Appellate Practice Notes

8/20/2019 Appellate Practice Notes

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GAP-JDT APPRAC REVIEWER (ATTY. AQUINO)MEMORY AID / CASE DOCTRINES

A. MR v. MNT v. PFR v. AJ

MNT (Rule 37) MR (Rule 37) PFR (Rule 38) AJ (Rule 47)

GroundFAME by reason of such party hasprobably been impaired in his rights

Newly discovered evidence (material

& relevant)

Damages excessive

Evidence insufficient

Decision/final order contrary to law

Decision/final order entered throughFAME

Prevented from appealing through

FAME

Extrinsic fraud

Lack of jurisdiction (person orsubject matter) not GADALEJ

PeriodWithin period for taking appeal(15/30) – no motion for extension

*Tolls reglementary period for appeal(fresh-period) except if pro forma

Within period for taking appeal(15/30) – no motion for extension

*Tolls reglementary period for appeal(fresh-period) except if pro forma

Within 60 days after knowledgeBUT not more than 6 months afterentry (finality) – never extendible andnever interrupted; both complied with

EF – within 4 years from discovery

LJ – before barred bylaches/estoppel

SecondMotion/Petition

May be allowed if ground not existingat the time 1

st is filed

Remedy: appeal

Prohibited (may be allowed for MR ofinterlocutory orders)

Remedy: appeal

Prohibited

Remedy: 65

Prohibited

Remedy: 45

Where to file Court that rendered Court that rendered Court that renderedCA if by RTC (can dismiss outright)RTC if by MTC (can’t dismissoutright)

*independent civil action

Who can avail Parties Parties Parties Anyone as long as he was affected

When applicable Before judgment final Before judgment final After judgment final (but MNT or MRmust not have been availed of)

After judgment final (but MNT, MR,PFR must no longer be availableby no fault of petitioner)

To Whatapplicable

Judgments or final orders Judgments or final orders Judgments, final orders, and otherproceedings (LR, SpecPro,Execution)

Judgments, final orders, resolutions

Form andContent

FAME – Affidavit of MeritNDE – affidavits of witnesses or dulyauthenticated documents

Since it’s a motion:1. Notice of Hearing, specifying

date of hearing not later than10 days after filing andserved at least 3 daysbefore hearing

2. In writing

3. State the grounds

Point out to findings or conclusionsnot supported by evidence or contraryto law

Express reference to testimonial ordocumentary evidence or toprovisions of law

Since it’s a motion:1. Notice of Hearing, specifying

date of hearing not later than10 days after filing and

served at least 3 days

before hearing

Verified

Affidavit of Merit

Verified alleging:- facts and the law- good and substantial

cause of action/ defense(so parang Affidavit ofMerit din)

7 legible copies

Certified true copy of judgment/finalorder/resolution attached to the

original copy


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2. In writing3. State the grounds

Affidavits of witnesses ordocuments

Certification of non-forum shopping

Effect of Filing(Action of

Court)

Grant new trial

Deny motion

Amend judgment/final order

Deny motion

Order to file an answer (within 15days; no default)

Preliminary injunction (bond; shall notdischarge any lien)

Two hearings:

1. Determine whether judgment should be setaside

2. Hearing on the merits

Two stages:1. Preliminary evaluation of

petition for prima faciemerit

2. Issuance of summons and

such appropriateproceedings thereafter

CA may dismiss outright if nosubstantial merit

Procedure in ordinary civil cases (iftrial necessary, reception ofevidence may be referred tomember of CA or judge of RTC)

Effect ofGranting

Vacated then trial de novo (recordedevidence, if material and competent,may be shall be used)

No trial de novo for NDE; only for thepurpose of admitting the newevidence

May grant partial new trial as toissues/matters/parties (enter as to therest or stay)

Amend Sec 1 – as if MR or MNT filed

Sec 2 – lower court required to givedue course to appeal and elevaterecords

EF – as if MNT was filed

LJ - Set aside and declare null andvoid (without prejudice to refilling)

May include damages, attorney’sfees, restitution, and other relief

Remedy if nolonger available

Appeal

Petition for Relief from Judgment

Petition for Annulment of Judgment

Appeal

Petition for Relief from Judgment



Direct or collateral attack if judgmentis void ab initio for lack of jurisdiction

Bye bye

When not

applicable

Summary Procedure

Small Claims

Summary Procedure

Small Claims

Summary Procedure

Small Claims

Availed of MNT or MR

Availed of MNT, MR, or PFR

Judgments by quasi judicial bodies

Decisions or orders of Ombudsmanin administrative cases


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Affidavit of Merit – recites the nature and character of FAME and states good and substantial cause of action or defense1. Nature and character of FAME2. Facts constituting good and substantial defense or valid cause of action

3. Evidence which he intends to present*Affidavit of Merit need not be in a separate document as long as everything needed to be alleged is in the petition/motion but for PFR, attach evidence!!!

