Rules 33-38 Collated Case Digests

REMEDIAL LAW II: RULES 33-38, REVISED RULES ON CIVIL PROCEDURE CIVIL
PROCEDURE
MARIO J. MENDEZONA and TERESITA already ailing and not in full possession
M. MENDEZONA, LUIS J. MENDEZONA of her mental faculties; and that her
and MARICAR L. MENDEZONA and properties having been placed in
TERESITA ADAD VDA. DE administration, she was in effect
MENDEZONA, petitioners, vs. JULIO incapacitated to contract with
H. OZAMIZ, ROBERTO J. MONTALVAN, petitioners.
JOSE MA. OZAMIZ, CARMEN H.
The trial court ruled in favor of the
OZAMIZ, PAZ O. MONTALVAN, MA.
Petitioners. On appeal, the appellate
TERESA O.F. ZARRAGA, CARLOS O.
court reversed the factual findings of the
FORTICH, JOSE LUIS O. ROS, PAULITA
trial court. Petitioners filed a motion for
O. RODRIGUEZ, and LOURDES O.
reconsideration of the decision of the
LON, respondents.
appellate court. Subsequent thereto, the
G.R. No. 143370. February 6, 2002
petitioners filed a motion for a new trial
and/or for reception of evidence. They
NEW TRIAL
contended, among other things, that the
appellate court totally ignored the
FACTS: This is a case of quieting of title
testimony of
involving parcels of land in the Banilad
Judge Teodorico Durias regarding the
Estate, Lahug, Cebu City. The petitioners
mental condition of Carmen Ozamiz a
(Mendezonas) initiated the suit to
month before the execution of the Deed
remove a cloud on their said respective
of Absolute Sale in question. The said
titles caused by the inscription thereon of
testimony was taken in the guardianship
a notice of lis pendens, which came
proceeding in
about as a result of an incident in a
the Regional Trial Court of Oroquieta City.
guardianship proceeding over the person
However, Judge Durias was not
and properties of Carmen
presented as a witness in Civil Case No.
Ozamis. Respondents opposed the
CEB-10766 in
petitioners claim of ownership of the
the Regional Trial Court of Cebu City.
property and alleged that the titles
Petitioners alleged that
issued in the petitioners names are
Judge Duriass testimony is a newly-
defective and illegal, and the ownership
discovered evidence which could not
of the said property was acquired in bad
have been discovered prior to the trial in
faith and without value inasmuch as the
the court below by the exercise of due
consideration for the sale is grossly
diligence.
inadequate and unconscionable.
Respondents further alleged that at the ISSUE: WHETHER OR NOT THE COURT OF
time of the sale, Carmen Ozamiz was APPEALS GRAVELY ERRED IN IGNORING,
1 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

SALGADO, QUINTO, VILLAMIN, VERGARA-HUERTA
PROCEDURE
AND IN REFUSING TO RECEIVE IN not an indicia per se of suppression of

EVIDENCE, JUDGE TEODORICO DURIASS evidence, since a party in a civil case is
TESTIMONY (THAT CARMEN OZAMIZ WAS free to choose who to present as his
OF SOUND MIND WHEN SHE EXECUTED witness. Neither can
ANOTHER CONTRACT BARELY A MONTH Judge Durias testimony in another case
BEFORE SHE EXECUTED THE DEED OF be considered as newly discovered
ABSOLUTE SALE) ON THE GROUND THAT evidence since the facts to be testified to
THAT TESTIMONY WAS FORGOTTEN by Judge Durias which were existing
EVIDENCE. before and during the trial, could have
been presented by the petitioners at the
RULING: We shall first rule on the issue
trial below. The testimony of
of whether to consider the testimony of
Judge Durias has been in existence
Judge Durias as newly discovered
waiting only to be elicited from him by
evidence. A motion for new trial upon the
questioning.
ground of newly discovered evidence is
properly granted only where there is It has been held that a lack of diligence is
concurrence of the following requisites, exhibited where the newly discovered
namely: (a) the evidence had been evidence was necessary or proper under
discovered after trial; (b) the evidence the pleadings, and its existence must
could not have been discovered and have occurred to the party in the course
produced during trial even with the of the preparation of the case, but no
exercise of reasonable diligence; and (c) effort was made to secure it; there is a
the evidence is material and not merely failure to make inquiry of persons who
corroborative, cumulative or impeaching were likely to know the facts in question,
and is of such weight that if admitted, especially where information was not
would probably alter the result. All three sought from co-parties; there is a failure
(3) requisites must characterize the to seek evidence available through public
evidence sought to be introduced at the records; there is a failure to discover
new trial. evidence that is within the control of the
complaining party; there is a failure to
We find that the requirement of
follow leads contained in other evidence;
reasonable diligence has not been met
and, there is a failure to utilize available
by the petitioners. As early as the pre-
discovery procedures. Thus, the
trial of the case at bar, the name of
testimony of Judge Durias cannot be
Judge Durias has already cropped up as a
considered as newly discovered evidence
possible witness for the defendants,
to warrant a new trial.
herein respondents. That the
respondents chose not to present him is

PROCEDURE
SPOUSES MICHAELANGELO and were entitled to the possession of the

GRACE MESINA vs. HUMBERTO D. subject property. Respondent Meer filed a
MEER Motion for Reconsideration against the
G.R. No. 146845. July 2, 2002. THIRD said Decision but the trial court denied
DIVISION. PUNO. the same. Respondent thereafter filed an
Appeal with the RTC which reversed the
PETITION FOR RELIEF; WHEN ruling of the MeTC reasoning that
PROPER petitioners were not purchasers in good
faith since the Deed of Sale was
FACTS: Respondent Humberto Meer is a registered subsequent to the annotation
registered owner of a parcel of land in of the lis pendens, petitioners were
Pandacan, Manila. Sometime in June bound by the outcome of the case.
1993, he applied for a loan to construct a
house thereon. However, he discovered Petitioners appealed to the CA which
that his certificate of title has been affirmed the ruling of the RTC. On July 17,
cancelled and a new one was issued in 2000 and after reglementary period for
the name of spouses Sergio and Lerma appeal has lapsed, petitioners filed a
Bunquin. Respondent then sought the Petition for Relief from Judgment and
cancellation of the TCT with the prayed that the Court of Appeals set
Metropolitan Trial Court of Manila. On the aside its Resolution dated May 10, 2000.
same day, a notice of lis pendens was The CA denied the petition arguing that it
annotated at the back of the TCT. is extremely doubtful that the remedy of
a petition for relief under Rule 38 may be
While the case was pending, the TCT was availed of from a judgment of the Court
cancelled and was replaced by a new TCT of Appeals in the exercise of its appellate
issued in the name of the petitioners, jurisdiction. Petitioners Motion for
spouses Michaelangelo and Grace Reconsideration was denied, hence, this
Mesina. It appears that the subject Petition for Review under Rule 45.
property has been conveyed to the
petitioners by Lerma Bunguin, even prior ISSUE: WON a Petition for Relief under
to the annotation of lis pendens. Rule 38 is available as a remedy against
the judgment of the Court of Appeals
Due to the foregoing developments, Meer promulgated in the exercise of its
impleaded petitioners as additional party appellate jurisdiction.
defendants. Defendant-spouses Bunquin
never appeared during the hearings, RULING: No. Neither the Rules of Court
leading the court to declare them in nor the Revised Internal Rules of the
default. Court of Appeals allow the remedy of
petition for relief in the Court of Appeals.
The MeTC ruled that the alleged sale
between Meer and Banquin was Relief from judgment is an equitable
fraudulent. However, petitioners were remedy and is allowed only under
adjudged buyers in good faith and thus exceptional circumstances and only if

PROCEDURE
fraud, accident, mistake, or excusable courts should be filed with the regional
negligence is present. Where the trial court.
defendant has other available or
adequate remedy such as a motion for The procedural change in Rule 38 is in
new trial or appeal from the adverse line with Rule 5, prescribing uniform
decision, he cannot avail himself of this procedure for municipal and regional trial
remedy. courts and designation of
municipal/metropolitan trial courts as
Under the 1997 Revised Rules of Civil courts of record. While Rule 38 uses
Procedure, the petition for relief must be the phrase any court, it refers only
filed within sixty (60) days after the to municipal/metropolitan and
petitioner learns of the judgment, final regional trial courts.
order or other proceeding to be set aside
and must be accompanied with affidavits The procedure in the Court of
showing the fraud, accident, mistake, or Appeals and the Supreme Court are
excusable negligence relied upon, and governed by separate provisions of
the facts constituting the petitioners the Rules of Court and may, from time
good and substantial cause of action or to time, be supplemented by additional
defense, as the case may be. Most rules promulgated by the Supreme Court
importantly, it should be filed with the through resolutions or circulars. As it
same court which rendered the stands, neither the Rules of Court nor the
decision, viz: Revised Internal Rules of the Court of
Appeals allow the remedy of petition for
Section 1. Petition for relief from relief in the Court of Appeals.
judgment, order, or other
proceedings.- When a judgment or
final order is entered, or any other BERNARDO VS CA
proceeding is thereafter taken
against a party in any court DEMURRER TO EVIDENCE
through fraud, accident, mistake,
or excusable negligence, he may Facts: Paz T. Bernardo was charged with
file a petition in such court and in four (4) counts of violation of B.P. Blg. 22
the same case praying that the before the Regional Trial Court of Quezon
judgment, order or proceeding be City. After presenting its last witness, the
set aside. prosecution rested its case and formally
offered its exhibits. On the other hand,
As revised, Rule 38 radically departs from
Bernardo, through her counsel, filed a
the previous rule as it now allows the
Metropolitan or Municipal Trial Court motion for leave to file a demurrer to
which decided the case or issued the evidence. The same having been denied,
order to hear the petition for relief. Under the court ordered the the defense to
the old rule, petition for relief from the present its evidence. Due to the
judgment or final order of municipal trial insistence on the part of the defense that

