1997 Rules on Civil Procedure 2001 Edition <draft copy. pls.

check for errors>

Rule 37 NEW TRIAL OR RECON I!ERATION

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. ect"o# $. Grounds of and period for filing motion for new trial or reconsideration. W"th"# the per"od for tak"#% a# appeal& the a%%r"e'ed party (ay (o'e the tr"al court to set as"de the )ud%(e#t or f"#al order a#d %ra#t a #e* tr"al for o#e or (ore of the follo*"#% causes (ater"ally affect"#% the su+sta#t"al r"%hts of sa"d party, -a. /raud& acc"de#t& ("stake or e0cusa+le #e%l"%e#ce *h"ch ord"#ary prude#ce could #ot ha'e %uarded a%a"#st a#d +y reaso# of *h"ch such a%%r"e'ed party has pro+a+ly +ee# "(pa"red "# h"s r"%hts1 or -+. Ne*ly d"sco'ered e'"de#ce& *h"ch he could #ot& *"th reaso#a+le d"l"%e#ce& ha'e d"sco'ered a#d produced at the tr"al& a#d *h"ch "f prese#ted *ould pro+a+ly alter the result. W"th"# the sa(e per"od& the a%%r"e'ed party (ay also (o'e for reco#s"derat"o# upo# the %rou#ds that the da(a%es a*arded are e0cess"'e& that the e'"de#ce "s "#suff"c"e#t to )ust"fy the dec"s"o# or f"#al order& or that the dec"s"o# or f"#al order "s co#trary to la*.-$a. Q: When may an a rie!ed party file a motion for new trial or a motion for reconsideration" #: Within the period for ta$in an appeal. %eanin , &efore the 'ud ment &ecomes final and e(ecutory. We ha!e not yet discussed the law on appeal &ut the eneral rule is 'ust li$e in criminal cases. If you lose, you ha!e 1) days to file an appeal. If there is no appeal within 1) days, the 'ud ment will &ecome final and e(ecutory. Q: If I lose in a ci!il case, is there other remedy aside from appeal" #: *+,. *ou can file a motion for new trial &ut such motion must also &e filed within 1) days. #fter 1) days, you can no lon er file a motion for new trial &ecause the 'ud ment &ecomes final and e(ecutory. Q: What is the effect when 'ud ment &ecomes final and e(ecutory" #: -nder Rule 3., the court loses 'urisdiction o!er the case. The decision cannot &e chan ed anymore. /ut as lon as 'ud ment is not yet final, the court can chan e the decision. Q: What is the effect of filin a motion for new trial or reconsideration on the period to appeal" #: The period to appeal is suspended. When your motion is denied, you still ha!e the remainin &alance of the period to appeal. 0eriod to appeal is suspended e(cept if your motion for new trial or reconsideration is pro-forma under ,ections 2 and ). NEW TRIAL Q: What are the rounds for a motion for new trial in ci!il cases" #: -nder ,ection 1, there are two 122 3R4-56,: 1.2 7raud, #ccident, %ista$e, +(cusa&le ne li ence 17#%+28 82

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2.2 5ewly 6isco!ered +!idence 156+2

Rule 37 New Trial or Reconsideration

FIRST GROUND: Fraud !ccident "ista#e $%cusa&le negligence 'F!"$( 9et us relate this to Rule :, ,ection 3 ;&< on 6efault. The round to lift or set aside the order of default is also 7#%+ = that he failed to answer &ecause of 7#%+. ,o, there is a connection &etween Rule : and the first round of a motion for new trial. Q: >ow do you determine when to use Rule : or Rule 37 when one is declared in default" #: -se Rule :, ,ection 3 ;&< after notice of the order of default &ut &efore 'ud ment8 -se Rule 37 if there is already a 'ud ment &ut not yet final and e(ecutory. Rule 37 is the remedy in case the defendant who is declared in default failed to a!ail of Rule :, ,ection 3 ;&<. /ut Rule 37 on motion for new trial on the round of 7#%+ is &roader. It applies to plaintiff or defendant whether in default or not &ecause a defendant can still lose the case throu h 7#%+ althou h he is not in default. 4r, for e(ample: The plaintiff, &ecause of his failure to appear in the case, the court dismissed the case. /ut the reason why the plaintiff failed to appear is &ecause of 7#%+. ,o the remedy for plaintiff is to mo!e to set aside the dismissal and ha!e the case continued &y filin a motion for new trial on the round of 7#%+. /ut definitely, Rule 37 also applies to a defendant declared in default and that is the connection &etween Rule 37 and Rule :. /RA2! -E0tr"#s"c. What is 7R#-6" In ta alo , naisahan $a or nalo$o $a. 'Ilonggo: na-utis( -nder the law, there are two 122 T*0+, of 7raud: +?TRI5,I@ 7R#-6 and I5TRI5,I@ 7R#-6 3ARCIA )s. CO2RT O/ A44EAL 565 CRA 557 8$99$: ;EL!: +?TRI5,I@ 7R#-6 is that type of fraud which has pre!ented a party from ha!in a trial or from presentin his case in court. I5TRI5,I@ 7R#-6 is &ased on the acts of a party in a liti ation durin the trial, such as the use of for ed instruments or per'ured testimony, which did not affect the presentation of the case, &ut did pre!ent the fair and 'ust determination of the case. Q: When is fraud a sufficient round for new trial" #: 7R#-6, to &e a round for new trial, must &e +?TRI5,I@ = where the a rie!ed party was misled &y the ad!erse party, and &y reason thereof, he was pre!ented from presentin his case properly. 13is&urne ,upply @o. !s. Quio ue, 3A 0hil. :138 #lmeda !s. @ruB, CA 0hil. .3.8 ,terlin In!estment @orp. !s. RuiB, 9D3E.:A, 4ct. 31, 1:.:2 ,o, intrinsic fraud is not a round for a new trial. +?#%09+: ,uppose I am the lawyer of the plaintiff and you are the lawyer of the defendant. The case will &e tried tomorrow. I called you up and as$ed you to postpone the trial, *I will tell t+e court t+at I tal#ed to ,ou and ,ou agreed t+at t+e trial will &e postponed.- The followin day, I appeared in court. 83

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Rule 37 New Trial or Reconsideration