Pro Forma Motion – does not satisfy the requirements of the rules and treated as a motion intended to delay

1. For MNTa. No Affidavit of Meritb. Ground was available

2. For MR

a. 2nd

MRb. Did not specifyc. Did not substantiate

GR: Negligence of counsel binds the client:EX:

1. Deprives client of due process of law2. Result to outright deprivation of client’s liberty or property

3. Interest of justice

Requisites of Newly Discovered Evidence1. Discovered after trial2. Could not have been discovered and produced at trial even with reasonable diligence3. Would probably alter the result4. Material and not collateral, cumulative or corroborative


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B. APPEALS IN CIVIL CASES

40 41 42 43 45

Where MTC -> RTC RTC (original) -> CA RTC (appellate) -> CA QJA -> CACA, CTAEB,Sandiganbayan, RTC(pure questions of law) -> SC

When

15/30

Extendible? No but MR andMNT tolls (fresh)

15/30/48 hours

Extendible? No but MR andMNT tolls (fresh)

15Extendible? 15

Extendible some more?15 for the most compellingreason (but Sir said forgetabout this)

15Extendible? 15

Extendible some more?15 for the mostcompelling reason (butSir said forget about this)

15Extendible? 30 for

justifiable reasonsExtendible some more?nope

How

Notice of appeal with thecourt that rendered

Notice of Appeal + Record onappeal for SpecPro andcases that allowmultiple/separate appeals

Copies served on adverseparty

Pay full amount of appellate

court docket and other lawfulfees to the court thatrendered

Notice of appeal with thecourt that rendered

Notice of Appeal + Record onappeal for SpecPro andcases that allowmultiple/separate appeals

Copies served on adverseparty

Pay full amount of appellate

court docket and other lawfulfees to the court thatrendered

Verified petition with CA

Pay docket, other lawful

fees, and deposit P500 forcosts to the CA

Copies served on the RTCand adverse party

Verified petition with CA


fees, and deposit P500for costs to the CA

Copies served on court/agency and adverseparty

Verified petition with SC


fees, and deposit P500for costs to the SC

Copies served on lowercourt and adverse party

Proof of service on LCand adverse party

Question Q of fact, law, or both Q of fact, or fact and law Q of fact, law, or both Q of fact, law, or bothBut Q of fact, ifsupported by substantial

evidence, is conclusive

Purely questions of lawunless an exception(see below)

Form andContent

Notice of Appeal

1. Parties2. Judgment3. Material Dates*Perfection: upon filing*Court loses jurisdiction: uponperfection and expiration to

appeal of others

Record on Appeal1. Parties (caption)2. Judgment/final order

(chronological order)3. Copies of pleadings/

petitions/ motions/

Notice of Appeal

1. Parties2. Judgment3. Specify the court where

you’re taking appeal4. Material Dates*Perfection: upon filing

*Court loses jurisdiction: uponperfection and expiration toappeal of others

Record on Appeal1. Parties (caption)2. Judgment/final order

(chronological order)

7 copies of Petition:

1. Parties (withoutimpleading lowercourt/judge)

2. Material dates3. Matters/ issues/ errors

of fact or law, or both/

reason or arguments4. Duplicate originals or

true copies of the judgments/ final ordersof BOTH (certified byRTC clerk)

5. Material portions of the

record (not certified)


1. Parties (withoutimpleading court/agency)

2. Fact, issue, andgrounds

3. Material dates

4. Duplicate original orcertified true copy ofthe judgment

5. Certified true copiesof material portions ofthe record (but see jurisprudence

contradicting this,


1. Parties (withoutimpleading lowercourt/ judge)

2. Material dates3. Matters, reasons,

arguments

4. Duplicate original orcertified true copy of judgment

5. Material portions ofthe record (notcertified)

6. Verification

7. Certification on non-


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interlocutory orders4. Material Dates5. If issue of fact is raised,

include by reference all

evidencea. Testimonial – namesb. Documentary – exhibit

number/letterc. Whole – statement to

that effect6. Subject index (exceeding20 pages)

*Perfection: upon approval(may amend within 10 daysfrom order)*Court loses jurisdiction: uponapproval and expiration*May be objected t within 5days from receipt