PROCEDURE
it be allowed to file a demurrer to In the case at bar, petitioner admits that

evidence and its refusal to present its in the hearing of 20 May 1994 the trial
evidence, the court considered the court denied her motion for leave to file a
defense to have waived their right to demurrer to evidence. In such case, the
present their evidence and then only right petitioner has under Sec. 15,
submitted the case for decision. Counsel Rule 119, of the Rules of Court after
for Bernardo then questioned the having been denied leave to submit a
actuation of the RTC by way of certiorari demurrer is to adduce evidence in her
to the CA. They argued that the trial defense. However, even without express
court committed grave abuse of leave of the trial court, nay, after her
discretion in considering her to have motion for leave was denied, petitioner
waived her right to present evidence insisted on filing a demurrer instead of
after the denial of her motion for leave to presenting evidence in her defense.
file demurrer to evidence. The CA set
aside RTCs order. RADIOWEALTH FINANCE CO. vs. DEL
ROSARIO
Issue: Whether Bernardo is correct
G.R. No. 138739
Held: No. In fine, under the new rule on
demurrer to evidence the accused has July 6, 2000
the right to file a demurrer to evidence
after the prosecution has rested its case.
If the accused obtained prior leave of
court before filing his demurrer, he can DEMURRER TO EVIDENCE;
still present evidence if his demurrer is CONSEQUENCES OF A REVERSAL, ON
denied. However, if he demurs without APPEAL
prior leave of court, or after his motion
for leave is denied, he waives his right to RADIOWEALTH FINANCE COMPANYvs.
present evidence and submits the case Spouses VICENTE and MA.
for decision on the basis of the evidence SUMILANG DEL ROSARIO,
for the prosecution. This power to grant
leave to the accused to file a demurrer is When a demurrer to evidence granted by
addressed to the sound discretion of the a trial court is reversed on appeal, the
trial court. The purpose is to determine reviewing court cannot remand the case
whether the accused in filing his for further proceedings. Rather, it should
demurrer is merely stalling the render judgment on the basis of the
proceedings. evidence proffered by the plaintiff.
Inasmuch as defendants in the present

PROCEDURE
case admitted the due execution of the On July 4, 1994, the trial court issued an
Promissory Note both in their Answer and Order terminating the presentation of
during the pretrial, the appellate court evidence for the petitioner. Thus, the
should have rendered judgment on the latter formally offered its evidence and
bases of that Note and on the other exhibits and rested its case on July 5,
pieces of evidence adduced during the 1994.
trial.
Respondents filed on July 29, 1994 a
FACTS: On March 2, 1991, Spouses Demurrer to Evidence for alleged lack of
Vicente and Maria Sumilang del Rosario cause of action. On November 4, 1994,
(herein respondents), jointly and the trial court dismissed the complaint
severally executed, signed and delivered for failure of petitioner to substantiate its
in favor of Radiowealth Finance Company claims, the evidence it had presented
(herein petitioner), a Promissory Note for being merely hearsay.
P138,948.
On appeal, the Court of Appeals (CA)
Thereafter, respondents defaulted on the reversed the trial court and remanded
monthly installments. Despite repeated the case for further proceedings.
demands, they failed to pay their
obligations under their Promissory Note. Hence, this recourse.
Then on June 7, 1993, petitioner filed a ISSUE: Whether or not the CA erred in
Complaintfor the collection of a sum of ordering the remand of the case to the
money before the Regional Trial Court of trial court instead of rendering judgment
Manila, Branch 14. on the basis of petitioners evidence.
During the trial, Jasmer Famatico, the HELD: YES. While the CA correctly
credit and collection officer of petitioner, reversed the trial court, it erred in
presented in evidence the respondents remanding the case "for further
check payments, the demand letter proceedings."
dated July 12, 1991, the customers
ledger card for the respondents, another In the case at bar, the trial court, acting
demand letter and Metropolitan Bank on respondents demurrer to evidence,
dishonor slips. Famatico admitted that he dismissed the Complaint on the ground
did not have personal knowledge of the that the plaintiff had adduced mere
transaction or the execution of any of hearsay evidence. However, on appeal,
these pieces of documentary evidence, the appellate court reversed the trial
which had merely been endorsed to him. court because the genuineness and the

PROCEDURE
due execution of the disputed pieces of applicable law, the plaintiff

evidence had in fact been admitted by has shown no right to relief. If
defendants. the trial court denies the
dismissal motion, i.e., finds
Applying Rule 33, Section 1 of the 1997 that plaintiffs evidence is
Rules of Court, the CA should have sufficient for an award of
rendered judgment on the basis of the judgment in the absence of
evidence submitted by the petitioner. contrary evidence, the case
While the appellate court correctly ruled still remains before the trial
that "the documentary evidence court which should then
submitted by the [petitioner] should have proceed to hear and receive
been allowed and appreciated xxx," and the defendants evidence so
that "the petitioner presented quite a that all the facts and
number of documentary exhibits xxx evidence of the contending
enumerated in the appealed order," we parties may be properly
agree with petitioner that the CA had placed before it for
sufficient evidence on record to decide adjudication as well as before
the collection suit. A remand is not only the appellate courts, in case
frowned upon by the Rules, it is also of appeal. Nothing is lost. The
logically unnecessary on the basis of the doctrine is but in line with the
facts on record. established procedural
precepts in the conduct of
Explaining the consequence of a trials that the trial court
demurrer to evidence, the Court in liberally receive all proffered
Villanueva Transit v. Javellana evidence at the trial to
pronounced: enable it to render its
decision with all possibly
"The rationale behind the
relevant proofs in the record,
rule and doctrine is simple
thus assuring that the
and logical. The defendant is
appellate courts upon appeal
permitted, without waiving
have all the material before
his right to offer evidence in
them necessary to make a
the event that his motion is
correct judgment, and
not granted, to move for a
avoiding the need of
dismissal (i.e., demur to the
remanding the case for retrial
plaintiffs evidence) on the
or reception of improperly
ground that upon the facts as
excluded evidence, with the
thus established and the

PROCEDURE
possibility thereafter of still GARCIA VS CA

another appeal, with all the G.R. NO. 117032. JULY 27, 2000.*
concomitant delays. The rule,
however, imposes the MA. PATRICIA GARCIA, BELEN G.
condition by the same token GUTIERREZ, NICANOR GUTIERREZ,
that if his demurrer is GRACE M.B. GUTIERREZ, CAROLYN M.B.
granted by the trial court, GUTIERREZ, GERWIN GARCIA, GERSON
and the order of dismissal is GARCIA, and GILMER GARCIA, petitioners,
reversed on appeal, the vs. COURT OF APPEALS, HON. PEDRO M.
movant losses his right to ICAMINA, Judge of the Regional Trial
present evidence in his Court, 6th Judicial Region, Branch 9,
behalf and he shall have Kalibo, Aklan; RURAL BANK OF SARA,
been deemed to have INC., RAFAEL C. DINGLASAN, JR., MARIA
elected to stand on the ELENA I. DINGLASAN, ANTHONY
insufficiency of plaintiffs CABUGSO and LEDA SUELLO,
case and evidence. In such respondents.
event, the appellate court
which reverses the order of Rule 34: Summary Judgment- A summary
dismissal shall proceed to judgment is one granted upon motion by
render judgment on the a party for an expeditious settlement of
merits on the basis of the case, there appearing from the
plaintiffs evidence." pleadings, depositions, admissions, and
(Underscoring supplied) affidavits that there are no important
questions or issues of fact posed (except
In other words, defendants who present a as to the amount of damages) and
demurrer to the plaintiffs evidence retain therefore, the moving party is entitled to
the right to present their own evidence, if a judgment as a matter of law.
the trial court disagrees with them; if the
trial court agrees with them, but on FACTS: On October 5, 1987, Florencio
appeal, the appellate court disagrees Junior Garcia, representing himself as
with both of them and reverses the attorney in fact of the herein petitioners,
dismissal order, the defendants lose the brought in the name of the latter, an
right to present their own evidence. The action for collection of sum of money,
appellate court shall, in addition, resolve against private respondents alleging that
the case and render judgment on the on representations, of defendant Spouses
merits, inasmuch as a demurrer aims to Rafael and Elena DINGLASAN, plaintiffs,
discourage prolonged litigations. through their then Attorney in fact,

