Rule 34 - JUDGMENT ON THE PLEADINGSQ: When may the court render a judgment on the pleadings?A: When an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading.

We have studied one of the cases the Allied case. We have studied it under modes of discovery a request for admission.The defendant files an answer. Therefore the one who asks for judgment on the pleadings should be the plaintiff.

Q: May a defendant ever ask a judgment on the pleadings?A: Yes. With regard to permissive counterclaim. Why? Because a permissive counterclaim requires an answer while a compulsory counterclaim does not require an answer because the allegations therein are deemed controverted.

Q: How would you distinguish summary judgments (Rule 35) from judgment on the pleadings (Rule 34)?A: 1. In judgment on the pleadings, it simply means that the judgment is based solely on the pleadings. And what are these pleadings, it

is the complaint, the answer and sometimes the reply. Those are the only bases. That's why a judgment on the pleadings is not availed of in the Allied case but rather summary judgment. In summary judgments, the judgment is based not only on the pleadings but on affidavits, depositions and admissions.

2. While in Rule 34, it is totally bereft of an issue while in Rule 35 there is an issue, only that the issue is not genuine. There are issues but the issues are irrelevant and immaterial.

In summary judgments, apparently, although an expanded judgment on the pleadings by even saying that there can be judgment on the pleading to be moved even by the defendant as far as permissive counterclaim is concerned. But take note that specifically in Rule 35, it speaks of a claim by the plaintiff as well as in Section 2 principally by the defendant.

In the Allied case which illustrates a summary judgment, there is a request for admission but the request was never answered. There was an order from the court to answer the request. It was never complied with. Therefore a summary judgment may be asked.

Rule 36 - JUDGMENTS, FINAL ORDERS AND ENTRY THEREOFA judgment may be final but not executory. But once it is executory it must necessarily be final.

Q: So what is a final judgment as distinguished from an executory judgment?A: A judgment may be final but not executory but once a judgment is executory is must necessarily be final. Because a final judgment is one where the trial court is left with nothing else to do. The court has completed its task. It has nothing else to do on the part of the court. It has disposed of the case. Judgment has become final.

But it is not yet executory because the period to appeal or to reconsider or to retry the case has not expired yet. Only after the expiration of the period for new trial, reconsideration or appeal will the judgment become final and executory.

NOTE: Graphically, if you write a circle, that circle represents an executory judgment. Within that circle is another smaller circle representing a final judgment. Two circles, one inside the other. if you have the bigger circle, necessarily you have the smaller circle. But you can have the smaller circle without the bigger circle.Is that a sufficient analogy? Want a stronger analogy? If the smaller circle represents sex, the bigger circle represents love, once there is love necessarily there must be sex but there can be sex without love.

In Rule 36, the final order referred to in here is executory not just final.

Q: What are the requirements for a judgment?A:1. It must be in writing (walang judgment na oral);2. The judgment must be personally written by the judge; and3. The judgment must be entered. Because a judgment which is not entered has only become final but not executory.4. That every judgment the facts and the law on which its disposition was anchored and based.

It is not just a procedural requirement, but this is even a constitutional requirement.

Section 2, second sentence, Rule 36 is IMPORTANT which is "THE DATE OF FINALITY OF THE JUDGMENT OR FINAL ORDER SHALL BE DEEMED TO BE THE DATE OF ITS ENTRY".

Q: Explain this sentence.A: It means that when the judgment has become executory, the date where the judgment has become executory shall be the date of its entry.

Q: What do you mean by entry of judgment?A: An entry of judgment is the recording of the judgment by the clerk of court in the book of entries of judgment. Bawat korte may libro ng entries of judgment.

If the judgment was rendered by the RTC Manila on January 5, 2005, let us assume that all the parties to that case received a copy of the judgment on January 10, so the parties have until January 25 (15 days) to file Motion for New Trial, Motion for Reconsideration, or

Appeal. After January 25, the judgment has become executory.

Q: Suppose the clerk of court entered or recorded the judgment in March 15, 2007, when is the entry of judgment?A: The entry of judgment is January 25. Ito ang ibig sabihin ng second sentence of section 2 of Rule 36. Hindi kabaliktaran. So the judgment was entered January 25 and not March 15.