3. Copies of pleadings/petitions/ motions/interlocutory orders

4. Material Dates

5. If issue of fact is raised,include by reference allevidencea. Testimonial – namesb. Documentary – exhibit

number/letterc. Whole – statement tothat effect

6. Subject index (exceeding20 pages)

*Perfection: upon approval(may amend within 10 daysfrom order)*Court loses jurisdiction: uponapproval and expiration*May be objected t within 5

days from receipt

6. Verification7. Certification on non-

forum shopping

which Sir said iscontrolling )

6. Verification7. Certification on non-

forum shopping

forum shopping

Effect ofFiling

Clerk of LC transmit record orrecord on appeal with

transcript/ exhibits (which heshall certify) to the AC within15 days from perfection

Copy of transmittal furnished

to parties

Prior to transmittal of records,LC may issue:1. Order for protection/

preservation of rights2. Approve compromise3. Permit appeals by indigent

4. Order execution5. Allow withdrawal of appeal

Upon receipt, RTC shall notifyparties

15 days from notice,appellant shall submit a

memorandum

15 days from receipt ofappellant’s memorandum,appellee may submitmemorandum

Clerk of TC transmit within 30days from perfection:

1. Original record/ record onappeal

2. Proof of payment3. Certified true copy of the

minutes

4. Order of approval5. Certificate of correctness6. Original documentary

evidence7. Original and 3 copies of

transcripts

Prior to the transmittal of

records, LC may issue:1. Order for protection/

preservation of rights2. Approve compromise3. Permit appeals by indigent4. Order execution5. Allow withdrawal of appeal6. Dismiss motu proprio for

late filing or non-paymentof docket and other lawfulfees (STRICT )

Upon receipt, CA shall docketcase and notify parties

Residual powers still ineffect prior to CA giving it

due course

CA may requirerespondent to comment(not MTD) within 10 days

CA may dismiss if:1. Patently without merit2. Manifestly for delay3. Questions too

unsubstantial4. Failure to comply with

payment, deposit,

proof of service andcontents of petition

CA may give due courseto petition after filing orexpiration to file commentif it finds prima facie merit

CA may order elevation ofrecord within 15 days fromnotice

CA may set the case fororal arguments or require

Residual powers still ineffect prior to CA giving it

due course

CA may requirerespondent to comment(not MTD) within 10 days

CA may dismiss if:1. Patently without merit2. Manifestly for delay3. Questions too

unsubstantial4. Failure to comply with

payment, deposit,

proof of service, andcontents of petition

CA may give due courseto petition after filing orexpiration to filecomment if it finds primafacie merit

CA may requiretransmittal of recordwithin 15 days fromnotice (record may beabridged by agreement)

Residual powers still ineffect prior to SC giving

it due course

Review not a matter ofright! So reasonswarranting review:

1. LC decided aquestion ofsubstance notdetermined by theSC

2. LC decided it in away probably not inaccord with law or

jurisprudence3. LC has departed

from the acceptedand usual course of judicial proceedings

4. LC has sanctionedsuch departure byanother LC

SC may dismiss if:1. Without merit2. Manifestly for delay3. Questions too

unsubstantial


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Upon filing of lastmemorandum or expiration ofperiod for filing, deemed

submitted for decision

Stays? Yes

10 days from notice,appellant in record of appeal,shall file 7 copies of approved

record on appeal + proof ofservice of 2 copies uponappellee

45 days from notice of clerk

that record is complete,appellant shall submit 7copies of his appellant’s brief

+ proof of service of 2 copieson appellee

45 days from receipt ofappellant’s brief, appelleeshall file 7 copies ofappellee’s brief + proof ofservice of 2 copies on

appellant

20 days from receipt of

appellee’s brief, appellantmay file appellant’s reply brief

Filing of briefs extendible?Yes

For certiorari, prohibition,mandamus, quo warranto,and habeas corpus – partiesshall file their memoranda(mandatory) instead of briefswithin 30 days from notice ofclerk

Stays? YesEx? CA directs otherwise

parties to submitmemoranda within 15days from notice

Case deemed submittedfor decision upon filing ofthe last pleading

Stays? Yes

Ex?1. Summary Procedure2. CA directs otherwise

3. Rules direct otherwise

*Note: only time elevatedrecord need to becertified

CA may set the case fororal argument or requireparties to submitmemoranda within 15days from notice

Case deemed submittedfor decision upon filing of

the last pleading

Stays? NoEx?1. CA directs otherwise

4. Failure to complywith payment,deposit, proof ofservice, and contents

of petition

SC may requireelevation of the recordwithin 15 days from

notice

SC may require filing of

pleadings/ briefs/memoranda/ documentsas it may deemnecessary within suchperiods and under suchconditions it mayconsider appropriate

