Republic of the Philippines

EASTERN SAMAR STATE UNIVERSITY

College of Law
Borongan City, Eastern Samar

CIVIL PROCEDURE II

LECTURE NOTES AND EXERCISES IN CIVIL PROCEDURE II

Atty. PD C. Bugtas, CPA

PART I
MR, MNT, APPEAL (In general)

POST JUDGMENT REMEDIES (PJRs)

PJRs are the remedies which a party to a suit may avail of after a judgment is rendered by
the court trying the case. These remedies may be availed of either

BEFORE a judgment/ final order becomes final and executory:

1. Motion for Reconsideration (Rule 37, Rule52)

2. Motion for New Trial (Rules 37, 53); and
3. Appeal (Rules 40, 41, 42, 43, 45).

OT AFTER a judgment/ final order becomes final and executory:

1. Petition for relief from judgment (Rule 38);

2. Action to annul a judgment (Rule 47);
3. Petition for Certiorari (Rule 65); and
4. Collateral attack of a judgment.

NB: There are certain judgments/final orders which are immediately executory, and the
perfection of an appeal will not ordinarily stay its execution unless it satisfies the
requirements laid down under the rules:

a. Section 4, Rule 39 (Injunction, Receivership, Accounting and Support);

b. Section19, Rule 70 (Forcible Entry/ Unlawful Detainer (FEUD);
c. Section 11, Rule 71 (Contempt)1

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Read the said provisions

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 MOTION FOR RECONSIDERATION (MR)
(Rule 37)

I.

A Motion for Reconsideration referred to under Rule 37 is one directed against a

judgment or final order not to an interlocutory order2.

JUDGEMENT/FINAL ORDER >>> MR (RULE 37) >>> APPEAL

Q1. Can a party file a Motion for Reconsideration assailing an interlocutory order issued by
the court?

Q2. If your answer is in the affirmative, give at least two instances where a Motion for
Reconsideration is not allowed to assail an interlocutory order.

Q3. If a party’s motion for reconsideration assailing an interlocutory order is DENIED, what
is the remedy of the party-movant?

II.

Not all judgment/final orders can be assailed by filing a Motion for Reconsideration. A
Motion for Reconsideration is a prohibited pleading under the Rules on Expedited Procedures
in First Level Courts (AM 08-8-7 SC) which covers the following cases:

(1) Summary Procedure Cases, as follows:

(a) Forcible entry and unlawful detainer cases, regardless of the amount of damages or unpaid
rentals sought to be recovered. Where attorney’s fees are awarded, the same shall not exceed
One Hundred Thousand Pesos (₱100,000.00).

(b) All civil actions, except probate proceedings, admiralty and maritime actions, and small
claims cases falling under Rule IV hereof, where the total amount of the plaintiff ’s claim does
not exceed Two Million Pesos (₱2,000,000.00), exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses and costs.

(c) Complaints for damages where the claim does not exceed Two Million Pesos
(₱2,000,000.00), exclusive of interest and costs.

(d) Cases for enforcement of barangay amicable settlement agreements and arbitration awards
where the money claim exceeds One Million Pesos (₱1,000,000.00), provided that no execution

2
An order which is issued while the case is pending and does not finally dispose of the issues of the main case

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has been enforced by the barangay within six (6) months from the date of the settlement or date
of receipt of the award or from the date the obligation stipulated or adjudged in the arbitration
award becomes due and demandable, pursuant to Section 417, Chapter VII of Republic Act No.
7160, otherwise known as The Local Government Code of 1991.

(e) Cases solely for the revival of judgment of any Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court, and Municipal Circuit Trial Court, pursuant to Rule 39,
Section 6 of the Rules of Court.

(f) The civil aspect of a violation of Batas Pambansa Blg. 22 (the Bouncing Checks Law), if no
criminal action has been instituted therefor. Should a criminal action be later instituted for the
same violation, the civil aspect shall be consolidated with the criminal action and shall be tried
and decided jointly under the Rule on Summary Procedure.

All other cases not included herein shall be governed by the regular rules of procedure.

