Professional Documents
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1977.5
The trial court denied the motion for new trial in No appeal may be taken from:
an Order18 dated October 1, 2003.
(a) An order denying a motion for new trial or
Dissatisfied, petitioner filed with the Court of reconsideration;
Appeals a petition for certiorari which dismissed
the petition in its assailed Decision dated August xxxx
27, 2004. It held that the trial court correctly
denied the motion for new trial because it was In all the above instances where the
filed out of time and that a petition for certiorari is judgment or final order is not appeasable, the
not the proper remedy for the denial of a motion aggrieved party may file an appropriate
for new trial. special civil action under Rule 65. (Emphasis
supplied)
Petitioner's motion for reconsideration was
denied, hence, this recourse on the grounds that Thus, the filing by the petitioner of a petition for
– certiorari with the Court of Appeals from the
denial of the motion for new trial by the trial court
1. The Seventeenth (17th) Division of the Court is proper.
of Appeals gravely erred in denying due course
to the Petition for Certiorari on technical grounds, Notwthstanding the foregoing, we find that the
that is, for the purported failure of the Petitioner trial court correctly denied petitioner's motion for
to file with the Court a Quo his Motion for New new trial.
Trial within the reglementary period to appeal
and that the only remedy for the denial of the Section 1, Rule 37 provides that a motion for
latter motion is by appealing from the Judgment new trial may be filed within the period for taking
or Final order and not through a Special Civil an appeal based on the following grounds:
Action for Certiorari under Rule 65 of the
Revised Rules of Civil Procedure.19 (a) Fraud, accident, mistake
or excusable negligence which ordinary
2. The former Seventeenth (17th) Division of the prudence could not have guarded against and by
Court of Appeals gravely erred in not finding that reason of which such aggrieved party has
the Public Respondent Judge committed grave probably been impaired in his rights; or
abuse of discretion tantamount to lack or excess
of jurisdiction when he issued the assailed Order xxxx
dated October 1, 2003 denying Petitioner's
Motion for New Trial.20 Negligence to be excusable must be one which
ordinary diligence and prudence could not have
A scrutiny of the records discloses that while the guarded against.23
Motion for New Trial was received by the trial
court on April 28, 2003, the date on the Registry In the instant case, we find the negligence of
Receipt attached to the Affidavit of Service21 as petitioner's counsel in failing to attend the
well as that stamped on the envelope22 which hearings for the reception of
contained the copy of the motion, reveals that it evidence inexcusable. The trial court scheduled
was filed and served by registered mail on April the hearing for the reception of petitioner's
21, 2003, a Monday, because April 19, 2003, the evidence seven times. The initial hearing set on
last day for filing the same was a Saturday. February 28, 2001 was cancelled because
Section 1, Rule 22 of the Rules of Court states in petitioner allegedly had influenza. The hearings
no uncertain terms that if the last day of the scheduled on April 26, 2001 and May 10, 2001
period thus computed falls on a Saturday, a were cancelled and moved to October 25, 2001
Sunday, or a legal holiday in the place where the and December 13, 2001. Petitioner was
court sits, the time shall not run until the next represented by Atty. Carpio, Jr. as collaborating
counsel during the hearing on October 25, 2001 of at least three motions to extend the filing of
but no evidence was presented. Instead, the petitioner's Answer; (2) his nonappearance
hearing was cancelled. On December 13, 2001, during the scheduled pretrials; and (3) the failure
Atty. Bañares, petitioner's new counsel, to file petitioner's pretrial Brief, even after the
appeared but he requested for a resetting. On filing of several Motions to extend the date for
February 14, 2002, Atty. Bañares moved to filing.
postpone the hearing to February 28, 2002 as
previously scheduled. On February 28, 2002, Besides, we find that petitioner's and his
Atty. Bañares arrived late. counsel's negligence are concurrent. During the
initial hearing for the reception of his evidence,
Scrutiny of the records disclose that the hearings petitioner was absent allegedly due to influenza.
were postponed or cancelled without any During the succeeding scheduled hearings,
justification. However, the trial court petitioner was absent but his lawyer, Atty. Molina,
accommodated the requests for postponement was present but did not present any evidence.
or resetting in order to accord petitioner due Instead, motions for postponement or resetting
process. Under the circumstances, we find were made. In one occasion, Atty. Molina was
petitioner's counsel's failure to attend the seven absent but Atty. Carpio, Jr. appeared as
scheduled hearings without justifiable reason collaborating counsel. Still, no evidence was
tantamount to inexcusable neglect. As such, it presented but a resetting was again requested.
cannot be a ground for new trial.