Stays? YesEx? SC directsotherwise

Form and

Content ofMemorandum/

Brief

Appellant’s Memorandum:mandatory

1. Discuss the errors*Served on adverse party

Appellee’s Memorandum

Appellant’s Brief : mandatory1. Subject index2. Assignment of errors3. Statement of the Case4. Statement of Facts

5. Statement of Issues6. Argument7. Relief8. Copy of judgment if not

record on appeal

Appellant’s Petition (seeabove)

7 copies of Comment:1. Whether he accepts

statement of matters2. Point out

insufficiencies/inaccuracies

3. Why it should not begiven due course

Appellant’s Peti tion (seeabove)

7 copies of Comment:1. Point out

insufficiencies/inaccuracies

2. Reason why shouldbe denied

3. Material portions ofthe record and other

Appellant’s Petit ion (seeabove)

Other pleadings/ briefs/memoranda, up to the

SC


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Appellee’s Brief:1. Subject index2. Statement of Facts or

Counter-Statement of Facts

3. Argument

Appellant’s Reply Brief: Answer points in theappellee’s brief not covered in

main brief

4. Material portions of therecord (certified)

supporting papers(certified)

* Proof of service filedwith CA

Subject of Appeal: Judgment/final order that completely disposes of the case OR ofa particular matter (if declared to be appealable), but not:

1. Denying petition for relief from judgment2. Interlocutory order3. Disallowing or dismissing appeal4. Denying motion to set aside a judgment by consent, confession or

compromise on the ground of fraud, mistake or duress, or any other vitiationof consent

5. Order of execution

6. Judgment/final order for or against a particular party/claim while main case ispending unless court allows

7. Dismissing action without prejudice

*Remedy? 65

Lack of Jurisdiction (MTC-RTC)1. Trial on the merits

a. RTC may affirm and try; or

b. RTC may reverse and remand2. With trial on the merits

a. RTC shall not dismiss if it has original jurisdiction and decide +admit

GR: Failure to file appellant’s brief on time is a ground for dismissalEX:

1. Case involves life, liberty, honor, or property

2. Counsel’s negligence without any participatory negligence of client3. Compelling circumstances4. Merit in the case5. Not entirely attributable to the fault/negligence of party6. Lack of any showing that the review sought is merely frivolous or dilatory7. Other party will not be unjustly prejudiced

Government of Belgium case:

1. GR is to dismiss if no AB is filed within period2. This is discretionary not ministerial or mandatory3. Failure to file within period does not mean automatic dismissal4. Requisites for leniency:

a. Circumstances warrantb. Strong considerations of equity/interest of justice

c. No material injury suffered by appelleed. Appellee’s cause not prejudiced (no contention)e. At least no motion to dismiss filed

5. Delay must be for a reasonable period6. Inadvertence of counsel cannot excuse client, except: (see above)

GR: AC may only review errors assigned & properly arguedEX:

1. Question affect jurisdiction

2. Evidently plain or clerical errors3. Consideration necessary for just & complete resolution4. Matters of record having bearing on the issue that parties failed to raise or

which LC ignored5. Matters closely related to error assigned6. Determination of a question is dependent

Grounds for Dismissal of Appeal

1. Failure of the record on appeal to show on its face that it was taken withinthe period

2. Failure to file the notice of appeal or the record on appeal within the period(only one that’s mandatory)

3. Failure of the appellant to pay docket or other lawful fees4. Unauthorized alteration, omissions, or additions in the approved record on

appeal5. Failure of appellant to serve and file the required number of copies within th

period6. Absence of specific assignment of errors or of page references to the record7. Failure of the appellant to take the necessary steps for the correction or

completion within the period8. Failure of the appellant to appear at the PC or to comply with

orders/circulars/directives of the court9. Not appelable

Question of Law 1. Doubt or controversy as to what the law is2. AC can determine without reviewing or evaluating evidence3. Can involve questions of interpretation of the law with respect to certain set

of facts


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GR: SC is not a trier of factsEX:

1. Speculations, surmise, or conjecture2. Manifestly absurd, mistaken, or impossible3. Premised on misrepresentation of facts

4. Grave abuse of discretion in the appreciation of facts5. Findings are conflicting6. CA went beyond issues and is contrary to both admissions of appellants and

appellees7. Findings of fact of CA are at variance to TC8. Without citation of specific evidence9. Facts set forth in petition and petitioner’s briefs are not disputed

