1997 Rules on Civil Procedure Rule 37

2001 Edition New Trial or Reconsideration

Rule 37
NEW TRIAL OR RECONSIDERATION

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

Section 1. Grounds of and period for filing motion for new trial or
reconsideration. Within the period for taking an appeal, the aggrieved party may
move the trial court to set aside the judgment or final order and grant a new
trial for one or more of the following causes materially affecting the
substantial rights of said party:
(a) Fraud, accident, mistake or excusable negligence which ordinary prudence
could not have guarded against and by reason of which such aggrieved party has
probably been impaired in his rights; or
(b) Newly discovered evidence, which he could not, with reasonable
diligence, have discovered and produced at the trial, and which if presented
would probably alter the result.
Within the same period, the aggrieved party may also move for
reconsideration upon the grounds that the damages awarded are excessive, that
the evidence is insufficient to justify the decision or final order, or that the
decision or final order is contrary to law.(1a)

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

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

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

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

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

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

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

NEW TRIAL

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

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

2.) Newly Discovered Evidence (NDE)

FIRST GROUND: Fraud, Accident, Mistake, Excusable negligence (FAME)

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

Lakas Atenista 82
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

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

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

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

FRAUD (Extrinsic)

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

GARCIA vs. COURT OF APPEALS

202 SCRA 228 [1991]

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

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

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

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

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

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

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

Lakas Atenista 83
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

You can present rebuttal evidence. It is your obligation to prove that my witnesses are lying and my
documents are false. Definitely, you cannot ask a motion for a new trial.

ACCIDENT

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

accident a sufficient ground for new trial?

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

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

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

MISTAKE

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

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

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

BELLO vs. LABONG

L-10788, April 30, 1959

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

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

Lakas Atenista 84
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

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

PEOPLE vs. MANZANILLA

43 Phil. 167

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

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

EXCUSABLE NEGLIGENCE

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

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

INEXCUSABLE NEGLIGENCE; Examples:

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

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

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

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

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

EXCUSABLE NEGLIGENCE; Examples:

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

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

Lakas Atenista 85
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

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

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

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

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

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

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

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

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

NEWLY DISCOVERED EVIDENCE

Section 1(b). Newly discovered evidence, which he could not, with reasonable
diligence, have discovered and produced at the trial, and which if presented
would probably alter the result.

Q: What is Newly Discovered Evidence (NDE)?

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

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

EXAMPLE: You are a defendant being sued because of non-payment of an account. Ang depensa
mo, bayad na. Pero saan ang resibo? “Basta binayaran ko siya, ok naman. Sabi nga niya wala na raw akong
utang.” Now, so it’s your word against his word and the court did not believe you. Then eto naman
ang sabi ni X, “Natalo ka? Bayad naman yan ba.” Kung ganun, bakit alam mo? X: “Nandoon man ako ba. I

Lakas Atenista 86
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

was there watching when you paid him.” Meaning, kung nagtestify ka (X) noon, baka daug ako because
my defense would have been corroborated by you. Yaaann!

Q: What are the REQUISITES for NDE?

A: The following:

1.) That the evidence was discovered after trial;

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

THAT THE EVIDENCE WAS DISCOVERED AFTER TRIAL;

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

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

THAT IT COULD NOT HAVE BEEN DISCOVERED DURING TRIAL

EVEN WITH EXERCISE OF REASONABLE DILIGENCE

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

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

THAT IF ADMITTED, SUCH EVIDENCE WOULD PROBABLY ALTER THE RESULT

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

NEW TRIAL vs. REOPENING OF TRIAL

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

EXAMPLE: Tapos na ang trial. What will come next is decision and then the party said, “Your
honor, could we reopen the trial? Meron kaming nakalimutan eh. I forgot an important piece of evidence.” Now,
that cannot be new trial because wala pa man ang judgment. Rule 37 applies only when there is already

Lakas Atenista 87
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

a judgment. In the example, is that a motion for new trial? No. It should be called a motion for
reopening of trial.

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

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

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

MOTION FOR RECONSIDERATION

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

A: Third paragraph of Section 1:

Within the same period, the aggrieved party may also move for
reconsideration upon the grounds that the damages awarded are excessive, that
the evidence is insufficient to justify the decision or final order, or that the
decision or final order is contrary to law.(1a)

Q: When do you file a motion for reconsideration?

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

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

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

1.) The damages awarded are excessive;

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

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

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

MOTION FOR NEW TRIAL; FORMAL REQUIREMENTS

Sec. 2. Contents of motion for new trial or reconsideration and notice

thereof. The motion shall be made in writing stating the ground or grounds
therefor, a written notice of which shall be served by the movant on the adverse
party.
A motion for new trial shall be proved in the manner provided for proof of
motions. A motion for the cause mentioned in paragraph (a) of the preceding
section shall be supported by affidavits of merits which may be rebutted by
affidavits. A motion for the cause mentioned in paragraph (b) shall be supported
by affidavits of the witnesses by whom such evidence is expected to be given, or
by duly authenticated documents which are proposed to be introduced in evidence.

Lakas Atenista 88
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

A motion for reconsideration shall point out specifically the findings or

conclusions of the judgment or final order which are not supported by the
evidence or which are contrary to law, making express reference to the
testimonial or documentary evidence or to the provisions of law alleged to be
contrary to such findings or conclusions.
A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal. (2a)

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

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

PEOPLE vs. COURT OF APPEALS

296 SCRA 418 [Sept. 25, 1998]

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

HELD: The motion should be denied. “A supplemental pleading subsequently filed to

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

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

Rule 15, Sec. 3. Contents. - A motion shall state the relief sought to be
obtained and the grounds upon which it is based, and if required by these Rules
or necessary to prove facts alleged therein, shall be accompanied by supporting
affidavits and other papers. (3a)

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

Q: Is it necessary that when you file motion for new trial, you must attach affidavits?