(2) Small Claims Cases, as defined hereunder, where the claim does not exceed One Million
Pesos (₱1,000,000.00), exclusive of interest and costs. A “small claim” is an action that is purely
civil in nature where the claim or relief raised by the plaintiff is solely for the payment or
reimbursement of a sum of money. It excludes actions seeking other claims or reliefs aside from
payment or reimbursement of a sum of money and those coupled with provisional remedies. The
claim or demand may be:

(a) For money owed under any of the following:

1. Contract of Lease;
2. Contract of Loan and other credit accommodations;
3. Contract of Services; or
4. Contract of Sale of personal property, excluding the recovery of the personal property, unless
it is made the subject of a compromise agreement between the parties.

(b) The enforcement of barangay amicable settlement agreements and arbitration awards, where
the money claim does not exceed One Million Pesos (₱1,000,000.00), provided that no execution
has been enforced by the barangay within six (6) months from the date of the settlement or date
of receipt of the award or from the date the obligation stipulated or adjudged in the arbitration
award becomes due and demandable, pursuant to Section 417, Chapter VII of Republic Act No.
7160, otherwise known as The Local Government Code of 1991.

B. CRIMINAL CASES

The following criminal cases shall be governed by the Rule on Summary Procedure: (1)
Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) Violations of Batas Pambansa Blg. 22 (the Bouncing Checks Law); and

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(5) All other criminal cases where the penalty prescribed by law for the offense charged is
imprisonment not exceeding one (1) year, or a fine not exceeding Fifty Thousand Pesos
(₱50,000.00), or both, regardless of other imposable penalties, accessory or otherwise, or of the
civil liability arising therefrom.

In offenses involving damage to property through criminal negligence under Article 365
of the Revised Penal Code, this Rule shall govern where the imposable fine does not exceed One
Hundred Fifty Thousand Pesos (₱150,000.00). If the prescribed penalty consists of imprisonment
and/or a fine, the prescribed imprisonment shall be the basis for determining the applicable
procedure. All other cases not included herein shall be governed by the regular rules of
procedure.

Q4. Why is it important to determine whether a case is covered by the Expedited Rules of
Procedure?

III.
PERIOD TO FILE A MR:

The period upon which a party may file a motion for reconsideration is basically the same
with the period given for him/her to file an appeal. If the mode appeal is by:

Notice of Appeal: 15 days from receipt of judgment or final order

Record on Appeal: 30 days from receipt of judgment or final order
Habeas Corpus: Within 48 hours3

NB: Default Period: 15 days (A record on appeal is only required is special proceedings
or in cases where multiple/separate appeals is allowed4)

PROBLEM

Mana Sula is the defendant in a civil case for Recovery of Possession with Damages. The
Municipal Trial Court in Cities Borongan rendered judgment in favor of the plaintiff and against
the defendant. The “Judgment” dated August 2, 2023 was received by the defendant on August
19, 2023, and by his counsel of record, Atty. Ekis on August 29, 2023.

Atty. Ekis filed a Motion for Reconsideration on August 12, 2023. The counsel for the
plaintiff filed a comment/opposition on defendant’s MR pointing out that the motion was filed
out of time.

3
In computing the forty-eight (48) hour period of appeal, this Court in Kabigting v. Director of Prisons (6 SCRA 281
[1962]), ruled that the date on which the decision was promulgated and/or served is not counted and the period
starts to run the following day unless the same by a Sunday or legal holiday in which case the period of appeal is to
be considered from the succeeding day. To perfect an appeal, a notice of appeal is required to be filed with the
Clerk of Court or Judge who rendered the judgment
4
Expropriation Proceedings

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 In a resolution dated September 8. 2023, the Court ruled that the MR was timely filed but
DENIED defendant’s Motion for Reconsideration. Defendant’s counsel received a copy of the
resolution on September 20, 2023 and the defendant on September 23, 2023.

Q5. Was the ruling of the court regarding the timeliness of the filing the MR correct?
Q6. As counsel for the defendant what steps will you take to protect the interest of your
client?
Q7. In the given problem, what is the last day of filing an appeal?
Q8. Assuming that instead of recovery of possession the case is for forcible entry and
Atty. Ekis filed his Motion for Reconsideration on August 5, 2023 and received a copy of
the resolution denying his MR on August 8, 2023, can Atty. Ekis still file an appeal?