When the case is called, I said that IFm ready. @ourt: *Saan ang defendant.- I said, */ala0 !wan0- I then mo!ed to continue the trial. ,o, naisahan $ita. I maneu!ered a scheme in such a way that you will not appear in court. *ou lost your opportunity to present your side. That is +?TRI5,I@ 7R#-6. *our remedy now is to file a motion for new trial on the round that you ha!e &een a !ictim of +?TRI5,I@ 7R#-6 &y the plaintiffFs lawyer. +?#%09+: There is a case &etween you and me. 6urin the trial, I presented witnesses to pro!e my cause of action. #ll my witnesses were lyin = they testified falsely. I presented falsified documents to pro!e my case. #nd I won the case &ecause of those per'ured testimonies and falsified documents. *ou file a motion for new trial alle in 7R#-6 = that the testimonies and documents were falsified. Q: ,hould your motion for new trial &e ranted" #: 54. *our motion will &e denied &ecause the 7R#-6 is I5TRI5,I@ &ecause you were not pre!ented you from oin to court. ,o, your remedy is to e(pose my per'ured and falsified e!idence. *ou can present re&uttal e!idence. It is your o&li ation to pro!e that my witnesses are lyin and my documents are false. 6efinitely, you cannot as$ a motion for a new trial. ACCI!ENT What is #@@I6+5T" It is somethin unforeseen, somethin une(pected or unanticipated. When is accident a sufficient round for new trial" +?#%09+: # party failed to appear in court &ecause he ot sic$ at the last minute. 4r, in the middle of the trial, the lawyer of the party &ecomes sic$. With that, the complaint was dismissed or there was a 'ud ment a ainst you. *ou can mo!e for new trial on the round of accident. 10hil. +n ineerin @o. !s. #r osino, A: 0hil. :C32 +?#%09+: The defendant was declared in default &ecause he did not file an answer &ut actually he filed an answer throu h mail, &ut somehow the post office did not deli!er it to the court '&a#a ma, ant+ra%(. That is an accident. With that, I can mo!e for new trial or lift the order of default. 14n 3uan @an !s. @entury Ins. @o., A) 0hil. ..72 +?#%09+: The trial was this mornin . /ut I recei!ed only the notice of trial on %arch :, 1::C statin that the trial is on %arch ). ,o the notice of hearin was recei!ed days after the scheduled date. That is an accident which is a round for new trial. 1,oloria !s. 6ela @ruB, 9D2E73C, Gan. 31, 1:..2 <I TA=E What is %I,T#H+" %ista$e1n2 is na $amali = I was wron . ,a &isaya pa, 1nasa,op.2 +?#%09+: 6efendant recei!ed summons and complaint. The defendant, instead of see$in assistance of a lawyer, went to the plaintiff and as$ed for settlement. They $ept on tal$in with the settlement &ut in the meantime, the period to file answer is also runnin . 7ifteen days had passed &y they did not settle yet. 0laintiff mo!ed to declare defendant in default. The court issued 'ud ment on default. 6efendant said, *3a,man man a#o. !nong mala, #o di,an sa 1default-default2 na ,an.- The lawyer said, *Sana answer muna &efore ,ou settle wit+ t+e plaintiff.- ,o the lawyer filed a motion for new trial on the round of %I,T#H+. The court ranted it. 1,alaBar !s. ,alaBar, C 0hil. 1C32 84

1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 37 New Trial or Reconsideration

3+5+R#9 R-9+: # client is &ound &y the mista$es of his lawyer and he cannot file a motion for new trial on the round of mista$e of his lawyer. In the case of >ELLO )s. LA>ON3 9D1E7CC, #pril 3E, 1:): ;EL!: IThe mista$e of an attorney is not enerally a round for new trial. The mista$e or lac$ of foresi ht or preparation on the part of the attorney cannot &e admitted as reason for new trial in ci!il cases, otherwise there would ne!er &e an end to a suit so lon as a new counsel could &e employed who could alle e and show that the prior counsel had not &een sufficiently dili ent, or e(perienced, or learned.J What the ,@ is tryin to say is this: ,uppose we will rant a new trial for the party on the round of mista$e of his first lawyer, and after the new trial, the party still lost. ,o such party will now hire a third lawyer who will say, *Do ,ou #now w+, ,ou lost. T+at is &ecause of t+e mista#e of ,our second law,er so we will file a motion for new trial.- ,o the third lawyer will alle e mista$e of the second lawyer and then we will rant a ain a new trial and then he loses a ain. Then he ets a fourth lawyer and the fourth lawyer will alle e the round of mista$e of the third lawyer. ,o, there will ne!er &e an end to a case. ,o the eneral rule to remem&er is, a client is &ound &y the mista$es of his lawyer and he cannot file a motion for new trial on the round of mista$e of his lawyer. ,o that is not the type of mista$e contemplated &y Rule 37. The only +?@+0TI45 is &ased on eKuity decision li$e the case of 4EO4LE )s. <AN?ANILLA @3 4h"l. $A7 ;EL!: I# new trial is sometimes ranted where the I5@4%0+T+5@* or 5+39I3+5@+ of the partyFs counsel in the conduct of the case I, ,4 3R+#T that partyFs ri hts are pre'udiced and he is pre!ented from presentin his cause of action or defense.J EBC2 A>LE NE3LI3ENCE +?@-,#/9+ 5+39I3+5@+. 4&!iously, ine(cusa&le ne li ence is not a round for new trial. /ut sometimes, it is difficult to determine whether the ne li ence is e(cusa&le or ine(cusa&le. That is also !ery difficult &ecause there is ne li ence whether you li$e it or not. When is ne li ence e(cusa&le and when is it ine(cusa&le" 4ur only uide here is decided cases &ecause there are many cases where the ,@ said that, it is e(cusa&le so we will rant a new trial. 4r sometimes naman, wala, that is not e(cusa&le so no new trial. ,o, we can o on the pattern and find out what type of ne li ence warranted a new trial and what type does not warrant a new trial. IN$45US!63$ N$G3IG$N5$8 +(amples: +?#%09+ L1: If a defendant lost a case &ecause his lawyer failed to file an answer. #nd the e(cuse of the lawyer was, *I forgot a&out t+e deadline. Nalimutan #o. I did not #eep tract of t+e deadline to file an answer.- #nd the ,@ said, *No dice. T+at is not e%cusa&le on t+e part of t+e law,er.-

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Rule 37 New Trial or Reconsideration

