8 When is this remedy available When there is no genuine issue Although the

8 when is this remedy available when there is no

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8. When is this remedy available? When there is no genuine issue. Although the defendant denies the material allegation in the claim, but the denial is sham. Judgment on the Pleadings Summary Judgment a. There is absence of factual issue because the answer tenders no issue. b. Answer tenders an issue, but the issue is not genuine. c. Only the claiming party can file the motion. d. The motion may be filed by the claiming party or defending party. e. It is based on pleadings alone. f. It is based on pleadings, affidavits, depositions and admissions. Only three (3) day notice is required. Ten (10) day notice is required. XIII. POST JUDGMENT REMEDIES 1. What is “Neypes Rule”? If the motion for reconsideration or new trial is denied, the movant has a “fresh period” of fifteen (15) days from receipt of the notice of the order denying or dismissing the motion for reconsideration within which to file the notice of appeal. The “fresh period” rule applies not only in Rule 41 (RTC-CA), but also in Rule 40 (MTC-RTC), Rule 42 (Petrev,
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RTC-CA), Rule 43 (Petrev, QJA-CA), and Rule 45 (RTC, CA-SC). This was adopted to standardize the appeal period. (Neypes vs. Court of Appeals, 469 SCRA 633). 2. What may be appealed? Judgment and Final Order. 3. Are all final orders appealable? NO. Dismissal of an action without prejudice is not appealable. 4. What judgments or orders cannot be appealed? (a) An order denying a motion for new trial or reconsideration; (b) An order denying a petition for relief or any similar motion seeking relief from judgment; (c) An interlocutory order; (d) An order disallowing or dismissing an appeal; (e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (f) An order of execution; (g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (h) An order dismissing an action without prejudice (Section 1, Rule 41). NOTE: if the above order cannot be appealed, the remedy is CERTIORARI UNDER RULE 65. 5. Petition for Relief from Judgment. A) What is the subject matter of the Petition? – Judgment, Final order; Other proceedings; Order denying the appeal (Sec.2, Rule 38). B) What are the grounds? - Fraud, Accident, Mistake, Excusable Negligence (FAME). C) Where to file? - Court which rendered the judgment, final order, order denying appeal or court which conducted the proceedings. 6. What is the period to file Petition for Relief from Judgment? The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from. The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals.
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  • Spring '14
  • FelishaK.McCaster
  • Complaint, Pleading, Federal Rules of Civil Procedure

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