AFFIDAVITS AND DEPOSITIONS to determine if there is no genuine issue. Affidavits should be within the personal knowledge of the affiant.
Now, let me give you a very simple example and I hope you would know whether it is summary judgment that will apply or judgment on the pleadings. In a case decided by the court, there was a loan extended let us say to me. A loan extended to me and that loan of Php1M was evidenced by a promissory note, except that the promissory note did not provide for a due date but for all intents and purposes we have agreed that the due date was May 30, 2011. So when May 30 came, the same was still unpaid there was a request for me to pay I ignored it. Can you follow? Now, so what happens? I was sued, when I was sued what did I say in my answer? Yes I owe you money, yes there is a promissory note but look at that the promissory note is blank as to the due date and therefore it is not yet due and demandable. Can you follow? What can I file? Will I file a judgment on the pleadings or will I file summary judgment? The regional trial court that resolved that issue said, because what was filed was judgment on the pleadings, granted the judgment on the pleadings. It was elevated to the higher court and the Supreme
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Court said: while it is true that you could render a judgment, the Supreme Court said that the proper remedy should have been summary judgment, because there was an issue... Correct! Although the issue was not genuine. Ginawan niya ng issue eh, blangko yan oh! Kita niyo blangko, hindi pa due. Do you follow? There is no genuine issue. As an example I always give my students so that they will not forget in the bar review like this, you will always remember no genuine issue. Gusto niyo malaman kung paano? Kaya lang huwag yung example ko ang tandaan niyo but how to apply it. Katulad ngayon marami kayong makikilala di ba? Marami kayong bagong friends, so yung mga iba dyan may mga magugustuhan at may girlfriend o boyfriend kapag nakita ulet yung boyfriend or yung girlfriend. Dahil nga may bago nang gusto; Alam mo kailangan talaga ako sabi ni mommy mag-aral ng mabuti! Di ba ganun?! Mag-aral ng mabuti kaya dapat di muna tayo magkita masyado. Kasi baka ako bumgasak sa bar eh. Sa ngayon cool-off muna tayo! Is there a genuine issue? NO! There is no genuine issue, you only fabricated the issue. Tama ba ako meron bang gumagawa ngayon niyan? There is no genuine issue, it is sham, it is false. so dapat yun sina-summary judgment ka! Ok! Now, let us move on...talaga itong bar review na ito eh! Now let us proceed to JUDGMENT. I touched judgment a while ago but let me touch on the case of Intramuros Tennis vs. PTA. This case distinguished a final judgment from an interlocutory order. A FINAL JUDGMENT under RULE 36 –That which finally disposes of the case. An INTERLOCUTORY ORDER – Something else has to be done. Why is this an important discussion because that will lead us to our discussion on, execution. But class, I would like you to distinguish a SEVERAL JUDGMENT FROM a SEPARATE JUDGMENT. A several judgment is a judgment involving PARTIES, defendants- several. When you talk of separate judgment, you talk of what? CLAMS! You talk of claims as would apply to summary judgment.
What is an ENTRY OF JUDGMENT? An entry of judgment is issued by the court after the lapse of the reglementary period to appeal and for that reason, judgment is already final and executory. Do you follow?
Can that be a basis of execution? YES! Hat could be a basis of execution.
Can a final judgment that has not aatained finality or does a final judgment which is not yet final and executory subject of execution? YES! That is what you call DISCRETIONARY EXECUTION or the way you want it said EXECUTION PENDING APPEAL. Do you follow? Whether it be a final and executory judgment or simply a final judgment that could be subject of an appeal, both could e subject of execution. Before I proceed and discuss execution. Let me give you a rundown first. OK! A rundown of a distinction between an MR and a MOTION FOR NEW TRIAL. MNT MR G ROU N D S 1. FAME ( fraud, accident, mistake and excusable negligence); and 2. NEWLY DISCOVERED EVIDENCE. 1. Contrary to law; 2. Judgment is not supported by evidence; and 3.Award of damages is excessive. EFF EC T OF 2 ND FIL IN G A second MNT can be allowed if the ground was not yet in existence at the time of the filing of the first MNT.
