APPEALS

Rule 40
APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS
APPEAL. The law on appeal starts from Rule 40 to Rule 56. Usually the appeal is from the trial court to the next higher court. Under the judiciary
law, appeals from the MTC should be to the RTC which is governed by Rule 40. And when the case is tried by the RTC and you want to appeal, normally,
the appeal should be to the CA under Rule 41.

We will stick to the basic rule on appeal found in the judiciary law, Section 39, BP 129:
Sec 39. Appeals. - The period for appeal from final orders, resolutions, awards, judgments or decisions of any
court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment,
or decision appealed from: Provided, however, That in habeas corpus cases, the period for appeal shall be forty-eight
(48) hours from the notice of the judgment appealed from.
No record on appeal shall be required to take an appeal. In lieu thereof, the entire original record shall be
transmitted with all the pages prominently numbered consecutively, together with an index of the contents thereof.
This section shall not apply in appeals in special proceedings and in other cases wherein multiple appeals are
allowed under applicable provisions of the Rules of Court.

There are three (3) instances under Section 39:

Type of Case Period to appeal Requisites for appeal

A. Civil Actions in general 15 days Notice of appeal

B. Special Proceedings and Civil Actions where multiple appeal is 30 days 1. Notice of Appeal
allowed 2. Record on Appeal
C. Habeas Corpus 48 hours Notice of Appeal

So this is the general outline of the law on appeals under Section 39, BP 129.

[EDITOR’S NOTE: The 48-hour period to appeal in habeas corpus cases under Section 39 of BP 129 is now incorporated in Rule 41, Section 3 as
amended, which took effect last July 15, 2000 (A.M. No. 01-1-03-SC)]

Rule 40 refers to appeal from the MTC to the RTC. The appellate jurisdiction of the RTC is found in Section 22, BP 129. That is why Rule 40 is
revolving around that provision:

BP 129, Sec. 22. Appellate jurisdiction. - Regional Trial Courts shall exercise appellate
jurisdiction over all cases decided by MetTCs, MTCs and MCTCs in their respective territorial
jurisdictions. Such cases shall be decided on the basis of the entire record of the proceedings had
in the court of origin and such memoranda and/or briefs as may be submitted by the parties or
required by the RTCs. The decision of the RTCs in such cases shall be appealable by petition for
review to the CA which may give it due course only when the petition show prima facie that the lower
court has committed an error of fact or law that will warrant a reversal or modification of the
decision or judgment sought to be reviewed.

Let us now go to Section 1 of Rule 40:

Section 1. Where to appeal. An appeal from a judgment or final order of a Municipal Trial Court may be taken to
the Regional Trial Court exercising jurisdiction over the area to which the former pertains. The title of the case
shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the
appellant and the adverse party as the appellee. (n)

So from the MTC, the appeal is to the RTC exercising jurisdiction over the area to which the former pertains. That is why under the judiciary law,
every RTC has a designated territorial area. So, if you want to appeal from the decision of the MTC of Davao City, you appeal to the RTC of Davao. You
do not make your appeal to the RTC of Tagum because it does not exercise jurisdiction over Davao City.

And take note under Section 1, it is now required that when you appeal from the MTC to the RTC, you should indicate in the caption of the case who
is the APPELLANT and the APPELLEE. This is also the procedure when you are appealing to the SC.

The appellant is the party appealing the case while the appellee is the adverse party. So for example, the original title of the case in the MTC is:
“JOBOY, plaintiff vs. BROSIA, defendant.” If Joboy will appeal the case, the title of the case now in the RTC will be: “JOBOY, plaintiff-appellant vs.
BROSIA, defendant-appellee.” Or, if Brosia will be the one appealing the case, the title now will be: “JOBOY, plaintiff-appellee vs. BROSIA, defendant-
appellant.”

The period to appeal is in Section 2:

Sec. 2. When to appeal. An appeal may judgment or final order.
be taken within fifteen (15) days after The period of appeal shall be
notice to the appellant of the judgment or interrupted by a timely motion for new trial
final order appealed from. Where a record on or reconsideration. No motion for extension
appeal is required, the appellant shall file of time to file a motion for new trial or
a notice of appeal and a record on appeal reconsideration shall be allowed. (n)
within thirty (30) days after notice of the
 will be granted.
In relation to certain jurisprudence, the 15-day period cannot be
extended. (Lacsamana vs. IAC, 143 SCRA 643) It cannot be extended So the 15-day period can never be extended but the 30-day period
but it can be interrupted by a timely motion for new trial or is extendible based on jurisprudence. This is because a notice of appeal
reconsideration. And no motion for extension of time to file a motion is normally a one-paragraph document. You can do that in just 5
for new trial or reconsideration shall be allowed. (Section 2) minutes. But a record on appeal is makapal. That is why it is 30 days.
Sometimes kulangin pa yung 30-day period. So you can extend it
Q: How about the 30-day period? Is the 30-day period extendible? provided you file the motion for extension during the original 30-day
A. YES. It is extendible for record on appeal, on the condition that period.
the Motion to Extend must be filed within the original 30 days and
provided further that the movant has no right to expect that his motion
Sec. 3. How to appeal. 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.
The form and contents of the record on appeal shall be as provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal where required, shall be served on the adverse party.
(n)

Q: How do you appeal?

A: Under Section 3, you file a Notice of Appeal to the court that rendered judgment, so MTC. And it “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.” For example:

Notice of Appeal

Defendant hereby serves notice that he is appealing to the RTC from the judgment rendered by the MTC dated March
5, 1998 copy of which was received by him on March 15, 1998.

So it is very simple to make. And you must indicate exactly not only the date of the decision but also the date when you received it because the
running of the period to appeal does not run from the date of the decision but from the time you received it. That is why the rule says, you “must state the
material dates showing the timeliness of the appeal.” (Record on appeal is discussed in Rule 41, Section 6.)

Of course, the adverse party should be furnished with a copy of the notice of appeal.

Sec. 4. Perfection of appeal; effect thereof. The perfection of the appeal and the effect thereof shall be
governed by the provisions of section 9, Rule 41.

Q: When is the appeal deemed perfected?

A: See discussion under Section 9, Rule 41. From the moment the appeal is deemed perfected, the MTC loses jurisdiction over the case. And by
fiction of law, jurisdiction is automatically transferred to the RTC.
Sec. 5. Appellate court docket and other lawful fees. Within the period for taking an appeal, the appellant shall
pay to the clerk of the court which rendered the judgment or final order appealed from the full amount of the
appellate court docket and other lawful fees. Proof of payment thereof shall be transmitted to the appellate court
together with the original record or the record on appeal, as the case may be. (n)

Within the period to appeal (normally within 15 days), the appellant must pay the docket fee. So that when the records are transmitted, bayad na.
Even before this rule came out, the payment of appellate docket fee is really required. The rule is the same.

Q: Suppose I will file my Notice of Appeal within 15 days but I will not pay the docket fee, should my appeal be dismissed? Is it an additional
requirement for appeal?
A: In the case of

SANTOS vs. COURT OF APPEALS

253 SCRA 632 [1996]

ISSUE: Will the failure to pay appellate fee automatically cause the dismissal of the appeal in the MTC to the RTC ?

HELD: The payment of appellate fee is found in Section 8 of Rule 141. But the SC observed that the only requirement is Notice of
Appeal. There is no mention of appellate fee. The payment of appellate fee is not a requisite to the perfection of an appeal although Rule
141 does not specify when said payment shall be made. It does not automatically result in the dismissal of the appeal unless it affects the
jurisdiction. The dismissal being discretionary on the part of the appellate court, such dismissal should be exercised wisely.

This ruling is still applicable. Although Section 5 prescribes that within the period to take appeal you must pay the docket fee. If you do not pay it, it
may not cause ipso facto the dismissal of your appeal. But the clerk of court may refuse to transmit the record to the RTC until you pay. So docket fee is
not a requirement to perfect an appeal although it is an obligation also.

Sec. 6. Duty of the clerk of court. Within fifteen (15) days from the perfection of the appeal, the clerk of
court or the branch clerk of court of the lower court shall transmit the original record or the record on appeal,
together with the transcripts and exhibits, which he shall certify as complete, to the proper Regional Trial Court. A
copy of his letter of transmittal of the records to the appellate court shall be furnished the parties. (n)
 What is the requirement to perfect an appeal? It is notice of appeal only or record on appeal also for special proceedings.

Section 5 of this rule now states that when the party takes an appeal, it is the obligation of the appellant to pay the appellate docket fee which is
imposed by Rule 141 so that the clerk of the MTC will elevate the appeal to the MTC.
Sec. 7. Procedure in the Regional Trial Court. (a) upon receipt of the complete record or the record on appeal,
the clerk of court of the Regional Trial Court shall notify the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum which
shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse
party. Within fifteen (15) days from receipt of the appellant’s memorandum, the appellee may file his memorandum.
Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall
be considered submitted for decision. The Regional Trial Court shall decide the case on the basis of the entire record
of the proceedings had in the court of origin and such memoranda as are filed. (n)

What happens if the case reaches the RTC? Section 7 answers it. The clerk court shall notify the parties. What is important here is paragraph [b], a
radical provision:
(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum which
shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse
party. Within fifteen (15) days from receipt of the appellant’s memorandum, the appellee may file his memorandum.
Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal.

The procedure under the OLD RULES is found on Section 22 of the Interim Rules. When the case is appealed to the RTC, the case will be decided by
the RTC based on the record on appeal together with a memorandum as the court may require the parties. In other words, the court may or may not require
the parties to file a memorandum.

NOW, the present rule says, within 15 days from notice, it is your obligation to file a memorandum. If the appellant fails to file a memorandum in the
RTC, his appeal will be dismissed. The filing of an appeal memorandum in the RTC is mandatory because you must point out to the RTC kung saan
nagkamali. You help the RTC judge look for the error.

Q: Suppose the appellant has filed his memorandum and it is the appellee who failed to file his memorandum. What is the effect of such failure?
A: Under paragraph [c], the case shall be submitted for decision without appellee’s memorandum. And it does not necessarily mean that the appellee
will lose the case by not filing his memorandum because for all you know the decision of the lower court is very clear, whether he files a memorandum or
not, he will still wins.

Another radical change is Section 8:

Sec. 8. Appeal from orders dismissing case without trial; lack of jurisdiction. If an appeal is taken from an
order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or
reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the
case was originally filed with it. In case of reversal, the case shall be remanded for further proceedings.
If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional
Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in
accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence
in the interest of justice. (n)

The case was dismissed by the MTC without trial on the merits.

PROBLEM: Tomas filed a case against Ka Noli to collect a loan of P50,000 before the MTC. But upon motion to dismiss alleging that MTC has no
jurisdiction, the court dismissed the complaint without trial. That is disposing of the case without trial. Now, RTC said, “MTC has jurisdiction.”
Q: In that case, what will the RTC do?
A: The RTC will order the MTC to conduct trial.

PROBLEM: Suppose the complaint filed by Tomas against Ka Noli is for P500,000 before the MTC. It is clear that the MTC has no jurisdiction. Ka
Noli moved to dismiss the case and it was dismissed. But Tomas appealed to the RTC believing that the dismissal was wrong. Of course the order of the
MTC is correct. It should have been filed with the RTC.
Q: What will happen now to the case?
A: The RTC will not dismiss the case but instead assumes jurisdiction. The RTC which has jurisdiction, shall try the case on the merits as if the case
was originally filed in the RTC.

The second paragraph has slight modification:

PROBLEM: Tomas files a case against Ka Noli for P500,000 before the MTC. Ka Noli file a motion to dismiss on the ground of lack of jurisdiction.
But the motion to dismiss of Ka Noli was denied and the court tried the case. So, the trial is void. The judgment rendered is also void. So Ka Noli appealed.
Q: What will happen on appeal from the decision of the MTC which tried a case even though it has no jurisdiction over it?
A: Since the decision (on the merits) was appealed to the RTC, the RTC will assumes jurisdiction over the case. The RTC will convert the appellate
jurisdiction into an original jurisdiction instead of dismissing an appeal. It will treat it as if it has been filed for the first time in the RTC and not as an
appealed case. The purpose here is to avoid double payment of docket fees.

Sec. 9. Applicability of Rule 41. The other provisions of Rule 41 shall apply to appeals provided for herein
insofar as they are not inconsistent with or may serve to supplement the provisions of this Rule. (n)

Rule 41 provisions may also be used in appeals from MTC to RTC. It is more comprehensive. It refers to appeal from RTC to CA on cases decided by
the RTC pursuant to its original jurisdiction. This is also applicable to Rule 40 insofar as they are not inconsistent.
-oOo-
18
 Rule 41
APPEAL FROM THE REGIONAL TRIAL COURTS

Majority of the important rules are found here in Rule 41.

Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case,
or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
(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.
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate
special civil action under Rule 65. (n)

Q: What orders or judgment are subject to appeal ?

A: Only FINAL judgments or orders can be appealed as distinguished from interlocutory judgments or orders (paragraph [c])which are not
appealable.

FINAL JUDGMENT OR ORDERS—the term ‘final’ has two (2) possible meanings in Civil Procedure:

[1] The judgment is final in the sense that it is already executory and that happens if there is no appeal. And that is for purposes of applying Rule 39
on execution.

[2] The judgment is final in the sense that it is not merely interlocutory and this is for the purpose of applying the law on appeal under Rule 41. In
other words, a final order or judgment (for purposes of appeal) is one which is not merely interlocutory in the sense that it completely disposes of the
case or a particular matter therein where there is nothing more for the court to do after its rendition. (Bairan vs. Tan Sui Lay, L-19460, Dec. 28, 1966)

Q: What is the definition of a final judgment or for purpose of appeal?

A: A judgment or order is final if it disposes of the pending action so that nothing more can be done in the trial court with respect to its merits.
(Salazar vs. De Torres, 58 O.G. 1713, Feb. 26, 1962; Bairan vs. Tan Sui Lay, L-19460, Dec. 28, 1966)

Q: On the other hand, what is an interlocutory judgment or order?

A: An interlocutory order is something which does not completely dispose of the action and there is still something for the court to do after its
rendition. (Olsen & Co. vs. Olsen, 48 Phil. 238; Restauro vs. Fabrica, 80 Phil. 762) Actually, the law does not prohibit a party from appealing an
interlocutory judgment or order, only you cannot appeal immediately. (Abesamis vs. Garcia, 98 Phil. 762)

Q: What is the test for determining whether a judgment or order is final or interlocutory?
A: The test for the determination of whether a judgment or order is final or interlocutory is this: Does it leave something to be done in the trial court
with respect to the merits of the case? If it does, it is interlocutory, hence, you cannot appeal yet; if it does not, it is final and therefore you can appeal.
(Reyes vs. De Leon, L-3720, June 24, 1952)

So you must know the meanings of the word ‘final’ in civil procedure to avoid confusion. A good example is Section 20 of Rule 3 where the word
‘final’ was first mentioned:

Rule 3, Sec. 20. Action on contractual money claims. - When the action is for recovery of money arising from contract,
express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the
time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable
judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting
claims against the estate of a deceased person. (21a)

The word final here in Section 20 refers to the second meaning that the judgment is final in the sense that it is not merely interlocutory

BAR QUESTION: Plaintiff vs. Defendant. Defendant file a motion to dismiss under Rule 16. The court granted the motion and consequently ordered
the dismissal of the complaint of the plaintiff. Can the plaintiff appeal from the order dismissing his complaint?
A: We will apply the test: Is there anything more for the court to do after issuing the order of dismissal? Wala na! [Awanen!] Ano pa ba ang gagawin
eh na-dismiss na nga eh! Therefore, the order of dismissal is a final order – it has completely disposed of the case – hence, the plaintiff can appeal.

PROBLEM: Let’s modify the problem: Plaintiff vs. Defendant. Defendant file a motion to dismiss under Rule 16. The court denied the motion to
dismiss. Can the defendant appeal from the order of the court denying his motion to dismiss?
A: Again, we will apply the test: Is there anything more for the court to do after denying the motion to dismiss of the defendant? Yes because after
the court denies such motion, the defendant will now file his answer, then there will be pre-trial, trial, judgment. Meaning, after denying the motion to
dismiss, may trabaho pa ako. Therefore, the order denying the motion to dismiss is interlocutory, hence the defendant cannot appeal.

Q: So how do you appeal from an interlocutory order?

A: The procedure if there is an order which is against you but it is not appealable, you have to wait. The case is to be tried and then you have to
wait for the final judgment to be rendered and if you are dissatisfied with the judgment, that is the time you appeal from the said judgment together with
the interlocutory orders issued in the course of the proceeding. (Mapua vs. Suburban Theaters, Inc., 81 Phil. 311) So there should only be one appeal
form that case. That’s why, as a general rule, the law on Civil Procedure prohibits more that one appeal in one civil action.

The reasons why interlocutory orders are not appealable are to avoid multiple appeals in one civil case since the order is interlocutory and the court
still continues to try the case in the course of the proceeding, the court will realize its error and the court may change its order so it will be given an
opportunity to corrects its own mistake. (Manila Elec. Co. vs. Artiaga, 50 Phil. 147)

Take note of the new rule saying that a judgment or order is final if it disposes of the case or of a PARTICULAR MATTER. So, it is not necessarily the
whole case.

In the case of DAY vs. RTC (191 SCRA 640), a case filed by A against B, X filed a motion to intervene and it was denied. Can X appeal the denial? Now,
it would seem that the order is interlocutory because the court, after denying the motion to intervene, still has something to do since the case between A
and B will continue. But according to the SC, YES, X can appeal because the order denying the motion to intervene is final.

But is it not true that the court has something to do after denying such motion? Yes but what the SC is trying saying is that, as far as X’s right is
concerned, the court has nothing to do anymore. Marami pa akong trabaho dito (case between A and B), pero kay X wala na. That is why the order
denying the motion to intervene is a final order and is appealable. Kaya nga the test that there is nothing more for the court to do is very confusing. In
other words, you divide the case into parts.

DAY vs. RTC OF ZAMBOANGA CITY

191 SCRA 640

HELD: “An order which decides an issue or issues in a complaint is final and appealable, although the other issue or issues have not
been resolved, if the latter issues are distinct and separate from the others.”

REPUBLIC vs. TACLOBAN CITY ICE PLANT

258 SCRA 145 [1996]

HELD: “A court order is final in character if it puts an end to the particular matter resolved or settles definitely the matter therein
disposed of, such that no further questions can come before the court except the execution of the order. Such an order or judgment may
validly refer to the entire controversy or to some definite and separate branch thereof.”

So the opening paragraph of Section 1 is in accordance with the DAY and TACLOBAN cases. In other words, either the whole case is disposed of or a
particular matter therein has been disposed of.

Q: If I cannot appeal because Section 1 of Rule 41 prohibits an appeal, is there a way of hastening the issue before the appellate court in order to
avoid the waste of time and effort and money of entering into a trial which is null and void because of lack of jurisdiction?
A: The answer is the last paragraph of Section 1:

In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate
special civil action under Rule 65. (n)

So if appeal is not available, the correct remedy is an appropriate special civil action under Rule 65. There are three civil actions there: Certiorari,
Prohibition, Mandamus.

The present Rule 41 tells us exactly what orders cannot be appealed:

(a) An order denying a motion for new trial or reconsideration;

So when a motion for new trial or reconsideration is denied, there is no appeal from that order. Your remedy is you appeal from the judgment, not
from the order denying your motion for new trial or reconsideration. That is found on Rule 37, Section 9:

Section 9. Remedy against order denying a motion for new trial or reconsideration.- An order denying a motion for new trial
or reconsideration is not appealable, the remedy being an appeal from the judgment or final order.

So the correct remedy is in Rule 37 – you appeal from the judgment, not from the order denying the motion for new trial or reconsideration.

(b) An order denying a petition for relief or any similar motion seeking relief from judgment;

Paragraph [b] has changed some decided cases in the past. Before, an order granting a petition for relief is interlocutory but an order denying a
petition for relief is final. NOW, wala na yan! Whether it is an order granting or denying a petition for relief, you cannot appeal.
 So what is remedy for such order? Go with special civil action under Rule 65 as provided in the last paragraph of Section 1.

Give an example of an order denying a motion other than a petition for relief: motion for new trial. So it is not appealable.

Suppose I am declared in default, can I appeal from a DEFAULT JUDGMENT ? The 1964 rules says, yes. You notice that such provision is lost. There is
no more direct provision on that. But still, it is appealable. The provision in the old rules is not necessary. There is nothing in paragraphs [a] to [h]
prohibiting an appeal from a default judgment. So it falls under the general rule.