On December 13, 2001, petitioner hired Atty.
In addition, the Rule requires that motions for Bañares as his new counsel, and the hearings
new trial founded on fraud, accident, mistake or were set on February 14 and 28, 2002. For
excusable negligence must be accompanied by petitioner, thus, to feign and insist upon a lack of
affidavits of merits, i.e., affidavits showing the awareness of the progress of the case is to
facts (not mere conclusions or opinions) unmask a penchant for the ludicrous.31 When he
constituting the valid cause of action or defense hired the services of Atty. Bañares, it is highly
which the movant may prove in case a new trial improbable that he was unaware of the stage of
is granted, because a new trial would serve no the proceedings. In keeping with the normal
purpose and would just waste the time of the cause of events, he should have made the
court as well as the parties if the complaint is proper inquiries from his former counsel as to the
after all groundless or the defense is nil or status of the case.
ineffective.24
Incidentally, we find it interesting that Atty. Lucas
Under the Rules, the moving party must show C. Carpio, Jr. who assisted petitioner in the
that he has a meritorious defense. The facts preparation of the motion for new trial, wherein
constituting the movant's good and substantial he claimed that his former counsel was grossly
defense, which he may prove if the petition were negligent in defending his case, was petitioner's
granted, must be shown in the affidavit which collaborating counsel and who appeared in his
should accompany the motion for a new behalf during the October 25, 2001 hearing but
trial.25 We examined petitioner's Affidavit of Merit likewise presented no evidence for the
and find that it did not contain clear statements petitioner.
of the facts constituting a good and valid defense
which he might prove if given the chance to Finally, petitioner's counsel's inexcusable
introduce evidence. The allegations that he has neglect did not amount to petitioner's deprivation
a "meritorious defense"26 and a "good of due process of law. The right to due process
cause"27 are mere conclusions which did not safeguards the opportunity to be heard and to
provide the court with any basis for determining submit any evidence one may have in support of
the nature and merit of the case. An affidavit of his claim or defense. In the instant case,
merit should state facts, and not mere opinion or petitioner was given several opportunities to be
conclusions of law.28 Petitioner's motion for new heard and to submit evidence but he
trial and affidavit of merit did not mention the squandered them. Indeed, from lethargy is
evidence which he was prevented from misfortune born.32
introducing, nor did it allege that such evidence
would change the outcome of the case. Blunders and mistakes in the conduct of the
proceedings in the trial court as a result of the
Petitioner's argument that his counsel's ignorance, inexperience or incompetence of
negligence was so gross that he was deprived of counsel do not qualify as a ground for new trial. If
due process fails to impress. Gross negligence such were to be admitted as valid reasons for
is not one of the grounds for a motion for a new re-opening cases, there would never be an end
trial. We cannot declare his counsel's negligence to litigation so long as a new counsel could be
as gross as to liberate him from the effects of his employed to allege and show that the prior
failure to present countervailing evidence.29 In counsel had not been sufficiently diligent,
Air Philippines Corporation v. International experienced or learned. This will put a premium
Business Aviation Services, Phils., Inc.,30 we did on the willful and intentional commission of
not consider as gross negligence the counsel's errors by counsel, with a view to securing new
resort to dilatory schemes, such as (1) the filing
trials in the event of conviction,33 or an adverse he was diagnosed with hernia. On June 26, 2002,
decision, as in the instant case. he was repatriated due to his ailment.
V. The collaborating counsel of the petitioner As revised, Rule 38 radically departs from the
committed a GROSS MISTAKE in filing defective previous rule as it now allows the Metropolitan or
pleadings to the prejudice of the herein Municipal Trial Court which decided the case or
petitioner.9 issued the order to hear the petition for relief.
Under the old rule, a petition for relief from the
judgment or final order of Municipal Trial Courts judicial relief. For a claim of counsel’s gross
should be filed with the Regional Trial Court, viz.: negligence to prosper, nothing short of clear
abandonment of the client’s cause must be
Section 1. Petition to Court of First Instance for shown.
relief from judgment of inferior court. – When a
judgment is rendered by an inferior court on a The relief afforded by Rule 38 will not be granted
case, and a party thereto by fraud, accident, to a party who seeks to be relieved from the
mistake, or excusable negligence, has been effects of the judgment when the loss of the
unjustly deprived of a hearing therein, or has remedy of law was due to his own negligence, or
been prevented from taking an appeal, he may mistaken mode of procedure for that matter;
file a petition in the Court of First Instance of the otherwise the petition for relief will be tantamount
province in which the original judgment was to reviving the right of appeal which has already
rendered, praying that such judgment be set been lost, either because of inexcusable
aside and the case tried upon its merits. negligence or due to a mistake of procedure by
counsel.