A second MR is a prohibited pleading.
Now, significantly class take note of the Neypes ruling on the FRESH PERIOD RULE. You know what I mean right?! If you file a MOTION FOR RECONSIDERATION and you is denied. You have
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a fresh period of 15-days within which to file your appeal.
What do we mean by PROFORMA MOTION FOR RECONSIDERATION? OK! What do you mean by proforma? This is the case of Tan vs. Court of Appeals. What do you mean by proforma motion for reconsideration? Class a motion for reconsideration may be proforma:
1. if it only repeat or reiterate matters which have already been passed upon by the court, it is proforma; 2. is that which did not meet the
requirements of §4 and 5 of RULE 15 of the Rules of Court.
So class it is treated as a mere scrap pf paper. Do you follow? Sir, ano ibig sabihin nun? Ypu file a motion for reconsideration without a notice of hearing; without serving a copy thereof to the other party, that is a proforma motion for reconsideration. Are we clear? You did not set it for hearing or you did not serve notice or serve a copy at least 3 days before the date of the hearing, that is proforma motion for reconsideration. Are we clear?
Now, let me ask you this question. If you are to file a MOTION FOR NEW TRIAL within the reglementary period of 15-days, in the trial court from rendition of judgment, WITHIN HOW MANY DAYS CAN YOU FILE A MOTION FOR NEW TRIAL IN THE COURT OF APPEALS? Pareho ba yun? Ah class, pareho bay un? You are to file it in the Court of Appeals...open to RULE 53 ata yun! 53 ba yun or 52? Motion for New Trial in the CPOURT OF APPEALS, the sole ground class listen to this, the sole ground in the Court of Appeals of a Motion for New Trial is NEWLY DISCOVERED EVIDENCE. Tandaan niyo yun baka i-multiple choice kayo dyan. Only newly discovered evidence, it is not FAME. FAME is not included and the period to file a Motion for New Trial in the Court of Appeals is from the
time appeal is perfected for as long as the Court of Appeals has jurisdiction. Again, FROM THE TIME APPEAL IS PERFECTED AND FOR AS LONG AS THE COURT OF APPEALS HAS JURISDICTION. Maliwanag ba? Unlike the trial court, within the period of 15-days. In the Court of Appeals NO! From the time appeal is perfected it has jurisdiction and for as long as it has jurisdiction you could file a motion for new trial on a singular ground of newly discovered evidence. Now let me ask you this question. Can you file a MOTION FOR NEW TRIAL IN THE SUPREME COURT? Will that RULE 53 apply in the Supreme Court? Class huwag niyong ah...ano yun! Huwag niyong iisipin na yang RULE 46-55, wlang kwenta yan! Di ko babasahin! Tinanong yan sa bar noong 2008. The last question was I still remember, can you enumerate original actions filed in the Court of Appeals? Ok! Can you file a Motion for New Trial in the Supreme Court? Can you apply RULE 53? The answer you will find in RULE 56 §2-3. Tingnan niyo yan may enumeration ng mga rules. Is RULE 53 included? NO! It is not included. So as a rule, you do not file a motion for new trial in the Supreme Court. However, you have seen motion for new trial in the Supreme Court that is left within the sound judicial discretion of the court but in terms of law, you cannot file a motion for new trial in the Supreme Court. Only in the Court of Appeals and only in the trial court.
Let me now touch on PETITIONS FOR RELIEF FROM JUDGMENT. How many kinds of petitions for relief from judgment do you have? How many kinds? Sir bakit may kinds ba yung petition for relief from judgment? YES! HOW MANY KINDS OF PETITION FOR RELIEF not petition for relief from judgment? How many kinds of petition for relief do you have? You have 2!
1. petition for relief from JUDGMENT; 2. petition for relief from DENIAL of
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APPEAL.