Q: How about the order to LIFT the order of default? Suppose you file a motion to set aside the judgment of default and motion is denied, can you
appeal?
A: NO, because the law says, an order denying any similar motion seeking relief from judgment cannot be appealed. As a matter of fact, the 1995
case of MANILA ELECTRIC COMPANY vs. CAMPANA FOOD PRODUCTS (246 SCRA 77), there is no such remedy as a motion to set aside an order of default
but there is no provision in the rules to set aside a judgment of default. The correct remedy is to appeal from the judgment of default not to set aside.
And that is clear. The default judgment is appealable.

(d) An order disallowing or dismissing an appeal;

So, if an appeal is dismissed, you cannot appeal from the order dismissing it. What is the remedy? The 1964 rules provides for the remedy of
mandamus. That is a direct provision because if the appeal is on time , the duty of the court to grant due course to the appeal is ministerial. There is no
more such provision in the present rules because it is already provided in the last paragraph.

Another possible remedy where an appeal is allowed aside from the mandamus is if I lost my right to appeal because of fraud, mistake accident and
inexcusable negligence, the other possible remedy is a petition for relief from judgment denying my appeal and that is found in Rule 38, Section 2:

Rule 38, Sec. 2. Petition for relief from denial of appeal. When a judgment or final order is rendered by any court in a case,
and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file
a petition in such court and in the same case praying that the appeal be given due course. (1a)

So, aside from the remedy under Rule 65, the other possible remedy is a petition for relief from the order denying the 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;

PROBLEM: So there is a judgement by consent (cognovit judgment) and the motion to set aside such judgment is denied. The order of denial is not
appealable. So again, there is judgement by confession or compromise and then you file a motion to set aside the judgement of compromise on the
ground of fraud, mistake or duress or any other ground. Motion denied!
Q: Can you appeal?
A: NO. (paragraph [e])

Q: So what is my remedy?
A: You file a separate case for annulment for such judgment (Rule 47). In the case of

DOMINGO vs. COURT OF APPEALS

255 SCRA 189 [1996]

HELD: The correct remedy is for the party to file an action for annulment of judgment before the Court of Appeals pursuant to
Section 9, par. 2, of the Judiciary Law.
“A compromise may however be disturbed and set aside for vices of consent or forgery. Hence, where an aggrieved party alleges
mistake, fraud, violence, intimidation, undue influence, or falsity in the execution of the compromise embodied in a judgment, an action
to annul it should be brought before the Court of Appeals, in accordance with Section 9(2) of Batas Pambansa Bilang 129, which gives
that court (CA) exclusive original jurisdiction over actions for annulment of judgments of regional trial courts.”

(f) An order of execution;

So you cannot appeal from an order of execution because if we will allow the losing party to appeal from an order of execution, then there will be
no end to litigation. Kaya nga execution, eh – it means tapos na ang kaso. That case is finished, decided, final.

But suppose the order of execution contains portions which are not found in the judgment, meaning, the order of execution is changing the
judgment which should not be done, then obviously, the correct remedy is certiorari under Rule 65 because of grave abuse of discretion.

(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;

The best example of a judgment of final order where there are separate claims is found in Rule 36. There could be more than one judgment in one
civil case and there can be more than one decision – judgment on the main action, on the counterclaim, etc. (c.f. Sections 4 and 5, Rule 36)
 Q: Everytime a judgment is issued, can you appeal already form the first judgment when there will be a second judgment in that civil action? Can
you appeal from all these separate judgment?
A: No, unless the court allows an appeal therefrom. Generally, you have to wait for all the judgments to be rendered before you can appeal
because, normally, there can be no appeal from every judgment rendered. A good example of this is in the case of
PROVINCE OF PANGASINAN vs. COURT OF APPEALS
220 SCRA 726
FACTS: This was a partial summary judgment under Rule 35. Is it appealable? One party claims that a partial summary
judgment is appealable because of Rule 36,
where the court allows an appeal therefrom. But
according to the Supreme Court:
HELD: A partial summary judgment is not
covered by Rule 36. It is governed by Rule 35 and
there is no appeal because it is merely interlocutory.
Rule 35, Sec. 4. Case not fully adjudicated
on motion. If on motion under this Rule,
judgment is not rendered upon the whole case
or for all the reliefs sought and a trial is
necessary, the court at the hearing of the
motion, by examining the pleadings and the
evidence before it and by interrogating counsel
shall ascertain what material facts exist without
substantial controversy and what are actually
and in good faith controverted. It shall
thereupon make an order specifying the facts
that appear without substantial controversy,
including the extent to which the amount of
damages or other relief is not in controversy,
and directing such further proceedings in the
action as are just. The facts so specified shall be
deemed established, and the trial shall be
conducted on the controverted facts
accordingly.
Q: When can there be a partial summary judgment?
A: When some portions of a claim are substantially
controverted and the rest are not substantially controverted. So the
court is authorized to render a partial summary judgment on the claim
where there is no genuine issue we continue trying the case with
respect to the claim where there is a genuine issue. So there will be
two judgments. A summary judgment for one claim and an ordinary
judgment for the other claim. So nauna yung partial summary
judgment.
Q: Can you appeal from there immediately?
A: NO, you have to wait for the other judgment to come out.
You cannot appeal from that partial summary judgment while the main
case is pending, unless the court allows appeal therefrom.
(h) An order dismissing an action without
prejudice.
If an action is dismissed without prejudice, it cannot be appealed
because, as it is without prejudice, you can re-file the case. But
supposed the dismissal without prejudice is arbitrary, and I don’t want
to re-file because it is too costly and I really want to question the court
dismissing my case without prejudice, I want to challenge the order.
Now, because appeal is not appealable, your remedy is Rule 65 on
certiorari.
Q: Give examples of dismissal of cases without prejudice.
A: Rule 16, Section 5 (c.f. Rule 16, Section 1 [f], [h], [i]):
Rule 16, Sec. 5. Effect of dismissal. Subject
to the right of appeal, an order granting a
motion to dismiss based on paragraphs (f), (h)
and (i) of section 1 hereof shall bar the refiling
of the same action or claim.
Rule 16, Section 1. Grounds. Within the
time for but before filing the answer to the
complaint or pleading asserting a claim, a
motion to dismiss may be made on any of the
following grounds:
(f) That the cause of action is barred by a
prior judgment or by the statute of limitations;
(h) That the claim or demand set forth in
the plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) That the claim on which the action is
founded is unenforceable under the provisions
of the statute of frauds;
Another new provision is Section 2. But, actually, the principles
are not new. How do you appeal from the RTC to the CA? (or to a
higher court) Take note that Section 2 tells us that there are 3 possible
ways:
1) Ordinary Appeal (in cases decided by the RTC pursuant to
its original jurisdiction)
2) Petition For Review (in cases decided by the RTC pursuant
to its appellate jurisdiction)
3) Appeal By Certiorari (appeal from RTC direct to the SC on
pure questions of law)
Sec. 2. Modes of appeal.
(a) Ordinary appeal.- The appeal to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing a
notice of appeal with the court which rendered
the judgment or final order appealed from and
serving a copy thereof upon the adverse party.
No record on appeal shall be required except in
special proceedings and other cases of multiple
or separate appeals where the law or these
Rules so require. In such cases, the record on
appeal shall be filed and served in like manner.
Ordinary Appeal is the mode of appeal from RTC to CA in cases
decided by the RTC pursuant to its original jurisdiction.
Just like in Rule 40, you file a notice of appeal with the RTC
furnishing the adverse/losing party. No record on appeal shall be
required except in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require.
(b) Petition for review.- The appeal to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for
review in accordance with Rule 42.
Actually, this was already touched in Judiciary Law. How do you
appeal to the CA from the RTC in cases decided by the RTC pursuant to
its appellate jurisdiction? – not by ordinary appeal but by petition for
review.

ORDINARY APPEAL (par. A) PETITION FOR

REVIEW (par. B)
The case was decided by The case was
the RTC pursuant to its original decided by the RTC
jurisdiction. The case was pursuant to its appellate
originally filed in the RTC. jurisdiction (governed by
Rule 42)

EXAMPLE: You filed an action for recovery of money amounting

to P1 million. Obviously the jurisdiction is in the RTC. Now, natalo ka
and you want to go to the CA. What is your mode of appeal? Ordinary
Appeal because the case was decided by the RTC pursuant to its
original jurisdiction.
 EXAMPLE: In paragraph B, the case is recovery of sum of money amounting to P50,000. Saan i-file yan? MTC man yan ba. Now, you lose, where will
you appeal and what is the mode of appeal? RTC by Ordinary appeal. Suppose, talo ka pa rin sa RTC and you want to go to CA. This time, the mode of
appeal is not by ordinary appeal but by petition for review because the case now being appealed has been decided by the RTC pursuant to its appellate
jurisdiction.

(c) Appeal by certiorari.- In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme
Court by petition for review on certiorari in accordance with Rule 45.

This goes back to the jurisdiction of the SC. The SC has exclusive, appellate jurisdiction in certain cases — constitutionality of a law, treaty is in issue,
jurisdiction of the court is in issue, and when only questions of law are being raised.

So the case is in the RTC and you lost. You would like to appeal on pure question of law. Now, do not go to the CA for it has no jurisdiction. You by-
pass CA and go directly to the SC on appeal by certiorari in accordance with Rule 45.

What is the period to appeal? Section 3:

Sec. 3. Period of ordinary appeal. The appeal shall be taken within fifteen (15) days from notice of the judgment or final
order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal
within thirty (30) days from notice of the judgment or final order. However, an appeal in habeas corpus cases shall be taken
within forty-eight (48) hours from notice of the judgment or final order appealed from.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be allowed.

The period to appeal is 15 days. And when a record on appeal is required, the period to appeal is doubled – 30 days.

Section 3 is already amended. It now specifically provides the period to appeal in cases of habeas corpus, which is 48 hours. This is because the SC
made an error in one of the latest cases involving Rufus Rodriguez as Immigration Commissioner, where the SC ruled that the period to appeal in habeas
corpus cases is 15 days since the 48-hour period disappeared in the 1997 Rules. So many got confused now.

So when I had a talk with Justice Panganiban last year during the celebration of the 100 years of SC here in Davao, I opened this issue to him. Sabi
ko, “Mali man yung ruling nyo ba. Under the judiciary law, it is 48-hours!” Two months after the conversation, Section 3 was amended. [ehem!]

Alright, the period to appeal shall be interrupted by timely motion for new trial or motion for new consideration provided that the motion for new
trial is not a pro forma motion (Rule 37, Section 2).

LABITAD vs. COURT OF APPEALS

246 SCRA 434 [1995]

FACTS: You receive a judgment on January 31. You filed a motion for reconsideration on February 10. So, interrupted and then on
February 20, you receive the order denying the motion for reconsideration. When is the last day to appeal?

HELD: The last day is February 26. The filing of a motion for new trial or reconsideration is not counted in the 15-day period. Upon
the filing in February 10, it is already interrupted. So, you did not consume 10 days. You consumed only 9 days.
“The period to appeal is suspended if a motion for reconsideration or one for a new trial is filed, which, if denied, continues to run
upon receipt of the order denying the same as if no interruption has occurred. The time during which a motion for reconsideration or
one for new trial has been pending shall be counted from the date the motion is duly filed to the date when the movant is duly notified
of the denial thereof.”
“The period during which the motion is pending with the trial court includes the day the same is filed because the motion shall
have been already placed under the court's consideration during the remaining hours of the day. The very date the motion for
reconsideration has been filed should be excluded from the appeal period.”

So how do you reconcile this pronouncement with the rule that the first day is excluded and the last day is included? The answer is found in Rule 22,
Section 2:

Rule 22, Sec. 2. Effect of interruption.- Should an act be done which effectively interrupts the running of the period, the allowable
period after such interruption shall start to run on the day after notice of the cessation of the cause thereof.
The day of the act that caused the interruption shall be excluded in the computation of the period. (n)

RUBIO vs. MTCC BRANCH 4 OF CAGAYAN DE ORO CITY

252 SCRA 172

FACTS: The period to file a motion for new trial or reconsideration is within the period to appeal which is 15 days, kaya walang
extension. Now this is what happened. The court issued an interlocutory order. After two months, one of the parties filed a motion for
reconsideration and, of course, the other party said, no more, you should file the motion within 15 days. You cannot file beyond the 15-
day period. Is that correct?
HELD: NO. That is wrong because an interlocutory order cannot be appealed hence, the 15-day period does not apply. You can file
your motion for reconsideration anytime for as long as the court still has jurisdiction over the case.
The 15-day period only applies when the order is final. But when the order is interlocutory, you can file it anytime because there is
 no definite period for the court to change it. For as long as the court has jurisdiction over the case, it has the power to change that wrong
order.
“The period subject to interruption by a motion for reconsideration is the period to appeal. An interlocutory order is not
appealable if there is accordingly no period to suspend or interrupt.”

Sec. 4. Appellate court docket and other lawful fees. Within the period for taking an appeal, the appellant shall pay to the
clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and
other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or
the record on appeal. (n)

Under the law, within the period for taking an appeal, the appellant shall only pay to the clerk of court of the RTC which rendered the judgment or
final order the full amount of the appellate court docket fee and all other lawful fees and the proof of payment shall be transmitted to the CA together
with the original record on appeal.

Q: How does this amend the Old law ?

A: Under the OLD Law, when you appeal from the RTC to the CA , you just file a notice of appeal. You do not pay anything, you do not pay the
appellate docket fee. So the records will be transmitted upon order of the clerk of court.

Pagdating sa CA, later on, the clerk of court there will communicate to the appellant na the records are there already, magbayad ka ng docket fee
within so many days. So, mamaya mo na bayaran, hintayin mo munang mapunta doon at hintayin mo ang notisya.

NOW, you do not wait. Pag - file mo ng notice of appeal, you PAY IMMEDIATELY. When you appeal, bayaran mo na ang CA docket fee sa RTC clerk
and then pag-transmit, sabay na! That is the change.

If we will notice, the counterpart is Section 5 Rule 40 – yung appeal from the MTC to the RTC:

RULE 40, Section 5. Appellate court and other lawful fees. - Within the period for taking an appeal, the appellant shall pay to the
clerk of the court which rendered the judgment or final order appealed from the full amount of the appellate court docket and other
lawful fees. Proof of payment thereof shall be transmitted to the appellate court together with the original record or the record on
appeal, as the case may be. (n)

Q: Suppose the person appealing from the MTC to the RTC failed to pay the appeal fee under Rule 40, can the appeal be dismissed ?
A: No, because it is not one of the requisites. That was the ruling in SANTOS vs. CA. That can be collected from you later but that is not a requisite.
The appeal cannot be dismissed.

We will ask the same question under Section 4 Rule 41. BUT this time, you are appealing from the RTC to the CA and this contains an identical
provision that when you are appealing from the RTC to the CA, you already pay there with the clerk of court of the RTC the docket fee. Bayaran mo na,
siya na ang bahalang mag-forward. Here’s the problem:

Q: You failed to pay the docket fee within 15 days. So, when the case was transmitted to the CA, hindi kasali yung fee no. Now, can your appeal be
dismissed on the ground of failure to pay the docket fee or not in accordance with the ruling in SANTOS (by analogy, although in this case, the appeal is
from the MTC to the RTC. Pero the same, hindi ka rin magbayad ng docket fee.) Is the ruling in SANTOS also applicable to Rule 41 ?
A: NO, the ruling in SANTOS is not applicable. Your appeal will be dismissed.

Q: What provision of the Rules authorizes such dismissal? Is there any direct provision of the Rules of Court which authorizes the dismissal of the
appeal by non-payment of the appeal docket fee?
A: YES. Rule 50 Section 1 [c];

RULE 50, Section 1 – An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee. on
the following grounds:
xxxx
(c) Failure of the appellant to pay the docket and other lawful fees as provided in Section 4 of Rule 41 ;
xxxx

I believe that it is dismissible because of that. So, to my mind, the SANTOS vs. CA ruling which governs Rule 40 and which for me is valid, is NOT
APPLICABLE to Rule 41 because there is a direct provision in Rule 50 that an appeal can be dismissed for non-payment of appeal docket fee. That is the
difference between these two situations.

NOTICE OF APPEAL

Now, let us go back to Section 5 of Rule 41;

Sec. 5. Notice of appeal. The notice of appeal shall indicate the parties to the appeal, specify the judgment or final order or
part thereof appealed from, specify the court to which the appeal is being taken, and state the material dates showing the
timeliness of the appeal. (4a)

Ano ba ang nakalagay sa notice of appeal? It’s very clear there that you indicate the parties to the appeal, specify the judgment and state the
material date showing the timeliness of the appeal.
 Do you know how to do it? It’s very simple. The defendant merely says; Defendant hereby serves notice that he is appealing to the CA on questions
of fact or on questions of fact and law the judgment of the Honorable Court (RTC) dated December 20, 1997, copy of which was received by me on
January 5, 1998.” So it is simple that only 15 days is required to file the notice. When the law says the period to file an appeal is non-extendible, that is
fair. I do not need 15 days to prepare the notice of appeal. You can do it only in two minutes. [sobra pa sa quicky!!]

So you must state the date when you received because the computation of the 15 -day period is from the receipt of the judgment and NOT from the
date of the judgment. This is the so-called the MATERAL DATA RULE – material dates showing timeliness of appeal. The date received and the date of
decision are not the same. Both dates must be included in the notice of appeal.

Now, kung sabihin mo na I am appealing from the judgment of the court dated December 20, 1997, and hindi mo sinabi kung kailan mo natanggap,
the presumption is you also received the copy of the judgment on December 20, 1997. And then you are appealing today, it will be dismissed because
you did not state the material dates.

And of course, there is one SC decision which said that you do not only specify the final judgment or order, but you also specify as much as possible
the interlocutory orders from where you are appealing because interlocutory orders can only be appealed at this time. So, isabay mo na rin, i -one time
ba!

In the case of

HEIRS OF MAXIMO RIGOSO vs. COURT OF APPEALS

211 SCRA 348

FACTS: Plaintiff filed an action against defendant for partition of property. While the action was pending, defendant died. Partition
is an action which survives. Defendant’s lawyer failed to inform the court about plaintiff’s death (it is the lawyer’s duty which he did not
do). So with that, there was no proper substitution. Later, judgment was rendered against the deceased defendant. But after the decision
came out, the lawyer of the defendant filed a notice of appeal in accordance with Rule 41.

ISSUE #1: Was the appeal properly made?

HELD: NO. Upon the death of the defendant, the lawyer’s authority to represent him already expired. There was an automatic
expiration of the lawyer-client relationship. The notice of appeal which the lawyer filed in behalf of the deceased was an unauthorized
pleading, therefore not valid.

ISSUE #2: Is the judgment binding to the defendant’s heirs (remember, they were not substituted)?
HELD: YES. The validity of the judgment was not affected by the defendant’s demise for the action survived (partition, eh). The
decision is binding and enforceable against the successor-in-interest of the deceased litigant by title subsequent to the commencement
of the action pursuant to Section 47 [b] of Rule 39—Rule on Res Judicata.

Now, in our outline in appeal, the general rule is when you appeal, you only file a notice of appeal and you pay the docket. The important
requirement there is notice of appeal but, we said in some cases, aside from notice of appeal, there is a second requirement which is the RECORD ON
APPEAL.

This time, the period to appeal is not only 15 but 30 days and a record on appeal is only required in special proceedings or in civil cases where
multiple appeals are allowed. Never mind special proceedings, saka na ‘yun. It sounds strange because what we’ve studied so far, multiple appeals are
not allowed in civil cases, there should only be one appeal. Kaya nga interlocutory orders are not appealable, precisely to avoid order on appeal in a civil
case. We will explain this later.

RECORD ON APPEAL

Sec. 6. Record on appeal; form and contents thereof. The full names of all the parties to the proceedings shall be stated in
the caption of the record on appeal and it shall include the judgment or final order from which the appeal is taken and, in
chronological order, copies of only such pleadings, petitions, motions and all interlocutory orders as are related to the appealed
judgment or final order for the proper understanding of the issue involved, together with such data as will show that the appeal
was perfected on time. If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the
evidence, testimonial and documentary, taken upon the issue involved. The reference shall specify the documentary evidence by
the exhibit numbers or letters by which it was identified when admitted or offered at the hearing, and the testimonial evidence
by the names of the corresponding witnesses. If the whole testimonial and documentary evidence in the case is to be included, a
statement to that effect will be sufficient without mentioning the names of the witnesses or the numbers or letters of exhibits.
Every record on appeal exceeding twenty (20) pages must contain a subject index. (6a)

A record on appeal is simply a reproduction of all the pleadings filed by the parties, all the motions filed by the parties, all the orders issued by the
court and the final judgment rendered by the court arranged in chronological order.