IV.
REQUISITES OF A VALID
MOTION FOR RECONSIDERATION
(WPN-G

1. The motion for reconsideration must be in WRITING;

2. There must be NOTICE to adverse party;
3. Filed within the PERIOD of perfecting an appeal;
4. The motion is grounded on any of the following GROUNDS:
a. That the damages awarded is excessive;
b. That the evidence is insufficient to justify the decision or final order;
c. That the decision or final order is contrary to law.
5. That the motion must POINT OUT the findings or conclusions of the judgment
which are not supported by evidence or contrary to law making express reference to
the testimonial or documentary evidence or the alleged provision of law alleged to be
contrary to such findings or conclusions.

(A mere recital of the ground/s relied upon without pointing out the error/s in the
assailed judgment is a pro forma motion. A pro forma motion will be treated as a
motion intended to delay the proceedings.5 )

V.

RESOLUTION and EFFECT OF DENIAL/GRANTING THE MR)

The motion shall be resolved within 30 days from the time it is submitted for resolution.
In practice, the court sometimes requires the adverse party to file a comment/opposition to the
MR. If it does, the motion shall be deemed submitted for resolution after the adverse party files
its comment/opposition or lapse of the period given, whichever comes first.

5
Read G.R. No. 149236 - PHILIPPINE NATIONAL BANK v. HON. J. G. PANEDA, ET AL. : February 2007 - Philipppine
Supreme Court Decisions (chanrobles.com)

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 The court may either GRANT OR DENY the MR:

If the MR is granted it is in nature a new judgment which supersedes the original

judgment. If the court finds that a motion affects the issues of the case as to only part, or
less than all of the matters in controversy, or only one, or less than all, it may grant partial
consideration.

PROBLEM
Mr. Clean sold to Mr. Surf a parcel of land for 2 million pesos in 2 equal installments.
After paying Mr. Clean 1 million pesos, Mr. Surf immediately took possession of the land and
built his house thereon. On August 2, 2023, Mr. Surf tendered the remaining 1 million pesos to
Mr. Clean and demanded the execution of Deed of Absolute Sale. The latter refused.

Mr. Clean represented himself as the owner only to find out later that he is merely a court
appointed administrator of the property with no authority to dispose any of the property under his
administration.

Mr. Clean demanded from Mr. Surf to vacate and surrender the possession of the land but
the latter refused. Mr. Clean filed a case for recovery of possession against Mr. Surf.

The court rendered judgment favoring the plaintiff, ordering the defendant to vacate the
property and pay damages.

Mr. Surf filed a MR asking the Honorable Court to vacate the judgment and Order Mr.
Clean to return the 1 million pesos.

Q9. Is the MR tenable? If you were the judge how will you resolve the motion?
Q10. Assuming that the MR of Mr. Surf is granted, can the plaintiff (Mr. Clean) file a
motion for reconsideration?6
x--------x

If the MR is denied, the REMEDY of party-movant is to file an appeal from the judgment
or final order, not the MR.

Denial of MR cannot be assailed by certiorari under Rule 65, the remedy is to appeal
from the judgment.

NB: Neypes Rule-- the fresh period is counted from notice of the resolution denying the
MR. It applies in criminal and civil cases/ judicial proceedings but not to non-judicial
proceedings.

6
Read Cristobal v PAL and Tan, GR No. 201622, October 4, 2017

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 VI.

MR IN APPEALED CASES
(Rule 52)

Motion for Reconsideration

Section 1. Period for filing. — A party may file a motion for reconsideration of a judgment or
final resolution within fifteen (15) days from notice thereof, with proof of service on the adverse
party. (n)

Section 2. Second motion for reconsideration. — No second motion for reconsideration of a

judgment or final resolution by the same party shall be entertained. (n)

Section 3. Resolution of motion. — In the Court of Appeals, a motion for reconsideration shall
be resolved within ninety (90) days from the date when the court declares it submitted for
resolution. (n)

Section 4. Stay of execution. — The pendency of a motion for reconsideration filed on time and
by the proper party shall stay the execution of the judgment or final resolution sought to be
reconsidered unless the court, for good reasons, shall otherwise direct. (n)

MOTION FOR NEW TRIAL (MNT)

(Rule 37)

I.