10. Findings of fact of CA premised on supposed evidence but contradicted byevidence on record

11. Material facts and circumstances have been overlooked, which would alterthe result

12. Habeas Data

13. Writ of Amparo14. Writ of Kalikasan15. Criminal case and Reclusion Perpetua/ life/ death

Appeal in special cases:1. Writ of Amparo – 45 to the SC (5 working days)2. Writ of Habeas Data – 45 to the SC (5 working days)3. Writ of Kalikasan – 45 to the SC (15 days)

C. RULE 43

CASES COVERED CASES NOT COVERED

1. CSC2. CBAA

3. SEC4. OP5. LRA

6. SSC7. CAB8. BPTT (now IPO)9. NEA10. ERB

11. NTC12. DAR13. GSIS14. ECC15. AIB16. IC17. PAEC18. BOI

19. CIAC20. VA

*Not exclusive list21. Office of the Ombudsman (administrative)

If not here check the following?1. Is it a QJ agency?2. Does it exercise QJ function?

3. Check the IRR —a. Does it provide mode of appeal? 43b. Does it say immediately executory? 65

1. NLRC – 65 to CA2. CTA EB – 45 to CA

3. Office of the Ombudsman (criminal and non-administrative cases) – 65 to SC4. Secretary of DOJ – Office of the President5. COMELEC – 64 to SC

6. COA – 64 to SC7. Sandiganbayan (less than D/LI/RP and civil cases) – 45 to SC8. Sandiganbayan (LI/RP) – notice of appeal to SC9. Sandiganbayan (death) – automatic review to CA


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D. CIVIL v. CRIMINAL APPEAL

CIVIL CRIMINAL

Who Any party Any party but judgment of acquittal is final except1. Appeal of civil aspect2. Appeal criminal provided no double jeopardy

a. Made upon motion or with consent of accusedb. Not on the meritsc. Question is purely legal and if found incorrect, would have to be

remanded3. Appeal criminal if there is violation of due process

“Any party” means all those affected:1. Accused2. Government (provided one of the above)3. Offended party (private)4. Employers under Art. 1035. Bailee

How 1. Ordinary appeal by notice of appeal (RTC/CA)

2. Petition for review (CA)3. Petition for review on Certiorari (SC)

Same but it becomes complicated with the death/RP/LI so!

1. Ordinary appeala. MTC/MeTC/MCTC -> RTCb. RTC (original) -> CAc. RTC (RP/LI/same occasion) -> CA

d. CA (RP/LI) -> SC2. Petition for Review (42)

a. RTC (appellate) -> CA3. Petition for Review on Certiorari (45)

a. RTC (pure questions of law) -> SCb. CA (appellate and not death/RP/LI) -> SC

4. Automatic Review (no need to file notice of appeal)a. RTC (death) -> CAb. CA (affirms death) -> SC

Fresh Period? YES (Neypes) Yes (Yu)

MTC-RTC 1. Within 5 days, clerk must transmit record2. Clerk of RTC, upon receipt, notify parties

3. Within 15 days, appellant must file memorandum

1. Within 15 days, clerk must transmit record2. Clerk of RTC, upon receipt, notify parties

3. Within 15 days, appellant must file memorandum

Special Rule if Death Penalty- Record forwarded to CA for automatic review within 20 but not earlier than

15 days from promulgation or denial of MR/MNT

Appellant’s Brief 45 days from receipt of notice

7 copiesProof of service of 2 copies

30 days from receipt of notice from clerk that evidence is already attached to the

record7 copiesProof of service of 2 copies

Appellee’s Brief 45 days from receipt of Appellant’s Brief7 copiesProof of service of 2 copies

30 days from receipt of Appellant’s Brief7 copiesProof of service of 2 copies

Appellant’s Reply Brief 20 days from receipt of Appellee’s Brief 20 days from receipt of Appellee’s Brief

Extendible? Yes Yes


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Contents of Brief See above (certified true copy of decision only if not broughtup by record on appeal)

Same as in civil but must append certified true copy of decision at all times

Grounds for Dismissal Usually it’s:

1. Patently without merit2. Manifestly for delay3. Questions too unsubstantial4. Failure to comply with payment, deposit, proof of

service and contents of petition5. Rule 50

CA may dismiss (motu proprio or on motion, with notice):

1. Appellant fails to file his brief within time except when represented bycounsel de officio

2. Appellant escapes from prison3. Appellant jumps bail4. Appellant flees to a foreign country during pendency

MNT Grounds:1. FAME

2. NDE

Grounds (But take note this is under procedure in CA):1. NDE

AJ Applicable Not applicableRemedy if extrinsic fraud or lack of jurisdiction? 65 or Habeas Corpus