REQUIREMENTS WHEN THE GROUND IS F.A.M.E.

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

Q: What is an affidavit of merits?

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

Lakas Atenista 89
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

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

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

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

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

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

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

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

A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal. (2a)

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

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

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

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

MANIPOL vs. LIM TAN

55 SCRA 202

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

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

Lakas Atenista 90
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

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

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

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

REQUIREMENTS WHEN THE GROUND IS NEWLY DISCOVERED EVIDENCE

Q: Suppose your ground for new trial is newly discovered evidence (NDE). What is the
requirement?
A: Section 2, 2nd paragraph, 3rd sentence provides, “A motion for the cause mentioned in (Section
1) paragraph [b] (NDE) shall be supported by affidavits of the witnesses by whom such evidence is
expected to be given, or by duly authenticated documents which are proposed to be introduced in
evidence.”

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

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

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

MOTION FOR RECONSIDERATION; FORMAL REQUIREMENTS

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

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

1.) The damages awarded are excessive;

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

Q: Can you file a motion for reconsideration by just simply stating that “the decision is wrong or
contrary to law,” or “the findings of the judge are not supported by evidence”?
A: NO. Under Section 2, 3rd paragraph, you must point out specifically the findings or conclusions
of the judgment or final order which are not supported by the evidence or which are contrary to law,
making express reference to the testimonial or documentary evidence or to the provisions of law
alleged to be contrary to such findings or conclusions.

Lakas Atenista 91
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

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

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

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

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

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

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

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

Lakas Atenista 92
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

thereafter found such argument unmeritorious or as inadequate to warrant modification or

reversal of the main decision, does not, of course, mean that the motion for reconsideration
should have been regarded, or was properly regarded, as merely pro forma.”

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

EFFECTS WHEN MOTION IS GRANTED

Sec. 3. Action upon motion for new trial or reconsideration. The trial court
may set aside the judgment or final order and grant a new trial, upon such terms
as may be just, or may deny the motion. If the court finds that excessive
damages have been awarded or that the judgment or final order is contrary to the
evidence or law, it may amend such judgment or final order accordingly. (3a,
R37)

Sec. 6. Effect of granting of motion for new trial. If a new trial is

granted in accordance with the provisions of this Rule, the original judgment or
final order shall be vacated, and the action shall stand for trial de novo; but
the recorded evidence taken upon the former trial, in so far as the same is
material and competent to establish the issues, shall be used at the new trial
without retaking the same. (5a)

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

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

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

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

shall be resolved within thirty (30) days from the time it is submitted for
resolution. (n)

There is now a deadline for the court to act on the motion – within 30 days from the time it is
submitted for resolution.

SECOND MOTION FOR NEW TRIAL OR RECONSIDERATION

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

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

Lakas Atenista 93
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

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

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

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

Sec. 8. Omnibus motion. - Subject to the provisions of section 1 of Rule 9,

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

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

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

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

NEW TRIAL vs. MOTION FOR RECONSIDERATION

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

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

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

A: The following are the distinctions:

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

2.) As to trial:

Lakas Atenista 94
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

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

3.) As to a second motion:

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

Sec. 7. Partial new trial or reconsideration. If the grounds for a motion

under this Rule appear to the court to affect the issues as to only a part, or
less than all of the matter in controversy, or only one, or less than all, of
the parties to it, the court may order a new trial or grant reconsideration as
to such issues if severable without interfering with the judgment or final order
upon the rest. (6a)

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

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

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

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

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

Sec. 8. Effect of order for partial new trial. When less than all of the
issues are ordered retried, the court may either enter a judgment or final order
as to the rest, or stay the enforcement of such judgment or final order until
after the new trial. (7a)

This is a continuation of Section 7.

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

The following rules will describe the situation in Section 8:

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

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

Lakas Atenista 95
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 37
2001 Edition New Trial or Reconsideration

Rule 39, Sec. 2. Discretionary execution.

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

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

Rule 41, Section 1. Subject of appeal. An appeal may be taken from a

judgment or final order that completely disposes of the case, or of a particular
matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
x x x x x
(g) A judgment or final order for or against one or more of several parties
or in separate claims, counterclaims, cross-claims and third-party complaints,
while the main case is pending, unless the court allows an appeal therefrom; and
x x x x x
Let’s go back to Rule 37.

Sec. 9. Remedy against order denying a motion for new trial or

reconsideration. An order denying a motion for new trial or reconsideration is
not appealable, the remedy being an appeal from the judgment or final order. (n)

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

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

Rule 41, Section 1. Subject of appeal. An appeal may be taken from a

judgment or final order that completely disposes of the case, or of a particular
matter therein when declared by these Rules to be appealable.
NO APPEAL may be taken from:
(a) An order denying a motion for new trial or reconsideration;
x x x x x x

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

-oOo-

OUTLINE of the process: (after trial)

1.) Decision/Judgment;
2.) Motion for New Trial or Reconsideration (Rule 37);
3.) If denied, court makes a order denying your motion for new trial or reconsideration;
4.) Appeal based on the decision/judgment and not based on the order denying your motion.

Lakas Atenista 96
Ateneo de Davao University College of Law