A Motion for New Trial is a remedy that seeks to temper the severity of a judgment or
prevent failure of justice. The party-movant asks the court to conduct a new trial based on the
grounds relied upon.

JUDGEMENT/FINAL ORDER >>> MNT (RULE 37) >>> APPEAL

A motion for new trial is a prohibited pleading in under the Rules on Expedited
Procedures in First Level Courts (Please refer to discussion on MR)

The period upon which a party may file a MNT is the same with MR; 15 days (NOA) or
30 days (ROA). The timely filing of a MNT interrupts the period to appeal.

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 II.

GROUNDS FOR A MOTION FOR NEW TRIAL

GROUNDS
Fraud, accident, mistake or excusable Newly discovered evidence
negligence

THE MNT MUST BE ACCOMPANIED/SUPPORTED BY

AFFIDAVITS OF MERIT AFFIDAVIT OF WITNESS(ES)

Affidavits setting forth the facts and Affidavits of witnesses by whom such
circumstances alleged to constitute such evidence is expected to be given or by duly
fraud, accident, mistake, excusable authenticated documents which are proposed
negligence to be introduced in evidence.

Affidavits setting forth the particular facts

claimed to constitute the movant’s
meritorious cause of action or defense

XPN: If the granting of the motion for new

trial is not discretionary with the court but is
demandable as of a right, as where the
movant has been deprived of his day in court
through no fault or negligence on his part
because no notice of hearing was furnished
him in advance.
Important Reminder
FRAUD MUST BE EXTRINSIC IN Newly discovered evidence, must be that
NATURE TO BE A GROUND FOR evidence which he could not with ordinary
NULLITY diligence, have discovered and produced at
> Extrinsic fraud—committed outside the the trial, and which if presented, would
litigation against the defeated party probably alter the result.
> Fraud in the procurement thereof

ON THE GROUND OF ACCIDENT OR

SURPRISE, it must appear there was A/S
which ordinary prudence could not have Requisites:
guarded against, and by reason of which, the
party applying has been probably impaired in Evidence found after trial
his rights. Evidence could not have been discovered or
produced at the trial even with the exercise of
MISTAKE is some unintentional act, reasonable diligence
omission or error arising from ignorance, It is material nor merely cumulative,

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 surprise, imposition or misplaced confidence. corroborative and impeaching; and
Its probative weight would probably change
BELIEF THAT THERE IS NO NEED TO the judgment.
APPEAR DURING THE TRIAL BECAUSE
THERE WAS ALREADY A
COMPROMISE AGREEMENT IS A
GROUND FOR NEW TRIAL

EXCUSABLE NEGLECT means a failure to

take the proper steps at the proper time in
consequence of some unexpected or
unavoidable hindrance or accident, or
reliance on the case and vigilance of counsel
or on promises made by the adverse party.

PROBLEM
In a case for recovery of possession, the court has rendered judgment against the
defendant. The latter filed a Motion for New Trial on the ground that the which Certificate of
Live Birth (newly discovered evidence) of the defendant was only obtained by the defendant
from the PSA after judgment. The said document was said to be proof that the defendant is the
illegitimate child of Plaintiff’s father who was originally the owner of the disputed property.

Q11. If you were the judge, will you grant the motion?

III.

RESOLUTION (EFFECT OF DENIAL/GRANTING THE MR)

If the MNT is granted, the original judgment or final order shall be vacated, and the
action shall stand for trial de novo. The recorded evidence taken upon the former trial shall be
used at the new trial without retaking the same if the evidence is material and incompetent.

Same with MR, there can be a partial new trial but unlike a MR which prohibit the filing
of a second MR, a second MNT is allowed under the rules.

If the MNT is DENIED, the remedy of the party movant is to appeal from the decision.