Both are grounded on FAME. Now, kapag tinanong ka, WHAT ARE THOSE REMEDIES WHEREIN FAME IS A GROUND:
1. motion to lift order of default; 2. motion for new trial;
3. petition for relief from judgment or denial of an appeal;
Now, let me cite to you the 2010 case of Torres vs. China Banking Corporation. The question is, what is the remedy of a party in having been prevented to file an appeal? Remember my word, the word that I used PREVENTED. A party has been what, prevented to file an appeal, what is the remedy? According to the court the proper remedy for allegations of MISTAKE OR INEXCUSABLE NEGLIGENCE OF COUNSEL which prevented a party from taking an appeal is a PETITION FOR RELIEF FROM DENIAL OF APPEAL, under RULE 38. Whether it be class a petition for relief from judgment or a petition for relief from denial of appeal, what is the period to file. Ok! You have to memorize this, it is not 15- days, it is not 60-days IT IS WITHIN 6 MONTHS FROM ENTRY OF JUDGMENT BUT WITHIN 60- DAYS FROM KNOWLEDGE. Are we clear? 6 months from entry of judgment but within 60- days from knowledge. Let me illustrate this for you. I have made this illustration in my classes, undergrad classes. Class, look at this bottle look at it as the 6-months period. Do you follow? Let us say the 6-months period is from June 1 to at the end December 1. Let us say, there was entry of judgment on June 1, if you learned of the judgment on August 1, until when can you file a petition for relief judgment or for denial of appeal? Until, technically October 1, right? October 1. But what if you learn of the judgment or you knew of the judgment on November 15, until when can you file a petition for relief? Until December 1! You cannot go out
of that deadline. Do you follow? That cannot be extended. It is always 6 months. So your 60- days will always play within the 6 months. If you learned of it before or almost before the expiration of the 6 months, that is your problem! That is not the problem of the court. Ok? Let me give you the classic example of Alaban vs. Court of Appeals. That will tell you whether to use an annulment of judgment or a petition for relief from judgment before I touch on this.
RULE 47 is annulment of judgment, what are the grounds for annulment of judgment? EXTRINSIC FRAUD, that is one and the second one, is that LACK OF JURISDICTION? YES! Lack of jurisdiction.
When should you raise the annulment of judgment, petition for annulment of judgment? For grounds of extrinsic fraud WITHIN 4-YEARS FROM DISCOVERY.
For lack of jurisdiction at ANYTIME BEFORE YOU ARE BARRED BY LACHES. Estoppels by laches on question of jurisdiction. Take note that when you say lack of jurisdiction on annulment of judgment IT COVERS NOT ONLY LACK OF JURISDICTION OVER THE SUBJECT MATTER BUT LIKEWISE COVER LACK OF JURISDICITION OVER THE PERSON OF THE DEFENDANT. Ok? So it includes both lack of jurisdiction over the subject matter and lack of jurisdiction over the person of the defendant.