Q: What is the rationale of the law? A: Otherwise if it is the actual recording which is the entry of judgment then the finality of the judgment and its executory character will depend upon the will of the clerk of court. The entry, when the period to appeal has expired.

Q: Why is the entry of judgment is important?A: It is very important because there are procedural actions which is counted from its entry of judgment.

Q: Why execution?A: Judgment can be executed only by motion within a period of 5 years from entry of judgment. Petition to relief can only be done within a period of 6 months from entry of judgment. Kaya importante yun. Kaya hindi yung actual recording although the meaning of entry is the actual recording but the entry is reckoned when the judgment has become final and executory. When the period for reconsideration, or appeal has not been availed of and has expired.

Q: What are the different kinds of judgment?A:1. Judgment upon compromise;2. Judgment upon confession;3. Judgment upon the merits;4. Clarificatory judgment;5. Judgment non pro tunc (now for then);6. Judgment sin perjuicio;7. Judgment by defaulty (Sec. 3, Rule 9);8. Judgment on the pleadings (Rule 34);9. Summary judgment (Rule 35);10. Several judgment (Sec. 4, Rule 36);11. Separate judgment (Sec. 5, Rule 36);12. Special judgment (Sec. 11, Rule 39);13. Judgment for specific acts (Sec. 10, Rule 39);14. Judgment on demurrer to evidence (Rule 33);15. Conditional judgment; and16. Final judgment

RULE 37

NEW TRIAL OR MOTION FOR RECONSIDERATION. This is the remedy of the judgment obligor after the judgment has become final but not executory.

Q: Is it mandatory?A: No. It is not mandatory except in certiorari as special civil action.

NOTE: A motion for reconsideration is not mandatory. The remedy is available but you may or may not avail of it unless the rule asks that you must first file a motion for reconsideration. Ordinarily, if the case is pending before the appellate court, a motion for reconsideration is advisable.

Q: The time frame, when can one file a motion for reconsideration or a motion for new trial?A: In cases of notice of appeal, within 15 days or in cases of record on appeal, within 30 days. When you go to special civil action, you will note that there are certain appeals which must be taken by record on appeal because there are several stages in an action. In fact the best example for a record on appeal is special proceedings in settlement of estates.

Q: But ordinarily it is 15 days. What is the point of reference of the 15 days?A: From receipt or notice of judgment.

You file an appeal or motion for reconsideration or motion for new trial. We are dealing only with motion for new trial or reconsideration. Under the present rules, the grounds have been delineated. They have been separated unlike before prior to the 1997 rules they have the same grounds. But now if you file a motion for new trial, you have to file it on a valid ground. If you file a motion for reconsideration, you have to file it on a valid ground.

NOTE: If you file a motion for new trial on the ground of either under a motion for reconsideration, your motion will be considered as a motion for reconsideration. On the other hand, if you file a motion for reconsideration on any of the grounds under new trial, your motion will be treated as a motion for new trial.So your ground is crucial because they have been separated already. But both speak of different grounds.

Q: What are the grounds for motion for reconsideration?

A:1. Excessive award of damages;2. Evidence is insufficient to justify the decision or final order; or3. Decision or final order is contrary to law.

Q: What are the grounds for a motion for new trial?A:1. 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; or2. 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.In answering the grounds for a motion for new trial, you have to complete the grounds as stated under Section 1 Rule 37. Kulang daw pag fraud, mistake, accident, or excusable negligence or newly-discovered evidence lang. You have to qualify and that qualification is the complete sentence under the two paragraphs of Section 1 of Rule 37.

Q: When is negligence excusable?A: It is excusable: First, as to subject matter. If the subject matter is not that serious, it can be excused. But watch out for that kind of explanation of excusable negligence because you must have read certain jurisprudence saying that procedural rules should not be a deterrent to the proper administration of justice. So that it should give way to the substantive rights of individuals. That is a very sweeping statement because there are certain procedural rules that must be complied with.

So there is no hard and fast rule as to when negligence is excusable. It must be considered on a case to case basis.

Q: What mistake is referred here?A: Mistake of fact and not mistake of law. Because in mistake of law it amounts to ignorance of the law. So it must be mistake of fact or misappreciation of facts. In criminal law you have studied aberratio ictus. Because in civil law, it says ignorance of the law excuses no one.