PROCEDURE
Florencio Junior Garcia, were prevailed Respondent bank), filed their answer
upon to time deposit amounts of money contending by way of special and
and issuing to them (plaintiffs) the affirmative defenses that the Complaint
correponding time deposit certificates states no cause of action against the
with interest at 17% per annum. All defendants in as much as the depositors
defendants assuring plaintiffs that on the have not at all authorized and
maturity dates (Feb. 11, 1986) of the empowered alleged attorney-in-fact,
aforesaid Time Deposit Certificates, the Florencio Junior Garcia, to transact with
same, upon surrender, will be paid in the defendant bank. Neither have they
cash. authorized him to withdraw their deposits
with defendant bank. Further, said
The defendants acting through Anthony depositors never in the past nor up to the
Casugbo and Leda Suelo (sic), Manager present time approached the bank for
and Cashier respectively of defendant withdrawal of their deposits, and (sic)
Rural Bank, refused to pay, and told reason of and in compliance with the law
plaintiffs attorney in fact, to return after on secrecy of deposits, the defendant
one month, which said attorney in fact bank cannot divulge to anybody who has
did, not only one month thereafter, but not been properly authorized, anything
on several other occasions thereafter about their deposits. Since no
either by himself (attorney in fact), or applications for withdrawal were received
through other authorized by defendant bank from its depositors
representatives; on all of these occasions there was no reason at all to allow
the promises to pay the time deposits alleged attorney-in-fact, Florencio Junior
and interest thereon were not fulfilled; Garcia, who never was properly
authorized, to transact for and in behalf
Plaintiffs, on August 27, 1987, through of said depositors;
counsel, sent a letter of demand to
defendants, giving to defendants 30 days Florencio Junior Garcia, has no capacity
from receipt within which to pay the Time to sue and be sued, being not the real
Deposit plus the interest increments party interest (sic) nor has the (sic)
thereof.However, until the date of the authority from the alleged plaintiffs sue
filing of the complaint, which is more (sic) and be sued. What the petitioners
than 30 days defendants have not even did was to present a Motion for Summary
bothered to reply or to make any Judgment, asseverating that they are
arrangements acceptable to plaintiffs; entitled to a judgment as a matter of law,
since the pleadings and supporting
affidavits submitted are barren of any

PROCEDURE
genuine issue which may be moving party is entitled to a judgment as

controverted. a matter of law.**
The trial court denied the motion for A summary judgment is one granted
summary judgment. Petitioners went to upon motion by a party for an
the CA which likewise denied the same. expeditious settlement of the case, there
Hence, the petition. appearing from the pleadings,
depositions, admissions, and affidavits
ISSUE: WON CA erred in denying the that there are no important questions or
motion for summary judgment? issues of fact posed (except as to the
amount of damages) and therefore, the
HELD: No. Sections 1 and 3, Rule 34, of moving party is entitled to a judgment as
the Rules of Court provide: a matter of law.
SECTION 1. Summary judgment for The aforecited rule does not vest in the
claimant.A party seeking to recover trial court jurisdiction to summarily try
upon a claim, counterclaim, or cross- the issues on depositions and affidavits
claim or to obtain a declaratory relief but gives it limited authority to render
may, at any time after the pleading in summary judgment only when there is no
answer thereto has been served, move genuine issue of material fact at bar.
with supporting affidavits for a summary
judgment in his favor upon all or any part Upon a motion for summary judgment,
thereof. the sole function of the court is to
determine whether or not there is an
SEC. 3. Motion and proceedings thereon. issue of fact to be tried, and any doubt as
The motion shall be served at least ten to the existence of an issue of fact must
(10) days before the time specified for be resolved against the movant. Courts
the hearing. The adverse party prior to are quite critical of the papers presented
the day of hearing may serve opposing by the moving party but not of the
affidavits. After the hearing, the papers in opposition thereto. Thus, in
judgment sought shall be rendered ruling on a motion for summary
forthwith if the pleading, depositions, and judgment, the court should take that
admissions on file together with the view of the evidence most favorable to
affidavits, show that, except as to the the party against whom it is directed,
amount of damages, there is no genuine giving such party the benefit of all
issue as to any material fact and that the favorable inferences. If the defense relied
upon by the defendant is legally

PROCEDURE
sufficient and does not appear patently consummated, PO2 Trambulo then
sham, the motion for summary judgment introduced himself as a police officer,
should be denied. arresting ED, informed him of his
constitutional rights. The package which
was wrapped in a Christmas wrapper
People of the Philippines vs. Li Ka
positively appeared to be Shabu.
Kim alias Ed
G.R. No. 148586 At the trial, testifying through an
May 25, 2004 interpreter, ED claimed to be a Chinese,
jobless, and born in Fookien, China,
unable to speak English or Filipino, who
NEW TRIAL/REQUISITES FOR NEWLY
came to the Philippines on a tourist visa,
DISCOVERED EVIDENCE
when invited by his friend Tan Eng
FACTS: Li Ka Kim (ED) was charged for Hong. According to ED, he stayed with
the violation of Section 15, Article III, of Tang Eng Hong at Room
Republic Act No. 6425, as so amended by 1003 Gotesco Building, Manila. He denied
Republic Act 7659. The RIID (Regional having been in Southern Tagalog. On the
Intelligence and Investigation Division) of afternoon of 19 September 1999, he and
the Philippine National Police Region IV Tan Eng Hong went out and took a ride
Office at Camp Vicente Lim, Calamba, going to the airport. He did not know the
Laguna, received a report from a certain name of the commercial center but he
Boy, an informer, that ED as a drug was sure that it was leading to the
dealer, was looking for a buyer of Shabu. airport. Upon their arrival, Tan Eng Hong
PO2 Trambulo, an officer if RIID, made an alighted from the car and went inside the
initial contact with ED through a phone mall. While waiting for Tan Eng Hong and
call using the phone of Boy. They agreed smoking a cigarette, five persons
that they will meet at the parking area of accosted him. At the point of a gun, he
McDonalds at Uniwide Coastal Mall in was forced inside the car, which he and
Paraaque City for the exchange of Tan Eng Hong used in going to the
Shabu and the Marked Bill for the amount mall. The police officers, who were all
of 400, 000.00 Pesos. At the said meeting armed, brought him to a gasoline station
place where the police officers were where he was frisked but they were not
already there at their respective able to find anything on him except for a
positions, they noticed a Red Honda pack of cigarettes. He heard one of them
Civic. A Chinese man which later saying WALA and one of them slapped
appeared to be ED, alighted therefrom him. He was asked things he did not
and he was introduced by Boy to PO2 understand. Later, he was brought to the
Trambulo. As soon as the exchange was police station. A Chinese woman

PROCEDURE
approached him while he was at the Held: No. The requisites of newly
police station, and he then explained discovered evidence in order to justify a
what had happened. He denied new trial are that - (a) the evidence is
that Trambulo was introduced to him by discovered after trial; (b) such evidence
Boy, the informer, whom he did not could not have been discovered and
know. The Chinese woman told him in the produced at the trial even with the
presence of three or four police officers exercise of reasonable diligence; and (c)
that if he could produce P1,000,000.00 the evidence is material, not merely
and give it to the police officers who cumulative, corroborative, or
brought him there, he would be allowed impeaching, and of such weight that, if
to go home. admitted, would likely change the
judgment.
The Trial Court found him guilty of the
offense charged and was given the Not one of the requisites mentioned is
penalty of Death. attendant. Appellants passport could
have easily been presented and
On appeal, there was a substitution of
produced during the trial. Then, too, the
counsel for ED. ED filed a motion to
presentation of appellants passport,
remand the case for new trial. In his
would hardly be material to the outcome
motion, appellant would attempt to
of the case. Appellant was positively
overturn his conviction or, at the very
identified by the prosecution witnesses
least, to be given a chance for a new
as being the perpetrator of the
trial, citing Section 14, Rule 121, of the
crime. Most importantly, appellant even
Rules on Criminal Procedure, because of
identified himself as Li Ka Kim at the trial
newly discovered evidence, (his passport
and not as Huang Xiao Wei, that bolsters
which would establish his true identity as
the conclusion that appellant deliberately
Huang Xiao Wei, a Chinese National, and
concealed his true identity in the
as having entered the Philippines as a
nefarious enterprise.
tourist. Invoking his constitutional right
to an effective counsel, appellant chides MERCURY DRUG CORPORATION vs.
his former counsel for having failed to THE HONORABLE COURT OF
secure and present his travel APPEALS, and the
documents.)
SPOUSES EDUARDO AND CARMEN
ISSUE: Whether the requisites of newly
YEE
discovered evidence to justify a new trial
were satisfied by ED. G.R. No. 138571