Mr. X is the defendant in a civil case for foreclosure. His counsel Atty. Pa Baya failed to
submit a pre-trial brief and appear during the pre-trial proper. Trial ensued without the defendant
being able to present evidence. Judgment was rendered in favor of the plaintiff. Mr. X terminated
the service of Atty. Pa Baya and hired Atty. Masigasig who filed a MNT on the ground that
defendant was deprived of right to have his day in court.

Q12. Rule on the motion,

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 MNT IN APPEALED CASES
(Rule 53)

Section 1. Period for filing; ground. — At any time after the appeal from the lower court has
been perfected and before the Court of Appeals loses jurisdiction over the case, a party may file a
motion for a new trial on the ground of newly discovered evidence which could not have been
discovered prior to the trial in the court below by the exercise of due diligence and which is of
such a character as would probably change the result. The motion shall be accompanied by
affidavits showing the facts constituting the grounds therefor and the newly discovered evidence.
(1a)

Section 2. Hearing and order. — The Court of Appeals shall consider the new evidence together
with that adduced at the trial below, and may grant or refuse a new trial, or may make such order,
with notice to both parties, as to the taking of further testimony, either orally in court, or by
depositions, or render such other judgment as ought to be rendered upon such terms as it may
deem just. (2a)

Section 3. Resolution of motion. — In the Court of Appeals, a motion for new trial shall be
resolved within ninety (90) days from the date when the court declares it submitted for
resolution. (n)

Section 4. Procedure in new trial. — Unless the court otherwise directs, the procedure in the
new trial shall be the same as that granted by a Regional Trial Court. (3a)

Important questions before filing a Motion for Reconsideration?

1. Is there a judgment or final order?

2. What are the grounds relied upon?
3. WON a MR is allowed?
4. What is the mode of appeal?
5. When is the last day of filing?

APPEAL (In general)

I.
An appeal is the remedy available to a litigant seeking to reverse or modify a judgment
on the merits of a case. Unlike a MR which seeks the correction of the judgment from the very
same court which rendered judgment, an appeal is a remedy used to correct the judgment of a
lower court or tribunal.

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 The right to appeal is neither a natural right nor us a component of due process. It is a
mere statutory right which must be exercised only in the manner and in accordance with the
provisions of the law.

An appeal may be taken from a judgment or final order which completely disposes the
case or a particular matter therein when declared by the rules as appealable.

It is important to know whether a Judgment/Order issued by the Court completely

disposes the case (judgment on the merits) to determine the proper remedy that the party may
avail of.

Rule:

Interlocutory orders and decisions dismissing a case without prejudice are not appealable.
Hence, filing an appeal is the wrong remedy, the proper remedy is to file a petition for certiorari
under Rule 65 on the ground of GADALEJ.

JUDGMENT >>>MR/MNT (DENIED)>>>> APPEAL

The Rules on Appeal:

Decisions rendered by: Appellate Court Reviewed by:

Rule 40 MTCC >>> RTC >>>CA (Rule 42)
Rule 41,44 RTC >>> CA
Rule 43 CTA/QJA >>> CA

Rule 45 CA/SB/RTC/OC >>> SC (Rule 45)

(This remedy may be availed of when the issue raised by petitioner are pure questions of
law)

Special Rules:

Order of Execution: As a rule, a writ/order of execution issued only after the judgment
has become final an executory (save those cases where judgment is immediately executory).
Ordinarily, an order/writ of execution may only be challenged by filing a petition under Rule 65
(CPM). However, the Supreme Court held in the case of City Government of Makati v Odeňa 7
that in certain exceptional cases8, the elevation may either be by appeal or by special civil action.

II.
ISSUES THAT MAY OR MAY NOT BE RAISED ON APPEAL

7
Read GR No. 191661, August 13, 2013
8
When a writ of execution varies in judgment; there is change in situation of the parties; the writ was
improvidently issued; or the writ is defective in substance or issued against a wrong party.

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 GR: Issues that have not been raised before the lower courts cannot be raised for the first
time on appeal. A party may not be allowed to change his theory of the case on appeal as the
adverse party has no more opportunity to rebut the new claim with contrary evidence.