Stays? Yes, except 43 Yes

Counsel de Officio

1. Confineda. Unless if requested within 10 days from receipt of notice to file brief and the right established by affidavit

2. Without counsel de parte3. Signed the notice of appeal himself

GR: Findings of judge who tried the case and heard witnesses are not disturbedEx: shown that TC overlooked certain facts that might affect result

Other Powers of CA1. Try cases and conduct hearings2. Receive evidence3. Perform any and all acts necessary:

a. Falling under jurisdictionb. Including new trials or further proceedings

E. 45 v. 65

45 65Mode of appeal Special Civil Action; original and independent action

Review final judgments/final orders May be directed against interlocutory order

Only questions of law (except if one of exceptions) Questions of jurisdiction

Filed within 15 days fro notice of judgment/final order Filed not later than 60 days from notice of judgment/order/resolution or notice of denial ofMNT/MR

Does not require MR Requires MR as a general rule

Stays Judgment Does not stay judgment or order unless enjoined or restained

Parties are original parties Tribunal/board/officer is impleaded as respondent


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CASE DOCTRINES

MOTION FOR NEW TRIAL

GROUNDS:

(a) Fraud, accident, mistake or excusable negligence which ordinaryprudence could not have guarded against and by reason of which such

aggrieved party has probably been impaired in his rights; or(b) Newly discovered evidence, which he could not, with reasonablediligence, have discovered and produced at the trial, and which if presentedwould probably alter the result.

REQUISITES OF NEWLY DISCOVERED EVIDENCE: (Berry Rule)

. Must have been discovered after trial

. Could not have been discovered & produced at trial even with exercise ofreasonable diligence

. Evidence is of such weight that if admitted, would probably alter the resultof the trial

. Must be material & relevant, not merely collateral, cumulative orcorroborative

Habaluyas v. Japson no motion for extension of time to file a MNT or MRmay be filed with the MeTC or MTC, RTC, and IAC.Such a motion may be filed only in cases pendingwith the SC, which may in its sound discretion either

grant or deny the extension requested.

In appeals in special proceedings and in othercases wherein multiple appeals are allowed, amotion for extension of time to file the record onappeal may be filed within the reglementary periodof 30 days.

If the court denies the motion for extension, theappeal must be taken within the original period,

inasmuch as such a motion does not suspend theperiod for appeal. The trial court may grant saidmotion after the expiration of the period for appealprovided it was filed within the original period.

Delos Santos v.Elizalde

Within the reglementary period, the aggrieved partymay also move for reconsideration upon thegrounds that the damages awarded are excessive,that the evidence is insufficient to justify the

decision or final order, or that the decision or finalorder is contrary to law.

The period of appeal shall be interrupted by a timelymotion for new trial or reconsideration.

The 15 day period begins to run upon receipt of

notice of the decision or final order appealed from.Such period has been considered to begin uponreceipt of notice by the counsel of record, which is

considered notice to the parties.

Bernaldez v. Francia The MNT on ground of newly discoveredevidence shall be granted on the concurrence of

the following requisites:

. the evidence is discovered after trial;

the evidence could not have been discoveredand produced during trial even with the exerciseof reasonable diligence; and

the evidence is material and not merelycorroborative, cumulative or impeaching and is

of such weight that if admitted, would probablychange the judgment. In order that a particularpiece of evidence may be regarded as “newlydiscovered” for purposes of granting a new trial,it is essential to show that the offering partyexercised reasonable diligence in seeking tolocate such evidence before or during trialbut had nonetheless failed to secure it.

The Court notes that although petitioners found outabout the existence of said TCT only after trial, they

could have easily discovered the same before orduring the trial of the case had they bothered tocheck the TCT of respondent’s lot to ascertain

whether or not it overlapped with their own lot.

Capuz v. CA The SC however, held that the petition ismeritorious in that his motion for lifting thedefault order and setting aside the judgment

could be regarded as a motion for new trialbecause It alleges FAME and a meritoriousdefense. Though there was no affidavit of meritaccording to the dismissal by the CA, it shouldbe noted that there is no need to attach aseparate document for the affidavit of merit. Itcould be embodied in the petition itself


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Libudan v. Gil The fraud must be extrinsic, not intrinsic.Extrinsic (or collateral) fraud “connotes anyfraudulent scheme executed by a prevailing litigant‘outside the trial of a case against the defeated

party, or his agents, attorneys or witnesses,whereby said defeated party is prevented frompresenting fully and fairly his side of the case.’ Butintrinsic fraud takes the form of ‘acts of a party in alitigation during the trial, such as the use of forgedinstruments or perjured testimony, which did notaffect the presentation of the case, but did prevent afair and just detemination of the case.’”