PROCEDURE
July 13, 2000 The trial court denied the petition. A

Motion for Reconsideration was filed but
was also denied. On appeal, the CA
reversed the trial courts decision. A
RELIEF FROM JUDGMENT Motion for Reconsideration was filed but
was denied. Hence, this petition.
ISSUE: Whether the petition for relief

FACTS: Mercury filed a complaint against
was filed on time?
respondent (spouses Yee) for annulment
and/or reformation of contract of lease. It
HELD: NO. The Court cited Sec 1 and 3
was alleged that it is stipulated in their
of Rule 38 and explained: A petition for
contract that in case of official
relief from judgment is an equitable
devaluation of the Philippine pesos, the
remedy that is allowed only in
parties hereto shall by mutual consent
exceptional cases when there is no other
make the necessary adjustment in the
available or adequate remedy. When a
rate of rentals. Petitioners sought the
party has another remedy available to
increase of the monthly rentals from
him, which may be either a motion for
P6,900.00 to P50,000.00.
new trial or appeal from an adverse
decision of the trial court, and he was not
Private Respondents demand for
prevented by fraud, accident, mistake or
increase of rentals had been refused by
excusable negligence from filing such
lessee Mercury Drug Corporation on the
motion or taking such appeal, he cannot
ground that there was no official
avail himself of this petition. In order for
devaluation of the peso thus no basis for
a petition for relief to be entertained by
a rental increase. The trial court ruled in
the court, the petitioner must
favor of petitioner but it ordered the
satisfactorily show that he has faithfully
increase of the rent up to 30% of its
and strictly complied with the provisions
current amount.
of Rule 38. It is also incumbent upon the
petitioner to show that the said petition
The former counsel for the petitioners
was filed within the reglementary period
Atty. Ralph Lou I. Willkom received a copy
specified in Section 3, Rule 38 (within
of the decision on March 3, 1995 but did
sixty (60) days after the petitioner learns
not inform petitioners nor take any step
of the judgment, final order, or other
to protect the interests of his clients by
proceeding to be set aside, and not more
presenting a motion for reconsideration
than six (6) months after such judgment
or taking an appeal. Petitioners learned
or final order was entered, or such
of the judgment only on March 24 1995
proceeding was taken). And the rule is
when they visited his office. The 15-day
that the reglementary period is reckoned
period within which to appeal lapsed. On
from the time the partys counsel
May 15, 1995 petitioners filed thru their
receives notice of the decision, for notice
present counsel a petition for relief from
to counsel of the decision is notice to the
judgment under Rule 38.

PROCEDURE
party for purposes of Section 3 of Rule Municipal Circuit Trial Court (MCTC) of
38. Laur and Gabaldon in Laur, Nueva Ecija.
In the present case, the YEES were The MCTC ordered the Director of Lands
served a copy of the judgment of the to cancel Original Certificate of Title
lower court through their counsel, insofar as the 410 square meters owned
Attorney Ralph Lou I. Willkom on March 3,
and occupied by petitioners were
1995. Thus, the YEES are considered to
have received notice on March 3, 1995 concerned. On appeal, the Regional Trial
when their counsel was served notice Court of Palayan City, Branch 40,
and not on March 24, 1995 when they reversed and set aside the decision of
actually learned of the adverse decision. the MCTC.
Consequently, their petition for relief,
which was filed on May 15, 1995 or over On December 4, 2001, petitioners,
sixty days from notice of their counsel, assisted by Atty. Rafael E. Villarosa, filed
was filed out of time. This Court has with the Court of Appeals a petition for
consistently held that the failure of a review. The appellate court dismissed the
partys counsel to notify him on time of
petition since the Certification of
the adverse judgment to enable him to
appeal therefrom is negligence, which is NonForum Shopping was signed by Atty.
not excusable. Notice sent to counsel of Villarosa instead of petitioners in
record is binding upon the client and the violation of Section 5, Rule 7 of the 1997
neglect or failure of counsel to inform Rules of Civil Procedure. Petitioners
him of an adverse judgment resulting in moved for reconsideration but it was
the loss of his right to appeal is not a denied.Thereafter, Atty. Villarosa
ground for setting aside a judgment valid
and regular on its face. withdrew his appearance.
Petitioners, assisted by Atty. Guillermo M.

DELA CRUZ vs. ANDRES, 522 SCRA
Hernandez, Jr., requested for an
585(2007)
extension of time to file their petition
A PETITION FOR RELIEF FROM before this Court. Later, they abandoned
JUDGMENT UNDER RULE 38 the motion and the case was declared
closed and terminated.
FACTS: Spouses Rolando Dela Cruz and
Teresita Dela Cruz filed a complaint for On May 6, 2002, petitioners filed with the
annulment of title and/or reconveyance Court of Appeals a petition for relief from
with damages against spouses Feliciano judgment praying that the dismissal of
Andres and Erlinda Austria and the their petition for review be set aside
Director of Lands on July 28, 1993. The since the gross negligence of their
case was docketed and assigned to the previous counsel did not bind them. The
appellate court, however, denied their

PROCEDURE
petition. It ruled that petitioners were Moreover, under Section 1(b), Rule 41 of
bound by the action of their counsel as the 1997 Rules of Civil Procedure, the
well as by his mistake or negligence. denial of a petition for relief from
judgment is subject only to a special civil
ISSUE: : Can petitioners avail of a
action for certiorari under Rule 65. In
petition for relief under Rule 38 of the
seeking to reverse the appellate courts
1997 Rules of Civil Procedure from a
decision denying their petition for relief
judgment of the Court of Appeals due to
from judgment by a petition for review on
their counsels negligence when he
certiorari under Rule 45, petitioners have
signed the Certification of Non-Forum
availed of the wrong remedy twice.
Shopping?
SINGIAN VS SANDIGANBAYAN
HELD: A petition for relief from judgment
under Rule 38 of the 1997 Rules of Civil DEMURRER TO THE EVIDENCE
Procedure is an equitable remedy that is
FACTS: Atty. Orlando L. Salvador was
allowed only in exceptional cases when
Presidential Commission On Good
there is no other available or adequate
Government Consultant on detail with
remedy. It may be availed of only after a
the Presidential Ad Hoc Committee on
judgment, final order or other proceeding
Behest Loans (Committee). He was also
was taken against the petitioner in any
the coordinator of the Technical Working
court through fraud, accident, mistake, or
Group composed of officers and
excusable negligence.8
employees of government financing
While the law uses the phrase any institutions to examine and study the
court, it refers only to reports and recommendations of the
Municipal/Metropolitan and Regional Trial Asset Privatization Trust relating to loan
Courts. The procedure in the Court of accounts in all government financing
Appeals and this Court are governed by institutions. Among the accounts acted
separate provisions of the Rules of Court upon by the Committee were the loans
and may, from time to time, be granted to Integrated Shoe, Inc. (ISI) by
supplemented by additional rules the Philippine National Bank (PNB).
promulgated by this Court through
The Committee found that the loans
resolutions or circulars. As it stands,
extended to ISI bore characteristics of
neither the Rules of Court nor the
behest loans specifically for not having
Revised Internal Rules of the Court of
been secured with sufficient collaterals
Appeals allows the remedy of petition for
and obtained with undue haste. As a
relief in the Court of Appeals.
result, Atty. Orlando Salvador filed with
the Office of the Ombudsman a sworn

PROCEDURE
complaint dated 20 March 1996, for petition. He alleged that the trial court
violation of Section 3, paragraphs (e) and acted with grave abuse of discretion
(g), of Republic Act No. 3019. Herein when it denied its demurrer to evidence.
petitioner Singian was charged with nine
ISSUE: Whether petitioner is correct.
counts of violation of Section 3(e), and
another nine counts of violation of HELD: No. A demurrer to the evidence is
Section 3(g), of Republic Act No.3019 (RA an objection by one of the parties in an
3019), or the Anti-Graft and Corrupt action, to the effect that the evidence
Practices Act. The cases involved the which his adversary produced is in
purported granting of behest loans by sufficient in point of law, whether true or
the governments Philippine National not, to make out a case or sustain the
Bank (PNB) to Integrated Shoes, Inc. (ISI), issue. The party demurring challenges
in various amounts and on different the sufficiency of the whole evidence to
dates as above-enumerated. sustain a verdict. The court, in passing
upon the sufficiency of the evidence
After the presentation of its testimonial
raised in a demurrer, is merely required
and documentary evidence, the
to ascertain whether there is competent
prosecution rested its case and filed its
or sufficient evidence to sustain the
Formal Offer of Exhibits. Petitioner
indictment or to support a verdict of
Singian, with prior leave, filed a
guilt.
Demurrer to Evidence anchored on the
following grounds: (1) lack of proof of At the outset, we emphasize that the
conspiracy with any PNB official; (2) the resolution of a demurrer to evidence
contracts with PNB contained provisions should be left to the exercise of sound
that are beneficial, and not manifestly judicial discretion. A lower courts order
and grossly disadvantageous, to the of denial shall not be disturbed, that is,
government; (3)the loans could not be the appellate courts will not review the
characterized as behest loans because prosecutions evidence and precipitately
they were secured by sufficient decide whether such evidence has
collaterals and ISI increased its established the guilt of the accused
capitalization; and (4) assuming the beyond a reasonable doubt, unless
loans are behest loans, petitioner could accused has established that such
not be held liable for lack of any judicial discretion has been gravely
participation. abused, there by amounting to a lack or
excess of jurisdiction. Mere allegations of
The Sandiganbayan denied petitioners
such abuse will not suffice.
demurrer. Likewise his motion for
reconsideration was denied. Hence, this In this case, petitioner miserably failed to