For EXAMPLE: Juan de la Cruz versus Pedro Santos. Record on appeal. Normally, it starts with this phrase—
“Be it remembered the following proceedings took place in the court below:
Par. 1. On January 5, 1998, plaintiff filed a complaint against defendant as follows: -- (so kopyahin mo ‘yung complaint. Practically it
is mechanical work, eh.)
 Par. 2. On January 25, 1998, defendant filed an answer – (kopyahin mo ang answer)
Par. 3. On March 5, 1998, the court rendered judgment – (kopyahin mo na naman.)”

How long? Gaano kakapal yan? Depende. For example, the case lasted for more than two years. So practically, the record on appeal may amount to
hundreds of pages. That is why the period to appeal is increased from 15 to 30 if the law requires a record on appeal because of the possibility that you
may not be able to complete everything within 15 days. Sometimes the 30-day period can be extended.

Q: Do you have to include there every motion, every order of the case?
A: No, the law says you reproduce in chronological order copies of only such pleadings, motions, petitions, and all interlocutory orders as are related
to the appealed judgment or final order for the proper understanding of the issues involved. This is to allow the appellate court to review the order
appealed from.

But there are some motions na hindi na kailangan. For example, the case will be set for trial next week. Sabi ng defendant, “Motion to postpone, I
am not ready because I am suffering from diarrhea.” So the trial was postponed. Kailangan pa bang ilagay ang motion na yan? That is not necessary to
understand the issue. Piliin mo lang ang importante.

Now, bakit kailangan ‘yang record on appeal? Bakit sa ordinary appeal, hindi man kailangan? Because in Ordinary Civil Actions, when the appeal is
perfected, the clerk of court of the RTC transmits the entire record to the CA. So andoon na lahat yan. But in special proceedings or in civil cases where
multiple appeals are allowed, when an order or judgment is rendered, the case continues pa. So, the records are not yet elevated. So, how can the CA
understand what happened without the records? That is called the record on appeal.

Q: Give an example of a civil action where multiple appeals are allowed.

A: Section 4 of Rule 36, where several judgments will be rendered in one case:

RULE 36, Sec. 4. Several judgments. - In an action against several defendants, the court may, when several judgment is
proper, render judgment against one or more of them, leaving the action to proceed against the others. (4)

And to be more specific, that rule was applied by the SC in the case of

MUNICIPALITY OF BIÑAN vs. GARCIA

180 SCRA 576

FACTS: Municipality of Binan filed expropriation cases against several landowners because it would like to expropriate their land for
public use. All of them were named as co-defendants in one complaint. Landowner A filed a motion for separate trial (Rule 31). The court
granted it. The court rendered a decision expropriating the land of A. Nauna siya. As for the other landowners, the case continued.

ISSUE #1: Can A appeal already from the decision rendered against him or must he wait for the decision to be rendered against the
other landowners?
HELD: YES, A can now appeal because the order was already final against A. There is something more for the court to do but only
with respect to the other defendants. But as far as A is concerned, there is nothing more for the court to do.
So when the judgment is already rendered against the other landowners, they can now also appeal. So there could be two or more
final judgments and two or more appeals.

ISSUE #2: Suppose the case was tried against all of them (sabay ba) and there was one decision against them—so sabay-sabay sila
mag-appeal. Is record on appeal required?
HELD: NO, only notice of appeal because there is only one decision.

Q: Why is it that in ordinary civil cases, normally a record on appeal is not required?
A: Ordinarily, when the case is over and you say that you are appealing, the entire record of the case will be elevated to the CA. But in the case of
BIÑAN, there is judgment against landowner A and he wants to appeal, the record cannot be brought to the CA because the case will still be tried with
respect to landowners B, C and D. So for the CA to know what happened, a record on appeal is needed.

ROMAN CATHOLIC ARCHBISHOP OF MANILA vs. COURT OF APPEALS

258 SCRA 186 [1996]

HELD: Multiple appeals are allowed in:

1.) Special proceedings;
2.) Actions for recovery of property with accounting;
3.) Actions for partition of property with accounting;
4.) Special civil actions of eminent domain (expropriation);
5.) Special civil actions for foreclosure of mortgage.

“The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to proceed in the event that
a separate and distinct case is resolved by the court and held to be final.”

The enumeration cited in ROMAN CATHOLIC CASE is taken from the ruling of the SC in the cases of MIRANDA vs. CA (71 SCRA 295) and DE GUZMAN
vs. CA (74 SCRA 222). In these cases, when you file only a notice of appeal without the record on appeal, it will not suffice. So it will be dismissed.
 Q: What if the party filed a record on appeal without a notice of appeal? Should the appeal be dismissed?
A: NO, the appeal will not be dismissed because the filing of the record on appeal is harder to comply with than the filing of a notice of appeal.
The filing of the record on appeal is more expressive of the desire of the party to appeal. (Peralta vs. Solon, 77 Phil. 610)

(The following discussions under Section 6 was taken from the 4th year review transcription) Now, let us try to tie this up with what may be
appealed and what may not be appealed, let’s go back to section 1 [g] of Rule 41:

Section 1. Subject of appeal. - An appeal may be taken from a judgment or final order that completely disposes of the case, or of
a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
xxxxx
(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.
xxxxx

Take note that as a GENERAL RULE: a judgment for or against one or more of several parties or in separate claims, counterclaims, cross-claims, etc.,
while the main case is pending, cannot be appealed because that will result to multiple appeals, unless the court allows an appeal therefrom, in which
case, multiple appeals would now be possible.

Q: Cite examples of civil actions where, by direct provision of the Rules, the law mentions that the judgment is already final and appealable despite
the fact that the case still goes on with respect to the other issues.

A: The case of MUNICIPALITY OF BIÑAN vs. GARCIA which is now expressly provided for in Rule 67, Section 4, (on Expropriation):

Sec. 2. Entry of plaintiff upon depositing value with authorized government depositary — Upon the filing of the complaint or
at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the
possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the
assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit
shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the
Republic of the Philippines payable on demand to the authorized government depositary. x x x x x x

Did you notice that an Order of Expropriation MAY BE APPEALED? When there is an order of expropriation - the court says, “Alright, the property is
declared expropriated.” Tapos na ba ang case? NOT YET because there is still a Part 2 which the determination of just compensation. So, technically, it
does not yet really dispose of the case BUT by express provision of the law, the order is already appealable. That is an instance where multiple appeals
may arise in one civil case.

Another example is Rule 69 on Partition:

RULE 69, Sec. 2. Order for partition, and partition by agreement thereunder. - If after the trial the court finds that the
plaintiff has the right thereto, it shall order the partition of the real estate among all parties in interest. Thereupon the parties
may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall
confirm the partition so agreed upon by all the parties, and such partition, together with the order of the court confirming the
same, shall be recorded in the registry of deeds of the place in which the property is situated. (2a)
A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. (n)

A final order decreeing partition is appealable. But the case will go on because if the first order is that there is a co-ownership, then there should be
a partition. Ang sunod is how to partition. As a matter of fact, the court may even hire commissioners as to how to partition but in the meantime, the
order to partition is already appealable although it did not completely disposed of the civil action.

Sec. 7. Approval of record on appeal. Upon the filing of the record on appeal for approval and if no objection is filed by the
appellee within five (5) days from receipt of a copy thereof, the trial court may approve it as presented or upon its own motion
or at the instance of the appellee, may direct its amendment by the inclusion of any omitted matters which are deemed
essential to the determination of the issue of law or fact involved in the appeal. If the trial court orders the amendment of the
record, the appellant, within the time limited in the order, or such extension thereof as may be granted, or if no time is fixed by
the order within ten (10) days from receipt thereof, shall redraft the record by including therein, in their proper chronological
sequence, such additional matters as the court may have directed him to incorporate, and shall thereupon submit the redrafted
record for approval, upon notice to the appellee, in like manner as the original draft. (7a)

What you have to remember here is that in appeals, where a record on appeal is required, the law requires an approval. The record on appeal has to
be approved by the court. In ordinary cases where you only file a notice of appeal, approval is not required. A record on appeal has to be approved
because the other party is given the right to object your record on appeal.

The possible grounds for objections are – necessary pleadings were not produced like kulang-kulang ang record on appeal [kulang-kulang din siguro
yung nag-file]; or, you did not reproduce the pleading properly; to pester the other party and just to block the approval, like i-reklamo kahit wrong
spelling lang. [peste talaga!]
 Sec. 8. Joint record on appeal. Where both parties are appellants, they may file a joint record on appeal within the time
fixed by section 3 of this Rule, or that fixed by the court. (8a)

Q: Is it possible that both sides will appeal?

A: Yes, when both are not satisfied.

Suppose both plaintiff and defendant will want to appeal and a record on appeal is required, it would be tedious. Para walang gulo at para
makatipid, the plaintiff and the defendant will file a joint record on appeal, tapos hati tayo sa gastos.

WHEN APPEAL IS DEEMED PERFECTED

Let us now go to Section 9 of Rule 41 which is one of the most important provisions – when is appeal deemed perfected. Now, if you are asked this
question: HOW DO YOU PERFECT AN APPEAL? This question is not the same as WHEN IS THE APPEAL DEEMED PERFECTED?

Q: How do you perfect an appeal?

A: By:
1.) Filing a NOTICE OF APPEAL, generally within 15 days; or by
2.) Filing A NOTICE OF APPEAL and RECORD ON APPEAL WITHIN 30 DAYS.

Those are the steps taken to perfect the BUT the appeal is NOT YET PERFECTED. It is perfected according to Section 9, and it is important to
determine the exact date when the appeal is considered as perfected because of the doctrine that from the moment the appeal is perfected, the RTC
automatically loses jurisdiction of the case. And by fiction of law, the jurisdiction is automatically transferred to the CA, although the records as still with
the RTC. Therefore it is important to determine the exact date.

For example, in notice of appeal, is it perfected on the very day that the appellant will file a notice of appeal that if he files it, after two days
perfected na?

All of these are answered by Section 9 and I noticed that Section 9 has improved on the language of the Interim Rules. Under the Interim Rules, they
are actually the same, the question when is the appeal deemed perfected is also answered by the Interim Rules but the language of the law there is more
convoluted. Now, it is more clearer:

Sec. 9. Perfection of appeal; effect thereof. A party’s appeal by notice of appeal is deemed perfected as to him upon the
filing of the notice of appeal in due time.
A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due
time and the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the time to appeal of the other parties.
In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and
allow withdrawal of the appeal. (9a)

WHEN ONLY NOTICE OF APPEAL IS REQUIRED

Q: When only a notice of appeal is required, when is an appeal deemed perfected?

A: First and third paragraph: “A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon
the approval of the record on appeal filed in due time. x x x In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection
of the appeals filed in due time and the expiration of the time to appeal of the other parties.”

This was taken in the case of DELGADO vs IAC (147 SCRA 258). Let’s compose a problem based on that case:

PROBLEM: I received a copy of the decision on March 31 so I have 15 days to appeal i.e. up to April 15. My opponent received the decision on April
10. So ang opponent ko naman ang bilang niya is from April 10 to April 25. Iba ang 15 days niya, iba din sa akin.
Q: Since I received the decision on March 31, I filed my notice of appeal on April 5, is the appeal perfected?
A: Yes, as far as I am concerned.

Q: How about the other side?

A: Not yet, because as of April 5, he has not yet received a copy of the decision. He will start computing from April 10. So as of now, it is already
perfected only by 50%.

Q: Suppose by April 25 which is the last day of 15-day period of my opponent, he did not file anything. Nag-expire na. What will happen now?
A: Then as of April 25, the appeal is now fully perfected (100%) because as far as I am concerned, I have already filed a notice of appeal. As far as he
is concerned, his 15-day period to appeal has lapsed. Therefore, the case is now ripe for elevation. This is what the third paragraph means, “In appeals by
notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of
the other parties.” You have to look at it from the viewpoint of both parties.
 That is the time for the clerk of court to elevate the records. It is from that moment that the court has lost 100% jurisdiction over the case from the
viewpoint of both parties.

Up to now, despite this provision, I’m still receiving these kind of orders from the courts. Nakalagay doon: “A notice of appeal having been filed by
the defendant on this date, the appeal is now deemed perfected and let the record now be elevated to the CA.” My Golly! This is WROOOONG! The appeal
is perfected only as far as the defendant is concerned why decree it as perfected? Tiningnan mo lang yung isang side eh. Paano kung ‘yung plaintiff
mag-file pa ng motion for execution pending appeal?

So, do not elevate the record until the 15-day period has expired on BOTH SIDES. This is the correct interpretation of the Rules. We will now go to
some interesting cases:

UNIVERSAL FAR EAST CORP. vs. COURT OF APPEALS

131 SCRA 642

FACTS: On March 31, both Epi and Hilde received a copy of the decision. Epi won, Hilde lost. From the viewpoint of both, April 15 is
the last day to appeal. On April 5, Hilde filed a notice of appeal. So the appeal is perfected from the viewpoint of Hilde. On April 13, Epi
file a motion to execute pending appeal. Was the motion filed on time? Yes, because Epi can file the motion between March 31 and April
15. On April 25, the court granted Epi’s motion.
This is now the argument of Hilde: “[My Golly!] The order of execution by Epi is void because the court has already lost jurisdiction
over the case as of April 25 because From the viewpoint of both parties, the last day is April 15, after April 15 the period within which Epi
can file a motion to execute has expired.” From the viewpoint of Hilde, he already filed a notice of appeal on April 5. So, from the
viewpoint of both, the court already lost jurisdiction.
According to Epi: “But I filed my motion on April 13, the court has not yet lost jurisdiction.” “Ah Yes,” sabi naman ni Hilde, “but the
court acted on your motion on April 25, which is after April 15.”

HELD: Epi is correct. The important point is the date of filing. Thus, even if the court acts beyond the 15-day period, the order is still
valid. The important thing is the motion to execute pending appeal was filed within the 15-day period.
“It may be argued that the trial court should dispose of the motion for execution within the reglementary fifteen-day period. Such a
rule would be difficult, if not impossible, to follow. It would not be pragmatic and expedient and could cause injustice.”
“The motion for execution has to be set for hearing. The judgment debtor has to be heard. The good reasons for execution pending
appeal have to be scrutinized. These things cannot be done within the short period of fifteen days, or in this case, two days. The trial
court may be confronted with other matters more pressing that would demand its immediate attention.”

So in this case, the court has not yet lost jurisdiction the act on the motion for execution pending appeal even if it is beyond 15 days, provided the
motion was filed within 15 days.

WHEN RECORD OF APPEAL IS REQUIRED

Q: How about an appeal where a record of appeal is required? When is the appeal deemed perfected?
A: Second paragraph of Section 9: “A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof
upon the approval of the record on appeal filed in due time.” So it is not upon the filing of the record of appeal, but upon the APPROVAL. Because as we
said, under Section 7, a record on appeal has to be approved while a notice of appeal need not be approved.

As to the fourth paragraph: “In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of
the records on appeal filed in due time and the expiration of the time to appeal of the other parties.” The principle is the same. But definitely an appeal is
not perfected upon the filing of the record on appeal but upon the approval.

The last point to remember in Section 9. GENERAL RULE: once an appeal is deemed perfected from the viewpoint of both sides, the trial court loses
jurisdiction over the case. The jurisdiction is automatically transferred to the Court of Appeals.

Q: Are there EXCEPTIONS to the rule? Are there things that the trial court can do even if it has no more jurisdiction? What things or actions can the
trial court do?
A: Last paragraph of Section 9: “In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for
the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals
of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal.”

Lets us outline the last paragraph: Once an appeal is deemed perfected under Section 9, the RTC loses jurisdiction over the case and can no longer
act in that case.

Q: What things or what actions can the RTC do even if it has technically lost jurisdiction over the case? Sometimes they call this as the residual
jurisdiction, a.k.a. “dukot” jurisdiction.
A: For as long as the original record or the record on appeal is not yet transmitted (because it takes some time for the records to be transmitted)
the trial court, despite the fact that it has already lost jurisdiction, can do the following acts:
1.) to issue orders for the protection and preservation of the rights of the parties which do not involve in any matter litigated in the appeal;
2.) to approve compromises between the parties;
3.) to permit appeals to indigent litigants;
4.) to order executions pending appeal in accordance with Section 2 of Rule 39; and
5.) to allow the withdrawal of the appeal.
6.) The court can order the dismissal of an appeal under Section 13, Rule 41.
 Q: Can the parties settle the case amicably despite the fact that there is already an appeal?
A: Yes, compromise is welcome anytime.

Q: Now who will approve the compromise?

A: Technically, the court has no jurisdiction. But for as long as the records are still there, the trial court can approve the compromise. Now, suppose
the records are already transmitted to the CA? Then you better submit your compromise agreement before the CA.

Sections 10, 11, and 12 are purely administrative provisions.

Sec. 10. Duty of clerk of court of the lower court upon perfection of appeal. Within thirty (30) days after perfection of all the
appeals in accordance with the preceding section, it shall be the duty of the clerk of court of the lower court:
(a) To verify the correctness of the original record or the record on appeal, as the case may be, and to make a certification
of its correctness;
(b) To verify the completeness of the records that will be transmitted to the appellate court;
(c) If found to be incomplete, to take such measures as may be required to complete the records, availing of the authority
that he or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or transcripts not
included in the records being transmitted to the appellate court, the reasons for their non-transmittal, and the steps taken or
that could be taken to have them available.
The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the appellate court. (10a)

Sec. 11. Transcript. Upon the perfection of the appeal, the clerk shall immediately direct the stenographers concerned to
attach to the record of the case five (5) copies of the transcripts of the testimonial evidence referred to in the record on appeal.
The stenographers concerned shall transcribe such testimonial evidence and shall prepare and affix to their transcripts an index
containing the names of the witnesses and the pages wherein their testimonies are found, and a list of the exhibits and the
pages wherein each of them appears to have been offered and admitted or rejected by the trial court. The transcripts shall be
transmitted to the clerk of the trial court who shall thereupon arrange the same in the order in which the witnesses testified at
the trial, and shall cause the pages to be numbered consecutively. (12a)

Sec. 12. Transmittal. The clerk of the trial court shall transmit to the appellate court the original record or the approved
record on appeal within thirty (30) days from the perfection of the appeal, together with the proof of payment of the appellate
court docket and other lawful fees, a certified true copy of the minutes of the proceedings, the order of approval, the certificate
of correctness, the original documentary evidence referred to therein, and the original and three (3) copies of the transcripts.
Copies of the transcripts and certified true copies of the documentary evidence shall remain in the lower court for the
examination of the parties. (11a)

Sec. 13. Dismissal of appeal. Prior to the transmittal of the original record or the record on appeal to the appellate court,
the trial court may motu proprio or on motion dismiss the appeal for having been taken out of time. (14a)

Q: May the RTC dismiss the appeal?

A: Yes, for as long as the record of the case or the record of appeal has not yet been transmitted to the appellate court, the court may motu propio,
even without any motion, or on motion of the appellee, the trial court is empowered to dismiss the appeal on the ground of having been taken out of
time.

Q: Can the trial court dismiss the appeal on the ground that the appeal is dilatory?
A: NO. The trial court has no power to say that the appeal is dilatory. Such question can only be passed upon by the appellate court. Otherwise, trial
courts can easily forestall review or reversal of their decisions no matter how erroneous such decisions may be. (Dasalla vs. Caluag, L-18765. July 31,
1963; GSIS vs. Cloribel, L-22236, June 22, 1965; Republic vs. Rodriguez, L-26056, May 29, 1969) The only ground for the trial court to dismiss appeal is for
having been taken out of time. That’s all.

Don’t confuse that with Rule 39.

Q: Can the prevailing party file a motion for execution pending appeal, on the ground that the appeal is dilatory? Any appeal which is frivolous is
intended as dilatory.
A: Well, it’s not the appeal that is being questioned but whether there is a ground for execution pending appeal. Ang jurisprudence niyan magulo
eh: NO, the trial court cannot do that. Only the CA can determine whether the appeal is dilatory. But there are cases where the SC said YES because that
can be a good reason.

Pero dito (Rule 41), iba ang tanong. The court is not being asked to grant an execution pending appeal but being asked to dismiss an appeal. Ah, ito
talaga hindi pwede. NEVER, because of Section 13, Rule 41 – there is only one ground, filed out of time. Yaaan!