+?#%09+ L2: *our case was dismissed &ecause you failed to appear in court. >ere comes now your lawyer as$in for new trial on the round of e(cusa&le ne li ence, *I failed to appear in court &ecause I again forgot a&out t+at sc+edule- or *&ecause I failed to wa#e-up &ecause t+e nig+t &efore I and m, friends went to a '/igmore( part, and I went +ome drun#.- 6o you thin$ the ,@ will honor that" Is that e(cusa&le" 4f course notM +?#%09+ L3: In many cases, the reason is, *I failed to appear in court &ecause m, secretar, in m, law office failed to inform me a&out t+at notice. 7indi ni,a nalaga, 1,ung notice t+at I +a)e to appear in court toda,.- ,@ said, *8ou are &ound &, t+e mista#e of ,our secretar, and t+e client is also &ound &, t+at mista#e of t+e law,er. In t+e first place w+, did ,ou +ire t+at #ind of secretar,.+?#%09+ LA: In some cases, */ell ,ou see ,our +onor I failed to appear in court &ecause m, secretar, did not calendar it.- 4, &a$it niya hindi inila ay" */ell s+e2s 9ust a newl, +ired secretar, s+e does not #now ,et t+e importance of t+ese t+ings. First time ni,a.- The ,@ said, *7ung +ang0 :asensi,a #a0 /+, did ,ou not orient +er &efore +iring +er.,o all these thin s hindi lumusot. #ll these thin s failed to con!ince the ,@ that the ne li ence of the party of the lawyer if e(cusa&le. $45US!63$ N$G3IG$N5$8 +(amples: +?#%09+ L1: The answer has to &e filed the followin day. The lawyer told the secretary, *I2m lea)ing tonig+t. I2ll come &ac# one wee# later. 8ou &etter file tomorrow t+e answer &ecause tomorrow is t+e deadline.- Then he left &ut the secretary failed to file it &ecause she also ot sic$. #yan. 5a $apaton Dpaton na an malas. +(cusa&le iyan. +?#%09+ L2: *I failed to appear in court &ecause I +ad to come from "anila and t+e plane was dela,ed or t+e flig+t was cancelled. 6ut if t+e flig+t proceeded on time I would +a)e &een in Da)ao 5it, &, ;:<< !.". and I would +a)e &een in court at =:>< !.".- ,ometimes that happens eh where the fli ht is cancelled or delayed. #no n ayon yan" ,a&ihin, you should ha!e ta$en the fli ht the ni ht &efore para si urado. *$+ t+e nig+t &efore full, &oo#ed na0 !nong magagawa #o.- #yan. ,o in other words, these thin s, you could also consider it as what" 0aran accident din no" %a $ahawi ehM In other words you should use your common sense. Whether the ne li ence is for i!a&le or not. #nd to &orrow the lan ua e of the ,@, IThe standard of care reKuired of a party is that which an ordinarily prudent man &estows on his important &usiness.J 17ernandeB !s. Tan Tion Tic$, 9D1)C77, #pril 2C, 1:.12 ,o, for +?#%09+: *ou are a &usinessman and you ha!e an appointment with some&ody who will i!e you a deal of 0)E million. #nd you are scheduled to see him on this date and on this time. @an you afford to for et that transaction" I thin$ there is somethin wron with you if you for ot it. *ou do not $now what is important and what is not important. '!ng importante is ,ung ma+alaga0 Di &a.( There are thin s which you for et and somehow in for ettin it you cannot &e &lamed &ecause itFs not really important. /ut there are thin s which you cannot afford to for et. +?#%09+: *our classmate tells you, IThis comin ,aturday you o to the house.J */+,. Is t+ere a '/igmore( part, t+ere.- IWala man. IFm 'ust in!itin you to come ha"J #nd &y %onday, II was waitin for you, you did not show upMJ *Tama 1no. Sorr, nalimutan #o.- 5ow, is for ettin your appointment with 86

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Rule 37 New Trial or Reconsideration

your classmate two days &efore for i!a&le or not" I thin$ for i!a&le iyan. #nyway, istoryaDistorya man lan . 0ara &an , I4, si e, di sa susunod na ,a&ado na lan .J %eanin , madalin maDerase sa mind mo yan m a anyan $lasen appointment &aM +?#%09+: /ut suppose on ,aturday mornin you are supposed to o to church for your weddin , hindi $a na$asipot. #nd then you tell your &ride or the room, *:asensi,a #a na +a. ?asal pala natin na#alimutan #o e+. 1,ana tDinDe(t mo a$o. Wala $an load Nno" hahahaM2J I thin$ he or she will $ill you for that $ind of reasonin . +?#%09+: If a lawyer says, *I forgot t+at t+is is t+e da, I s+ould file an answer for m, client.- 4r *I forgot to appear in court on t+e da, of +is trial.- Is the courtFs schedule or the schedule of a lawyer somethin important for him or not" I thin$ you $now the answer Nno" #yanM Haya iyan an uide. That is the meanin of e(cusa&le ne li ence. NEWLC !I CODERE! EDI!ENCE ect"o# $-+.. Ne*ly d"sco'ered e'"de#ce& *h"ch he could #ot& *"th reaso#a+le d"l"%e#ce& ha'e d"sco'ered a#d produced at the tr"al& a#d *h"ch "f prese#ted *ould pro+a+ly alter the result. Q: What is 5ewly 6isco!ered +!idence 156+2" #: 56+ is e!idence which was disco!ered after trial, or cannot &e disco!ered durin trial i!en the e(ercise of reasona&le dili ence, and if admitted, such e!idence would pro&a&ly alter the result of the case. There is a fi htin chance &aM ,o, you could not ha!e disco!ered the e!idence e!en with e(ercise of due dili ence. This is also one of the rounds for new trial in criminal cases. *ou lost a case may&e &ecause you do not ha!e enou h e!idence to pro!e your cause of action. Hulan &aM Hulan $a n e&idensiya $aya natalo $a. Then after you lost the case, you came across an important e!idence, may&e a witness or a document and you learned a&out it for the first time. #n sayan Nno" If I was a&le to present this e!idence &a$a panalo a$o. +?#%09+: *ou are a defendant &ein sued &ecause of nonDpayment of an account. #n depensa mo, &ayad na. 0ero saan an resi&o. *6asta &ina,aran #o si,a o# naman. Sa&i nga ni,a wala na raw a#ong utang.- 5ow, so itFs your word a ainst his word and the court did not &elie!e you. Then eto naman an sa&i ni ?, *Natalo #a. 6a,ad naman ,an &a.- Hun anun, &a$it alam mo" ? : *Nandoon man a#o &a. I was t+ere watc+ing w+en ,ou paid +im.- %eanin , $un na testify $a 1?2 noon, &a$a dau a$o &ecause my defense would ha!e &een corro&orated &y you. *aaannM Q: What are the R+Q-I,IT+, for 56+" #: The followin : 1.2 That the e!idence was disco!ered after trial8 2.2 That it could not ha!e &een disco!ered durin trial e!en with e(ercise of reasona&le dili ence8 and 3.2 That if admitted, such e!idence would pro&a&ly alter the result. T7!T T7$ $@ID$N5$ /!S DIS5O@$R$D !FT$R TRI!3A 87

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Rule 37 New Trial or Reconsideration