PROCEDURE
present an iota of evidence to show that time, but still, it did not make the
the Sandiganbayan abused, much more, required written offer.
gravely abused, its discretion in denying Cabador filed a motion to dismiss the
petitioners Demurrer to Evidence. We case: (1) complaining of a turtle-paced
agree with the PCGGs observation that proceeding in the case since his arrest
the Sandiganbayan arrived at its and detention in 2001 and invoking his
conclusion after a careful and deliberate right to a speedy trial; (2) he claimed
examination and assessment of all the that the trial court could not consider any
evidence submitted. A closer scrutiny of evidence against him that had not been
the assailed Resolutions would indeed formally offered; (3) that the prosecution
show that the Sandiganbayan witnesses did not have knowledge of his
meticulously discussed both testimonial alleged part in the crime charged.
and documentary evidence presented by
Unknown to Cabador, however, 4 days
the prosecution. It was only after a
earlier or on July 28, 2006 the
careful analysis of the facts and evidence
prosecution asked the RTC for another
presented did the respondent court lay
extension of the period for its formal
down its findings and conclusions.
offer, which offer it eventually made on
ANTONIO CABADOR vs.PEOPLE OF August 1, 2006, the day Cabador filed his
THE PHILIPPINES motion to dismiss.
G.R. No. 186001 RTC issued an Order treating Cabadors
motion to dismiss as a demurrer to
October 2, 2009
evidence. And, since he filed his motion
MOTION TO DISMISS VS. DEMURRER
without leave of court, the RTC declared
TO EVIDENCE
him to have waived his right to present
FACTS: On June 23, 2000 the public evidence in his defense. The trial court
prosecutor accused petitioner Cabador of deemed the case submitted for decision
murdering, in conspiracy with others, insofar as he was concerned. Cabador
Atty. Jun N. Valerio before the RTC of filed a motion for reconsideration of this
Quezon City. Order but the RTC denied it on February
On February 13, 2006, after presenting 19, 2007. Cabador questioned the RTCs
only 5 witnesses over 5 yrs. Of trial, RTC actions before the CA but the latter
declared at an end the prosecutions denied his petition and affirmed the
presentation of evidence and required lower courts actions. With the CAs
the latter to make a written or formal denial of his motion for reconsideration,
offer of its documentary evidence within on October 28, 2008 petitioner went to
15 days from notice. The public SC via a petition for review on certiorari.
prosecutor asked for 3 extensions of ISSUE: Whether or not petitioner

PROCEDURE
Cabadors motion to dismiss before the particular testimony of even one witness.
trial court was in fact a demurrer to He cited no documentary exhibit. Indeed,
evidence filed without leave of court, he could not because, he did not know
with the result that he effectively waived that the prosecution finally made its
his right to present evidence in his formal offer of exhibits on the same date
defense and submitted the case for he filed his motion to dismiss.16 To say
decision insofar as he was concerned. that Cabador filed a demurrer to
HELD:When the accused files a evidence is equivalent to the proverbial
demurrer without leave of court, he blind man, touching the side of an
shall be deemed to have waived the elephant, and exclaiming that he had
right to present evidence and the touched a wall.
case shall be considered submitted Besides, a demurrer to evidence assumes
for judgment. On occasions, this that the prosecution has already rested
presents a problem such as when, like its case. Section 23, Rule 119 of the
the situation in this case, the accused Revised Rules of Criminal Procedure,
files a motion to dismiss that, to the RTC, reads:
had the appearance of a demurrer to Demurrer to evidence. After the
evidence. Cabador insists that it is not prosecution rests its case, the court may
one but the CA, like the lower court, ruled dismiss the action on the ground of
that it is. insufficiency of evidence (1) on its own
This Court held in Enojas, Jr. v. initiative after giving the prosecution the
Commission on Elections that, to opportunity to be heard or (2) upon
determine whether the pleading filed is a demurrer to the evidence filed by the
demurer to evidence or a motion to accused with or without leave of court.
dismiss, the Court must consider (1) the (Emphasis supplied)
allegations in it made in good faith; (2) Here, after the prosecution filed its
the stage of the proceeding at which it is formal offer of exhibits on August 1,
filed; and (3) the primary objective of the 2006, the same day Cabador filed his
party filing it. motion to dismiss, the trial court still
The fact is that Cabador did not even needed to give him an opportunity to
bother to do what is so fundamental in object to the admission of those exhibits.
any demurrer. He did not state what It also needed to rule on the formal offer.
evidence the prosecution had presented And only after such a ruling could the
against him to show in what respects prosecution be deemed to have rested its
such evidence failed to meet the case. Since Cabador filed his motion to
elements of the crime charged. His so- dismiss before he could object to the
called "demurrer" did not touch on any prosecutions formal offer, before the trial

PROCEDURE
court could act on the offer, and before "Allegedly" committed by a Father
the prosecution could rest its case, it (herein Appellant, Salvino
could not be said that he had Sumingwa) against her own
daughter (call her, AAA). The case
intended his motion to dismiss to
would only touch the topic of Remedial
serve as a demurrer to evidence. Law on the part where the Father of the
In sum, tested against the criteria laid victim filed a Demurrer to evidence
down in Enojas, the Court finds that for Criminal Case nos. 1650 (Other Light
petitioner Cabador filed a motion to Threats ), 1651 (Attempted Rape-
designated as case no. 1652 in fulltext-
dismiss on the ground of violation of his
page 8 decision,don't be confused!) and
right to speedy trial, not a demurrer to 1653 (Maltreatment ) which were all
evidence. He cannot be declared to have later on dismissed for insufficiency
waived his right to present evidence in of evidence based on the said demurrer
his defense. to evidence filed by the Appelant.
On a final note, a demurrer to evidence
The attempt that the RPC punishes is
shortens the proceedings in criminal that which has a logical connection to a
cases. Caution must, however, be particular, concrete offense; and that
exercised in view of its pernicious which is the beginning of the execution of
consequence on the right of the accused the offense by overt acts of the
to present evidence in his defense, the perpetrator, leading directly to its
seriousness of the crime charged, and realization and consummation.
the gravity of the penalty involved. The evidence on record in this case does
The petition is GRANTED, the Decision not show that all the elements of an
and Resolution of the CA are REVERSED attempted rape are present. The detailed
and SET ASIDE, and the Order of the RTC acts of execution showing an attempt to
rape are simply lacking. It would be too
of QC is NULLIFIED. The latter court is
strained to construe appellants act of
DIRECTED to resolve petitioner Antonio removing AAAs pants as an overt act
Cabadors motion to dismiss based on that will logically and necessarily ripen
the circumstances surrounding the trial in into rape. Hence, appellant must be
the case. acquitted of Attempted Rape.
People vs. Sumingwa
FACTS:In twelve Information(s), the
603 SCRA 638
prosecution charged appellant with;
1. two (2) counts of Acts of
(Rule 33: DEMURRER TO EVIDENCE)
Lasciviousness;
Ama kinain ang sariling laman.
2. four (4) counts of Rape
3. three (3) counts of Unjust Vexation
NOTE: This case involves a crime of (1)
4. one (1) count of Other Light Threats
Acts of Lasciviousness (2) Rape (3)
5. one (1) count of Maltreatment; and
Attempted Rape& (4) Unjust Vexation