-oOo-
 Rule 42

PETITION FOR REVIEW

FROM THE REGIONAL TRIAL COURTS

TO THE COURT OF APPEALS

Q: What are the modes of appeal from RTC to the CA?

A: It’s either ORDINARY APPEAL (Rule 41) or PETITION FOR REVIEW (Rule 42).

Rule 41 refers to an ordinary appeal from the RTC to the CA – yung notice of appeal. Here, the RTC rendered a decision pursuant to its ORIGINAL
JURISDICTION.

‘Eto namang Rule 42 (Petition for review) is the mode of appeal from the RTC to the CA in cases decided by the RTC pursuant to its APPELLATE
JURISDICTION. So, the case here actually originated in the MTC, then it was appealed to the RTC under Rule 40. And now, from the RTC, you want to
go to the CA. Hence, the mode of appeal is not (Rule 41) Notice of Appeal but RULE 42 – Petition for Review.

For the first time, there is now a rule governing petitions for review from the RTC to the CA. Prior to July 1, 1997, there was none. Although there
were guidelines then – in jurisprudence, decided cases and SC circulars.

Section 1. How appeal taken; time for filing. A party desiring to appeal from a decision of the Regional Trial
Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of
Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing
the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the
petition. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be
reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment.
Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs
before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15)
days only within which to file the petition for review. No further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen (15) days. (n)

Under Section 1, a petition for review under Rule 42 must be VERIFIED.

Q: Where will you file your petition for review?

A: You file it directly with the CA. Do not file it with the trial court.

In Rule 41, where the appeal is deemed perfected by simply filing a notice of appeal, you file your notice of appeal with the RTC. Do not file it with
the CA. But in Rule 42, where the appeal is by petition for review, you file your petition directly with the CA. Do not file it with the RTC.

Not only that. Of course, you have to pay the docket and lawful fees plus P500 for costs. And you must furnish the RTC and the adverse party with a
copy of the petition. That is a new requirement.

Q: What is the period to file a petition for review ?

A: The period to file a petition for review is 15 days from receipt of the RTC judgment or from the order denying the motion for reconsideration.

Q: What is the difference in period to file between Rule 41 and Rule 42 ?

A: In Rule 41, if your motion for reconsideration is denied, you can still appeal within the remaining balance of the 15-day period. In Rule 42, the 15-
day period starts all over again because the law says “or of the denial.” So, another fresh 15 days. This because it is more difficult to prepare a petition for
review. This is more time-consuming than a simple notice of appeal. We’ll go to examples:

PROBLEM: Let’s go back to RULE 41: You receive a copy of the RTC decision on March 31. You file your motion for reconsideration on April 10 –
the 10th day. After two weeks, you received order of the court denying the MFR.
Q: How many more days are left for you to file a notice of appeal?
A: Six (6) days. Ang binilang mo, 1-9 days lang. The 10th day is interrupted na. That’s true.

PROBLEM: We will go to the same problem (applying Rule 42): The case was decided by the MTC, appealed to the RTC. And then in the RTC, you
lost again. You receive a copy of the decision on March 31. On April 10, you file a motion for reconsideration. And then on April 20, you receive the order
denying the MFR.
Q: How many days more are left for you to file your petition for review?
A: Kung sabihin mo 6 days from April 20 or April 26, that’s FALSE! The answer is 15 days all over again. Look at the law: “The petition shall be
filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or
reconsideration.” Meaning, you count another 15 days from the denial. Umpisa na naman!

So the filing a motion for new trial or reconsideration in Rule 42 does not only interrupt the running of the period but it commences to run all over
again. Unlike in Rule 41, in ordinary appeal, where the filing of the motion for reconsideration or new trial merely interrupts the running of the period to
appeal. And it commences to run again from the time you are notified that your motion is denied. See the difference?

Actually, if you are not serious in your study of appeal, you will not see these distinctions. You will just assume that the principles under Rule 41 and
Rule 42 are the same.
 Q: Under Section 1, is the 15-day period to file petition for review extendible?
A: Under Rule 41, the 15-day period to file notice of appeal is not extendible – no exceptions. But in Rule 42, the 15-day period to file petition for
review is EXTENDIBLE according to the last sentence of Section 1, provided you pay your docket and other lawful fees, the CA will grant additional 15
days within which to file a petition for review.

Q: Where will you file your motion for extension of time to file petition for review?
A: You file your motion for extension to the CA. The CA itself will grant the extension.

Q: How many more days can the CA grant?

A: The CA may grant another 15 days and no further extension can be granted except for the most compelling reasons. So, original extension is 15
days, and a possible extension of 15 days = total 30 days.

These are technical points. And how many appealed cases have been dismissed simply because these finer provisions were not been observed by
lawyers? I would say 60% of all appeals are dismissed. Even in Davao, majority of petitions are dismissed because nakulangan ng piso sa docket fee,
karami. I presume throughout the country, the pattern is the same because the rules on appeal are very technical and very strict. That’s why there are
lawyers in Manila, even in Davao, who do not want to handle appealed cases. They only handle cases in the trial court. Pag-akyat na, nasa CA na, petition
for certiorari, pasa na sa iba.

But there are also who have mastered the rules on appeal. For the purpose of specialization, trial phase and appeal phase. For purposes of the bar, you
have to know all the fields in laws. Once you pass the bar, diyan na kayo mag-isip kung ano ang pipiliin ninyo—civil, criminal, labor, etc. But for purposes
of the bar, you cannot say dito lang ako mag-aral sa Labor, wag na sa Civil Law. Pwede ba yan? You cannot do that. Kaya nga sabi nila, the people who
know more about the law are those who have just taken the bar.

Sec. 2. Form and contents. The petition shall be filed in seven (7) legible copies, with the original copy
intended for the court being indicated as such by the petitioner, and shall (a) state the full names of the parties to
the case, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the
specific material dates showing that it was filed on time; (c) set forth concisely a statement of the matters
involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional
Trial Court, and the reasons or arguments relied upon for the allowance of the appeal; (d) be accompanied by clearly
legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by
the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and
other material portions of the record as would support the allegations of the petition.
The petitioner shall also submit together with the petition a certification under oath that he has not
theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must
state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or
is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5)
days therefrom. (n)

Take note of Section 2. Do not implead the lower court or the judge because nasanay na tayo na pati ‘yung judge naging defendant or respondent na.
We only do that in Certiorari under Rule 65 in Special Civil Actions, but not on appeal. This is the influence of Justice Feria because he has penned many
cases which has included the judge as defendant or respondent. So, he said that in the case of MWSS vs. CA [Aug. 25, 1986], hence we can see his
influence, siningit talaga niya iyan sa kaso na yon.

Now, as to the form [last paragraph], there has to be a Certification of Non-Forum Shopping, failure to comply with such would mean the dismissal
of the case.

ORTIZ vs. COURT OF APPEALS

299 SCRA 708 [1998]

FACTS: The certification was not signed by the Ortizes but by their lawyer who has personal knowledge of the fact and contended
that it should be accepted as substantial compliance with the rules.

HELD: The certification was not proper. Strict observance of the rule is required. In this case, no explanation was given.
“Regrettably, We find that substantial compliance will not suffice in a matter involving strict compliance. The attestation
contained in the certification on non-forum shopping requires personal knowledge by the party who executed the same. To
merit the Court’s consideration, Ortizes here must show reasonable cause for failure to personally sign the certification. The
Ortizes must convince the court that the outright dismissal of the petition would defeat the administration of justice.
However, the Ortizes did not give any explanation to warrant their exemption from the strict application of the rule. Utter
disregard of the rules cannot justly be rationalized by harking on the policy of liberal construction.”

Q: Under paragraph [c], what issues can you raise in the petition for review?
A: Errors of fact, errors of law, or both – mixed errors of fact or law.

Somebody asked this QUESTION: hindi ba kapag error of law dapat sa SC yan? Hindi na dadaan sa CA? How do you reconcile this with the
Constitution? Actually, when the law says decisions of the RTC appealable directly to the SC, it was decided pursuant to its original jurisdiction. But if it is
decided pursuant to its appellate jurisdiction, the appeal should be to the CA even on pure questions of law without prejudice of going to the SC later on.
Sec. 3. Effect of failure to comply with requirements. The failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of
service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient
ground for the dismissal thereof.

Section 3. If you fail to comply with the requirements, tapos ang petition mo, dismiss!
 Sec. 4. Action on the petition. The Court of Appeals may require the respondent to file a comment on the
petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to
be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial
to require consideration. (n)

Sec. 5. Contents of comment. The comment of the respondent shall be filed in seven (7) legible copies,
accompanied by certified true copies of such material portions of the record referred to therein together with other
supporting papers and shall (a) state whether or not he accepts the statement of matters involved in the petition; (b)
point out such insufficiencies or inaccuracies as he believes exist in petitioner’s statement of matters involved but
without repetition; and (c) state the reasons why the petition should not be given due course. A copy thereof shall be
served on the petitioner. (n)

Sec. 6. Due course. If upon the filing of the comment or such other pleadings as the court may allow or require,
or after the expiration of the period for the filing thereof without such comment or pleading having been submitted,
the Court of Appeals finds prima facie that the lower court has committed an error of fact or law that will warrant a
reversal or modification of the appealed decision, it may accordingly give due course to the petition. (n)

Q: When you file a petition for review from the RTC to the CA, is the CA obliged to entertain the petition?
A: No, this is discretionary under Section 6. The CA may or may not give due course to the petition unlike in ordinary appeal. Yan ang kaibahan ng
ordinary appeal and petition for review.

In ordinary appeal under Rule 41, when you file notice of appeal and you pay your docket fee, your appeal is automatically entertained. At least it
will be heard by the CA. But in Rule 42, it is not the same. When you go there, whether your petition for review will be given due course or not even if you
have paid the docket fee. Normally, the CA will required you to comment and then chances are after another month and after reading your petition and
your comment, the CA will refuse to give due course to your petition, “Your petition is hereby dismissed!” So, you must convince the CA na may merit
baah!

Q: What happens when the petition for review is given due course?
A: The parties will be required to submit their respective memoranda.

Take note that the RTC is also given the power to issue orders for the protection of the parties – the same as in Section 8, paragraph [b].

Sec. 7. Elevation of record. Whenever the Court of Appeals deems it necessary, it may order the clerk of court of
the Regional Trial Court to elevate the original record of the case including the oral and documentary evidence within
fifteen (15) days from notice. (n)

Q: Now, when is an appeal by petition for review deemed perfected?

A: Section 8 [a]. Similar to Rule 41. The same principle:
Sec. 8. Perfection of appeal; effect thereof. (a) Upon the timely filing of a petition for review and the payment
of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner.
The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time
and the expiration of the time to appeal of the other parties.
However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may issue orders
for the protection and preservation of the rights of the parties which do not involve any matter litigated by the
appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with
section 2 of Rule 39, and allow withdrawal of the appeal. (9a, R41)
(b) Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the judgment or
final order unless the Court of Appeals, the law, or these Rules shall provide otherwise. (n)

Q: Does the RTC have the power to act despite the fact that the petition for review is already before the CA? Suppose I lost in the MTC, and I also
lost on appeal in the RTC. I file a petition for review. What happens to the decision? Can the decision be enforced?
A: NO, it cannot be enforced yet because it is not yet final. We still have to wait for the appeal to be dismissed or to be entertained and denied later.
Under paragraph [b], the appeal shall stay the judgment or final order UNLESS the CA, the law or these rules should provide otherwise.
Also, based on the opening clause of paragraph [b], except in civil cases provided in the Rules on Summary Procedure, any part thereafter appealed to
the CA will not stop the implementation of the RTC decision.

Under Section 21 of the Summary Rules, when a case is started in the MTC under the Summary Procedure, and appealed to the RTC and decided by
the RTC, the decision becomes immediately executory. Even if we file a petition for review, it is executory. The only way to stop the RTC from enforcing
that judgment is to get a TRO or a writ of preliminary injunction from the CA. That is the rule.

I have a similar case now on that issue. The case originated from the MTC for ejectment. The defendant lost, akyat ngayon sa RTC, affirmed. And
then akyat na naman ang defendant sa CA on petition for review (although right now, it has not yet been given due course) with a prayer for TRO. But the
CA said that there is no compelling reason to issue one. In the meantime, I filed a motion for execution. The defendant opposed on the ground that a
judgment cannot be executed daw because of a pending petition for review. But this is under the Summary Rules – ejectment. This is an exception, so that
will not apply.

Sec. 9. Submission for decision. If the petition is given due course, the Court of Appeals may set the case for
oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case
shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or
by the court itself. (n)

-oOo-
 Rule 43

APPEALS FROM THE COURT OF TAX APPEALS AND

QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS

Let us now go to Rule 43 which governs Appeals from the Court of Tax Appeals and Quasi -Judicial Agencies to the Court of Appeals. Take note that
under Section 9 of BP 129, the CA has the exclusive appellate jurisdiction to review decisions of all RTC and Quasi-Judicial Bodies, and Rule 43 is the
governing rule on appeals from quasi-judicial bodies.

So, before this, appeal to the CA of Tax cases is supposed to be to the SC. Now it is reverted to the CA, and also quasi -judicial agencies. What was
the prior law? It is Revised Administrative Circular No. 1-95, which was promulgated on January 1, 1995. Now it is Rule 43 – the circular was actually
quoted here verbatim. So, you can no longer go to the SC, even on pure questions of law, ha! Decisions of quasi-judicial agencies must pass first to the CA
even on pure questions of law.

Now what are these quasi-judicial bodies? They are enumerated in Section 1:
Section 1. Scope. This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and
from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of
its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment
Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security
Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification
Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under
Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions
Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry
Arbitration Commission, and voluntary arbitrators authorized by law. (n)

So, very specific! The latest addition there are decisions of voluntary arbitrators. Prior to that, it can be brought by certiorari to the SC, but because of
a decided case it is now be brought to the CA.

One case under Rule 43 which I want to discuss with you is the case of

LEPANTO CERAMICS vs. COURT OF APPEALS

237 SCRA 519 [1994]

FACTS: This involves appeals from the Board of Investments (BOI). Now, as provided in the original Omnibus
Investment Code of 1981 during the Marcos era, decisions of the BOI are appealable directly to the SC. But years later it was
nullified by the Judiciary Law because all decisions of all quasi-judicial bodies are appealed to the CA.
Four years later the Constitution took effect. In July 1987 during the term of Cory Aquino, she promulgated E.O. No.
226, the so-called Omnibus Investment Code of 1987 where provisions from the old code were merely lifted. And among
those included is the provision on appeals from the BOI where you go directly to the SC.
The position of Lepanto is, the new law (E.O. No. 226) has modified BP 129 because the old law was modified by BP 129. And
since this is a new law, binalik na naman ang appeal sa SC. So na modify ang BP 129.

HELD: NO. Lepanto is wrong because when Cory Aquino issued E.O. No. 226, the New Constitution has taken effect.
And under the 1987 Constitution, you cannot increase the appellate jurisdiction of the SC without its consent and
concurrence. In effect, the new law (E.O. No. 226) increased the work of the SC without its knowledge and consent therefore
the SC did not agree. The SC rejected the provision that decisions of the BOI are appealable directly to the SC.

In the case of FABIAN vs. DESIERTO [December 16, 1998], a provision under RA 6670, which provides that decisions of the Office of the
Ombudsman in administrative disciplinary cases, was declared unconstitutional because the appellate jurisdiction of the SC was increased without its
advice and consent.

Another case is MATEO vs. CA (247 SCRA 284 [1995]). This is before Revised Administrative Code No. 1-95. As I have told you before, rulings of
different constitutional commissions, CSC, COA, COMELEC should be direct to the SC. That is why the case of MANCITA vs. BARCINAS (216 SCRA
772) is deemed abandoned because the new procedure is that decisions of the CSC are now appealable to the CA.

Sec. 2. Cases not covered. This Rule shall not apply to judgments or final orders issued under the Labor Code of
the Philippines. (n)

Section 2 refers to decisions of NLRC and the Secretary of Labor. Their decisions can be brought directly to the SC by way of petition for Certiorari
under Rule 65, not by appeal (Rule 43).

Sec. 3. Where to appeal. An appeal under this Rule may be taken to the Court of Appeals within the period and in
the manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law.
(n)

Sec. 4. Period of appeal. The appeal shall be taken within fifteen (15) days from notice of the award, judgment,
final order or resolution, or from the date of its last publication, if publication is required by law for its
effectivity, or of the denial of petitioner’s motion for new trial or reconsideration duly filed in accordance with
the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper
motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for
review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen
(15) days. (n)

Sec. 5. How appeal taken. Appeal shall be taken by filing a verified petition for review in seven (7) legible
copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court or
agency a quo. The original copy of the petition intended for the Court of Appeals shall be indicated as such by the
petitioner.
Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals the
docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment of docketing and
other lawful fees and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting
forth valid grounds therefor. If the Court of Appeals denies the motion, the petitioner shall pay the docketing and
other lawful fees and deposit for costs within fifteen (15) days from notice of the denial. (n)

Sec. 6. Contents of the petition. The petition for review shall (a) state the full names of the parties to the
case, without impleading the court or agencies either as petitioners or respondents; (b) contain a concise statement
of the facts and issues involved and the grounds relied upon for the review; (c) be accompanied by a clearly legible
duplicate original or a certified true copy of the award, judgment, final order or resolution appealed from, together
with certified true copies of such material portions of the record referred to therein and other supporting papers;
and (d) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42.
The petition shall state the specific material dates showing that it was filed within the period fixed herein. (2a)

Sec. 7. Effect of failure to comply with requirements. The failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of
service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient
ground for the dismissal thereof. (n)

Sec. 8. Action on the petition. The Court of Appeals may require the respondent to file a comment on the
petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to
be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial
to require consideration. (6a)

Sec. 9. Contents of comment. The comment shall be filed within ten (10) days from notice in seven (7) legible
copies and accompanied by clearly legible certified true copies of such material portions of the record referred to
therein together with other supporting papers. The comment shall (a) point out insufficiencies or inaccuracies in
petitioner’s statement of facts and issues; and (b) state the reasons why the petition should be denied or dismissed.
A copy thereof shall be served on the petitioner, and proof of such service shall be filed with the Court of Appeals.
(9a)

Sec. 10. Due course. If upon the filing of the comment or such other pleadings or documents as may be required or
allowed by the Court of Appeals or upon the expiration of the period for the filing thereof, and on the basis of the
petition or the records the Court of Appeals finds prima facie that the court or agency concerned has committed errors
of fact or law that would warrant reversal or modification of the award, judgment, final order or resolution sought to
be reviewed, it may give due course to the petition; otherwise, it shall dismiss the same. The findings of fact of the
court or agency concerned, when supported by substantial evidence, shall be binding on the Court of Appeals. (n)

Sec. 11. Transmittal of record. Within
the Court of Appeals may require the court
copy of the entire record of the proceeding
all parties to the proceeding. The Court of
record. (8a)
fifteen (15) days from notice that the petition has been given due course,
or agency concerned to transmit the original or a legible certified true
under review. The record to be transmitted may be abridged by agreement of
Appeals may require or permit subsequent correction of or addition to the

Sec. 12. Effect of appeal. The appeal shall not stay the award, judgment, final order or resolution sought to be
reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just. (10a)

Sec. 13. Submission for decision. If the petition is given due course, the Court of Appeals may set the case for
oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case
shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or
by the Court of Appeals. (n)

-oOo-
 PROCEDURE IN THE COURT OF APPEALS

Rule 44
ORDINARY APPEALED CASES
We will now go to Rule 44 which is Procedure in the Court of Appeals in Ordinary Appealed Cases. This is just the continuation of Rule 41. When a
case is appealed to the CA under Rule 41, this is ordinary appeal (decisions of RTC pursuant to its original jurisdiction), so what will happen here?

Take note that the procedure in the CA is not only found in the Rules of Court. The Internal Rules of the CA is found in its so called Revised Internal
Rules of the Court of Appeals (RIRCA).

So it is best that you go over it. For purposes of the BAR, hindi na kailangan yan! There are some provisions kasi na wala sa Rules of Court. I have a
copy of that eh, leather-bound! It just so happen that we have an alumna who is the head of the Records Division of the CA.