Q: What happens if e!idence is there all alon and you failed to present it" #: That is not 56+. That is for otten e!idence and not a round for new trial. +?#%09+: There was a case where a party, throu h his lawyer filed a motion for new trial &ased on this document. /a$it hindi mo preDniDsent sa trial . *I misplaced it in m, drawer. Nalimutan #o na meron pala a#ong resi&o. So let2s +a)e a new trial &ecause I will now introduce a ground for new trial.4&!iously, it was disco!ered after trial. It was in your possession for so lon . #nd accordin to the ,@, that is not a newly disco!ered e!idence. 1That is $atan ahanM2 That is for otten e!idence which is not a round for new trial. T7!T IT 5OU3D NOT 7!@$ 6$$N DIS5O@$R$D DURING TRI!3 $@$N /IT7 $4$R5IS$ OF R$!SON!63$ DI3IG$N5$ %eanin , e!en if you try your &est to loo$ for it, you would not ha!e found it. 5ow na natalo $a, you suddenly found it. 5ow, &ecause there are clients who are laBy eh. ,o, meron $a &an do$umento" I /ala e+. 8ou see marami a#ong file di,an pero tingin #o wala e+.- IWala yud"J */ala.- ,o, talo. Walan e&idensiya ehM #fter a while pa Dhalun $at, *!tt,. naa man dia,.- I%y ollyM 5 anon $aron man lan . I a!e you se!eral months to loo$ for that. *ouFre so laBy. 5ow, that you lost, you only find it for an hour.J In this case, you did not comply with the second reKuisites = that it could not ha!e &een disco!ered &efore trial e!en with the e(ercise of reasona&le dili ence. T7!T IF !D"ITT$D SU57 $@ID$N5$ /OU3D :RO6!638 !3T$R T7$ R$SU3T %eanin , if there is a new trial and the newly disco!ered e!idence will &e admitted, it would pro&a&ly alter the result. 0ro&a&ly lan . %ay fi htin chance, pero 1c+ance2 lan . *ou are not sayin that if the new e!idence will &e admitted, you will automatically win. There is a pro&a&ility that you will win. #nd the court will say, *I t+in# pro&a&le. O# new trial granted. T+en defendant :!SO?0- 1c uro, d 'd e hir is my$ enriKueB"2 Then, the e!idence will &e presented and we will find out if you can win.

5+W TRI#9 )s. R+40+5I53 47 TRI#9 The ,@ has already made pronouncements on what the reopenin of trial meant. Reopenin of trial is not found in the law. There is no e(press rule, &ut it is admittedly allowed. 5ow i!e an e(ample of reopenin of trial. +?#%09+: Tapos na an trial. What will come ne(t is decision and then the party said, *8our +onor could we reopen t+e trial. "eron #aming na#alimutan e+. I forgot an important piece of e)idence.- 5ow, that cannot &e new trial &ecause wala pa man an 'ud ment. Rule 37 applies only when there is already a 'ud ment. In the e(ample, is that a motion for new trial" 5o. It should &e called a motion for reopenin of trial. ,o if the motion is filed after the 'ud ment is rendered, it is called motion for new trial. When the motion is filed &efore a 'ud ement is rendered, it should &e called a motion for reopenin of trial.

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Rule 37 New Trial or Reconsideration

+?#%09+: # 'ud e after tryin the case, *!lrig+t I will not decide ,et. I want to go to t+e area and loo# at t+e propert,.- %eanin , the court, on its own, would li$e to conduct an ocular inspection. That is a reopenin of the trial. 5ow, was there any motion &y any&ody" Wala man &a. The court itself initiated it. #nd that is allowed said &y the ,@. Reopenin of trial is &ound &y no rules. The 'ud e with or without a motion can do it. The only round for reopenin of trial is interest of 'ustice. #nd that is !ery &road. ,o there are no rules. The ,@ said: 5ew trial should &e distin uished from the e(ercise of the discretionary power of the court to R+40+5 a trial for the introduction of additional e!idence, to clarify its dou&ts on material points. This discretionary power is su&'ect to no rule other than the paramount interest of 'ustice and will not &e re!iewed on appeal unless the e(ercise thereof is a&used. 1#rce !s. #rce, 9D13E3), 5o!. 2C, 1:):2 ,o it is one of the inherent powers of the court. <OTION /OR RECON I!ERATION Q: What is the round for a motion for reconsideration" #: Third para raph of ,ection 1: W"th"# the sa(e per"od& the a%%r"e'ed party (ay also (o'e for reco#s"derat"o# upo# the %rou#ds that the da(a%es a*arded are e0cess"'e& that the e'"de#ce "s "#suff"c"e#t to )ust"fy the dec"s"o# or f"#al order& or that the dec"s"o# or f"#al order "s co#trary to la*.-$a. Q: When do you file a motion for reconsideration" #: Within the same period for filin a motion for new trial. %eanin , within the period for ta$in an appeal. Q: What are the rounds for a motion for reconsideration" #: The followin are the 3R4-56, for a motion for reconsideration: 1.2 The dama es awarded are e(cessi!e8 2.2 The e!idence is insufficient to 'ustify the decision or final order8 3.2 The decision or order is contrary to law. 1in effect, the decision is wron 2 %otion for reconsideration is more common. %otions for new trial are !ery rare. In a motion for reconsideration, you con!ince the court that the decision is wron , *Dapat panalo a#o +indi si,a.- *ou con!ince the court, that its decision is wron , that the decision is contrary to law. If you can con!ince the court, the court will issue another decision re!ersin itself where from a loser ;loooosseerM<, you are now the winner and the ori inal winner is now the loser ;loooosseerM<. 3anyan man yan &a, !ery common. %4TI45 74R 5+W TRI#98 74R%#9 R+Q-IR+%+5T, ec. 5. 5ontents of motion for new trial or reconsideration and notice t+ereof. The (ot"o# shall +e (ade "# *r"t"#% stat"#% the %rou#d or %rou#ds therefor& a *r"tte# #ot"ce of *h"ch shall +e ser'ed +y the (o'a#t o# the ad'erse party. A (ot"o# for #e* tr"al shall +e pro'ed "# the (a##er pro'"ded for proof of (ot"o#s. A (ot"o# for the cause (e#t"o#ed "# para%raph -a. of the preced"#% sect"o# shall +e supported +y aff"da'"ts of (er"ts *h"ch (ay +e re+utted +y 89