Alfarero v. Sevilla Rule 37, Section 1 of the 1997 Rules of CivilProcedure clearly provides that a motion for newtrial should be made “within the period fortaking an appeal.” Instead, what the record showsis that Alfarero, in effect, only asked for a new trialafter the appellate court had rendered itsdecision on appeal. Such a situation is definitelynot permissible under the Rules. It is well accepted

that a motion for new trial based on newlydiscovered evidence may indeed be filed after

judgment, but within the period for perfecting anappeal.

Ybiernas v. Tanco-Gabaldon

The question of whether evidence is newlydiscovered has two aspects: a temporal one, i.e.,

when was the evidence discovered, and a predictiveone, i.e., when should or could it have beendiscovered. It is to the latter that the requirement ofdue diligence has relevance. We have held that inorder that a particular piece of evidence may beproperly regarded as newly discovered to justifynew trial, what is essential is not so much the timewhen the evidence offered first sprang into

existence nor the time when it first came to theknowledge of the party now submitting it; what isessential is that the offering party had exercisedreasonable diligence in seeking to locate suchevidence before or during trial but hadnonetheless failed to secure it . The Rules do notgive an exact definition of due diligence, andwhether the movant has exercised due diligence

depends upon the particular circumstances of eachcase. Nonetheless, it has been observed that thephrase is often equated with “reasonablepromptness to avoid prejudice to the defendant.” Inother words, the concept of due diligence has both

a time component and a good faith component. The

movant for a new trial must not only act in a timelyfashion in gathering evidence in support of themotion; he must act reasonably and in good faith aswell. Due diligence contemplates that the defendant

acts reasonably and in good faith to obtain theevidence, in light of the totality of the circumstancesand the facts known to him. Tanco relied in goodfaith on the veracity of the Order dated June 30,1989 which the heirs presented in court. Given thiscircumstance, we hold that respondents exercisedreasonable diligence in obtaining the evidence. Thecertifications therefore qualify as newly discovered

evidence.

MOTION FOR RECONSIDERATION

Grounds:a. that the damages awarded are excessive,b. that the evidence is insufficient to justify the decision or final order, orc. that the decision or final order is contrary to law.

Rule 15, Section 4.

(Hearing of motion)

Rue 15, Section 5(Notice of hearing)

Except for motions which the court may act upon

without prejudicing the rights of the adverse party,every written motion shall be set for hearing bythe applicant.

Every written motion required to be heard and thenotice of the hearing thereof shall be served insuch a manner as to ensure its receipt by the other party at least 3 days before the date of hearing,unless the court for good cause sets the hearing on

shorter notice.

The notice of hearing shall be addressed to allparties concerned, and shall specify the time and

date of the hearing which must not be later thanten days after the filing of the motion.

Cansino v. CA Allowing the Spouses to present new evidence in itsmotion for reconsideration cannot be allowedbecause Rule 37 implies that a motion forreconsideration must not be used as a vehicle forpresenting new evidence. Piecemeal presentationof evidence is not in accord with orderly justice.

Dacanay v. Alvenida A MR which has no other purpose than to gain timeis pro forma and does not stop the period of appeal

from slipping away. The Court stressed on the fact

that after July 15, August 29, and October 23,


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Dacanay’s theory and arguments have not changedand his last MR on November 21 was no different,which leads to the conclusion that it was pro forma. As the MR did not suspend the running of the

reglemantry period, his appeal should have beenfiled on November 27, 1963.

Mere citation and/or amplification of authorities notpreviously brought to the court's attention on the

same argument does not remove the pleading fromthe ambit of the pro forma doctrine.

National Commercial

bank of Saudi Arabiav. CA

Mere citation and/or amplification of authorities not

previously brought to the court's attention on thesame argument does not remove the pleading fromthe ambit of the pro forma doctrine. The filing of abelated notice of hearing cannot cure this defect.

MarikinaDevelopment Corp.v. Flojo

An MR that deals with the same issues andarguments posed and resolved by the trial court inits decision does not necessarily mean that it’smerely pro forma. The movant must point out

succinctly why reconsideration is warranted. Also,where the circumstances of a case do not show anintent on the part of the movant merely to delay theproceedings, the SC has refused to characterize themotion as simply pro forma.