Section 2. Petition to Court of First Instance for
relief from the judgment or other proceeding In exceptional cases, when the mistake of
thereof. – When a judgment order is entered, or counsel is so palpable that it amounts to gross
any other proceeding is taken against a party in negligence, this Court affords a party a second
a Court of First Instance through fraud, accident, opportunity to vindicate his right. But this
mistake, or excusable negligence, he may file a opportunity is unavailing in the instant case,
petition in such court and in the same case especially since petitioner has squandered the
praying that the judgment, order or proceeding various opportunities available to him at the
be set aside. different stages of this case. Public interest
demands an end to every litigation and a belated
The procedural change in Rule 38 is in line with effort to reopen a case that has already attained
Rule 5, prescribing uniform procedure for finality will serve no purpose other than to delay
Municipal and Regional Trial Courts13 and the administration of justice.
designation of Municipal/Metropolitan Trial
Courts as courts of record.14 Finally, it is a settled rule that relief will not be
granted to a party who seeks to be relieved from
Third, the procedure in the CA and the Supreme the effects of the judgment when the loss of the
Court are governed by separate provisions of the remedy at law was due to his own negligence, or
Rules of Court.15 It may, from time to time, be a mistaken mode of procedure; otherwise, the
supplemented by additional rules promulgated petition for relief will be tantamount to reviving
by the Supreme Court through resolutions or the right of appeal which has already been lost
circulars. As it stands, neither the Rules of Court either because of inexcusable negligence or due
nor the Revised Internal Rules of the CA16 allows to mistaken mode of procedure by counsel.17
the remedy of petition for relief in the CA.
ACCORDINGLY, the petition is DISMISSED.
There is no provision in the Rules of Court
making the petition for relief applicable in the CA SO ORDERED.
or this Court. The procedure in the CA from
Rules 44 to 55, with the exception of Rule 45 G.R. No. 140630 August 12, 2004
which pertains to the Supreme Court, identifies
the remedies available before said Court such as YUSUKE FUKUZUMI, petitioner,
annulment of judgments or final orders or vs.
resolutions (Rule 47), motion for reconsideration SANRITSU GREAT INTERNATIONAL
(Rule 52), and new trial (Rule 53). Nowhere is a CORPORATION, TETSUJI MARUYAMA,
petition for relief under Rule 38 mentioned. AKIRA KUBOTA, YUKIO
MATSUZAKA, respondent.
If a petition for relief from judgment is not among
the remedies available in the CA, with more
reason that this remedy cannot be availed of in
the Supreme Court. This Court entertains only RESOLUTION
questions of law. A petition for relief raises
questions of facts on fraud, accident, mistake, or
excusable negligence, which are beyond the
concerns of this Court.ALF-itc CALLEJO, SR., J.:
Nevertheless, even if We delve into the merits of This is a petition for review on certiorari under
the petition, the same must still be dismissed. Rule 45 of the Rules of Court of the Order1 of the
The late filing of the petition for review does not Regional Trial Court of Parañaque City, Branch
amount to excusable negligence. Petitioner’s 258, dated August 5, 1999 in Civil Case No.
lack of devotion in discharging his duty, without 97-0237 denying the petition of Yusuke
demonstrating fraud, accident, mistake or Fukuzumi for relief from the Order2 of the court
excusable negligence, cannot be a basis for dated June 2, 1999 denying his notice of appeal
of the decision of the trial court against him and issued by Dr. Ma. Lakambini Cruz-Crespo dated
consequently dismissing his appeal. June 18, 1999, viz:
The records show that on January 26, 1999, the medical certificate
trial court rendered judgment3 in Civil Case No.
97-0237 in favor of the plaintiffs Sanritsu Great To Whom It May Concern:
International Corporation, Tetsuji Maruyama,
Akira Kubota and Yukio Matsuzaka, ordering This is to certify that I have seen and examined
defendant Yusuke Fukuzumi to pay to the Atty. Jonathan Polines, from Las Piñas on May 6,
plaintiffs sums of money. The fallo of the 1999 with the chief complaint of headache of two
decision reads: days duration.