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aff"da'"ts. A (ot"o# for the cause (e#t"o#ed "# para%raph -+. shall +e supported +y aff"da'"ts of the *"t#esses +y *ho( such e'"de#ce "s e0pected to +e %"'e#& or +y duly authe#t"cated docu(e#ts *h"ch are proposed to +e "#troduced "# e'"de#ce. A (ot"o# for reco#s"derat"o# shall po"#t out spec"f"cally the f"#d"#%s or co#clus"o#s of the )ud%(e#t or f"#al order *h"ch are #ot supported +y the e'"de#ce or *h"ch are co#trary to la*& (ak"#% e0press refere#ce to the test"(o#"al or docu(e#tary e'"de#ce or to the pro'"s"o#s of la* alle%ed to +e co#trary to such f"#d"#%s or co#clus"o#s. A pro for(a (ot"o# for #e* tr"al or reco#s"derat"o# shall #ot toll the re%le(e#tary per"od of appeal. -5a. Q: What should &e the form of a motion for new trial" #: It must &e in writin . *ou must state the round or rounds for the motion, whether it is 7#%+ or newly disco!ered e!idence. Then, of course, you must ser!e a copy of the motion to the ad!erse party. %eanin , you comply with all the reKuisites of a !alid motion. 4EO4LE )s. CO2RT O/ A44EAL 59A CRA @$7 ;,ept. 2), 1::C< /ACT : Inday filed a motion for new trial without a notice of hearin 1this is a !iolation of para raph of ,ection 22. /ut she filed the motion within 1) days. Inday filed a supplemental motion with notice of hearin &ut filed &eyond the 1)Dday period. ,hould the court deny the motion" ;EL!: The motion should &e denied. I# supplemental pleadin su&seKuently filed to remedy the pre!ious a&sence of notice will not cure the defect nor interrupt the tollin of the prescri&ed period within which to appeal.J IWe are not impressed &y the ar ument that the supplement filed &y the appellants on %ay 3E should &e deemed retroacti!e as of the date the motion for reconsideration was filed and, therefore, cured the defect therein. To so consider it would &e to put a premium on ne li ence and su&'ect the finality of 'ud ments to the for etfulness or whims of partiesD liti ants and their lawyers. This of course would &e intolera&le in a wellDordered 'udicial system.J The second para raph says, *! motion for new trial s+all &e pro)ed in t+e manner pro)ided for proof of motionsB- What does that mean" What is the proof of motions" The manner or pro!in motions is also found in Rule 1), ,ection 3: Rule $E& ec. 3. 5ontents. F A (ot"o# shall state the rel"ef sou%ht to +e o+ta"#ed a#d the %rou#ds upo# *h"ch "t "s +ased& a#d "f reGu"red +y these Rules or #ecessary to pro'e facts alle%ed there"#& shall +e acco(pa#"ed +y support"#% aff"da'"ts a#d other papers. -3a. Q: +!erytime you file a motion, is it necessary that the round for your motion is supported &y affida!its or other papers" #: If it is necessary =*+,. If it is not necessary = 54 5++6. If necessary, you must attach documents or supportin affida!its li$e 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 affida!its" 90

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Rule 37 New Trial or Reconsideration

R+Q-IR+%+5T, W>+5 T>+ 3R4-56 I, 7.#.%.+. ,ection 2, second para raph says, *! motion for t+e cause mentioned in paragrap+ CaD of t+e preceding section s+all &e supported &, affida)its of meritsB- 0ara raph ;a< is 7#%+. ,o, a motion for new trial on the round of 7#%+ must &e accompanied &y affida!its of merits. Q: What is an affida!it of merits" #: #n #77I6#OIT 47 %+RIT, is one which recites the nature and character of 7#%+ on which the motion is &ased and statin the mo!antFs ood and su&stantial cause of action or defense and the e!idence he intends to present if the motion is ranted, which e!idence should &e such as to warrant reasona&le &elief that the result of the case would pro&a&ly &e otherwise. 10aB !s. Inandan, 7) 0hil. .EC8 %anila ,urety !s. 6el Rosario, 1E1 0hil. A122 %eanin , you must state the facts surroundin 7#%+ and your meritorious cause of action or defense whether you are the plaintiff or the defendant. *ou e(plain why you are a !ictim of fraud, etc. and that you ha!e a ood cause of action or defense which if there will &e a new trial, you mi ht win. It is not enou h that you are a !ictim of 7#%+, you must also ha!e a meritorious cause of action or defense. Q: What happens if you file a motion without affida!it of merits" #: Then, your motion for new trial will &e immediately denied. It is a fatal mista$e. *our motion for new trial is classified as a 0R4D74R%# motion for new trial. Q: /riefly, how do you classify a proDforma motion for new trial" #: It is a motion for new trial which does not comply in su&stance or in form with ,ections 1 and 2 of Rule 37. Q: What is the +77+@T of a proDforma motion for new trial" #: The period to appeal is 54T interrupted &y the filin of such motion for new trial. +!en the ri ht to appeal may &e forfeited &ecause of this defect. The effect is now stated in the last para raph of ,ection 2: A pro for(a (ot"o# for #e* tr"al or reco#s"derat"o# shall #ot toll the re%le(e#tary per"od of appeal. -5a. When you lose a case you ha!e e(actly 1) days to appeal. 9etFs say on the tenth day, I file a motion for new trial under Rule 37. #nd the motion was acted after one month. ,hempre lampas na yun 1) days. %eanin , pa Dtan ap $o n decision, ten days na an na$araan, and then another one month so AE days na. /ut no pro&lem &ecause when you filed your motion on the 1Eth day, the runnin of the period to appeal is interrupted. If denied, meron $a pan liman araw to appeal. /ut, if the court says, *8our motion is denied &ecause it is pro forma t+ere is no affida)it of merits.Then, you cannot appeal anymore &ecause when you filed your motion, the period to appeal $eeps on runnin . ,o &y the time your motion is denied, e!en the ri ht to appeal is also lost. Iyan an epe$to n proDforma motion for new trial. It ne!er interrupts the period to appeal. CTri)ia: :RO-FOR"! means :uRO pOR"! lang wala namang sina&iD Q: ,uppose a mo!ant will file a motion for new trial in the round of 7#%+ with the affida!its of merits and says *I am a )ictim of fraud and if suc+ motion is granted I +a)e a good and meritorious cause of action or good and meritorious defense.- Is the affida!it sufficient" 91

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#: ,@ =5o, those are eneralities, you must recite the facts constitutin the 7#%+. *ou must descri&e e(actly what happened to you. To say that you ha!e ood cause of action or defense is I5,-77I@I+5T. *ou must state what is the nature of that cause of action or defense and e!idence you intend to present. ,o, there is an affida!it of merit &ut it is fatally defecti!e. # ain what will happen to the motion. It will &e treated as proDforma. The affida!it of merit is defecti!e. <ANI4OL )s. LI< TAN EE CRA 565 /ACT : # defendant in an action for dama es &ased on KuasiDdelict filed a motion for new trial citin 7#%+. >e says, *I +a)e a good and meritorious cause of action or defense. I intend to pro)e t+at I e%ercised due diligence in t+e selection or super)ision of m, dri)ers and w+ic+ if pro)en relie)es t+e emplo,er from lia&ilit,.;EL!: #ffida!it of merits is defecti!e. It is proDforma motion. It does not state the meritorious defense. There is only a eneral statement or conclusion of the defendant. The defendant should state the details of how he super!ised his employees. *ou o to specifics. The law is !ery strict a&out affida!its of merits. It is not enou h that you state your defense. *ou must demonstrate that you ha!e a meritorious claim of defense so that the motion for new trial will &e ranted. What is the used of rantin a new trial if after the new trial you will still end up losin the case" It would &e a waste of time. #ccordin to ,@, * It would &e pointless to reopen a case if a part, does not +a)e a meritorious cause of action of defense for li#e a mirage it would merel, raise false +opes and at t+e end a)ail t+e mo)ant not+ing.- 1#rcilla !s. #rcilla, 9DA..7A, ,ept. 1., 1:C)2 It would raise false hope if you will rant a new trial when in fact the mo!ant has no meritorious cause of action. ItFs li$e a mira e or illusion = seein thin s which are not there. Cmala,o ang tingin +indi naman dulingBD It seems that there are really two affida!its. 5ormally when a lawyer files motion for new trial, there is one affida!it recitin 7#%+ and recitin the meritorious cause of action or defense. If you follow the ,@ there are two 122 affida!its: 7IR,T = affida!it re ardin the 7#%+8 and ,+@456 = affida!it re ardin the meritorious cause of action of defense. /ut in the case of 0@I/ )s. 4RTIP 11)E ,@R# 3C22, the ,@ implied that the real #ffida!it 4f %erits should &e the second one = that I ha!e a ood and meritorious defense. In reality, there should &e two 122 affida!its = one recitin the 7#%+ and one recitin the su&stantial cause of action. That is why a motion for new trial on 7#%+ should ordinarily &e accompanied &y two affida!its. 4ne settin forth the facts and circumstances alle ed to constitute 7#%+ and the other an #ffida!it of %erits settin forth the particular claims to constitute the mo!antFs meritorious defense or cause of action. The real #ffida!it of %erits is the second one. R+Q-IR+%+5T, W>+5 T>+ 3R4-56 I, 5+W9* 6I,@4O+R+6 +OI6+5@+ Q: ,uppose your reKuirement" round for new trial is newly disco!ered e!idence 156+2. What is the