In his appeal, the appellant may include in his assignment of errors any questions of
law or fact or that has been raised in the court below and within the issues framed by the
parties.9

XPNs:
1. When the factual bases thereof would not require the presentation of evidence
by the adverse party.10

The appellate court shall consider no error unless stated in the assignment of errors.11

a. It is an error that affects the jurisdiction over the subject matter.

b. It is an error that affect the validity of the judgment appealed from.
c. It is an error that affects the validity of the proceeding.
d. It is an error closely related or dependent on an assigned error, and properly
argued in the brief.
e. It is a plain clerical error.

It should be noted however that jurisprudence significantly holds that an appellate

court has broad discretionary powers to waive the proper lack of errors and to consider
errors not assigned.

“HARMLESS ERROR (Section 6, Rule 51)”

Section 6. Harmless error. — No error in either the admission or the exclusion of

evidence and no error or defect in any ruling or order or in anything done or omitted by the trial
court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or
otherwise disturbing a judgment or order, unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage of the proceeding must disregard
any error or defect which does not affect the substantial rights of the parties. (5a)

PROBLEM
Defendant-Appellant filed an appeal before the RTC assailing the unfavorable judgment
of the MTCC declaring Plaintiff-Appellee as lawful owner and possessor of the land in dispute.
In his appeal, defendant-appellant pointed out that the MTCC committed error in admitting the
private document executed by plaintiff’s great grandfather despite lack of authentication and
having numerous alteration on its face. The RTC in resolving the appeal disregarded the assigned
error of defendant-appellant.

Q13. Is the doctrine of harmless error applicable in this case?

9
Section 15, Rule 44
10
Read Lao v Yao Bio Lim, GR No. 201306, August 9, 2017
11
Secion 8, Rule 51

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 III.
DISMISSAL OF THE APPEAL

BEFORE THE CA

Section 1, RULE 50

Dismissal of Appeal

Section 1. Grounds for dismissal of appeal. — An appeal may be dismissed by the Court of
Appeals, on its own motion or on that of the appellee, on the following grounds:

(a) Failure of the record on appeal to show on its face that the appeal was taken within the period
fixed by these Rules;

(b) Failure to file the notice of appeal or the record on appeal within the period prescribed by
these Rules;

(c) Failure of the appellant to pay the docket and other lawful fees as provided in section 5, Rule
40 and section 4 of Rule 41; (Bar Matter No. 803, 17 February 1998)

(d) Unauthorized alterations, omissions or additions in the approved record on appeal as

provided in section 4 of Rule 44;

(e) Failure of the appellant to serve and file the required number of copies of his brief or
memorandum within the time provided by these Rules;

(f) Absence of specific assignment of errors in the appellant's brief, or of page references to the
record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44;

(g) Failure of the appellant to take the necessary steps for the correction or completion of the
record within the time limited by the court in its order;

(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply
with orders, circulars, or directives of the court without justifiable cause; and

(i) The fact that the order or judgment appealed from is not appealable. (1a)

Section 2. Dismissal of improper appeal to the Court of Appeals. — An appeal under Rule 41
taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall
be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by

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notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial
Court shall be dismissed. (n)

An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate
court but shall be dismissed outright. (3a)

Section 3. Withdrawal of appeal. — An appeal may be withdrawn as of right at any time before
the filing of the appellee's brief. Thereafter, the withdrawal may be allowed in the discretion of
the court. (4a)

BEFORE THE SC

(Section 5, Rule 56)

Section 5. Grounds for dismissal of appeal. — The appeal may be dismissed motu proprio
or on motion of the respondent on the following grounds:

(a) Failure to take the appeal within the reglementary period;

(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs;

(d) Failure to comply with the requirements regarding proof of service and contents of and the
documents which should accompany the petition;
(e) Failure to comply with any circular, directive or order of the Supreme Court without
justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the Supreme Court. (n)

IV.
WITHDRAWAL OF THE APPEAL

The appellant may withdraw his appeal either as a matter of right or discretion.
Withdrawal of an appeal is a matter of right before the submission by the appellee of his
appellee’s brief and a matter of discretion thereafter.

-END-

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