PROCEDURE
6. one (1) count of Attempted Rape AAAs vagina without trying to penetrate
-- for acts committed against his it. After reaching the top of his lust, he
minor (15 years old) daughter AAA used AAAs short pants to wipe his mess.
from 1999-2001. Instead of keeping her harrowing
experience to herself, AAA narrated it to
Sometime in August 1999 (8am- her best friend.
10am)- While AAA was watching TV with
her brothers and her Father (Appellant), November 24, 2000 - appellant
the latter called her and ordered her to approached AAA and told her that he
sit in front of him. As she was sitting, wanted to have sex with her. When she
appellant told her that it was not good for refused, appellant forcibly removed her
a girl to have small breasts. Suddenly, he pants and boxed her right buttock. AAA
inserted his hands into AAAs shirt then still refused, which angered appellant. He
fondled her breast. AAA resisted by then went to the kitchen and returned
moving her hands backwards. with a bolo which he used in threatening
her. Luckily, AAAs grandmother arrived,
September 1999 (Afternoon)- AAA prompting appellant to desist from his
was left at home with her Father beastly desires.
(Appelant). The appellant ordered AAA to
join him inside the Master's Bedroom. December 20, 2000---AAA and her best
There, appellant removed his friend were doing their school work in
undergarments then forced AAA to grasp front of the formers house. When
and fondle his penis until he ejaculated. appellant arrived, he embraced AAA. He,
Appellant thereafter told her not to be thereafter, pulled her inside the house
malicious about it. and kissed her on the lips.
August 2000 - appellant forced AAA to The last incident occurred inside the
lie down on the bed, went on top of her, comfort room of their house on May 27,
removed her short pants and panty, then 2001. When AAA entered, appellant
rubbed his penis against her vaginal pulled down her short pants and panty,
orifice. AAA resisted by crossing her legs unzipped his trousers, brought out his
but appellant lifted her right leg and penis, then repeatedly rubbed it on her
partially inserted his penis into her vagina while they were in a standing
vagina. As she struggled, appellant stood position.
up then ejaculated. AAA felt numbness
on her buttocks after the bestial act AAA decided to report the sexual abuses
committed against her. to her grandmother who forthwith
brought her to the National Bureau of
Appellant repeated his dastardly act Investigation where she was examined
against AAA on separate occasions by the medico-legal officer. It was found
in September and November2000. during the examination that there were
During these times, appellant satisfied no extragenital physical injuries on AAAs
himself by rubbing his penis against

PROCEDURE
body but there were old, healed, and But In Criminal Case No. 1651, the
incomplete hymenal lacerations. RTC found that appellant committed all
the acts of execution of the crime of
Appellant denied all the accusations Rape, but failed to consummate it
against him by means of defense of Alibi because of the arrival of AAAs
such as; he was out of town in all the grandmother. Hence, he was convicted
alleged occasions, AAA was never absent of attempted rape. In embracing and
in school in all the said occasions and kissing AAA in full view of the latters
that AAA was only prodded by his wife best friend, appellant was convicted of
and mother in law to get even with him Unjust Vexation.
for all their misunderstandings in the
family. On appeal, the CA affirmed the
conviction of appellant, except that
Notably, before the RTC, AAA in Criminal Case No. 1646; it
executed an Affidavit of Recantation convicted him of Qualified Rape
claiming that while appellant indeed instead of Acts of Lasciviousness.
committed lascivious acts against her,
she exaggerated her accusations against The appellate court ruled that
him. She explained that appellant did not notwithstanding AAAs retraction of her
actually rape her, as there was no previous testimonies, the prosecution
penetration. She added that she charged sufficiently established the commission
appellant with such crimes only upon the of the crime of Rape. It added that the
prodding of her mother and maternal qualifying circumstances of minority and
grandmother. relationship were adequately proven.
However despite the said Affidavit of ISSUE: Whether or not appellants

Recantation the RTC rendered a act of removing AAAs pants constituted
decision convicting appellant of six an overt act of Rape.
(6) counts of acts of lasciviousness, one
(1) count of attempted rape and one (1) HELD: The evidence on Record is
count of unjust vexation. insufficient to support appellants
conviction of Attempted Rape.
The trial court gave credence to AAAs (Legal Basis . . .)
testimonies on the alleged lascivious acts
committed against her. In view of the Rape is attempted when the offender
withdrawal of her earlier claim of the fact commences the commission of rape
of penetration, the court sustained the directly by overt acts and does not
innocence of appellant on the rape perform all the acts of execution by
charges and concluded that the crime reason of some cause or accident other
committed was only Acts of than his own spontaneous desistance.
Lasciviousness. The prosecution must, therefore,
establish the following elements of
an attempted felony:

PROCEDURE
rape. Hence, appellant must be

1. The offender commences the acquitted of Attempted Rape.
commission of the felony directly by
overt acts; The case for Other Light Threats for
2. He does not perform all the acts of threatening AAA with a bolo; for Unjust
execution which should produce the Vexation for undressing her without her
felony; consent, causing disturbance, torment,
3. The offenders act be not stopped by distress, and vexation; nor for
his own spontaneous desistance; Maltreatment for boxing the right side of
4. The non-performance of all acts of AAAs buttocks although all were alleged
execution was due to cause or accident in the Information for Attempted Rape in
other than his spontaneous desistance. the Order dated September 24, 2004,
were dismissed for insufficiency of
The attempt that the RPC punishes evidence based on the demurrer to
is that which has a logical evidence filed by appellant.
connection to a particular, concrete
offense; and that which is the beginning The order granting appellants
of the execution of the offense by overt demurrer to evidence was a
acts of the perpetrator, leading directly resolution of the case on the merits,
to its realization and consummation. and it amounted to an acquittal. Any
further prosecution of the accused after
The court further defined what is an an acquittal would violate the
OVERT ACT. Overt or external act has proscription on double jeopardy.
been defined as some physical activity or Accordingly, appellants conviction of any
deed, indicating the intention to commit of the above crimes, even under
a particular crime, more than a mere Criminal Case No. 1651 (Attempted
planning or preparation, which if carried Rape), would trench in his constitutional
out to its complete termination following right against double jeopardy.
its natural course, without being
frustrated by external obstacles nor by In the end, Appellant was found by
the voluntary desistance of the the court only GUILTY of the
perpetrator, will logically and necessarily following Offenses:
ripen into a concrete offense. 1.QUALIFIED RAPE in Criminal Case No.
1646.
The evidence on record does not 2.GUILTY of four (4) counts of ACTS OF
show that the above elements are LASCIVIOUSNESS under Section 5 (b)
present. The detailed acts of execution Article III of R.A. 7610.
showing an attempt to rape are simply 3. GUILTY of UNJUST VEXATION in
lacking. It would be too strained to Criminal Case No. 1655
construe appellants act of removing
AAAs pants as an overt act that will
logically and necessarily ripen into Philippine Bank of Communications
vs. Spouses Jose C. Go and Elvy T. Go

PROCEDURE
G.R. No. 175514 material averments in paragraphs 8 to 11

of the complaint such as the fact of
February 14, 2011
default, the entire amount being already
SUMMARY JUDGMENT due and demandable by reason of
default, and the fact that the bank had
FACTS: Jose Go, obtained two (2) loans made repeated demands for the
from PBCom. The said loans were payment of the obligations. Spouses Go
secured by a plegde covering the shares opposed the motion for summary
of stock in Ever Gotesco and Resources judgment arguing that they had tendered
Holdings Inc. Two years later, the value of genuine factual issues calling for the
the said shares of stock plunged to P0.04 presentation of evidence.
per share. PBCom informed Go that it
was renouncing the pledge agreement. RTC ruled in favor of PBcom. Go filed a
PBCom thereafter file d a complaint for motion for reconsideration but the same
collection of sum of money before the was denied. The CA nevertheless,
RTC. PBCom alleged that Go defaulted reversed and set aside the judgment of
from his obligation, that consequently, the RTC.
Gos balance immediately became due
ISSUE: Whether PBCom Correctly moved
and demandable, that PBCom made
for Summary Judgment.
several demands from Go.
HELD: No. The CA correctly ruled that
Spouses Go on the other hand filed their
there exist genuine issues as to three
answer with a counterclaim: That the
material facts, which have to be
promissory note referred to is payable
addressed during trial: first, the fact of
within ten years, and the same is not yet
default; second, the amount of the
due; That Go made substantial
outstanding obligation, andthird, the
payments; That while demand is
existence of prior demand.
necessary to consider one to be in
default, he did not receive any demand; Under the Rules, following the filing of
That when the pledge was executed, the pleadings, if, on motion of a party and
shares of stocks value was more than after hearing, the pleadings, supporting
the total amount of the loan, or at least, affidavits, depositions and admissions on
equal; That considering such value went file show that, except as to the amount of
down, it is not permanent. damages, there is no genuine issue as to
any material fact, and that the moving
PBCom filed a verified motion for
party is entitled to a judgment as a
summary judgment that the Answer
matter of law, summary judgment may
interposed no specific denials on the
be rendered. This rule was expounded

PROCEDURE
in Asian Construction and Development summary judgment, is the

Corporation v. Philippine Commercial presence or absence of a
International Bank, where it was written: genuine issue as to any
material fact.
Under Rule 35 of the 1997
Rules of Procedure, as A genuine issue is an issue
amended, except as to the of fact which requires the
amount of damages, when presentation of evidence as
there is no genuine issue as distinguished from a sham,
to any material fact and the fictitious, contrived or false
moving party is entitled to a claim. When the facts as
judgment as a matter of law, pleaded appear uncontested
summary judgment may be or undisputed, then there is
allowed. Summary or no real or genuine issue or
accelerated judgment is a question as to the facts, and
procedural technique aimed summary judgment is called
at weeding out sham claims for. The party who moves for
or defenses at an early stage summary judgment has the
of litigation thereby avoiding burden of demonstrating
the expense and loss of time clearly the absence of any
involved in a trial. genuine issue of fact, or that
the issue posed in the
Under the Rules, summary
complaint is patently
judgment is appropriate
unsubstantial so as not to
when there are no genuine
constitute a genuine issue for
issues of fact which call for
trial. Trial courts have limited
the presentation of evidence
authority to render summary
in a full-blown trial. Even if on
judgments and may do so
their face the pleadings
only when there is clearly no
appear to raise issues, when
genuine issue as to any
the affidavits, depositions
material fact. When the facts
and admissions show that
as pleaded by the parties are
such issues are not genuine,
disputed or contested,
then summary judgment as
proceedings for summary
prescribed by the Rules must
judgment cannot take the
ensue as a matter of law. The
place of trial.(Underscoring
determinative factor,
supplied.)
therefore, in a motion for

PROCEDURE
of respondents Arsenio Aldecoa, Jose B.