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Rule 37 New Trial or Reconsideration

#: ,ection 2, 2nd para raph, 3rd sentence pro!ides, I# motion for the cause mentioned in 1,ection 12 para raph ;&< 156+2 shall &e supported &y affida!its of the witnesses &y whom such e!idence is e(pected to &e i!en, or &y duly authenticated documents which are proposed to &e introduced in e!idence.J %eanin , when the round is newly disco!ered e!idence, the motion shall &e supported &y affida!its also = affida!its of the newly disco!ered witness = or a copy of the newly disco!ered document. *ou ha!e to state what is the newly disco!ered e!idence, what the witness will say. Q: What happen when such reKuirement is not complied with" #: The motion for new trial on the round of 56+ is treated as 0R4D74R%# and it ne!er tolled the re lementary period to appeal. %4TI45 74R R+@45,I6+R#TI458 74R%#9 R+Q-IR+%+5T, Q: # ain, what are the rounds for a motion for reconsideration" #: The followin are the 3R4-56, for a motion for reconsideration: 1.2 The dama es awarded are e(cessi!e8 2.2 The e!idence is insufficient to 'ustify the decision or final order8 3.2 The decision or order is contrary to law. 1in effect, the decision is wron 2 Q: @an you file a motion for reconsideration &y 'ust simply statin that Ithe decision is wron or contrary to law,J or Ithe findin s of the 'ud e are not supported &y e!idenceJ" #: 54. -nder ,ection 2, 3rd para raph, you must point out specifically the findin s or conclusions of the 'ud ment or final order which are not supported &y the e!idence or which are contrary to law, ma$in e(press reference to the testimonial or documentary e!idence or to the pro!isions of law alle ed to &e contrary to such findin s or conclusions. ,o, you must point out what findin s is not supported &y e!idence = what conclusion is contrary to law. 6o not let the 'ud e loo$ for it. The 'ud e will ne!er &other to loo$ for it. *ou tell him what portion of the decision is wron . *ou ha!e to cite the e!idence too and the law which is !iolated or what pro!isions = ituro mo yanM 0oint it out clearly. Q: What happen when you file a motion for reconsideration without ma$in any reference, e(hi&it etc" %eanin , you did not comply with the 3rd para raph. #: *ou motion will &e denied &ecause it is 0R4D74R%#. Thus, it will ne!er interrupt the rec$onin of the prescripti!e period. The ,@ once defined a pro forma motion as one filed for the sa$e of form. 16apin !s. 6ionaldo, 3.R. 5o. ))ACC, %ay 1), 1::22 #nother 04I5T: when you file an motion for reconsideration on the round that the 'ud ment is contrary to law, it is not enou h for you to say that. *ou must always point out clearly why it is contrary to law, otherwise your motion will &e denied or treated as proDforma. Q: When you file an motion for reconsideration and it is denied, does it mean to say that your motion is proDforma" #: 54, &ecause may&e the 'ud e was not con!inced &ut you tried your &est. The denial of motion for reconsideration on the round that the decision or 'ud ment is wron does not automatically ma$e 93

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the motion a proDforma. What ma$es it proDforma is, if your motion for reconsideration does not specifically point out why 'ud ment is wron . /ut if you comply with ,ection 2, that is already sufficient. In the case of <ARI=INA DALLEC !EDHT. COR4. )s. /LOIO 5E$ CRA 77 8$99E: ;EL!: I# motion for reconsideration merely reiterates or repleads the same ar uments which had &een pre!iously considered and resol!ed in the decision sou ht to &e reconsidered, the motion is a pro forma one.J IThe circumstance that a motion for reconsideration deals with the same issues and ar uments posed and resol!ed &y the trial court in its decisions does not necessarily mean that the motion must &e characteriBed as merely pro forma. # pleader preparin a motion for reconsideration must of necessity address the ar uments made or accepted &y the trial court in its decision. The mo!ant is !ery often confined to the amplification or further discussion of the same issues already passed upon &y the trial court.J 0recisely, when I filed a motion for reconsideration, we will o o!er the same points which the court has already discussed. IWhere the circumstances of a case do not show an intent on the part of the mo!ant merely to delay the proceedin s, our @ourt has refused to characteriBe the motion as simply pro forma. The doctrine relatin to pro forma motions for reconsideration impacts upon the reality and su&stance of the statutory ri ht of appeal, that doctrine should &e applied reasona&ly, rather than literally. The ri ht to appeal, where it e(ists, is an important and !alua&le ri ht.J I# motion for reconsideration which is not as star$ly &are &ut which, as it were, has some flesh on its &ones, may ne!ertheless &e rendered pro forma where the mo!ant fails to ma$e reference to the testimonial and documentary e!idence on record or the pro!isions of law said to &e contrary to the trial courtFs conclusions. In other words, the mo!ant is also reKuired to point out succinctly why reconsideration is warranted.J IIt is not enou h that a motion for reconsideration should state what part of the decision is contrary to law or the e!idence8 it should also point out why it is so. 7ailure to e(plain why will render the motion for reconsideration pro forma.J %eanin , when I point out part of the decision that is contrary to the law, it is not pro forma. /ut still it is pro forma if I will not state that it is contrary to law. IWhere a su&stantial &onafide effort is made to e(plain where and why the trial court should &e re arded as ha!in erred in its main decision, the fact that the trial court thereafter found such ar ument unmeritorious or as inadeKuate to warrant modification or re!ersal of the main decision, does not, of course, mean that the motion for reconsideration should ha!e &een re arded, or was properly re arded, as merely pro forma.J ,o, I point the decision &ut the court does not a ree with me. That does not mean that my motion is automatically pro forma &ecause there was attempt to con!ince the court why it is wron . +77+@T, W>+5 %4TI45 I, 3R#5T+6 ec. 3. !ction upon motion for new trial or reconsideration. The tr"al court (ay set as"de the )ud%(e#t or f"#al order a#d %ra#t a #e* tr"al& upo# such ter(s as (ay +e )ust& or (ay de#y the (ot"o#. If the court f"#ds that e0cess"'e da(a%es ha'e +ee# a*arded or that the )ud%(e#t or f"#al order "s co#trary to the e'"de#ce or la*& "t (ay a(e#d such )ud%(e#t or f"#al order accord"#%ly. -3a& R37. 94

