or final order. (4a, R37; 4, IRG)

As a rule, the motion for new trial shall include all grounds then available and those not included are deemed
waived. So, if the motion for new trial is based on two (2) grounds – FAME and NDE – either or both grounds
should be included in the motion.

Q: Suppose a motion for new trial, which is based only on FAME, was denied, can there be a second motion
for new trial on the ground of NDE?
A: It DEPENDS:

If the NDE is already existing when the first motion was filed, then the second motion for new trial will
be denied because of failure to raise it earlier – the second ground is deemed waived for failure to
raise the same;
However, if the ground for the second motion for new trial is something not known or not existing or not
available when the party filed the first motion, then the second motion is allowed. The second
motion is not a pro forma motion.

So, what the law prohibits is you file a motion for new trial and you do not include all the grounds then
available. If the ground surfaced only later, then it is allowed. Therefore, the motion for new trial is an example of
omnibus motion as defined in Rule 15, Section 8:

Sec. 8. Omnibus motion. - Subject to the provisions of section

1 of Rule 9, a motion attacking a pleading, order, judgment, or
proceeding shall include all objections then available, and all
objections not so included shall be deemed waived. (8a)

Q: What happens if you file a second motion for new trial on a ground which is then available when the first
motion was filed?
A: The second motion is a pro forma motion and will not interrupt the remaining balance of the period to
appeal after the first motion was denied. There was a clear violation of omnibus motion rule.

Q: So, there are two (2) types of pro forma motion for new trial under Rule 37. What are they?
A: The following:
A motion for new trial which is not supported by affidavits of merits – one which does not comply in
substance or in form with Section 2; and
A second motion for new trial on a ground available to the party when the first motion was filed
(Section 5).

Take note that the 2nd paragraph of Section 5 provides that “No party shall be allowed a second motion for
reconsideration of a judgment or final order.” Therefore, a second motion for reconsideration is always treated as
a pro forma motion because it is totally prohibited by Section 5.
 NEW TRIAL vs. MOTION FOR RECONSIDERATION

Take note that in New Trial, there could possibly be trial de novo. If granted, everything is set aside and the
party will now present their evidence. But in trial de novo, we will not erase everything. Proceedings or evidence
admitted will remain. Only, we will open it for the purpose of introducing the new evidence and then the court
will study it all over again.

In Motion for Reconsideration, there is no reopening of the case because all the court has to do is to go over
the evidence again and go over the decision to find out whether its decision is wrong and should change it. So,
there is actually no trial de novo in a motion for reconsideration.

Q: Distinguish a Motion for New Trial from a Motion for Reconsideration.

A: The following are the distinctions:

As to grounds:
In a MOTION FOR NEW TRIAL, the grounds are FAME and NDE, whereas
In a MOTION FOR RECONSIDERATION, the grounds are excessive damages, decision is not
supported with evidence, or decision is contrary to law;

As to trial:
If a MOTION FOR NEW TRIAL is granted, there could be a trial de novo; whereas
If as MOTION FOR RECONSIDERATION is granted, there is no trial de novo. The court will
only amend its decision

As to a second motion:
A second MOTION FOR NEW TRIAL is allowed if the ground was not existing when the first
motion for new trial was filed; whereas
A second MOTION FOR RECONSIDERATION is always prohibited under the rules.

Sec. 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)

Q: Is there such a thing as motion for partial new trial or a motion for partial reconsideration?
A: YES, if the party is questioning only one aspect or portion of the case. Therefore, the rest can become final
while the disputed portion does not become final.

So, there could be a new trial or reconsideration only on such issues and there will be a final judgment with
respect to the other issues of the case. How could this happen? The best example is Rule 31, Section 2:

Rule 31, Sec. 2. Separate trials. The court, in furtherance of

convenience or to avoid prejudice, may order a separate trial of
any claim, cross-claim, counterclaim, or third-party complaint, or
of any separate issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issues. (2a)

If the cross-claim or third-party complaint are tried separately, there will be different judgments. And in
effect, you can file a partial motion for new trial or reconsideration to the facts contemplated by the case.
 Sec. 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)

This is a continuation of Section 7.

Q: When there is a partial new trial, what will happen to the judgment on the undisputed facts?
A: Either:
the court will enter judgment on it; or
the court may stay the enforcement until after the new trial.

The following rules will describe the situation in Section 8:

Rule 36, Sec. 5. Separate judgments. When more than one claim for relief
is presented in an action, the court, at any stage, upon a determination of
the issues material to a particular claim and all counterclaims arising out
of the transaction or occurrence which is the subject matter of the claim,
may render a separate judgment disposing of such claim. The judgment shall
terminate the action with respect to the claim so disposed of and the action
shall proceed as to the remaining claims. In case a separate judgment is
rendered, the court by order may stay its enforcement until the rendition of
a subsequent judgment or judgments and may prescribe such conditions as may
be necessary to secure the benefit thereof to the party in whose favor the
judgment is rendered. (5a)

Finality of judgment with respect to one portion of the case and the trial continues with the other portion.
There are several judgments involving one action and technically, if one is finished, it can be enforced unless the
court provided otherwise. Another provision is Rule 39, Section 2 [b]:

Rule 39, Sec. 2. Discretionary execution.

x x x x x
(b) Execution of several, separate or partial judgments.— A
several separate or partial judgment may be executed under the
same terms and conditions as execution of a judgment or final
order pending appeal. (2a)

Discretionary execution or execution pending appeal. In case of an appeal, Section 1, Rule 41 [g]:

Rule 41, 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:
x x x x x
(g) 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
x x x x x
Let’s go back to Rule 37.

Sec. 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)

An order denying a motion for new trial or reconsideration is not appealable (c.f. Rule 41, Section 1 [a]. The
remedy being an appeal from the judgment or final order.

ILLUSTRATION: The judgment is against you. So you filed a motion for new trial or reconsideration. The
court denied your motion. So there is an order denying your motion for new trial or reconsideration. Now, you
want to appeal.
Q: Appeal from what? From the main judgment or from the order denying your motion?
A: You appeal from the judgment. You cannot appeal from the order denying your new motion for new trial.
That is related to Rule 41, Section 1 [a]:

Rule 41, 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 motion for new trial or reconsideration;
x x x x x x

Well, of course, the filing of this motion will stop the running of the 15-day period, unless your motion for
new trial is pro-forma. Generally, the law does not allow an appeal from the order denying your motion for new
trial. You appeal from the decision, not from the order denying your motion. This provision will come out again
when we reach the rule on appeal.

-oOo-

OUTLINE of the process: (after trial)

Decision/Judgment;
Motion for New Trial or Reconsideration (Rule 37);
If denied, court makes a order denying your motion for new trial or reconsideration;
Appeal based on the decision/judgment and not based on the order denying your motion.
1997 Rules on Civil Procedure Rule 37
2001 Edition <draft copy. pls. check for New Trial or Reconsideration
errors>

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Lakas Atenista
Ateneo de Davao University College of Law