Anyway, take note that under the present rules when the RTC clerk transmits the records to the CA, nandoon na ang docket fee. Now, once original
record is there, next is you will receive a notice from the clerk of court that all the records are there, all the documentary evidence. And you are now given
45 days to file an appellant’s brief under Section 7 which has to be answered by the appellee under Section 8. And the appellant is given the option to file
an appellant’s reply brief under Section 9. As to the contents of the appellant’s brief and appellee’s brief, you have Sections 13 and 14.
Section 1. Title of cases. In all cases appealed to the Court of Appeals under Rule 41, the title of the case
shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the
appellant and the adverse party as the appellee. (1a, R46)

Sec. 2. Counsel and guardians. The counsel and guardians ad litem of the parties in the court of origin shall be
respectively considered as their counsel and guardians ad litem in the Court of Appeals. When others appear or are
appointed, notice thereof shall be served immediately on the adverse party and filed with the court. (2a, R46)

Sec. 3. Order of transmittal of record. If the original record or the record on appeal is not transmitted to the
Court of Appeals within thirty (30) days after the perfection of the appeal, either party may file a motion with the
trial court, with notice to the other, for the transmittal of such record or record on appeal. (3a, R46)

Sec. 4. Docketing of case. Upon receiving the original record or the record on appeal and the accompanying
documents and exhibits transmitted by the lower court, as well as the proof of payment of the docket and other lawful
fees, the clerk of court of the Court of Appeals shall docket the case and notify the parties thereof.
Within ten (10) days from receipt of said notice, the appellant, in appeals by record on appeal, shall file with
the clerk of court seven (7) clearly legible copies of the approved record on appeal, together with the proof of
service of two (2) copies thereof upon the appellee.
Any unauthorized alteration, omission or addition in the approved record on appeal shall be a ground for
dismissal of the appeal. (n)

Sec. 5. Completion of record. Where the record of the docketed case is incomplete, the clerk of court of the
Court of Appeals shall so inform said court and recommend to it measures necessary to complete the record. It shall be
the duty of said court to take appropriate action towards the completion of the record within the shortest possible
time. (n)

Sec. 6. Dispensing with complete record. Where the completion of the record could not be accomplished within a
sufficient period allotted for said purpose due to insuperable or extremely difficult causes, the court, on its own
motion or on motion of any of the parties, may declare that the record and its accompanying transcripts and exhibits
so far available are sufficient to decide the issues raised in the appeal, and shall issue an order explaining the
reasons for such declaration. (n)

Sec. 7. Appellant’s brief. It shall be the duty of the appellant to file with the court, within forty-five (45)
days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record,
seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies
thereof upon the appellee. (10a, R46)

Sec. 8. Appellee’s brief. Within forty-five (45) days from receipt of the appellant’s brief, the appellee shall
file with the court seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service
of two (2) copies thereof upon the appellant. (11a, R46)

Sec. 9. Appellant’s reply brief. Within twenty (20) days from receipt of the appellee’s brief, the appellant may
file a reply brief answering points in the appellee’s brief not covered in his main brief. (12, R46)

Sec. 10. Time for filing memoranda in special cases. In certiorari, prohibition, mandamus, quo warranto and
habeas corpus cases, the parties shall file, in lieu of briefs, their respective memoranda within a non-extendible
period of thirty (30) days from receipt of the notice issued by the clerk that all the evidence, oral and documentary,
is already attached to the record. (13a, R46)
The failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of
the appeal. (n)

Sec. 11. Several appellants or appellees or several counsel for each party. Where there are several appellants or
appellees, each counsel representing one or more but not all of them shall be served with only one copy of the briefs.
When several counsel represent one appellant or appellee, copies of the brief may be served upon any of them. (14a,
R46)

Sec. 12. Extension of time for filing briefs. Extension of time for the filing of briefs will not be allowed,
except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time
sought to be extended. (15, R46)

Sec. 13. Contents of appellant’s brief. The appellant’s brief shall contain, in the order herein indicated, the
following:
(a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of
cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited;
(b) An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely
stated without repetition and numbered consecutively;
(c) Under the heading "Statement of the Case," a clear and concise statement of the nature of the action, a
summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other
matters necessary to an understanding of the nature of the controversy, with page references to the record;
(d) Under the heading "Statement of Facts," a clear and concise statement in a narrative form of the facts
admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in
 sufficient detail to make it clearly intelligible, with page references to the record;
(e) A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment;
(f) Under the heading "Argument," the appellant’s arguments on each assignment of error with page references to
the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page
of the report on which the citation is found;
(g) Under the heading "Relief," a specification of the order or judgment which the appellant seeks; and
(h) In cases not brought up by record on appeal, the appellant’s brief shall contain, as an appendix, a copy of
the judgment or final order appealed from. (16a, R46)

Sec. 14. Contents of appellee’s brief. The appellee’s brief shall contain, in the order herein indicated, the
following:
(a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of
cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited;
(b) Under the heading "Statement of Facts," the appellee shall state that he accepts the statement of facts in
the appellant’s brief, or under the heading "Counter-Statement of Facts," he shall point out such insufficiencies or
inaccuracies as he believes exist in the appellant’s statement of facts with references to the pages of the record in
support thereof, but without repetition of matters in the appellant’s statement of facts; and
(c) Under the heading "Argument," the appellee shall set forth his arguments in the case on each assignment of
error with page references to the record. The authorities relied on shall be cited by the page of the report at which
the case begins and the page of the report on which the citation is found. (17a, R46)

This is like a thesis or writing a book – Appellant’s and appellee’s brief.

Q: What is a brief? What is its purpose?

A: The word “BRIEF” is derived from the Latin word “BREVIS” [AND BRUTTHEAD] and the French word “BREFIE”, and literally means a short or
condensed statement. Its purpose is to present to the court in concise form the points and questions in controversy, and by fair argument on the facts and
law of the case, to assist the court to arrive at a just and fair conclusion. It should be prepared as to minimize the labor of the court in the examination of
the record upon which the appeal is heard. (Estiva vs. Cawit, 59 Phil. 67; Casilan vs. Chavez, L-17334, Feb. 28, 1962)

So you summarize the case, facts, issues, arguments, discussions, citations of laws. So its like a debate no?

Alright. The best brief writers I noticed are those in the Solicitor General’s office. Just imagine, the Solicitor General defends all the cases of the
government. When a criminal case is appealed by the accused to the CA or CA, automatically the Solicitor General takes over. In the lower court, it is the
fiscals ‘no?

So, the Solicitor General defends the case he had never tried. So they just based it on records. They condensed decisions kahit na gaano ang kapal,
reducing it to 15 pages or less. Its really an ability to do it. The shorter the better. People there in the Solicitor General’s office are really good writers and
researchers because that is the law office of the Republic of the Philippines. Lahat dyan magagaling, isa lang ang hindi marunong. SINO? Ang Solicitor
General ninyo! He is only a political appointee. (F. Chavez? Or Galvez?)

Q: Is the 45-day period to file brief extendible?

A: YES, that is section 12. The worst violator here is the Solicitor General – extension 30 days, 2nd extension 30 days! Ganyan sila! Sometimes it
takes them 18 months to prepare a brief. Sabagay, marami din kasi silang trabaho ‘no?

Q: When do you file the motion for extension of time to file brief?
A: The motion for extension of time is filed BEFORE the expiration of the time sought to be extended. (Section 12) BUT sometimes the SC can be
liberal about extension. One case is

MOSKOWSKY vs. COURT OF APPEALS

230 SCRA 657

FACTS: The CA here granted the appellant a period of 90 days counted from August 3, 1991. So after the 45 days plus 90 days pa
from August 3, 1991. Said 90-day period ended on November 1, 1991. On November 4, 1991, or 3 days after the extended period, instead
of filing a brief, appellant filed another motion for a 20-day extension.

ISSUE #1: Was the motion for extension filed on time based on Section 12?
HELD: YES. “Said ninety-day period would end on November 1, 1991. November 1 is a regular holiday. Then President Aquino
declared November 2, 1991 as a special holiday. The next day, November 3, 1991 turned out to be a Sunday. The next business day was,
therefore, November 4, 1991 - a Monday.”
“The abovementioned motion was, therefore, filed on time, i.e., the motion for the extension sought was filed before the expiration
of the time sought to be extended.”

ISSUE #2: When do you compute the 20-day extension being asked for? Is it on November 1, the expiration of the period? Or on
November 4, the day of the filing of the motion?
HELD: “The appellant specifically manifested that they will need another extension from today (November 4) within which to file
appellant’s brief, and ‘today’ is November 4. So, the period commences to run on November 4.” So very liberal no?

Take note of Section 15 – what questions may an appellant raise on appeal:

Sec. 15. Questions that may be raised on appeal. Whether or not the appellant has filed a motion for new trial in
the court below, he may include in his assignment of errors any question of law or fact that has been raised in the
court below and which is within the issues framed by the parties. (18, R46)

So the appellant cannot raise before the CA on appeal any question of law or fact that has not been raised in the lower court and not within the issues
framed by the parties. He cannot, for the first time on appeal, say something which was not raised in the trial court. Another thing is, he cannot change his
theory on appeal, either theory on the cause of action or theory on the defense.

Now, sometimes it is easy to detect whether there is change of theory. The only possible exception maybe is when you raise for the first time on
appeal something which you never raised as in lack of jurisdiction unless estoppel will set in as in the case of TIJAM vs. SIBONGHANOY. Illustrating this
point is the case of

RIVERA vs. COURT OF APPEALS

176 SCRA 169 [1989]

FACTS: The spouses Martinez sold their house and lot to Rivera. Later, they filed a complaint against Rivera declaring
the sale as null and void on the ground that the sale is a mortgage. The court dismissed the complaint. So the ruling of the
trial court was that the sale was valid. But on the CA, Martinez spouses prayed that they maybe allowed to redeem the
property.
The CA reversed the trial court and allowed Martinez spouses to redeem the property. Now, Rivera appealed to the CA, contending
that Martinez change the theory of their case because in the original complaint the latter prayed for the annulment of the sale, and in the
CA they prayed that they be allowed to redeem the property.

ISSUE: Was there a change of theory of the Martinez spouses?

HELD: There was NO CHANGE of theory. There was no surprise against Rivera or to the CA. The real purpose of the Martinez
spouses in asking for the nullity of the contract is to enable them to recover the property from Rivera.
“Prescinding from those allegations and from the prayer all clearly set out in the complaint, it is fair to conclude that the real purpose
in asking for the nullity of the contract of sale is to enable the Martinez spouses to recover or redeem the property they deeded in favor of
Rivera. It would be absurd to pray for the nullity of an agreement and stop there. There would be a vacuum and the law, like nature, abhors
a vacuum.”
“In the CA, they persisted in their claim to entitlement of the right to recover, redeem, or repurchase. This agreement
can not be construed as change of theory; it is persistence, plain and simple. It does not leave any interstice in the entire
theory of the case. Consistency in the position of the private respondents runs throughout the presentation of their claim.”

So akala mo may change of theory, yun pala wala! Why are they annulling? To recover their property. In other words there was no change of theory.

Q: Is the appellee required to make assignment of errors?

A: The APPELLEE is not required to make assignment of errors, except when his purpose is to seek affirmation of the judgment on other grounds or
reasons not stated in the decision. (Saenz vs. Mitchell, 60 Phil. 69; Gorospe vs. Peñaflorida, 101 Phil. 886; Dy vs. Kuison, L-16654, Nov. 30, 1961)

Q: If the appellee seeks modification of the judgment, is it enough for him to make assignment of errors?
A: In such a case, the appellee must appeal; an assignment of error is not enough. (Oquiñena vs. Canda, 87 Phiil. 120; Gorospe vs. Peñaflorida,
supra; Dy vs. Kuison, supra)

GENERAL RULE: If you are the winning party, you may appeal the decision if you think you are entitled for more. So, you must appeal. You cannot
just state of errors in the appellee’s brief.
EXCEPTION: You may state assignment of errors to support the decision – to support, not to change, the decision. If you want to change the
decision, you appeal (general rule).

-oOo-
 Rule 46
ORIGINAL CASES

Q: What is the difference between Rule 46 and Rule 44?

A: Rule 44 deals with appealed cases. Rule 46 deals with original cases. Remember that the CA is both an original and appellate court.

Q: What are these original cases which can be filed in the CA?
A: Under Section 9 of BP 129, Certiorari, prohibition, mandamus, quo warranto, annulment of judgment of the RTC.

The Annulment of Judgment of the RTC, which belongs to the exclusive original jurisdiction of the CA, is governed by Rule 47.

Now, all the rest of the sections here are almost the same: how many copies, docket fees, certification of non-forum shopping, etc…

Section 1. Title of cases. In all cases originally filed in the Court of Appeals, the party instituting the
action shall be called the petitioner and the opposing party the respondent. (1a)

Rule 44 on appeal to the CA, the caption of the case is the same as the caption in the RTC (e.g. in the RTC, “RED HOT vs. LIMP BIZKIT”). You just
add the word ‘appellant’ and ‘appellee.’ BUT in Rule 44 in original cases, the parties are now called ‘petitioner’ and ‘respondent.’
Sec. 2. To what actions applicable. This Rule shall apply to original actions for certiorari, prohibition,
mandamus and quo warranto.
Except as otherwise provided, the actions for annulment of judgment shall be governed by Rule 47, for certiorari,
prohibition and mandamus by Rule 65, and for quo warranto by Rule 66. (n)

Therefore, the provisions of Rules 65, 66 and 47 which apply to this original action should be read with Rule 46.

Just read Section 3. Take note of the second paragraph which was inserted in 1998 by SC Circular 39-98).
Sec. 3. Contents and filing of petition; effect of non-compliance with requirements. The petition shall contain
the full names and actual addresses of all the petitioners and respondents, a concise statement of the matters
involved, the factual background of the case, and the grounds relied upon for the relief prayed for.
In actions filed under Rule 65, the petition shall further indicate the material dates showing when notice of the
judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if
any, was filed and when notice of the denial thereof was received. (Cir. No. 39-98)
It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the respondent
with the original copy intended for the court indicated as such by the petitioner, and shall be accompanied by a
clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject
thereof, such material portions of the record as are referred to therein, and other documents relevant or pertinent
thereto. The certification shall be accomplished by the proper clerk of court or by his duly authorized
representative, or by the proper officer of the court, tribunal, agency or office involved or by his duly authorized
representative. The other requisite number of copies of the petition shall be accompanied by clearly legible plain
copies of all documents attached to the original.
The petitioner shall also submit together with the petition a sworn certification that he has not theretofore
commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the
same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom.
The petitioner shall pay the corresponding docket and other lawful fees to the clerk of court and deposit the
amount of P500.00 for costs at the time of the filing of the petition.
The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the
dismissal of the petition. (n)

Sec. 4. Jurisdiction over person of respondent, how acquired. The court shall acquire jurisdiction over the
person of the respondent by the service on him of its order or resolution indicating its initial action on the
petition or by his voluntary submission to such jurisdiction. (n)

When you file an original action before the CA like certiorari, normally under Section 3 you already furnish the adverse party with a copy of your
petition. Then the CA will now issue a resolution, like for example, “Defendant/Respondent, you are given so many days to comment.”

That is how the CA acquires jurisdiction over your person – by serving you a copy of the order indicating its initial action. So there is no more
summons because you were already furnished a copy earlier.
Sec. 5. Action by the court. The court may dismiss the petition outright with specific reasons for such dismissal
or require the respondent to file a comment on the same within ten (10) days from notice. Only pleadings required by
the court shall be allowed. All other pleadings and papers may be filed only with leave of court. (n)

Sec. 6. Determination of factual issues. Whenever necessary to resolve factual issues, the court itself may
conduct hearings thereon or delegate the reception of the evidence on such issues to any of its members or to an
appropriate court, agency or office. (n)

Sec. 7. Effect of failure to file comment. When no comment is filed by any of the respondents, the case may be
decided on the basis of the record, without prejudice to any disciplinary action which the court may take against the
disobedient party. (n)

-oOo-
 Rule 47
ANNULMENT OF JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS

Rule 47 is an entirely new rule which governs the remedy of annulment of judgments or final orders or resolutions. We already met this remedy in
judiciary law. The CA has original exclusive jurisdiction to annul final judgments and resolutions of the RTC. (Section 9, BP 129) So it is an entirely
original action for annulment of judgment of the RTC.

Now, that should not be confused with certiorari, prohibition and mandamus which fall under the original concurrent jurisdiction of the CA. Rule 47
or annulment of judgment of the RTC falls within the exclusive original jurisdiction of the CA.

Take note that in an appeal, the judgment appealed from is valid. But in annulment under Rule 47, the judgment is being asked to be declared void.

Under the prior law there was no direct rule governing that remedy. The only guideline for annulment of judgments of the RTC are decided cases.
Now for the first time the 1997 Rules have a definite rule on how to enforce this remedy.

So let’s read Section 1 because this is a remedy which has been existing without definite guidelines on how to do it.

Section 1. Coverage. This Rule shall govern the annulment by the Court of Appeals of judgments or final orders
and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are no longer available through no fault of the petitioner. (n)

Well of course the remedy of new trial under Rule 37 must be availed of before the judgment or order becomes final and executory. Also, the remedy
of appeal must also be availed before the judgment or order becomes final and executory.

In petition for relief under Rule 38, although the judgment or order is already final and executory, it must be done still within 60 days and 6 months.

Q: Suppose all the abovementioned remedies have lapsed, is there a remedy left?
A: Section I says YES. There is annulment of judgment but only on limited grounds.

Now what are the grounds for annulment of judgment? Section 2:

Sec. 2. Grounds for annulment. The annulment may be based only on the grounds of extrinsic fraud and lack of
jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for
new trial or petition for relief. (n)

Q: What are the grounds for annulment of judgment under Section 2?

A: The grounds recognized by law for annulment of judgment are the only two (2):

1.) The judgment was secured through extrinsic fraud; or

Extrinsic fraud should not be a valid ground if availed of, or could have been availed of, in a motion for new trial or petition
for relief.

2.) The judgment is void for lack of jurisdiction.

First Ground: EXTRINSIC FRAUD

Q: How do we describe the remedy of annulment of judgment?

A: Annulment of judgment is described briefly as a remedy against a judgment which is already final and executory when the remedy of appeal and
new trial is already lost.

Petition for relief under Rule 38 is a remedy against a final and executory judgment kaya lang merong deadline – 6 months and 60 days. So after
these periods lapse, wala na.

Sa petition for relief, apat yon eh: Fraud, accident, mistake and excusable negligence. In annulment of judgment, wala na yung accident, mistake and
excusable negligence. But yung EXTRINSIC FRAUD natira pa. That is the only one which can be left behind under Rule 47.

Q: Now what is meant by extrinsic fraud ?

A: We already discussed this. Fraud, to be a ground for nullity of a judgment, must be extrinsic – that fraud done by the adverse party which
prevented a party from having a trial or from presenting his case fully.

Therefore, intrinsic fraud is not a ground for new trial. It is not a ground for petition for relief. And it is not a ground for annulment.

INTRINSIC FRAUD is that fraud which was an issue in the litigation such as perjury, false testimony, concealment of evidentiary facts, but did not
prevent you from presenting your case. That is not a ground for annulment of judgment. So take note of that principle.

COSMIC LUMBER CORP. vs. COURT OF APPEALS

256 SCRA 168 [1996]

FACTS: Cosmic Lumber owns a piece of land occupied by some squatters. Now, Cosmic Lumber executed a board resolution for a
 special power of attorney authorizing an attorney-in-fact to initiate, institute and file in any court action for the ejectment of the squatters
from its property. Then the agent by virtue of the power of attorney, filed a case to recover a portion of this property from its occupants
before the RTC.
While the case was going on, the agent (the attorney-in- fact) entered into a compromise agreement with the squatters. In the
compromise agreement, the attorney-in-fact sold the property or land to the squatter for only P26,000. And the compromise agreement
was approved by the court and it became final and executory.
Now it was several years later that the Cosmic Lumber heard about it. The Cosmic Lumber filed an action to annul the
judgment before the CA on the ground of extrinsic fraud.
The CA: The case will be dismissed because that is not one of the grounds for annulment of judgment because the alleged nullity of
the compromise judgment, because petitioner’s attorney-in-fact was not authorized to sell the property. That does not amount to extrinsic
fraud. That was fraud by your own representative, it is not fraud by the other party. The one who exercised fraud was your own
attorney-in-fact, not the squatter. So kaya nga that is not a ground. The CA dismissed the action. So Cosmic Lumber went to the SC.