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Rule 37 New Trial or Reconsideration

ec. A. $ffect of granting of motion for new trial. If a #e* tr"al "s %ra#ted "# accorda#ce *"th the pro'"s"o#s of th"s Rule& the or"%"#al )ud%(e#t or f"#al order shall +e 'acated& a#d the act"o# shall sta#d for tr"al de #o'o1 +ut the recorded e'"de#ce take# upo# the for(er tr"al& "# so far as the sa(e "s (ater"al a#d co(pete#t to esta+l"sh the "ssues& shall +e used at the #e* tr"al *"thout retak"#% the sa(e. -Ea. Q: In ,ection 3, how will the court resol!ed your motion for new trial" #: The court may either deny or may set aside the 'ud ment or final order and rant a new trial. 9iterally, if the 'ud ment is set aside, there will &e a trial de no)o, a 9atin word for new trial. /#R Q-+,TI45: If @holo files a %otion 7or 5ew Trial and it is ranted, will there always &e a trial de no!o" #: It 6+0+56, on the round for the motion: a.2 If the round is 7#%+, there will &e a trial de no!o &ecause the proceedin will &e set aside8 &.2 If the round is 56+, there is no trial de no!o. The e!idence admitted which is &ased on the same decision will remain. The case will &e opened only for the purpose of admittin the new e!idence. Q: If @holo files a %otion 7or Reconsideration and it is ranted, will there &e a trial de no!o" #: There is 54 trial de no!o. The court will simply amend its 'ud ment. It is only a reDstudy of pro!ision. The court will study its decision and o o!er the e!idence and find out whether it made a mista$e or not. ec. @. Resolution of motion. A (ot"o# for #e* tr"al or reco#s"derat"o# shall +e resol'ed *"th"# th"rty -36. days fro( the t"(e "t "s su+("tted for resolut"o#. -#. There is now a deadline for the court to act on the motion = within 3E days from the time it is su&mitted for resolution. ,+@456 %4TI45 74R 5+W TRI#9 4R R+@45,I6+R#TI45 ec. E. Second motion for new trial. A (ot"o# for #e* tr"al shall "#clude all %rou#ds the# a'a"la+le a#d those #ot so "#cluded shall +e dee(ed *a"'ed. A seco#d (ot"o# for #e* tr"al& +ased o# a %rou#d #ot e0"st"#% #or a'a"la+le *he# the f"rst (ot"o# *as (ade& (ay +e f"led *"th"# the t"(e here"# pro'"ded e0clud"#% the t"(e dur"#% *h"ch the f"rst (ot"o# had +ee# pe#d"#%. No party shall +e allo*ed a seco#d (ot"o# for reco#s"derat"o# of a )ud%(e#t or f"#al order. -@a& R371 @& IR3. #s a rule, the motion for new trial shall include all rounds then a!aila&le and those not included are deemed wai!ed. ,o, if the motion for new trial is &ased on two 122 rounds = 7#%+ and 56+ = either or &oth rounds should &e included in the motion. Q: ,uppose a motion for new trial, which is &ased only on 7#%+, was denied, can there &e a second motion for new trial on the round of 56+" #: It 6+0+56,:

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a.2 If the 56+ is already e(istin when the first motion was filed, then the second motion for new trial will &e denied &ecause of failure to raise it earlier = the second round is deemed wai!ed for failure to raise the same8 &.2 >owe!er, if the round for the second motion for new trial is somethin not $nown or not e(istin or not a!aila&le when the party filed the first motion, then the second motion is allowed. The second motion is not a pro forma motion. ,o, what the law prohi&its is you file a motion for new trial and you do not include all the rounds then a!aila&le. If the round surfaced only later, then it is allowed. Therefore, the motion for new trial is an e(ample of omni&us motion as defined in Rule 1), ,ection C: ec. 7. Omni&us motion. F u+)ect to the pro'"s"o#s of sect"o# $ of Rule 9& a (ot"o# attack"#% a plead"#%& order& )ud%(e#t& or proceed"#% shall "#clude all o+)ect"o#s the# a'a"la+le& a#d all o+)ect"o#s #ot so "#cluded shall +e dee(ed *a"'ed. -7a. Q: What happens if you file a second motion for new trial on a round which is then a!aila&le when the first motion was filed" #: The second motion is a pro forma motion and will not interrupt the remainin &alance of the period to appeal after the first motion was denied. There was a clear !iolation of omni&us motion rule. Q: ,o, there are two 122 types of pro forma motion for new trial under Rule 37. What are they" #: The followin : 1.2 # motion for new trial which is not supported &y affida!its of merits = one which does not comply in su&stance or in form with ,ection 28 and 2.2 # second motion for new trial on a round a!aila&le to the party when the first motion was filed 1,ection )2. Ta$e note that the 2nd para raph of ,ection ) pro!ides that I5o party shall &e allowed a second motion for reconsideration of a 'ud ment or final order.J Therefore, a second motion for reconsideration is always treated as a pro forma motion &ecause it is totally prohi&ited &y ,ection ). 5+W TRI#9 )s. %4TI45 74R R+@45,I6+R#TI45 Ta$e note that in 5ew Trial, there could possi&ly &e trial de no!o. If ranted, e!erythin is set aside and the party will now present their e!idence. /ut in trial de no!o, we will not erase e!erythin . 0roceedin s or e!idence admitted will remain. 4nly, we will open it for the purpose of introducin the new e!idence and then the court will study it all o!er a ain. In %otion for Reconsideration, there is no reopenin of the case &ecause all the court has to do is to o o!er the e!idence a ain and o o!er the decision to find out whether its decision is wron and should chan e it. ,o, there is actually no trial de no!o in a motion for reconsideration. Q: 6istin uish a %otion for 5ew Trial from a %otion for Reconsideration. #: The followin are the distinctions: 1.2 !s to grounds: In a %4TI45 74R 5+W TRI#9, the rounds are 7#%+ and 56+, w+ereas 96

1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 37 New Trial or Reconsideration