Torre, Conrado U. Pua, Gregorio V.
SMART COMMUNICATIONS, INC. vs. Mansano, Jerry Corpuz, and Estelita
ARSENIO ALDECOA, JOSE B. TORRE, Acosta.
CONRADO U. PUA, GREGORIO V.
MANSANO, JERRY CORPUZ and
ESTELITAACOSTA
Respondents filed before the RTC on May
G.R. No. 166330 23, 2000 a Complaint against petitioner
for abatement of nuisance and injunction
September 11, 2013 with prayer for temporary restraining
order, writ of preliminary injunction, and
judgment declaring the construction of
theSMART tower as a nuisance per se or
SUMMARY JUDGMENTS
per accidens The respondents contend
that the installation of the SMART tower
poses great danger to life and limb of
FACTS: Petitioner is a domestic persons as well as their property,
corporation engaged in the especially children, because of the ultra
telecommunications business. On March high frequency (UHF) radio wave
9, 2000, petitioner entered into a emissions it radiates and worse, and in
contract of lease with Florentino violation of law, petitioner constructed
Sebastian in which the latter agreed to the tower without the necessary public
lease to the former a piece of vacant lot, hearing, permit of the barangay, as well
located in Barangay Vira, Roxas, Isabela. as that of the municipality, the
Petitioner, through its contractor, Allarilla Environmental Compliance Certificate of
Construction, immediately constructed the [Department of Environment and
and installed a cellular base station on Natural Resources (DENR)],construction
the leased property. Inside the cellular permit, and other requirements of the
base station is a communications tower, National Telecommunications
rising as high as150 feet, with antennas Commission (NTC).
and transmitters; as well as a power
house open on three sides containing a
25KVA diesel power generator. Around
Petitioner sought the dismissal of
and close to the cellular base station are
respondents Complaint, the denial of
houses, hospitals, clinics, and
respondents prayer for the issuance of a
establishments, including the properties

PROCEDURE
temporary restraining order and writ of Petitioner SMART Communications Inc.,

preliminary mandatory injunction. thru counsel, respectfully manifests that:
1. There is no need for a full-blown

trial as the causes of action and
The case was set for pre-trial. On issues have already been identified
September 11, 2000, petitioner filed its in all the pleadings submitted to
Pre-Trial Brief. in which it identified the this Honorable court by both
among others the following issues: respondents and petitioner
2. There is clearly no genuine issue

as to any material fact or cause in
4.1. Whether respondents have a the action.
cause of action against the
petitioner SMART for this Honorable 3. There is no extreme urgency to
Court to issue a Preliminary issue a Preliminary Mandatory
Mandatory Injunction over the Injunction as stated in an affidavit
SMART tower in Roxas, Isabela as it executed by SMART Senior
allegedly poses a threat to the lives Supervisor Andres V. Romero.
and safety of the residents within
the area and if respondents are 4. Petitioner seeks immediate
entitled to moral and exemplary declaratory relief from
damages as well as attorneys fees respondents contrived allegations
and expenses of litigation. as set forth in their complaint.
4.2 Whether the complaint should

be dismissed in that the claim or
demand set forth in the Complaint Respondents filed their Pre-Trial Brief on
is fictitious, imaginary, sham and September 21, 2000, proposing to limit
without any real basis. the issues, viz:
On even date, petitioner filed a Motion - Whether petitioners

for Summary Judgment that reads: communications tower is a
nuisance per se/per accidens and
together with its standby generator
maybe abated for posing danger to
the property and life and limb of

PROCEDURE
the residents of Vira, Roxas, Isabela

more particularly the respondents
and those whose houses are The cellsite base station is powered
clustered around or in the by a roaring 25 KVA power
periphery of the cell site. generator. Operated 24 hours since
it started more than a month ago,
it has sent "jackhammers into the
brains" of all the inhabitants
- Damages, attorneys fees, nearby. Everyone is going crazy. A
litigation expenses and other resident just recently operated for
claims. breast cancer is complaining that
the noise emanating from the
generator is fast tracking her
appointment with death. She can
Respondents likewise filed on September
no longer bear the unceasing and
21, 2000 their Opposition to petitioners
irritating roar of the power
Motion for Summary Judgment,
generator.
maintaining that there were several
genuine issues relating to the cause of
action and material facts of their
Complaint. They asserted that there was For this, the residents, led by the
a need for a full blown trial to prove the respondents, sought a noise
allegations in their Complaint, as well as emission test of the power
the defenses put up by petitioner. generator of petitioner SMART
Communications with the DENR.
The test was conducted on
November 14 and 15, 2000 and the
The RTC directed the counsels of both
result shows that the petitioners
parties to submit their memoranda,
power generator failed the noise
including supporting affidavits and other
emission test, day and night time.
documents within 30 days.
Result of this test was furnished the
Municipal Mayor of Roxas, Isabela.
Petitioner submitted its Memorandum on

October 26, 2000; while respondents,
With these findings, the power
following several motions for extension of
generator is also a nuisance. It
time, filed their Memorandum on
must also be abated.
November 22, 2000 wherein it was that:

PROCEDURE
January 16, 2001 granting petitioners

Motion for Summary Judgment and
The RTC issued its Order granting entirely dismissing this case. The issues
petitioners Motion for Summary of (1) whether petitioners cellular base
Judgment and dismissing respondents station is a nuisance, and (2) whether the
Complaint. The RTC ruled thatthe generator at petitioners cellular base
perceived dangers being highly station is, by itself, also a nuisance,
speculative without any bases in fact and ultimately involve disputed or contested
allegations in the complaint being more factual matters that call for the
imaginary than real, do not constitute presentation of evidence at a full-blown
factual bases to require further trial.
proceeding or a trial. Respondents
Motion for Reconsideration was
subsequently denied. Respondents filed
an appeal with the Court of Appeals. The Article 694 of the Civil Code defines
appellate court declared the cellular base nuisance as:
station of petitioner a nuisance that
endangered the health and safety of the
residents of Barangay Vira, Roxas,
ART. 694. A nuisance is any act, omission,
Isabela. Petitioner filed its Motion for
establishment, business, condition of
Reconsideration but the appellate court
property, or anything else which:
refused to reconsider its earlier Decision.
(1) Injures or endangers the health
or safety of others; or
ISSUE: Whether the RTC erred in
(2) Annoys or offends the senses;
granting petitioners Motion for Summary
or
Judgment and ordering the dismissal of
respondents Complaint.
(3) Shocks, defies or disregards
decency or morality; or
(4) Obstructs or interferes with the

HELD: YES, While the Court agrees that
free passage of any public highway
the Court of Appeals should not have
or street, or any body of water; or
taken cognizance of the issue of whether
the locational clearance for petitioners
(5) Hinders or impairs the use of
cellular base station is valid, the Court
property.
will still not reinstate the RTC Order dated

PROCEDURE
summary judgment in his favor as to all

or any part thereof.
The term "nuisance" is so comprehensive
that it has been applied to almost all SEC. 3. Motion and proceedings thereon.
ways which have interfered with the The motion shall be served at least ten
rights of the citizens, either in person, (10) days before the time specified for
property, the enjoyment of his property, the hearing. The adverse party may
or his comfort. serve opposing affidavits, depositions, or
admissions at least three (3) days before
the hearing. After the hearing, the
judgment sought shall be rendered
The Court, in AC Enterprises, Inc. v. forthwith if the pleadings, supporting
Frabelle Properties Corporation, settled affidavits, depositions, and admissions on
that a simple suit for abatement of file, show that, except as to the amount
nuisance, being incapable of pecuniary of damages, there is no genuine issue as
estimation, is within the exclusive to any material fact and that the moving
jurisdiction of the RTC. Although party is entitled to a judgment as a
respondents also prayed for judgment for matter of law.
moral and exemplary damages,
attorneys fees, and litigation expenses,
such claims are merely incidental to or as
a consequence of, their principal relief. In Rivera v. Solidbank Corporation, the
Court discussed extensively when a
summary judgment is proper:
Summary judgments are governed by

Rule 35 of the Rules of Court, pertinent
provisions of which state: For a summary judgment to be
proper, the movant must
establish two requisites: (a)
there must be no genuine issue
SEC. 2. Summary judgment for defending as to any material fact, except
party. A party against whom a claim, for the amount of damages;
counterclaim, or cross-claim is asserted and (b) the party presenting
or a declaratory relief is sought may, at the motion for summary
any time, move with supporting judgment must be entitled to a
affidavits, depositions or admissions for a judgment as a matter of law.
Where, on the basis of the