Q: How about accident?A: Unforeseen, unexpected, or sudden occurrences. How about death, is it accident? Death is not an accident. Death is the most certain uncertainty. So it can never be accidental. Sometimes it becomes accidental because you don't know when it will strike. How about missing the bus, train or airplane? No.

Now let's go to a very important ground which is fraud. Fraud here is not any kind of fraud but rather an extrinsic fraud to be differentiated from intrinsic fraud.

Q: When is there extrinsic and when is there intrinsic fraud?A: Extrinsic fraud connotes any fraudulent scheme executed by a prevailing party outside of the trial against the losing party who because of such fraud is prevented from presenting his side of the case while an intrinsic fraud refers to acts of a party during the trial which does not affect the presentation of the case.

Q: Give an example.A: Extrinsic fraud: If A (witness) was paid not to appear before the court for trial. Intrinsic fraud: When the signature of the party was forged.

Remember: we are talking here of new trial. Meaning to say there has been a trial because you are asking for another trial. If you are asking for another trial because of fraud, the fraud must have happened outside the proceeding. That is what is meant by extrinsic, outside the proceeding.

Q: But if it is intrinsic, it is within the proceeding. Why is it not a ground for new trial? A: Because you should have questioned it right there and then but you did not. So you waive your right. For example, during the proceeding the other party presents a forged document or a fictitious document and it was admitted. Because right there and then you should have questioned it but because you didn't question it the evidence has been admitted, you have considered to have waived your right. That is the meaning of intrinsic fraud.

Q: The other ground is newly-discovered evidence, but how do you qualify that newly-discovered evidence?A: Use the wordings of the rule. Paragraph b, Section 1 of Rule 37 states that "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."

There are two cases, which I have assigned, illustrating the specific requirements for newly-discovered evidence. One is a civil case and the other is a criminal case.

Mendezona v. Ozamis doctrine (Civil Case): Requisites of newly-discovered evidence:1. The evidence had been discovered after trial;2. The evidence could not have been discovered and produced during trial even with the exercise of reasonable diligence: and3. The evidence is material and not merely corroborative, cumulative or impeaching and is of such weight that if admitted, would

probably alter the result.

NOTE: All 3 requisites must characterize the evidence sought to be introduced at the new trial.

People v. Li Ka Kim doctrine (Criminal case): Requisites of newly-discovered evidence:1. The evidence is discovered after trial;2. Such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and3. The evidence is material, not merely cumulative, corroborative, or impeaching, and of such weight that, if admitted, would likely

change the judgment.

The ground of newly-discovered evidence for a motion for new trial is not only available in civil cases but also to criminal cases under Rule 121.

Q: What kind of evidence does the rule refer to?A: Any kind of evidence may be used. Either testimonial, documentary or real evidence may be used.

Q: But there is a requirement, if it is testimonial evidence, when you file a motion what is required?A: When you file for the motion for new trial, you have to attach the affidavits.

Q: How about documentary?A: You have to attach a certified copy of the document that was newly-discovered.

Q: How about real evidence?A: Describe the real evidence. If it is capable of manual delivery, bring it in court.

So any kind of evidence may be newly-discovered. But in applying for that newly-discovered evidence, you have to comply with the affidavit.

NOTE: Also, in the ground of FAME, you also have to comply with an affidavit requirement of affidavit of merits. You have to state in your affidavit what constituted fraud, accident, mistake or excusable negligence. The court may either deny or grant your motion.

Q: If it is denied, what is the remedy?A: You appeal from the judgment. Because this is an ad interim remedy.

Q: If it is granted, what is the effect of that?A: Previous judgment is vacated. But this trial de novo must not be understood as trial de novo prior to the 1997 rules because trial de novo back then was complete setting aside of the decision or judgment or final order. Under the present rules it is relative, you set aside the dispositive portion of the judgment but the evidence which have been admitted will remain and there is no need for retaking them.

This is different from motion for reconsideration. Because if your motion for reconsideration was denied, your remedy was appeal also or even new trial as the case may be if you want to because they have different grounds already.