In a %4TI45 74R R+@45,I6+R#TI45, the rounds are e(cessi!e dama es, decision is not supported with e!idence, or decision is contrary to law8 2.2 !s to trial: If a %4TI45 74R 5+W TRI#9 is ranted, there could &e a trial de no!o8 w+ereas If as %4TI45 74R R+@45,I6+R#TI45 is ranted, there is no trial de no!o. The court will only amend its decision >.( !s to a second motion: # second %4TI45 74R 5+W TRI#9 is allowed if the round was not e(istin when the first motion for new trial was filed8 w+ereas # second %4TI45 74R R+@45,I6+R#TI45 is always prohi&ited under the rules. ec. 7. :artial new trial or reconsideration. If the %rou#ds for a (ot"o# u#der th"s Rule appear to the court to affect the "ssues as to o#ly a part& or less tha# all of the (atter "# co#tro'ersy& or o#ly o#e& or less tha# all& of the part"es to "t& the court (ay order a #e* tr"al or %ra#t reco#s"derat"o# as to such "ssues "f se'era+le *"thout "#terfer"#% *"th the )ud%(e#t or f"#al order upo# the rest. -Aa. Q: Is there such a thin as motion for partial new trial or a motion for partial reconsideration" #: *+,, if the party is Kuestionin only one aspect or portion of the case. Therefore, the rest can &ecome final while the disputed portion does not &ecome final. ,o, there could &e a new trial or reconsideration only on such issues and there will &e a final 'ud ment with respect to the other issues of the case. >ow could this happen" The &est e(ample is Rule 31, ,ection 2: Rule 3$& ec. 5. Separate trials. The court& "# furthera#ce of co#'e#"e#ce or to a'o"d pre)ud"ce& (ay order a separate tr"al of a#y cla"(& crossFcla"(& cou#tercla"(& or th"rdFparty co(pla"#t& or of a#y separate "ssue or of a#y #u(+er of cla"(s& crossFcla"(s& cou#tercla"(s& th"rdFparty co(pla"#ts or "ssues. -5a. If the crossDclaim or thirdDparty complaint are tried separately, there will &e different 'ud ments. #nd in effect, you can file a partial motion for new trial or reconsideration to the facts contemplated &y the case. ec. 7. $ffect of order for partial new trial. Whe# less tha# all of the "ssues are ordered retr"ed& the court (ay e"ther e#ter a )ud%(e#t or f"#al order as to the rest& or stay the e#force(e#t of such )ud%(e#t or f"#al order u#t"l after the #e* tr"al. -7a. This is a continuation of ,ection 7. Q: When there is a partial new trial, what will happen to the 'ud ment on the undisputed facts" #: +ither: a.2 the court will enter 'ud ment on it8 or &.2 the court may stay the enforcement until after the new trial. The followin rules will descri&e the situation in ,ection C:

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1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 37 New Trial or Reconsideration

Rule 3A& ec. E. Separate 9udgments. Whe# (ore tha# o#e cla"( for rel"ef "s prese#ted "# a# act"o#& the court& at a#y sta%e& upo# a deter("#at"o# of the "ssues (ater"al to a part"cular cla"( a#d all cou#tercla"(s ar"s"#% out of the tra#sact"o# or occurre#ce *h"ch "s the su+)ect (atter of the cla"(& (ay re#der a separate )ud%(e#t d"spos"#% of such cla"(. The )ud%(e#t shall ter("#ate the act"o# *"th respect to the cla"( so d"sposed of a#d the act"o# shall proceed as to the re(a"#"#% cla"(s. I# case a separate )ud%(e#t "s re#dered& the court +y order (ay stay "ts e#force(e#t u#t"l the re#d"t"o# of a su+seGue#t )ud%(e#t or )ud%(e#ts a#d (ay prescr"+e such co#d"t"o#s as (ay +e #ecessary to secure the +e#ef"t thereof to the party "# *hose fa'or the )ud%(e#t "s re#dered. -Ea. 7inality of 'ud ment with respect to one portion of the case and the trial continues with the other portion. There are se!eral 'ud ments in!ol!in one action and technically, if one is finished, it can &e enforced unless the court pro!ided otherwise. #nother pro!ision is Rule 3:, ,ection 2 ;&<: Rule 39& ec. 5. Discretionar, e%ecution. 00000 -+. $%ecution of se)eral separate or partial 9udgments.J A se'eral separate or part"al )ud%(e#t (ay +e e0ecuted u#der the sa(e ter(s a#d co#d"t"o#s as e0ecut"o# of a )ud%(e#t or f"#al order pe#d"#% appeal. -5a. 6iscretionary e(ecution or e(ecution pendin appeal. In case of an appeal, ,ection 1, Rule A1 ; <: Rule @$& ect"o# $. Su&9ect of appeal. A# appeal (ay +e take# fro( a )ud%(e#t or f"#al order that co(pletely d"sposes of the case& or of a part"cular (atter there"# *he# declared +y these Rules to +e appeala+le. No appeal (ay +e take# fro(, 00000 -%. A )ud%(e#t or f"#al order for or a%a"#st o#e or (ore of se'eral part"es or "# separate cla"(s& cou#tercla"(s& crossFcla"(s a#d th"rdFparty co(pla"#ts& *h"le the (a"# case "s pe#d"#%& u#less the court allo*s a# appeal therefro(1 a#d 00000 9etFs o &ac$ to Rule 37. ec. 9. Remed, against order den,ing a motion for new trial or reconsideration. A# order de#y"#% a (ot"o# for #e* tr"al or reco#s"derat"o# "s #ot appeala+le& the re(edy +e"#% a# appeal fro( the )ud%(e#t or f"#al order. -#. #n order denyin a motion for new trial or reconsideration is not appeala&le 1 c.f. Rule A1, ,ection 1 ;a<. The remedy &ein an appeal from the 'ud ment or final order. I99-,TR#TI45: The 'ud ment is a ainst you. ,o you filed a motion for new trial or reconsideration. The court denied your motion. ,o there is an order denyin your motion for new trial or reconsideration. 5ow, you want to appeal. Q: #ppeal from what" 7rom the main 'ud ment or from the order denyin your motion" #: *ou appeal from the 'ud ment. *ou cannot appeal from the order denyin your new motion for new trial. That is related to Rule A1, ,ection 1 ;a<:

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1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 37 New Trial or Reconsideration

Rule @$& ect"o# $. Su&9ect of appeal. A# appeal (ay +e take# fro( a )ud%(e#t or f"#al order that co(pletely d"sposes of the case& or of a part"cular (atter there"# *he# declared +y these Rules to +e appeala+le. NO A44EAL (ay +e take# fro(, -a. A# order de#y"#% a (ot"o# for #e* tr"al or reco#s"derat"o#1 000000 Well, of course, the filin of this motion will stop the runnin of the 1)Dday period, unless your motion for new trial is proDforma. 3enerally, the law does not allow an appeal from the order denyin your motion for new trial. *ou appeal from the decision, not from the order denyin your motion. This pro!ision will come out a ain when we reach the rule on appeal. Do4oD

4-T9I5+ of the process: 1after trial2 1.2 2.2 3.2 A.2 6ecisionQGud ment8 %otion for 5ew Trial or Reconsideration 1Rule 3728 If denied, court ma$es a order denyin your motion for new trial or reconsideration8 #ppeal &ased on the decisionQ'ud ment and not &ased on the order denyin your motion.

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