Now let us now discuss the case of Alaban. What happened here? This case tried to answer, WHO IS A PARTY? Do you follow? Look at §1 of RULE 38 and it says, that only a party to a case can file a petition for relief from judgment. Can you look at that? Can you find the word party? Tama ba?! ONLY A PARTY CAN FILE A PETITION FOR RELIEF FROM JUDGMENT but we hbave to bear in mind that the fault for not filing an appeal or an MR or MNT is not
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attributable to a party filing the petition for relief. Now, this was the question in the case of Alaban, what happened? It involved the estate of a deceased person and there was someone Mr. A came forward to say I am the sole heir. The rest of the heirs were not informed, they did not know that there was a settlement of estate. Only he came forward and the estate was adjudicated in his favour. The other heirs learned of it within 60-days or 2 months from the entry of judgment. Do you follow? Within two months from the entry of judgment. So what did they do? They filed a motion to set aside the judgment. But what did the court do? The motion was denied, sabi ng court wala...hindi! denied yan! Ano ngayon ang nangyari? Nung sinabi ng court na denied, they were left with no option but to go to the Court of Appeals. They filed a petition for annulment of judgment. Do you follow? Annulment of judgment and not a petition for relief from judgment. One of the reasons given by them in filing a petition for annulment is that, we are not a party to the original case. Sabi nila we are not a party to the original case and for this reason petition for relief is not a proper remedy for them because §1 tells you that you should be a party. Mukhang tama sila, tama? It looks that there is sense in their argument. However the Court of Appeals think of it different. They said and it was affirmed by the Supreme Court. The Supreme Court said that in cases like this – this are what actions IN REM, that requires publication, the fact of publication effrectively gave notice on the heirs and made them as parties even if they are not parties on the case. The fact of publication, because this is an ACTION IN REM and for this reason they said, the court said hat the proper remedy shold have been a petition for relief from judgment. Besides according to the court, you have learned of the judgment within 60-days from its entry, so it is within the period mandated. But other than the case of Alaban, you have to take note that you should be a PARTY.
OK! Now, let me now proceed and touch on EXECUTION. A few items on execution, still on the case of Intramuros. Take note that the execution or the WRIT OF EXECUTION must:
1. conform with the dispositive portion of the judgment. Ok that is number one. The writ of execution must conform with what is provided for in the judgement. It cannot go outside of it. 2. a hearing for the issuance of writ of
execution does not require a full blown or trial type hearing, all that is required is that there is a hearing. It does not require a full blown or a trial type hearing.
Now, IF IT IS AN EXECUTION AS A MATTER OF RIGHT, DO YOU NEED A GOOD REASON FOR THE COURT TO GRANT YOUR MOTION FOR EXECUTION? The answer is NO! If it is a matter of right, the reglementary period to appeal had lapsed and the decision had attained finality and therefore it is a matter of right. You do not need to give a reason, the decision alone is enough reason for the court to execute. However class if it is AN EXECUTION PENDING APPEAL or you call it DISCRETIONARY EXECUTION, you have to give what? Good reasons. In this case of Intramuros, he problem was, the reason given for execution pending appeal. Was that, the tennis court which was the subject of the controversy was deteriorating and is on unsanitary condition which was subject of the comlaint of the tennis players. Was that a good reason for the court to allow execution pending appeal? The Supreme Court said, YES! The unsanitary condition and the deteriorating condition of the tennis court were good reasons for the court to grant execution pending appeal.
Other good grounds for execution pending appeal would be:
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1. the assets of the losing party is about to be wasted and dissipated;
2. the coporation is about to be insolvent;
3. is advance age a ground for execution pending appeal? Age alone is not sufficient but age coupled with other reasons like; need for medication, need to continue with his sustainance – then these are good reasons for execution pending appeal.
Do you need a BONd? Class, do you need a BOND FOR EXECUTION PENDING APPEAL OR DISCRETIONARY EXECUTION? The answer is NO! All you need is good reason/s. You need a bond to STAY EXECUTION PENDING APPEAL. I want to be very clear with that ha! All you need is good reason/s but for the other party to stay execution pending appeal, you need a bond. Ok now, let me call your attention class to the case of Mina vs. Bianson. This is very much instructive on WHERE TO FILE THE MOTION FOR EXECUTION? There was a demolition order in an ejectment case which court will issue the demolition order. In this particular case class, there was already a judgment of the MTC, the court of original jurisdiction and it was reviewed by the RTC and while pending in the RTC there was a motion for issuance of a demolition order. WHICH COURT WILL ISSUE THE DEMOLITION ORDER, IS IT THE RTC OR THE MTC? It is the MTC, the court of original jurisdiction. Which rendered the original decision. According to the court, it is therefore clear that in the EXECUTION OF JUDGMENT IN EJECTION CASES. The issuance of the demolition order is within the jurisdiction of the MTC which rendered the decision. The RTC that affirms the