HELD: “The petition to annul the decision of the trial court in civil case before the CA was proper. Emanating as it did from a void
compromise agreement, the trial court had no jurisdiction to render a judgment based thereon.” So there is another ground – lack of
jurisdiction.
“The highly reprehensible conduct of attorney-in-fact in the civil case constituted an extrinsic or collateral fraud by reason of which
the judgment rendered thereon should have been struck down. Not all the legal semantics in the world can becloud the unassailable fact
that petitioner was deceived and betrayed by its attorney-in-fact. The latter deliberately concealed from petitioner, her principal, that a
compromise agreement had been forged with the end result that a portion of petitioner’s property was sold literally for a song, for
P26,000. Thus completely kept unaware of its agent’s artifice, petitioner was not accorded even a fighting chance to repudiate the
settlement so much so that the judgment based thereon became final and executory.”
“For sure, the CA restricted the concept of fraudulent acts within too narrow limits. Fraud may assume different shapes and be
committed in as many different ways and here lies the danger of attempting to define fraud. For man in his ingenuity and fertile
imagination will always contrive new schemes to fool the unwary.”

So fraud by your attorney-in-fact is also considered as a ground for annulment.

Second Ground: JUDGMENT IS VOID

If we follow jurisprudence, there is a third ground which is implied: LACK OF DUE PROCESS. When there is lack of due process there is also lack
of jurisdiction.

Q: How do you attack a judgment which is void?

A: It depends:

6.) when the judgment is null and void on its very face, the judgment may be attacked:
3.) DIRECTLY; or
4.) COLLATERALLY;

7.) when the nullity is not apparent on the face of the judgment, the judgment can be attacked only be DIRECTLY attacked.

Q: What is a COLLATERAL ATTACK?

A: Meaning, there is no need for me to file a case but I can invoke its nullity anytime because a judgment which is void on its very face can be
attacked at anytime, in any manner anywhere.

EXAMPLE of Collateral attack: You are moving to execute a judgment. I will oppose the execution on the ground that the judgment is void. That is
collateral attack. I’m just saying that the judgment cannot be enforced because it is null and void. But I never filed a direct action to declare its nullity. That
can be done if the judgment is void on its very face.

Q: What is a DIRECT ATTACK?

A: By direct attack means you must file an action to declare its nullity. So there must be a case for its annulment.

Again, when the judgment is null and void on its face, (1) you may file a direct action to annul it under Rule 47. Or, (2) it can also be attacked
collaterally, a direct attack is not necessary. A collateral attack will suffice.

EXAMPLE: RTC decided a forcible entry. By simply reading the decision, obviously the RTC has no jurisdiction. Therefore, I can attack it directly
by filing a case for its annulment under Rule 47. OR, I will not file a case under Rule 47 but I will attack it collaterally. Meaning, bayaan ko lang. I will
raise that issue during execution. If you move for execution, I can oppose, “You cannot execute because the RTC has no jurisdiction over the case.
Therefore the judgment is void.” So it is not necessary to file a case to declare the decision as null and void. That is collateral attack.

But if the judgment is not void on its face but the nullity is intrinsic or nakatago – not obvious ba – the rule is, you must file a direct action for its
annulment which must be done before the action is barred by laches or estoppel. So it is necessary to file a case for annulment of judgment under Rule 47.

Well of course, certiorari under Rule 65 is also a ground for attacking a judgement but the trouble is you are limited to 3 grounds: Lack of
jurisdiction, excess of jurisdiction and grave abuse of discretion. Walang extrinsic fraud. That is governed by Rule 65 and not by Rule 47.

And under Rule 65, you can avail of certiorari only within 60 days. But if you want annulment, it could be longer under Rule 47. That is under
section 3. That could be a big difference.
 Moreover, what do you attack in certiorari? Normally, interlocutory orders eh. But a final judgment can be attacked by annulment under Rule 47.

Now, those remedies were summarized in the case of

BAYOG vs. NATINO

258 SCRA 378 [1996]

HELD: It is a settled rule that a final and executory judgment may be set aside in three (3) ways. To wit:
4) By petition for relief from judgment under Rule 38;
5) When the judgment is void for want of jurisdiction, by direct attack, by certiorari, annulment of judgment or by
collateral attack; and
6) When the judgment was obtained by fraud and Rule 38 cannot be applied anymore.

So those are the summary of the remedies.

ISLAMIC DAVAO COUNSEL vs. COURT OF APPEALS

178 SCRA 178

ISSUE #1: Can a person, who is not a party to the judgment, file an action for annulment of judgment?
HELD: A person who is not a part of the judgment may sue for its annulment PROVIDED that he can prove [1] that the
judgment was obtained through fraud and collusion and [2] that he would be adversely affected thereby.

ISSUE #2: Suppose the judgment had already been fully executed and implemented, can you still file a case for annulment of
judgment?
HELD: YES. We will also annul the execution. If there is no execution yet, the proper remedy normally is you file an action for
annulment and ask for the issuance of a writ of preliminary injunction so that it will not be enforced. Pero kung na -enforced na pwede pa
man din ba.

SUMMARY: Possible remedies of defendant declared in DEFAULT:

7.) Rule 9, Section 3 [b] – Motion to lift Order of Default, there is still no judgment; ground: FAME;
8.) Rule 37 – Motion for new trial, judgment not yet final; Ground: FAME;
9.) Rule 38 – Petition for relief within 60 days and 6 months, judgment is already final; ground: FAME;
10.) Rule 41 – Appeal within 15 days; ground: Default judgment is contrary to law or evidence;
11.) Rule 47 – Annulment of judgment; Ground: Extrinsic Fraud;
12.) Rule 65 – Certiorari; ground: Lack or excess of jurisdiction or grave abuse of discretion

Q: What is the period to file an action for annulment on the ground of extrinsic fraud?
A: Section 3:
Sec. 3. Period for filing action. If based on extrinsic fraud, the action must be filed within four (4) years
from its discovery; and if based on lack of jurisdiction, before it is barred by laches or estoppel. (n)

This is based on decided cases. If your ground is extrinsic fraud, the action is filed within four (4) years from its discovery. Now, if it is based on lack
of jurisdiction, before it is barred by laches or estoppel. That is very elastic – laches or estoppel.

Although if you look at the strict law based on Article 1144 of the New Civil Code, the prescriptive period really is 10 years for any action on
judgment. That is the strict law but it could be barred earlier by laches or estoppel.

Now as to the contents of the petition, we have Section 4:

Sec. 4. Filing and contents of petition. The action shall be commenced by filing a verified petition alleging
therein with particularity the facts and the law relied upon for annulment, as well as those supporting the
petitioner’s good and substantial cause of action or defense, as the case may be.
The petition shall be filed in seven (7) clearly legible copies, together with sufficient copies corresponding to
the number of respondents. A certified true copy of the judgment or final order or resolution shall be attached to the
original copy of the petition intended for the court and indicated as such by the petitioner.
The petitioner shall also submit together with the petition affidavits of witnesses or documents supporting the
cause of action or defense and a sworn certification that he has not theretofore commenced any other action involving
the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or
agency; if there is such other action or proceeding, he must state the status of the same, and if he should thereafter
learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals,
or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days therefrom.(n)

Take note that yung mga affidavits of your witnesses or documents supporting your cause of action must be attached already. You correlate this with
Rule 37, Section 2 on new trial and Rule 38, Section 3 on petition for relief.

What does Rule 37, Section 2 and Rule 38, Section 3 say about motion for new trial or petition for relief? There is also an AFFIDAVIT OF MERITS
showing the nature of the fraud, accident and the meritorious cause of action or defense. So more or less that principle also applies in Rule 47.

Sec. 5. Action by the court. Should the court find no substantial merit in the petition, the same may be
dismissed outright with specific reasons for such dismissal.
Should prima facie merit be found in the petition, the same shall be given due course and summons shall be served
 on the respondent. (n)

Under Section 5, the court may dismiss outright the petition if there is no merit or no substantial merit. If there is, then the same shall be given due
course and summons shall be served on the respondent.

Take note there will be SUMMONS here. Unlike in Rule 46, walang summons yon. But here, there will be summons by the CA. That is the
difference between Rule 47 and Rule 46.
Sec. 6. Procedure. The procedure in ordinary civil cases shall be observed. Should a trial be necessary, the
reception of the evidence may be referred to a member of the court or a judge of a Regional Trial Court. (n)

Q: What happens if the judgment is annulled? Can the plaintiff re-file the case?
A: YES, because it is as if there was no judgment. Section 7:
Sec. 7. Effect of judgment. A judgment of annulment shall set aside the questioned judgment or final order or
resolution and render the same null and void, without prejudice to the original action being refiled in the proper
court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the
court may on motion order the trial court to try the case as if a timely motion for new trial had been granted
therein. (n)

So if the judgment is set aside on the ground of extrinsic fraud, the action can be re-filed. The court may, on motion, order the trial court to try the
case as if a timely motions for the trial had been granted therein. That is similar to Rule 38, Section 6. Remember when the court grants a petition for relief,
the case will be tried all over again as if a timely motion for new trial has been filed.

Q: What happens if by the time you re-file the case the prescriptive period has already lapsed?
A: As a general rule, while the action for annulment is pending, the prescriptive period for filing is interrupted. That is Section 8:
Sec. 8. Suspension of prescriptive period. The prescriptive period for the refiling of the aforesaid original
action shall be deemed suspended from the filing of such original action until the finality of the judgment of
annulment. However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the
plaintiff in the original action. (n)

Q: What happens if a judgment is annulled and it was earlier executed?

A: Section 9:
Sec. 9. Relief available. The judgment of annulment may include the award of damages, attorney’s fees and other
relief.
If the questioned judgment or final order or resolution had already been executed, the court may issue such
orders of restitution or other relief as justice and equity may warrant under the circumstances. (n)

Under Section 9, the court may issue order of restitution or other reliefs as justice and equity may warrant. That is similar to Rule 39, Section 5 – in
case of execution pending appeal and the appealed judgment is reversed, the court will now order mutual restitution pursuant to Rule 39, Section 5.

Sec. 10. Annulment of judgments or final orders of Municipal Trial Courts. An action to annul a judgment or final
order of a Municipal Trial Court shall be filed in the Regional Trial Court having jurisdiction over the former. It
shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable
thereto. (n)

I have always maintained this view. As I said, if we will look at the judiciary law, it only mentions annulment of judgments of Regional Trial Courts
which should be filed in the CA (exclusive original).

And the QUESTION is asked: “Meron bang action for annulment of judgments of MTC?” Yaann!
Answer: YES. Kung merong annulment of judgment of the RTC, by implication, meron din ang MTC. You cannot file it in the CA. You file it in the
RTC.

Annulment of judgment of the MTC will fall under the rule on jurisdiction of the RTC – any action which does not belong to the jurisdiction of any
other courts (Section 19 [6], BP 129) or, an action the subject matter of which is incapable of pecuniary estimation (Section 19 [1], BP 129) That would be
the authority.

Now it’s very clear, meron talaga. It is now stated categorically there is an action for annulment of judgment also of the MTC. It must be filed in the
RTC having jurisdiction over the MTC. The grounds are identical as those found in the previous section. So this is an entirely new section.

-oOo-
 Rule 48
PRELIMINARY CONFERENCE
Preliminary Conference is like a pre-trial in the CA. Iba lang ang tawag but it is really a pre-trial
because there are cases which fall under the original jurisdiction of the CA, like annulment of judgment
of the RTC. Its purpose is the same as in Rule 18 on pre-trial.
Section 1. Preliminary conference. At any time during the pendency of a
case, the court may call the parties and their counsel to a preliminary
conference:
(a) To consider the possibility of an amicable settlement, except when the
case is not allowed by law to be compromised;
(b) To define, simplify and clarify the issues for determination;
(c) To formulate stipulations of facts and admissions of documentary
exhibits, limit the number of witnesses to be presented in cases falling
within the original jurisdiction of the court, or those within its appellate
jurisdiction where a motion for new trial is granted on the ground of newly
discovered evidence; and
(d) To take up such other matters which may aid the court in the prompt
disposition of the case. (n)

Sec. 2. Record of the conference. The proceedings at such conference shall

be recorded and, upon the conclusion thereof, a resolution shall be issued
embodying all the actions taken therein, the stipulations and admissions made,
and the issues defined. (n)

Sec. 3. Binding effect of the results of the conference. Subject to such

modifications which may be made to prevent manifest injustice, the resolution
in the preceding section shall control the subsequent proceedings in the case
unless, within five (5) days from notice thereof, any party shall
satisfactorily show valid cause why the same should not be followed. (n)

-oOo-
 Rule 49
ORAL ARGUMENTS
The CA may or may not require oral argument. Just read that.
Section 1. When allowed. At its own instance or upon motion of a party, the
court may hear the parties in oral argument on the merits of a case, or on any
material incident in connection therewith. (n)
The oral argument shall be limited to such matters as the court may specify
in its order or resolution. (1a, R48)

Sec. 2. Conduct of oral argument. Unless authorized by the court, only one
counsel may argue for a party. The duration allowed for each party, the
sequence of the argumentation, and all other related matters shall be as
directed by the court. (n)

Sec. 3. No hearing or oral argument for motions. Motions shall not be set
for hearing and, unless the court otherwise directs, no hearing or oral
argument shall be allowed in support thereof. The adverse party may file
objections to the motion within five (5) days from service, upon the
expiration of which such motion shall be deemed submitted for resolution. (2a,
R49)

How are cases decided in the CA? Normally, you file your petition; submit argument in writing;
then you wait for the decision. But sometimes, the CA is provoked by legal issues. So the CA would
decide to listen to oral arguments of the parties, especially when the case is controversial.

Under Section 3, one difference between motions filed in the RTC and in the CA is that:
13.) in the RTC, there must be notice of hearing (Rule 15) attached to the motion, otherwise
it will be denied;
14.) in the CA, there is no need for notice of hearing to be attached to the motion.

-oOo-
 Rule 50
DISMISSAL OF APPEAL

Grounds for dismissal of appeal in the CA. Take note that under Section 1, an appeal may be dismissed by the CA on its own (motu propio) or upon
motion of the appellee. And there are nine (9) grounds for dismissal of appeal under Section 1:
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 of Rule 40 and
section 4 of Rule 41;
(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; En Banc Resolution, Feb. 17, 1998)

First Ground: (a) FAILURE OF THE RECORD ON APPEAL TO SHOW ON ITS FACE THAT THE APPEAL WAS TAKEN WITHIN THE PERIOD
FIXED BY THESE RULES;

So this only applies in cases where a record on appeal is required. Failure to show on its face that the appeal was perfected on time – meaning, the
appeal might have been perfected on time but by reading the record on appeals, you will not see it.

Normally, that happens when the party did not state the exact date when he received the decision. He may just state the date of the decision without
stating the date of receipt. With that, the court will presume that you received it on the date of the decision. It might be beyond the period to appeal. So on
its face, there is no showing whether the appeal was within the 30 day period or not.

The first ground is called the MATERIAL DATA RULE – that the record on appeal must show on its face that the appeal was taken on time.

In the 1973 case of BERKENKOTTER VS. CA, this ground was supposed to be abolished already where the SC said that from now on, We will no
longer follow the material data rule. Meaning this is abandoned.

So, I wonder bakit binalik ito sa 1997 Rules because since 1973, the SC has already refused to apply this ground. So when they drafted the Rules,
dapat tinanggal na yon. Bakit nandito na naman? They might have forgotten that it has been abandoned by jurisprudence, unless the intention is to return
it.

Second Ground: (b) FAILURE TO FILE THE NOTICE OF APPEAL OR THE RECORD ON APPEAL WITHIN THE PERIOD PRESCRIBED BY
THESE RULES;

Take note that under paragraph [a], the appeal was filed on time but the record on appeal does not show that it was filed on time.

But here in paragraph [b], the appeal is really out of time. Take note that you can raise this ground in the trial court. The trial court is also authorized
to dismiss an appeal on this ground (Rule 41, Section 13). But assuming that you failed to raise it in the trial court, you can raise it in the CA.

Q: Are you under estoppel for not raising it earlier in the RTC? Meaning, why did you not bring it out earlier, bakit hinintay pa sa CA?
A: There is no estoppel here because actually this is a jurisdictional challenge. When the notice of appeal is filed out of time or beyond 15 days,
actually the judgment of the RTC has already become final and executory. So you are now challenging the jurisdiction of the CA. Meaning, you are trying
to say that the CA has no jurisdiction to review on appeal a judgment of the RTC which has already been final and executory.

Q: Does the CA have the power to review and reverse an RTC judgment which is already final and executory?
A: No more. The judgment which is already final cannot be changed by the CA. Meaning, the CA has no jurisdiction to entertain the appeal in that
case. So in effect, it is a jurisdictional challenge which can be raised even in the CA even if not raised earlier in the RTC.

Third Ground: (c) FAILURE OF THE APPELLANT TO PAY THE DOCKET AND OTHER LAWFUL FEES AS PROVIDED IN SECTION 5 OF
RULE 40 AND SECTION 4 OF RULE 41;

Section 5 of Rule 40 is about filing of docket fees if you appeal from the MTC to the RTC. Section 4 of Rule 41 refers to filing of docket fees when
the appeal is from RTC to CA.

Q: When do you pay the docket fee ?

A: Within the 15-day period, you already pay it in the RTC clerk of court. Unlike before you pay it with the CA later. That is why as I said, failure to
pay the docket fee in the RTC is a ground for dismissal of the appeal because of this.

Q: But how about failure to pay the appeal fee in the MTC prior to transmittal to the RTC? Is it a ground for dismissal by the CA?
A: To my mind NO because why will the CA dismiss it when the appeal is in the RTC? Bakit ang CA mag-dismiss, wala man ang kaso sa kanila? The
CA has nothing to do with the appeal. It is supposed to be in the RTC, bakit ang CA ang mag-dismiss? In other words, there is something wrong with this
amendment. (referring to “Section 5 of Rule 40”)

But if the appeal is from the RTC to the CA, you must you must pay the docket fees because it is a specific ground for dismissal for the dismissal
under Rule 50.

Fourth Ground: (d) UNAUTHORIZED ALTERATIONS, OMISSIONS OR ADDITIONS IN THE APPROVED RECORD ON APPEAL AS PROVIDED
IN SECTION 4 OF RULE 44;

That’s only when there is a record on appeal. When the record on appeal is approved, you have to reproduce it and you are not allowed to make any
alteration, revision or addition.

Firth Ground: (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;

Failure of the appellant to serve and file the required number of copies of his brief. So, failure to file the appellant’s brief is a ground for dismissal of
the appeal.

Q: Now, suppose it is the appellee who did not file any brief, what will happen ?
A: You do not dismiss the appeal but the case will be submitted for decision without appellee’s brief. The CA will make a resolution that the case
was submitted without the appellee’s brief.

Q: Does it mean to say that talo na ‘yung appellee?

A: NO. There are many cases I’ve seen where the appellee did not file any brief – Talo man gihapon ang appellant because anyway the appellant’s
brief has no merit. But normally in cases na delikado, you better file an appellee’s brief. You owe that to your client. Just imagine, lahat ng arguments dun
hindi sagutin. That’s very dangerous!

Sixth Ground: (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;

Well, you may file an appellant’s brief, eh wala namang page references, wala namang assignment of errors. My God! What kind of brief is that! (YC
Bikini Briefs?) Very sloppy! You file a brief without telling the CA kung anong mali and then you expect the CA to look for the errors. My golly! Do not
expect the CA to do that. Meron dapat citations – e.g. “See Exhibit ‘A’”, “See transcript…” Merong reference ba! like kung anong page yan.

Now if you file a brief without footnotes, without citing the law, without citing the transcript, without citing the exhibit, that would be dismissed.
That’s what happened in the 1995 case of

DEL ROSARIO vs. COURT OF APPEALS

241 SCRA 553 [1995]

FACTS: The CA dismissed the case simply because the appellant’s brief was sloppily written – no reference to exhibit, no
reference to page, no reference to anything. It was dismissed! The appellant went to the SC pleading liberality.

HELD: “Petitioner’s plea for liberality in applying these rules in preparing Appellant’s Brief does not deserve any sympathy. Long
ingrained in our jurisprudence is the rule that the right to appeal is a statutory right and a party who seeks to avail of the right must
faithfully comply with the rules. Deviations from the rules cannot be tolerated. The rationale for this strict attitude is not difficult to
appreciate. These rules are designed to facilitate the orderly disposition of appealed cases. In an age where courts are bedeviled by clogged
dockets, these rules need to be followed by appellants with greater fidelity. Their observance cannot be left to the whims and caprices of
appellants.”

Seventh Ground: (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;

Sometimes yung record mo kulang-kulang ba. And the party may be directed to work for the completion. If you fail to complete the record, your
appeal will be dismissed.