In his comment on the petition, the respondents (b) An order denying a petition for relief or any
averred that (a) the petitioner cannot invoke Rule similar motion
38, Section 2 of the Rules of Court which applies
only to negligence of a party and not of his seeking relief from judgment;
counsel; (b) by his negligence, the petitioner
failed to avail of other remedies other than filing (c) An interlocutory order;
his petition for relief from the June 22, 1999
Order of the trial court; and (c) the alleged high …
blood pressure of the petitioner's counsel is
merely an afterthought. In all the above instances where the judgment or
final order is not appealable, the aggrieved party
The petition is denied. may file an appropriate civil action under Rule 65.
(Underscoring supplied)
The remedy of a party whose notice of appeal is
denied by the trial court, although such notice is The petitioner's failure to file his notice of appeal
filed within the period therefor, is to file a motion within the period therefor is far from excusable. It,
for reconsideration of such order and, if the court rather, shows negligence no less. The medical
denies such motion, to file a petition for certiorari certificate issued to his counsel shows that he
under Rule 65 of the Rules of Court. If the party was examined by Dr. Lakambini Cruz-Crespo on
is prevented by fraud, accident, mistake or May 6, 1999 and was advised to rest for three
excusable negligence from filing his notice of days from May 6, 1999 or until May 8, 1999. The
appeal within the reglementary period therefor, petitioner would like the trial court and this Court
his remedy is to file a petition for relief, in the to believe that his counsel was unable to file the
same case, from the order of the trial court notice of appeal on or before May 6, 1999
denying his notice of appeal. This is provided in because he was even advised to take a rest for
Section 2, Rule 38 of the 1997 Rules of Civil three days. But his counsel was able, well
Procedure, which reads: enough, to prepare and file the notice of appeal
on May 7, 1999 when he was supposed to be
SEC. 2. Petition for relief from denial of resting. The petitioner even failed to allege in his
appeal.— When a judgment or final order is notice of appeal that the same was filed one day
rendered by any court in a case, and a party late because his counsel was suffering from high
thereto, by fraud, accident, mistake, or blood pressure on May 6, 1999. It was only after
excusable negligence, has been prevented from the petitioner received the order of the trial court
taking an appeal, he may file a petition in such denying his notice of appeal and filed his petition
court and in the same case praying that the for relief on June 22, 1999 did he allege that his
appeal be given due course. counsel was suffering from high blood pressure
on May 6, 1999. It was only on June 18, 1999
Such party is not entitled to relief under Rule 38, that the petitioner secured a medical certificate
Section 2 of the Rules of Court if he was not from Dr. Crespo.
prevented from filing his notice of appeal by
fraud, accident, mistake or excusable negligence. Thus, we are not convinced by the petitioner's
Such relief will not be granted to a party who claim that his counsel was suffering from high
seeks to be relieved from the effects of the blood pressure on May 6, 1999, which prevented
judgment when the loss of the remedy of law him from filing said notice of appeal on said date.
was due to his own negligence, or a mistaken Said allegation is a mere afterthought to cover
mode of procedure for that matter; otherwise, the up his and his own counsel's collective
petition for relief will be tantamount to reviving negligence. It is settled that clients are bound by
the right of appeal which has already been lost the mistakes, negligence and omission of their
either because of inexcusable negligence or due counsel.8
to a mistake of procedure by counsel.7
It bears stressing that perfection of an appeal in
If the petition for relief is denied by the trial court, the manner and within the period prescribed by
the remedy of the petitioner is to file a petition for law is not only mandatory but jurisdictional as
certiorari under Rule 65 of the 1997 Rules of well and failure to perfect an appeal has the
Civil Procedure, which reads: effect of rendering the judgment or resolution
final and executory.9 After all, the right to appeal
SECTION 1. Subject of appeal.— An appeal is not a natural right or a part of due process; it is
may be taken from a judgment or final order that merely a statutory privilege, and may be
completely disposes of the case, or of a exercised only in the manner and in accordance
particular matter therein when declared by these with the provisions of law.10
Rules to be appealable.
While we have ruled that delay in the filing of a
No appeal may be taken from: notice of appeal does not justify the dismissal of
the appeal, however, the petitioner has not
shown any exceptional circumstances justifying
a reversal of the assailed order of the trial court
and the reinstatement of his appeal.
SO ORDERED.