Q: But if it was granted, does it set aside the judgment?A: No. It only corrects the judgment. Because look at the grounds for motion for reconsideration, it is more of an amendment. There is no trial de novo here.

Q: Can you file a second motion for reconsideration?A: No. Except the Supreme Court, where you can file a second, third or even fourth motion for reconsideration.

Q: Can you file a second motion for new trial?A: Yes. Only grounded on newly-discovered evidence. You cannot file a second motion for new trial on FAME because they were already present or forms part within the the proceeding not outside the proceeding. So if you are given a problem, always remember that the second motion for new trial is solely grounded on newly-discovered evidence. Because when you file a motion for new trial on the ground of newly-discovered evidence for the first time, FAME was already existent. But if you file a motion for new trial on the ground of FAME, for the first time and it was denied, it is possible that you will still file a second motion for new trial on the ground of newly-dicovered evidence.

Q: But not in a motion for reconsideration. And that is precisely the rationale why there is no second motion for reconsideration. Why? A: Because all the grounds are there already. So why don't you include it in your first motion for reconsideration. If you find out that the judgment is contrary to law, that the award of damages is excessive, that the evidence is insufficient, aren't they all present when you file your first motion for reconsideration (answer was yes), then why didn't you include it? So there is no second motion for reconsideration.

Question from a student: When your motion for new trial was denied your remedy is appeal. When you want to question the denial of the motion for new trial, you can file a special civil action of certiorari. Now, if your certiorari was given due course, ordinarily the SC will remand the case for further proceedings to the trial court. If your appeal was also given in due course, the appellate court will take cognizance of it. So technically there are two cases pending before two different courts but with the same issues, subject matter and same parties. How are we going to consolidate or resolve this issue?Atty. Brondial did not squarely answer this question. Though he recognized that for academic reasons, this is allowed because they have different grounds. But practically speaking, it is a waste of time because if you file a petition for certiorari under Rule 65, the SC, ordinarily, does not resolve such issue within 15 days. So you run the risk of having the period prescribed. So why bother filing for a special civil action of certiorari when it does not interrupt the running of the reglementary period for appeal from the denial of the motion

for new trial. It is how these cases can be consolidated that problem arises. Anong kaso ang pipiliin mo?RULE 38

PETITION FOR RELIEF JUDGMENTS, ORDERS OR OTHER PROCEEDINGS

Q: There are two forms of petition for relief:A:1. Petition for relief from judgment (Section 1) and2. Petition for relief from denial of an appeal (Section 2).

Q: What are the grounds?A: Fraud, accident, mistake, or excusable negligence. The same grounds as the motion for new trial. And because we have the same grounds, the limitation is "had you the opportunity to file a motion for new trial and you did not file a motion for new trial due to your own fault or negligence, you lose your right even of filing a petition for relief."

These are not alternative remedies. Remove from your mind that once you lose in your motion for new trial or reconsideration and you did not appeal you can file a petition for relief because it is wrong. They have the same grounds.

Q: What is important here is the time frame. When?A: 1. Within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside; AND2. Not more than 6 months after such judgment or final order was entered, or such proceeding was taken.

Q: We studied under Rule 36 regarding entry of judgment. When is judgment entered?A: The entry of judgment is the date of finality. It is not the actual recording of the judgment in the book of entries. Judgment becomes final when the period for appeal, new trial or reconsideration has already expired and one did not avail it, the judgment becomes final and executory. And when the judgment has become final and executory it is the date of entry. And from that date of entry, you count 6 months within which to file your petition for relief from judgment.

Q: A was a judgment obligor (in other words he lost in the case). No motion for new trial, reconsideration or appeal was filed. Judgment was entered on January 10. If you have 6 months therefrom, you have until July 10. But A came to know of the judgment only on July 5. The rule says he has 60 days from knowledge of the judgment within which to file petition for relief from judgment. Can A still file, in this instance, a petition for relief from judgment?A: Yes, A can still file a petition for relief from judgment. A has only 5 days to file such petition. Because both periods (60 days and 6 months) must be complied with.

Q: If the entry of judgment was January 10 and A came to know of it in January 20, until when can he file a petition for relief from judgment?A: March 20 or March 22 (if leap year). In other words, 60 days lang. Hindi na bibilangin from January 10 up to July 10 because you came to know of the judgment on January 20. So both periods must be complied with.