Please connect this with two previous provisions talking about completion of the record in an appealed case. I’m referring to Rule 41, Section 10 and
Rule 44, Sections 5 to 6 because these provisions talk also of completion of record. (please refer to your codals)
Rule 41, Sec. 10. Duty of clerk of court of the lower court upon perfection of appeal. Within thirty (30) days
after perfection of all the appeals in accordance with the preceding section, it shall be the duty of the clerk of
court of the lower court:
(a) To verify the correctness of the original record or the record on appeal, as the case may be, and to make a
certification of its correctness;
(b) To verify the completeness of the records that will be transmitted to the appellate court;
 (c) If found to be incomplete, to take such measures as may be required to complete the records, availing of the
authority that he or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or
transcripts not included in the records being transmitted to the appellate court, the reasons for their non-
transmittal, and the steps taken or that could be taken to have them available.
The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the
appellate court.

Rule 44, Sec. 5. Completion of record. Where the record of the docketed case is incomplete, the clerk of court of
the Court of Appeals shall so inform said court and recommend to it measures necessary to complete the record. It
shall be the duty of said court to take appropriate action towards the completion of the record within the shortest
possible time.

Rule 44, Sec. 6. Dispensing with complete record. Where the completion of the record could not be accomplished
within a sufficient period allotted for said purpose due to insuperable or extremely difficult causes, the court, on
its own motion or on motion of any of the parties, may declare that the record and its accompanying transcripts and
exhibits so far available are sufficient to decide the issues raised in the appeal, and shall issue an order
explaining the reasons for such declaration.

Eight Ground: (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

That’s a new ground – failure to appear on the preliminary conference; failure to comply with orders, circulars, directives of the court without
justifiable cause. That is very broad. That’s a new one not found in the old law.

Ninth Ground: (i) THE FACT THAT THE ORDER OR JUDGMENT APPEALED FROM IS NOT APPEALABLE.

The fact that the judgment or order appealed from is not appealable. Interlocutory!

Q: What are the judgments or orders which are not appealable?

A: Your reference is Rule 41, Section 1:
Rule 40, Section 1. Subject of appeal.
x x x x x x
NO APPEAL may be taken from:
(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.
x x x x x x

So, if you appeal on any one of them, the other party can file a motion to dismiss on the ground that it is not appealable.

Now, there is one ground for dismissal under the old rule na nawala naman. Yun bang “failure to prosecute the appeal”, when the records are not
elevated to the CA the appeal can be dismissed. Meaning, you have to follow up the clerk of court. Nawala yun eh. That ground seems to have been
abandoned. I think the attitude there is let us not punish the appellant for the fault of the clerk of court.

Q: Is a default judgment appealable?

A: YES. It is appealable because it is a final judgment and not merely interlocutory. Although under the ‘64 Rules, there is a direct provision that a
default judgment is appealable. Now, that provision has disappeared. But even if it is not mentioned now, default judgment is now covered by Rule 41 on
final judgments.
Sec. 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 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)

Meaning, you must appeal to the right court and you must use the proper mode of appeal. This incorporates in the Rules the resolutions of the SC in
the 1990 En Banc Resolution in MORILLO vs. CONSUL (not found in the SCRA) and also incorporates the provisions of Circular 2 -90 dated March 9.
1990.

Prior to this under the 1964 Rules, the rule is if there is wrong appeal like pure questions of law to the CA, the CA should not dismiss the appeal but
elevate it to the SC. That rule has long been abandoned. It was abandoned in the case of MORILLO and in Circular 2-90. Now, it is here. Kung question of
law you better appeal to the SC. If you appeal to the CA, the CA will dismiss it.

MORILLO vs. CONSUL

HELD: “There is no longer any justification for allowing transfers of erroneous appeals from one court to the other,
much less for tolerating continued ignorance of the law on appeals.”
 Take note that this refers to appeal under Rule 41 from RTC. This does not apply when the appeal to the CA is from a quasi-judicial body. Appeal
from a quasi-judicial body on a pure question of law should be to the CA, never to the SC. You compare this with Rule 42, Section 2:
Rule 42, Section 2. Form and contents.- The petition shall be filed in seven (7) legible copies, with the
original copy intended for the court being indicated as such by the petitioner, and shall:
x x x
(c) set forth concisely a statement of the matters involved, the issues raised, the specification of errors of
fact or law, or both, allegedly committed by the RTC and the reasons or arguments relied upon for the allowance of the
appeal.
x x x

“Errors of fact or law, or both.” This refers to Petition for Review from the RTC to the CA.

Q: What happens if an appeal is already taken to the CA?

A: It shall be dismissed outright. Under the ’64 Rules, the CA will pass it on to the SC. But the liberal policy has now been changed.

Aaron [Cruz] asked a question (during the 1998 Review Class)

Dean’s ANSWER: Yes, there is a decided case. In the meantime, you also lost the right to correct the error. Lumampas na eh!. Kaya it would be
dismissed. Hindi naman sinasabi na the appellant will be directed to appeal properly. In other words, it will be dismissed. Meaning, that is the end. That is
the penalty for erroneous appeal. Kaya nga according to MORILLO which became the basis of this, there is no longer any justification for allowing
transfers of erroneous appeals from one court to the other, much less for tolerating continued ignorance of the law on appeals. Kaya nga before, very
lenient pag mali under the 1964 Rules. But now in Section 2 of Rule 50, wala na – i-dismiss na.

WITHDRAWAL OF APPEAL
Sec. 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)

Q: Now, can you withdraw the appeal in the RTC level?

A: YES, prior to the transmittal of the original record or the record on appeal, the court may allow withdrawal of the appeal. (Section 9, Rule 41)

Q: Where will you file the motion to withdraw?

A: In the RTC if the records are still in the RTC. If the records of appeal is already in the CA, you file the motion to the CA at anytime before the
filing of the appellee’s brief you can withdraw it as a matter of right. When there is already an appellee’s brief, it can be allowed in the discretion of the
Court (Section 3). That is similar to the Rule in Rule 17, Section 1:
Rule 17, Section 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a
notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice
being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the
dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1a)

Q: Can you withdraw a complaint if you file a complaint in the lower court?
A: YES, as a matter of right for as long as there is still no answer filed. But when the defendant has filed an answer, dismissal of the complaint is
already discretionary upon the court. So it is the same!

-oOo-
 Rule 51
JUDGMENT

You already know that the Court of Appeals operates by division. There are more than 50 justices there. Every division is composed of 3. The 3 must
be unanimous. In case there is no unanimity, there should be a special division of 5 to hear the case all over again and the majority rules. Although from
what I gathered sa CA, this is a farce . Actually, they do not discuss it, they will just give it to the ponente. Tapos sabihin mo ‘concur.’ Bihira lang talaga
ang naga-participate unless siguro malakas ka sa isang justice and then mag-dissent para magkaroon ng division of 5. That is not really the intention of the
of the law.

Let’s go back to what we were saying before under Rule 36. Every decision or resolution of a court shall clearly and distinctly state the facts and the
law on which it is based. If a decision does not state its basis, it is a SIN PERJUICIO judgment. That is not a valid judgment. The requirement applies to
all courts whether MTC, RTC, or CA. This is emphasized again in Section 5:

Sec. 5. Form of decision. - Every decision or final resolution of the court in appealed cases shall clearly and
distinctly state the findings of fact and the conclusions of law on which it is based, which may be contained in the
decision or final resolution itself, or adopted from those set forth in the decision, order, or resolution appealed
from. (Sec. 40, BP Blg. 129) (n)

The CA must state its findings and conclusions or according to Section 5 it may simply adopt the findings and conclusions set forth in the decision or
order appealed from. If the CA is going to affirm the judgment of the RTC, it may simply copy or adopt the findings and conclusions of the RTC. It is
called a “MEMORANDUM DECISION”.

If you will look at Section 5, it states that the provision is taken from Section 40, BP 129. It is taken from the Judiciary Law.

Is this provision not an invitation to laziness on the part of the CA justices? If the CA will affirm the judgment of the RTC, the work is easier because
it may simply adopt on its own the findings of the RTC. If the CA would reverse the decision, the job would be more difficult, because it would write an
entirely new decision to rebut or dispute the findings of the RTC. This is why when this provision came out in the Judiciary Law, there was a sort of fear
that this might be the cause of laziness.

The SC, well aware of that danger, clarifies in one case that memorandum decisions are not allowed in all cases. The CA is only allowed to render a
memorandum decision in simple cases especially when the appeal is dilatory and there is nothing wrong in the appealed decision. But if the case is
complicated or complex, even if CA would affirm the decision, it cannot simply copy the work of the RTC. It should write its own decision. The limitation
or guidelines was issued by the SC precisely to avoid the danger of laziness on the part of CA justices. The SC said in the case of

FRANCISCO vs. PERMSKUL

173 SCRA 324

HELD: “The Court finds it necessary to emphasize that the memorandum decision should be sparingly used lest it
become an addictive excuse for judicial sloth. It is an additional condition for its validity that this kind of decision may be
resorted to only in cases where the facts are in the main accepted by both parties or easily determinable by the judge and
there are no doctrinal complications involved that will require an extended discussion of the laws involved. The
memorandum decision may be employed in simple litigations only, such as ordinary collection cases, where the appeal is
obviously groundless and deserves no more than the time needed to dismiss it.”

Q: When is a case deemed submitted for judgment?

A: Section 1 of Rule 51:

Sec. 1. When case deemed submitted for judgment. - A case shall be deemed submitted for judgment:

A. In Ordinary appeals. -
1) Where no hearing on the merits of the main case is held, upon the filing of the last pleading, brief, or
memorandum required by the Rules or by the court itself, or the expiration of the period for its filing.
2) Where such a hearing is held, upon its termination or upon the filing of the last pleading or memorandum as
may be required or permitted to be filed by the court, or the expiration of the period for its filing.

B. In original actions and petitions for review. -

1) Where no comment is filed, upon the expiration of the period to comment.
2) Where no hearing is held, upon the filing of the last pleading required or permitted to be filed by the
court, or the expiration of the period for its filing.
3) Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last
pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for
its filing. (n)

Sec. 2. By whom rendered. - The judgment shall be rendered by the members of the court who participated in the
deliberation on the merits of the case before its assignment to a member for the writing of the decision. (n)

Sec. 3. Quorum and voting in the court. - The participation of all three Justices of a division shall be
necessary at the deliberation and the unanimous vote of the three Justices shall be required for the pronouncement of
a judgment or final resolution. If the three Justices do not reach a unanimous vote, the clerk shall enter the votes
of the dissenting Justices in the record. Thereafter, the Chairman of the division shall refer the case, together
with the minutes of the deliberation, to the Presiding Justice who shall designate two Justices chosen by raffle from
among all the other members of the court to sit temporarily with them, forming a special division of five Justices.
The participation of all the five members of the special division shall be necessary for the deliberation required in
section 2 of this Rule and the concurrence of a majority of such division shall be required for the pronouncement of a
 judgment or final resolution. (2a)

Sec. 4. Disposition of a case. - The Court of Appeals, in the exercise of its appellate jurisdiction, may affirm,
reverse, or modify the judgment or final order appealed from, and may direct a new trial or further proceedings to be
had. (3a)

Sec. 5. Form of decision. - Every decision or final resolution of the court in appealed cases shall clearly and
distinctly state the findings of fact and the conclusions of law on which it is based, which may be contained in the
decision or final resolution itself, or adopted from those set forth in the decision, order, or resolution appealed
from. (Sec. 40, BP Blg. 129) (n)

Sec. 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)

Sec. 7. Judgment where there are several parties. - In all action or proceedings, an appealed judgment may be
affirmed as to some of the appellants, and reversed as to others, and the case shall thereafter be proceeded with, so
far as necessary, as if separate actions had been begun and prosecuted; and execution of the judgment of affirmance
may be had accordingly, and costs may be adjudged in such cases, as the court shall deem proper. (6)

Let’s go to Section 7.

Q: When there are 2 or more plaintiffs or 2 or more defendants in the cases appealed, is it possible that the CA will render decision for one plaintiff
but against the other plaintiffs, or in favor of one defendant and against the other?
A: YES. It is possible that one plaintiff will win, other plaintiffs will lose especially when the facts are not identical. This is also true in cases of 2 or
more defendants when each one interposes separate defenses. The defense of one may be true, others may be false. It is possible that one defendant will
win and other defendants will lose.

Q: Suppose there are 2 defendants in a case. All of them lost. Defendant A appealed. Defendant B did not appeal. On appeal, defendant A won. Will
the appeal of A benefit B who did not appeal?
A: As a GENERAL RULE: No, the appeal would only benefit the appealing defendant. The judgment becomes final to those who did not appeal even
if it is wrong.

EXCEPTION : When the LIABILITY of the 2 parties are so INTERTWINED that it would be absurd that one of them will win and the other will
lose. Thus, the appeal by the appealing party benefits his co-party who did not appeal. This principle was laid down in some cases. Among them is the case
of

UNIVERSAL MOTORS CORP. vs. COURT OF APPEALS

205 SCRA 428 [1992]

HELD: “It is erroneous to rule that the decision of the trial court could be reversed as to the appealing private
respondent and continue in force against the other private respondents. The latter could not remain bound after the former
had been released; although the other private respondents had not joined in the appeal, the decision rendered by the
respondent court inured to their benefit. When the obligation of the other solidary debtors is so dependent on that of their co-
solidary debtor, the release of the one who appealed, provided it be not on grounds personal to such appealing private
respondent, operates as well as to the others who did not appeal. It is for this reason, that a decision or judgment in favor of
the private respondent who appealed can be invoked as res judicata by the other private respondents.” So, their liabilities are
so intertwined.

EXAMPLE : Mayakin Skywalker and Darth Mort borrowed money from Qui Gon Jet. They bound themselves jointly and severally to pay the loan.
There is only one promissory note, one loan and both Mayakin and Darth Mort signed. Their common defense is payment. But the trial court ruled in favor
of the plaintiff (Qui Gon Jet) and ordered Mayakin and Darth Mort to pay. Mayakin appealed but Darth Mort did not. On appeal, CA decided in favor of
Mayakin saying, “Wala nang utang si Mayakin ba dahil bayad na!” How about Darth Mort? Darth Mort is also released.

This principle is reiterated in the case of

CAYABA vs. COURT OF APPEALS

219 SCRA 571 [1993]

HELD: “A reversal of a judgment on appeal is binding on the parties to the suit but does not inure to the benefit of
parties who did not join in the appeal (as a general rule). The recognized exception is when their rights and liabilities and
those of the parties appealing are so interwoven and dependent so as to be inseparable, in which case a reversal as to one
operates as a reversal to all.”

The rule is so similar in Criminal Procedure. When the appeal of one accused benefits his co-accused who did not appeal especially when the defense
of such appealing accused is applicable to him.

Sec. 8. Questions that may be decided. - No error which does not affect the jurisdiction over the subject matter or
the validity of the judgment appealed from or the proceedings therein will be considered unless stated in the assignment of
errors, or closely related to or dependent on an assigned error and properly argued in the brief, save as the court may
pass upon plain errors and clerical errors. (7a)
 Q: Can the CA decide an issue which was not raised by the parties? Can the CA correct the error which was never assigned by the other party?
A: GENERAL RULE : Only errors which are stated in the appellant’s brief should be considered. If the error is not assigned, that cannot be corrected.
This is just an extension of the rule that objections and defenses not pleaded are deemed waived.

EXCEPTION : The following matters can be corrected or the court can take cognizance even if the parties did not raise them:

15.) Jurisdiction over the subject matter of the case;

16.) Plain errors;
17.) Clerical Errors.
18.) Errors which are not assigned but closely related to or dependent on an assigned error.

The fourth exception is taken from decided cases. According to the SC, even if you will not mention a mistake committed by the trial court if such
mistake is related to the mistake mentioned, it can be corrected. In the case of

ABEJARON vs. COURT OF APPEALS

208 SCRA 899 [1992]

HELD: An unassigned error closely related to the error properly assigned, or upon which the determination of the question raised by
the error properly assigned is dependent, will be considered by the appellate court notwithstanding the failure to assign it as error.
While an assignment of error which is required by law or rule of court has been held essential to appellate review, and only those
assigned will be considered, there are a number of cases which appear to accord to the appellate court a broad discretionary power to
waive this lack of proper assignment of errors and consider errors not assigned.

The same principle was reiterated in the 1995 case of

CASA FILIPINO ROYALTY CORP. vs. OFFICE OF THE PRESIDENT

241 SCRA 165

HELD: “While the rule is that no error which does not affect jurisdiction will be considered unless stated in the
assignment or errors, the trend in modern-day procedure is to accord the courts broad discretionary power such that the
appellate court may consider matters bearing on the issues submitted for resolution which the parties failed to raise or which
the lower court ignored.”

Let us look at the second exception – plain errors.

What is a plain error ? Because a plain error can be corrected by the appellate court even if not asked by the parties, plain man? If you will ask me,
any plain error is yung talagang obvious mistake – one which is apparent to the eye.

Now, suppose the trial court made an error in applying a law or in interpreting a law. But it was not attacked by the losing party and it was not
corrected on appeal. Is it a plain error? It would seem no and yet that is what happened in the 1993 case of SANTOS vs. CA (221 SCRA 42).

But before we discuss the case of Santos, we have to know the basics. There are two principles here to remember.

The appellant is the one who appeals and it is he who will file the appellant’s brief and then he will make the assignment of errors. The appellee will
refute the appellant’s assignment of errors which were committed by the trial court.

Q: Can the appellee impute errors or make assignment of errors?

A: The general rule is NO. If you are an appellee, you are not appealing and thus you are accepting the decision. So if you think the decision is in
your favor pero mali pa rin, you must also appeal.

So an appellee is not allowed to assign errors committed by the trial court except if the purpose of the assignment of errors is to sustain the decision
on another ground. Because sometimes you agree with the decision but you do not agree with the reason. The decision is correct but this should be the
reason. Because actually, you are defending the decision on another ground.

Meaning the court made a mistake in arriving at the decision but the decision is correct. Yan, puwede yan. But if you want the decision to be changed,
then you must also appeal.

Now, let us go to the case of SANTOS which involves the law on lease, particularly the interpretation and the application of Article 1678 Civil Code.
Under the law on lease, suppose I will rent to you my land and you built a building there and there is no agreement as to who will own the building after
the termination of the lease. Suppose there is no stipulation, who will own the building?

According to the Civil Code, the owner of the land has the option to acquire the building by paying one half of its value. Pero, if I do not want to
appropriate the building, then you have the right to remove the building provided you will not damage the land. So the option to pay you belongs to the
owner of the land. The lessee cannot compel the owner of the land to pay.

Let us go now to the case of Santos. This is a very queer case.

SANTOS vs. COURT OF APPEALS

221 SCRA 42
 FACTS: Artemio Santos et al are lessees of a piece of land. They have not paid the rentals for 28 years. The lessor filed a case of
unlawful detainer against all of them before the Metropolitan Trial Court of Pasig. The trial court rendered judgment against Santos et al.
So they were ordered ejected.
Now, these people were not satisfied. They still appealed to the RTC. The RTC affirmed the judgment that they should be ejected but
modified it by ordering the lessor to reimburse the lessees for the latter’s improvements on the leased property. So, affirmed, but bayaran
mo iyong mga bahay ng mga tao. (DEAN I: To my mind, that portion of the decision is wrong. You cannot order the lessor to reimburse.)
But despite that, Santos et al were not satisfied. They still appealed to the CA. The lessor did not appeal so obviously, the lessor is
willing to pay. Although he has no obligation to pay the improvements, pero sige na lang para matapos na! He did not appeal.
Now, the CA affirmed again the ejectment. So tatlo na. There were three courts where the occupants lost. But the CA deleted the
portion of the RTC decision ordering reimbursement of the improvements. It was really wrong. Walang reimbursement diyan.
So this time, Santos et al appealed to the SC. And they say that the portion of the decision deleting our right to reimbursements is
wrong because the owner of the land is not questioning it, he is not appealing so why should the CA delete it? So, meaning payag iyong
owner. Therefore that portion of the decision of the CA where we are no longer entitled to reimbursement is erroneous. The CA has no
power to delete that portion of the RTC decision because there was no appeal from the landowner.

ISSUE: Is the decision of the CA correct?