PROCEDURE
pleadings of a moving party, inferences as can reasonably be drawn

including documents appended from the evidence.
thereto, no genuine issue as to
a material fact exists, the
burden to produce a genuine
issue shifts to the opposing Courts must be critical of the papers
party. If the opposing party presented by the moving party and not of
fails, the moving party is the papers/documents in opposition
entitled to a summary thereto. Conclusory assertions are
judgment. insufficient to raise an issue of material
fact. A party cannot create a genuine
dispute of material fact through mere
speculations or compilation of
A genuine issue is an issue of fact which differences. He may not create an issue
requires the presentation of evidence as of fact through bald assertions,
distinguished from an issue which is a unsupported contentions and conclusory
sham, fictitious, contrived or a false statements. He must do more than rely
claim. upon allegations but must come forward
with specific facts in support of a claim.
Where the factual context makes his
claim implausible, he must come forward
The trial court can determine a genuine with more persuasive evidence
issue on the basis of the pleadings, demonstrating a genuine issue for trial.
admissions, documents, affidavits or
counter affidavits submitted by the
parties. When the facts as pleaded
appear uncontested or undisputed, then Judging by the aforequoted standards,
there is no real or genuine issue or summary judgment cannot be rendered
question as to any fact and summary in this case as there are clearly factual
judgment called for. On the other hand, issues disputed or contested by the
where the facts pleaded by the parties parties. As respondents correctly argued
are disputed or contested, proceedings in their Opposition to petitioners Motion
for a summary judgment cannot take the for Summary Judgment:
place of a trial. The evidence on record
must be viewed in light most favorable to
the party opposing the motion who must
be given the benefit of all favorable 1. Contrary to the claim of
petitioner, there are several

PROCEDURE
genuine issues as to the cause MCBURNIE vs. GANZON, 707 SCRA

of action and material facts 646(2013)
related to the complaint. For one
MOTION FOR RECONSIDERATION
there is an issue on the
structural integrity of the tower,
the ultra high frequency (UHF)
radio wave emission radiated by FACTS: On May 11, 1999, petitioner
the communications tower Andrew James McBurnie, an Australian
affecting the life, health and national, signed a five-year employment
well being of the[respondents] contract as Executive Vice-President of
and the barangay residents, respondent EGI Managers, Inc. (EGI),
especially their children. Also, through its President respondent Eulalio
the noxious/deleterious fumes Ganzon. McBurnies responsibilities were
and the noise produce[d] by the to oversee the general management of
standby generator and the the companys hotels and resorts within
danger posted by the tower if it the Philippines, supervise the present
collapses in regard to life and and future constructions of its hotel and
limb as well as the property of resort properties; review the operational
the [respondents] particularly performance of the hotels and resorts;
those whose houses abut, or are and make recommendations to improve
near/within the periphery of the profitability, efficiency and reputation,
communications tower. x x x and to engage other hotel management
groups, if necessary.
On November 1, 1999, petitioner

Likewise constituting real or genuine featured in an accident that fractured his
issues for trial, which arose from skull and necessitated his confinement at
subsequent events, are the following: the Makati Medical Center. While
whether the generator subject of recuperating from his injuries
respondents Complaint had been in Australia, petitioner was informed by
removed; whether said generator had respondent Ganzon that his services
been replaced by another that produces were no longer needed since the project
as much or even more noise and fumes; had been permanently discontinued.
and whether the generator is a nuisance Petitioner filed a complaint for illegal
that can be abated separately from the dismissal with prayer for the payment of
rest of the cellular base station. his salary and benefits for the unexpired
term of the contract, damages and

PROCEDURE
attorneys fees. On September 30, 2004, from enforcing its March 8, 2006
Labor Arbiter Salithmar Nambi rendered Resolution dismissing respondents
a decision declaring petitioners dismissal appeal, and its June 30, 2006 Resolution
illegal denying the motion for reconsideration
thereof.
On November 5, 2004, or 10 days after
receipt of the Labor Arbiters decision, Meanwhile, on October 27, 2008, the
respondents filed before the NLRC a Court of Appeals rendered the
Memorandum of Appeal and Motion to assailed Decision granting respondents
Reduce Bond, and posted as bond the Motion to Reduce Appeal Bond and
amount of P100,000.00. They argued directing them to post an appeal bond of
that the awards of the Labor Arbiter were P10,000,000.00 with the NLRC, which
null and excessive, with the was likewise ordered to give due course
premeditated intention to render the to the appeal and to conduct further
employer incapable of posting an appeal proceedings.
bond and consequently deprive him of
ISSUE: Whether or not the CA erred in
the right to appeal.
debying the second motion for
In an Orderdated March 31, 2005, the reconsideration
NLRC denied the motion to reduce bond
HELD: The Supreme Court emphasizes
and ordered respondents to post an
that second and subsequent motions for
additional bond of P54,083,910.00
reconsideration are, as a general rule,
Respondents moved for reconsideration
prohibited. Section 2, Rule 52 of the
but it was denied in an Order dated July
Rules of Court provides that [n]o second
15, 2005; respondents were again
motion for reconsideration of a judgment
ordered to post the additional appeal
or final resolution by the same party shall
bond within another non-extendible
be entertained.At the outset, the
period of 10 days from receipt thereof.
Court emphasizes that second and
Instead of complying with the order of subsequent motions for reconsideration
the NLRC, respondents filed on August are, as a general rule, prohibited. Section
12, 2005, a petition for certiorari and 2, Rule 52 of the Rules of Court provides
prohibition with the Court of Appeals with that [n]o second motion for
prayer for issuance of a preliminary reconsideration of a judgment or final
injunction and/or temporary restraining resolution by the same party shall be
order, (TRO). entertained. The rule rests on the basic
tenet of immutability of judgments. At
On December 8, 2006, the Court of
some point, a decision becomes final and
Appeals issued a TRO enjoining the NLRC
executory and, consequently, all

PROCEDURE
litigations must come to an end. The There is reconsideration in the higher

general rule, however, against second interest of justice when the assailed
and subsequent motions for decision is not only legally erroneous, but
reconsideration admits of settled is likewise patently unjust and potentially
exceptions. For one, the present Internal capable of causing unwarranted and
Rules of the Supreme Court, particularly irremediable injury or damage to the
Section 3, Rule 15 thereof, provides: Sec. parties. A second motion for
3. Second motion for reconsideration. reconsideration can only be entertained
The Court shall not entertain a second before the ruling sought to be
motion for reconsideration, and any reconsidered becomes final by operation
exception to this rule can only be granted of law or by the Courts declaration.
in the higher interest of justice by the
Court en banc upon a vote of at least
two-thirds of its actual membership.


Rules 33-38 Collated Case Digests

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Rules 33-38 Collated Case Digests

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REMEDIAL LAW II: RULES 33-38, REVISED RULES ON CIVIL PROCEDURE CIVIL

1 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

AND IN REFUSING TO RECEIVE IN not an indicia per se of suppression of

2 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

SPOUSES MICHAELANGELO and were entitled to the possession of the

3 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

4 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

it be allowed to file a demurrer to In the case at bar, petitioner admits that

5 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

6 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

due execution of the disputed pieces of applicable law, the plaintiff

7 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

possibility thereafter of still GARCIA VS CA

8 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

9 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

genuine issue which may be moving party is entitled to a judgment as

10 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

11 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

12 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

July 13, 2000 The trial court denied the petition. A

ISSUE: Whether the petition for relief

13 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

Petitioners, assisted by Atty. Guillermo M.

14 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

15 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

16 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

17 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

18 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

19 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

20 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

However despite the said Affidavit of ISSUE: Whether or not appellants

21 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

rape. Hence, appellant must be

22 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

G.R. No. 175514 material averments in paragraphs 8 to 11

23 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

in Asian Construction and Development summary judgment, is the

24 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

of respondents Arsenio Aldecoa, Jose B.

25 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

temporary restraining order and writ of Petitioner SMART Communications Inc.,

1. There is no need for a full-blown

2. There is clearly no genuine issue

4.2 Whether the complaint should

On even date, petitioner filed a Motion - Whether petitioners

26 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

the residents of Vira, Roxas, Isabela

Petitioner submitted its Memorandum on

27 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

January 16, 2001 granting petitioners

(4) Obstructs or interferes with the

28 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

summary judgment in his favor as to all

Summary judgments are governed by

29 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

pleadings of a moving party, inferences as can reasonably be drawn

30 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

genuine issues as to the cause MCBURNIE vs. GANZON, 707 SCRA

On November 1, 1999, petitioner

31 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

32 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

litigations must come to an end. The There is reconsideration in the higher

33 AGUIRRE, ALMIRANTE, BAARES, CABREROS, FLORES, JABINES, MORES, ORTEGA,

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