The rationale of the law is don't sleep on your rights. You came to know of it already, you should make a move. In other words, you must know it within the 6 month period. Yan and ibig sabihin ng batas.

NOTE: If you come to know of it, in our example, by August, you can no longer file because the entry of judgment was made on January 10. The defense for lack of knowledge is unavailing because the 6 month period must be complied with.

One student wanted to clarify something: The 60 day and 6 month period were relaxed by the SC in the case of Argana v. Republic (November 19, 2004).That's new, Atty. Brondial will check on that.

Q: The other one is petition for relief from denial of appeal. How is this?A: The grounds (FAME) are the same. But prayer here is that the appeal be given due course.

Q: What happens if the petition for relief was granted (either Sec 1 or Sec 2)?A: In effect as if the court grants a new trial under Section 1. Under Section 2, Rule 40-42 apply already. Since the appeal has been granted, you have to elevate the records to the appellate court.

NOTE: Please take note that when a party files a petition for relief from judgment, the judgment is already executory. In other words, by filing a petition for relief from judgment, it will not stop the executory character of the judgment. So the judgment can be executed because the judgment has become final and executory.

Q: So what is your remedy?A: Together with your petition for relief, you avail of the provisional remedy of the preliminary injunction or TRO. Otherwise, if you don't do that, the petition for relief will become useless because it will not change the executory character of the judgment.

Remember here that the petitioner for relief from judgment, chances are would be the judgment obligor. And because you were not able to get an injunctive relief the judgment is executed.

Q: What happens now if the judgment is executed and then the petition for relief was granted without preliminary injunction?A: Let me give a concrete example. Mr. A files an action for the recovery of sum of money against B for P1M. Judgment was rendered in favor A. B did not file a motion for new trial, reconsideration or appeal without his fault. So his remedy is petition for relief from judgment. But the judgment in favor of A was already executory. B's injunctive relief was denied. So the judgment was executed. Thereafter B was granted the injunctive relief. Now what will happen? B can file for claim for damages or restitution. That's why petition for relief is not often granted.

Mesina v. Meer doctrine: "Any court" only means the MTC and RTC. It does not extend to CA or SC. The CA and SC are governed by separate rules. The SC said that Rule 38 is only available before the MTC and RTC.

The SC cited the historical background for this. Because prior to the 1997 rules, if the judgment is rendered by an inferior court, the petition for relief is filed with the RTC. If the decision is rendered by the RTC, it is filed with the RTC. Under the 1997 rules, petition for relief under Rule 38, you file it where the case was decided. So if it was decided with the MTC, you file it with the MTC. If it was decided with the RTC, you file it with the RTC.

NOTE: But take note, it is not a motion but a petition. In other words, it is a separate action. With that qualification that while it is a separate action where you can file it anywhere, the limitation is you file it in the court where the judgment was rendered. Suppose, if it's the MTC, you file it with the MTC and if it's the RTC, you file it with the RTC. Unlike before, prior to the 1997 Rules, if it is decided by the MTC, you file the petition for relief with the RTC. If the decision emanates from the RTC, you file it with the RTC. Ngayon, pinantay na lang yan. And it was because of Rule 5 on uniform procedure before the court.

Mercury Drug v. CA doctrine:Q: When do you count the 60-day period? From notice. Notice to whom? Yun ang doctrine dito. Notice to counsel is notice to client. Thus, when there was already a lapse of period within which to file the petition for relief, the client is already barred from filing such petition.

Q: Incidentally, do you understand this notice? Di ba, sabi sa petition for relief, you file it within 60 days when you learn of the judgment. Hindi ba when you learn of the judgment, your remedy is appeal? When do you learn the judgment, when you receive a copy of the judgment. So, does it follow that when you receive the copy of the judgment, you don't appeal na lang but file a petition for relief? A: No. you cannot do that. Notice referred to there, to the party who will file a petition for relief is notice other than the regular notice coming from the court. In other words, the petitioner came to know of it other than the regular way. Because an ordinary party or any party for that matter, once you receive a copy of the judgment, the natural and usual reaction would be to appeal.