HELD: YES. The CA is correct. “It is true that the rule is well-settled that a party cannot impugn the correctness of a Judgment not
appealed from by him, and while he may make counter-assignment of errors, he can do so only to sustain the judgment on other grounds
but not to seek modification or reversal thereof for in such a case he must appeal. A party who does not appeal from the decision may not
obtain any affirmative relief from the appellate court other than what he has obtained from the lower court, if any, whose decision is
brought up on appeal. However, the Rules of Court and jurisprudence authorize a tribunal to consider errors, although unassigned, if they
involve (1) errors affecting the lower court's Jurisdiction over the subject matter, (2) plain errors not specified, and (3) clerical errors.”
“Under Article 1678, it is the lessor who has the option to pay for one-half of the value of the improvements which the
lessee has made in good faith. The lessee cannot compel the lessor to appropriate and reimburse.” Therefore, the decision of
the RTC ordering the lessor is actually erroneous.
“Hence, the award of reimbursement for improvements by the trial court in favor of petitioners amounts to a plain error which may
be rectified on appeal although not specified in the appellee’s brief.”

But the trouble is, the landowner did not appeal. If we follow the ruling, then lahat ng mali ng trial court ay plain error na. That is what the SC said.
Bakit man naging plain error ito when actually it will not qualify as plain error ? If we will follow that line of reasoning, every mistake committed by a trial
court can be corrected being a plain error.

To my mind, merong equity ito, eh. Analyze the case. You are occupants for 28 years and you did not pay. Ayaw mo lumayas, bayaran ka pa? There is
something wrong there already. I think that is the factor eh.

So the SC said that it is too unfair for the landowner still to be required to pay. Imagine they stayed there for 28 years, hindi pa nagbayad. I think
those are the factors. So in other words, equity bah! So the Court has to look for a reason to justify. Ang nakita is plain error – when you do not know how
to apply the law, then it is plain error. But actually, that should be an assigned error. It is a very interesting case.

Sec. 9. Promulgation and notice of judgment. - After the judgment of final resolution and dissenting or separate
opinions, if any, are signed by the Justices taking part, they shall be delivered for filing to the clerk who shall
indicate thereon the date of promulgation and cause true copies thereof to be served upon the parties or their
counsel. (n)

Sec. 10. Entry of judgments and final resolutions. - If no appeal or motion for new trial or reconsideration is
filed within the time provided in these Rules, the judgment or final resolution shall forthwith be entered by the
clerk in the book of entries of judgments. The date when the judgment or final resolution becomes executory shall be
deemed as the date of its entry. The record shall contain the dispositive part of the judgment or final resolution and
shall be signed by the clerk, with a certificate that such judgment or final resolution has become final and
executory. (2a, R36)

Sec. 11. Execution of judgment. - Except where the judgment or final order or resolution, or a portion thereof,
is ordered to be immediately executory, the motion for its execution may only be filed in the proper court after its
entry.
In original actions in the Court of Appeals, its writ of execution shall be accompanied by a certified true copy
of the entry of judgment or final resolution and addressed to any appropriate officer for its enforcement.
In appealed cases, where the motion for execution pending appeal is filed in the Court of Appeals at a time that
it is in possession of the original record or the record on appeal, the resolution granting such motion shall be
transmitted to the lower court from which the case originated, together with a certified true copy of the judgment or
final order to be executed, with a directive for such court of origin to issue the proper writ for its enforcement.
(n)

Q: Now, how do you execute a judgment of the CA?

A: Under Section 11, it depends if it is an original action or an appealed case.

For an appealed case, in case of execution pending appeal, take note that if the records of the case are already elevated to the CA, motion for
execution pending appeal should already be filed there. And if the CA grants the motion to execute pending appeal, it will follow the third paragraph there.
It will issue the order and direct the RTC to enforce the judgment.

Now, you should correlate this with Rule 39 Sections 1 and 2:

Rule 39, Section 1. Execution upon judgments or final orders. - Execution shall issue as a matter of right, on
motion , upon a judgment or order that disposed of the action or proceeding upon the expiration of the period -to
appeal therefrom if no appeal has been duly perfected.
If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the
court or origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or
judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court
of origin to issue the writ of execution.

Section 2. Discretionary execution.

A. Execution of a judgment or final order pending appeal.- On motion of the prevailing party with notice to the
adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the
original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may,
in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the
appellate court.
Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.

B. Execution of several, separate or partial judgments.- A several, separate or partial judgment may be executed
under the same terms and conditions as execution of a judgment or final order pending appeal.

-oOo-
 Rule 53
NEW TRIAL

Q: What is the ground for new trial in CA?

A: The ground for new trial is newly discovered evidence. (Section 1)

Sec. 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)

The ground is newly discovered evidence similar to the second ground for new trial in the RTC (FAME). Fraud, accident, mistake –
hindi kasali. Only newly discovered evidence is the ground under Rule 53.

Q: Suppose the case is before the SC, can a party file a motion for new trial on the ground of newly discovered evidence before the
SC under Rule 53 in a civil case?
A: NO. The SC said in the case of

NAVARRA vs. COURT OF APPEALS

204 SCRA 850

HELD: The Rules of Court allows only two (2) occasions where a party may file a motion for new trial on
the ground of newly discovered evidence. That motion may be filed only with the trial court under Rule 37 or
with the CA under Rule 53 BUT NEVER with the SC.
“Time and again, We have stressed that the SC is not a trier of facts. It is not a function of the SC to analyze or weigh
all over again the evidence already considered in the proceedings below. Its jurisdiction is limited to reviewing only errors
of law that may have been committed by the lower courts.”

If there would be a motion for new trial with the SC and it would be granted, you are converting the SC into a trial court.

Sec. 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)

Sec. 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)

Sec. 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)

Q: If the motion for new trial is granted, can the CA conduct the new trial itself acting as a trial court?
A: YES, under section 4 and under the Judiciary Law particularly section 9, the CA can receive evidence and act as a trial court. That
is why it is a powerful court.

BP 129, Section 9, last paragraph:

“The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence
and perform any and all acts necessary to resolve factual issues raised in cases falling within its
original and appellate jurisdiction, including the power to grant and conduct new trials or further
proceedings.”

-oOo-
 Rule 54

INTERNAL BUSINESS

Section 1. Distribution of cases among divisions. - All the cases of the

Court of Appeals shall be allotted among the different divisions thereof for
hearing and decision. The Court of Appeals, sitting en banc, shall make proper
orders or rules to govern the allotment of cases among the different
divisions, the constitution of such divisions, the regular rotation of
Justices among then the filing of vacancies occurring therein, and other
matters relating to the business of the court; and such rules shall continue
in force until repealed or altered by it or by the Supreme Court.

Section 2. Quorum of the court. –A majority of the actual members of the

court shall constitute a quorum for its sessions en banc. Three members shall
constitute a quorum for the sessions of a division. The affirmative votes of
the majority of the members present shall be necessary to pass a resolution of
the court en banc. The affirmative votes of three members of a division shall
be necessary for the pronouncement of a judgment or final resolution, which
shall be reached in consultation before the writing of the opinion by any
member of the division.

(just read)

-oOo-
 Rule 55
PUBLICATION OF JUDGMENTS
AND FINAL RESOLUTIONS

The decisions of the CA must be published. Kung wala sa Philippine Reports, nasa Court of
Appeals Reports. They call that CARA (Court of Appeals Reports Annotated).
Section 1. Publication. - The judgments and final resolutions of the court shall
be published in the Official Gazette and in the Reports officially authorized by the
court in the language in which they have been originally written, together with the
syllabi therefore prepared by the reporter in consultation with the writers thereof.
Memoranda of all other judgments and final resolutions not so published shall be made
by the reporter and published in the Official Gazette and the authorized reports.

Section 2. Preparation of opinions for publication. - The reporter shall prepare

and publish with each reported judgment and final resolution a concise synopsis of
the facts necessary for a clear understanding of the case, the names of counsel, the
material and controverted points involved, the authorities cited therein, and a
syllabus which shall be confined to points of law.

Section 3. General make- up of volumes. - The published decisions and final

resolutions of the Supreme Court shall be called "Philippine Reports," while those of
the Court of Appeals shall known as the "Court of Appeals Reports." Each volume
thereof shall contain a table of the cases reported and the cases cited in the
opinions, with a complete alphabetical index of the subject matters of the volume. It
shall consist of not less than seven hundred pages printed upon good paper, well
bound and numbered consecutively in the order of the volumes published.

-oOo-

Powers and Functions of the Supreme Court:

19.) Adjudication
20.) Discipline
21.) Rule-Making

Ordinary
Civil
Action Special
Adjudication Criminal
Special Proceeding

Judges/court employees
Discipline
Lawyers (disbarment)

Rules of Court
Rule-Making
Others: Circulars/
Directives
Rule 56
PROCEDURE IN THE SUPREME COURT

This is an entirely new provision. In the SC, there are 2 types of cases – ORIGINAL and
APPEALED. The SC has both the original and appellate jurisdiction.

What are the original cases cognizable by the SC?

A.) ORIGINAL CASES

SECTION 1. Original cases cognizable. – Only petitions for certiorari,
prohibition, mandamus, quo warranto, habeas corpus, disciplinary proceedings
against members of the judiciary and attorneys, and cases affecting
ambassadors, other public ministers and consuls may be filed originally in the
Supreme Court. (n)

You know them no? – Certiorari, prohibition, mandamus, quo warranto, habeas corpus, cases
affecting ambassadors other public ministers and consuls – nasa Constitution din yan. This is only a
repetition of Article VIII, Section 5 (1) of the Constitution. Aside from that, the Rules of Court give the
SC authority to hear disciplinary proceedings against members of the judiciary, disbarment or removal
of judges. SC man yan ba! And they are governed specially for disbarment by Rule 139-B of the Rules
of Court.

SEC. 2. Rules applicable. – The procedure in original cases for certiorari,

prohibition, mandamus, quo warranto and habeas corpus shall be in accordance
with the applicable provisions of the Constitution, laws, and Rules 46,48, 49,
51, 52 and this Rule, subject to the following provisions:
a.) All references in said Rules to the Court of Appeals shall be
understood to also apply to the Supreme Court;
b.) The portions of said Rules dealing strictly with and specifically
intended for appealed cases in the Court of Appeals shall not be applicable;
and
c.) Eighteen (18) clearly legible copies of the petition shall be filed,
together with proof of service on all adverse parties.
The proceedings for disciplinary action against members of the judiciary
shall be governed by the laws and Rules prescribed therefor, and those against
attorneys by Rule 139-B, as amended. (n)

a.) All references in said Rules to the Court of Appeals

shall be understood to also apply to the Supreme Court

Actually, kulang ito eh. These proceedings are actually governed more by Rule 65 and 66. But they
are also covered by Rule 46, 48, 49, 51 and 52 (CA) and it also applies to SC.

b.) The portions of said Rules dealing strictly with and specifically intended for
appealed cases in the Court of Appeals shall not be applicable; and
 This is more of legal and judicial ethics.

Q: When you file a petition before the SC for certiorari, prohibition or mandamus, how many
copies?
A: First filing – 18 copies minimum. Why? Because you do not know whether it will be considered
as an en banc case or a division case. The SC operates in 2 ways. It decides cases either en banc or by
division. 18 copies is required because 15 na ang justices, only three (3) for the clerk.

Q: How about subsequent pleadings? How many copies?

A: Depende. Kung en banc, all subsequent pleadings, still 18 copies. Kapag division case, 9 na
lang. Now, there are three divisions in the SC – the first, second and third divisions. And every division
is composed of five (5) members.

The SC meets en banc twice a week – Tuesday and Thursday – unless they have changed it. It is
called an en banc session. Cases are raffled for assignment by division. Monday and Wednesday, hiwa-
hiwalay sila – the 5 justices who belong to the same division meet together and discuss cases which
are raffled to that division. Friday is a NO SESSION but a working day. That is when they study,
prepare their decisions and resolutions. That is why we can also predict when will the result of the Bar
be released because that is an en banc session. Only the SC en banc can order the release of the results
of the Bar Exam. They have to pass a resolution.

B. APPEALED CASES
SEC. 3. Mode of appeal. – An appeal to the Supreme Court may be taken only
by a petition for review on certiorari, except in criminal cases where the
penalty imposed is death, reclusion perpetua or life imprisonment. (n)

There is only one way of appeal to the SC. The only mode of appeal recognized is Petition for
Review by Certiorari under Rule 45, except in criminal cases when the penalty imposed by the RTC is
death penalty, reclusion perpatua or life imprisonment where only ordinary appeal (under Rule 41) is
required. Outside of that, the only mode of appeal to the SC is Petition for Review by Certiorari.

Please connect this with Rule 45, Section 9:

Rule 45, Sec. 9. Rule applicable to both civil and criminal cases.- The
mode of appeal prescribed in this rule shall be applicable to both civil and
criminal cases except in criminal cases where the penalty imposed is death,
reclusion; perpetua or life imprisonment.

Rule 56, Sec. 4. Procedure.- The appeal shall be governed by and disposed
of in accordance with the applicable provisions of the Constitution, laws,
Rules 45, 48, sections l,2, and 5 to 11 of Rule 51, 52 and this rule.

Q: What are the grounds for dismissal of an appeal before the SC?
A: Section 5:
Section 5. Grounds for dismissal of appeal.- The appeal may be dismissed
motu propio 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 of mode of appeal; and
g. The fact that the case is not appealable to the Supreme Court.

Connect Rule 56, Section 5 with Rule 45, Section 5. The grounds are identical, to wit:
Rule 45, Sec. 5. Dismissal or denial of petition. The failure of the
petitioner to comply with any of the foregoing requirement regarding the
payment of the docket and other lawful fees, deposit for costs, proof of
service of the petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground
that the appeal is without merit, or is prosecuted manifestly for delay or
that the questions raised therein are too unsubstantial to require
consideration.

Sec. 6. Disposition of improper appeal – Except as provided in section 3,

Rule 122 regarding appeals in criminal cases where the penalty imposed is
death, reclusion perpetua or life imprisonment, an appeal taken to the Supreme
Court by notice of appeal; shall be dismissed.
An appeal by certiorari taken to the Supreme court from the Regional Trial
Court submitting issues of fact may be referred to the Court of Appeals for
decision or appropriate action. The determination of the Supreme Court on
whether or not the issues of fact are involved shall be final.

This is already discussed in Rule 50, Section 2. A wrong appeal is a ground for a dismissal of such
appeal.

Q: If the appeal is on pure question of law (it should be before the SC) and by mistake the party
appealed to the CA, what will happen?
A: The appeal will be dismissed under Rule 50. The CA will not endorse the case to the SC.

Q: Suppose you will appeal by certiorari to the SC under Rule 45. Tapos, halo pala – hindi naman
pala question of law lahat – may kasamang question of fact. What will happen now in the appeal?
A: Under Rule 56, Section 6, the SC may or may not dismiss the appeal. It may refer the matter to
the CA – baliktad noh? So it is not the same as Rule 50, Section 2.

Section 7. Procedure if opinion is divided. Where the court en banc is

equally divided in opinion, or the necessary majority cannot be had, the case
shall again be deliberated on, and if after such deliberation no decision is
reached, the original action commenced in the court shall be dismissed; in
appealed cases, the judgment or order appealed from shall stand affirmed; and
on all incidental matters, the petition or motion shall be denied.

What happens if the justices of the SC are equally divided?

For instance, there were 4 in attendance in a division dahil absent ang isa – the result is 2:2. So, we
will deliberate again, but still 2:2. If that is so, the decision appealed from is considered affirmed. In
other words, the ruling in the lower court is considered correct.

The counterpart of this rule in Criminal Procedure is Rule 125, Section 3. If after deliberation, the
justices are even, they will deliberate again but still even. The decision must be acquittal. Since you
cannot break the tie, it must be in favor of the accused.

EN BANC CASES

Now, before we leave this topic, of course we know very well that when you appeal to the SC, there
are two possibilities – either it will be heard by a division (there are 3 divisions there) or your case
might be decided by the entire SC en banc.

Q: What cases are heard by the SC en banc?

A: There was a circular in 1993 issued by the SC enumerating en banc cases:

22.) Cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, executive order, presidential decree, proclamation, order, instruction, ordinance
or regulations in question. For example, the recent Oil Deregulation Law;

23.) Criminal cases in which the appealed decision imposes death penalty; Criminal cases
where a change of venue is required to avoid miscarriage of justice where SC has to make an
order to change the venue;
Pag reclusion perpetua, hindi man yan en banc ba! Only for death penalty.

24.) Cases raising novel questions of law;

There is a point of law where there is no decided case yet. Meaning, such legal issue is
raised for the first time.

25.) Cases affecting ambassadors, other public ministers or consuls;

26.) Cases involving decisions, resolutions, orders of the COMELEC, COA, or the Office of
the OMBUDSMAN, SANDIGANBAYAN in administrative disciplinary cases;

27.) Cases in which the penalty involved is a dismissal of the judge, officer or employee of
the judiciary, disbarment of a lawyer or even suspension of any of them for a period of more
than one (1) year of fine exceeding P10,000.
Tignan mo sa SCRA. Pag ang penalty is removal of a judge or disbarment, en banc yan.
And sometimes, you cannot even identify who is the ponente. Ang tawag diyan per curiae.
The ponente is not identified.

28.) Cases where a doctrine or principle of law laid down by the Court en banc or division
may be modified or reversed;
A decision by a division can only be reversed by the SC en banc. The same is true in a
decision previously decided en banc. Only SC en banc can change its mind and reverse its
previous ruling.

29.) Cases assigned in a division which in the opinion of at least three (3) members thereof,
merit the attention of the Court en banc and are acceptable to the majority of the actual
members of the court en banc;

Meaning, it is a division case but at least three members of the division are of the view
 that it should be elevated to the SC en banc. And the majority of the entire court also agree.

Example: A case is assigned to a division. After deliberating, majority of the 5 hold that
the case is so important that referral to the entire membership is proper. Then when it is
referred en banc, majority accepts it, then it is to be decided en banc.
Specific Example: The case of PEOPLE vs. LUCAS in Criminal Law. ISSUE: Is the
penalty of reclusion perpetua divisible or indivisible? The original ruling there by a division
is that it is a divisible penalty. But upon motion for reconsideration by the Solicitor General,
the first division realized that maraming implications ito. So at least 3 or 4 voted na itapon
natin to the SC en banc and then the entire voted.

BAR QUESTION : A lost in an appealed decision. He filed a motion for

reconsideration. He is insisting that his motion be resolved by the entire membership of the
SC. Can he insist that his motion for reconsideration be heard by the entire membership of
the SC en banc when he lost in a division?
A: NO, because the SC en banc is not a separate court from one of its divisions. You
cannot say that a decision by a division can be appealed to the SC en banc because it is the
same court. The best that can happen to you is you convince the members of the same
division to refer the matter to the entire court en banc and try to convince the majority of the
court en banc to accept it. That is the correct move.

30.) All other cases as the court en banc, by the majority of its actual members, may deem of
sufficient importance to merit its attention.

These cases are those involving the welfare of the nation like Lotto case, EVAT, Manila
Hotel case. This is also the ground invoked by Imelda Marcos where she tries to convince
the court en banc to hear her motion for reconsideration.

-oOo-

published by

LAKAS ATENISTA 1997 – 1998: FOURTH YEAR: Anna Vanessa Angeles • Glenda Buhion
• Joseph Martin Castillo • Aaron Philip Cruz • Pearly Joan Jayagan • Anderson Lo •
Yogie Martirizar • Frecelyn Mejia • Dorothy Montejo • Rowena Panales • Regina Sison •
Ruby Teleron • Marilou Timbol • Maceste Uy • Perla Vicencio • Liberty Wong • Jude
Zamora • Special Thanks to: Marissa Corrales and July Romena

SECOND YEAR: Jonalyn Adiong • Emily Aliño • Karen Allones • Joseph Apao •
Melody Penelope Batu • Gemma Betonio • Rocky Cabarroguis • Charina Cabrera •
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Maila Ilao • Ilai Llena • Rocky Malaki • Jenny Namoc • Ines Papaya • Jennifer Ramos •
Paisal Tanjili
 LAKAS ATENISTA 2001–2002: REVISION COMMITTEE: Melissa Suarez • Jessamyn
Agustin • Judee Uy • Janice Joanne Torres • Genie Salvania • Pches Fernandez • Riezl
Locsin •
Kenneth Lim • Charles Concon • Roy Acelar • Francis Ampig • Karen Cacabelos •
Maying Dadula • Hannah Examen • Thea Guadalope • Myra Montecalvo • Paul
Ongkingco • Michael Pito • Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos
• Joshua Tan • Thaddeus Tuburan • John Vera Cruz • Mortmort