Balanoba v.Madriaga

1. The provision states: “No party shall be allowed a2nd MR of a judgment or final order.” Plainly, thisstatement means that any party -- whether the

winning or the losing litigant -- is prohibited. Accordingly, winning litigants may also move forreconsideration of a part or parts of a decision or afinal order. In the event that the motion is denied, anattempt at a 2nd MR would be prohibited under thesaid provision.

2. What is proscribed is a 2nd MR of a “judgment orfinal order.” The provision frowns upon the

piecemeal impugnment of a judgment or final orderby the filing of successive MRs. Also, it is consistentwith the policy that all litigations must come to anend at some point. The filing of successive motionsis certainly not the case here. Thus: the prohibitionagainst 2nd MRs applies only to judgments orfinal orders, not to orders authorizing theexecution of final judgments

The decision of the trial court was already final andexecutory; yet, Madriaga has obtained only a partialexecution of his money judgment. It was to effect afull execution that he filed a “Motion for Issuance of

a Notice of Garnishment.” The series of “MRs” hesubsequently filed referred to matters attendant to acomplete execution of the Decision in his favor.Those Motions were not for the reconsiderationof the final judgment.

APPEAL FROM MTC TO RTC (RULE 40)

Badillo v. Tayag SC ruled that NHA is exempted from paying docket

fees since it is in performance of its governmentalfunctions and in appeals from MTC to RTC, thefailure to pay the appellate docket fees does notautomatically result in the dismissal of theappeal, the dismissal being discretionary on thepart of the appellate court. It is appeals from RTCto CA where payment of docket fees is an essentialrequirement.

failure to pay the appellate docket fee within the 15-day reglementary period bestows on the appellatecourt a directory, not a mandatory, power to dismissan appeal

Estate ofMacadangdang v.Gaviola

The general rule is that a client is bound by the acts,even mistakes, of his counsel in the realm ofprocedural technique.

There are exceptions to this rule, such as when thereckless or gross negligence of counsel deprivesthe client of due process of law, or when theapplication of the general rule results in the outright

deprivation of one’s property through a technicality.

In this case, respondents’ counsel advanced thisreason for his failure to submit the appeal

memorandum: That there was a delay in the filing ofGaviola’s appeal memorandum due to the heavybacklog of legal paperwork piled on the table ofthe undersigned counsel, and he realized hisfailure to submit defendants[’] appealmemorandum when he received a copy of thedismissal of the case. This was NOT grossnegligence accdg to the SC.


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Mejillano v. Lucillo According to Section 7b of Rule 40, it is the dutyof the appellant to submit a memorandum todiscuss briefly the errors imputed to the lowercourt. It also states that failure to file a

memorandum shall be a ground for thedismissal of the appeal. It is obligatory on hispart to file the memorandum within 15 days. Thelaw is mandatory and compulsory. In rules ofprocedure, an act which is jurisdictional, or ofthe essence of the proceedings, or is prescribedfor the protection or benefit of the party affectedis mandatory. The argument that the procedural

rules should be relaxed so as not to defeat his rightsis also unmeritorious because it has been jurisprudentially held that, while the rules ofprocedure are liberally construed, the provisions onreglementary periods are strictly applied,indispensable as they are to the prevention ofneedless delays, and are necessary to the orderlyand speedy discharge of judicial business. Also, the

right to appeal is neither a natural right nor a part ofdue process; it is merely a statutory privilege, andmay be exercised only in the manner and in

accordance with the provisions of law. n appealbeing a purely statutory right, an appealing partymust strictly comply with the requisites laid down inthe Rules of Court. In other words, he who seeks toavail of the right to appeal must play by the rules.This, the petitioner failed to do when he did not

submit his memorandum on appeal.

Macaslang v.Zamora

GN: Appellate court may only review errorsassigned and properly argued

Exceptions:(a) When the question affects jurisdiction

(b) Matters that evidently plain or clerical errors(c) Matters whose consideration is necessary for a

just and complete resolution(d) Matters of record having bearing on the issue

that parties failed to raise(e) Matters closely related to an error assigned(f) Matters upon which the determination of a

question is dependent

Herrera v. Bollos In the case, the MTC dismissed the case for lack of jurisdiction, and the RTC reversed the dismissal butrendered judgment ejecting Herrera from the parcelof land involved, and condemning them to paydamages and attorney’s fees. This is not correct. In

case of reversal, the case shall be remanded tothe MTC for further proceedings. The RTC, inreversing an appealed case dismissing theaction, cannot decree the eviction of the

defendants and award damages.

APPEAL FROM RTC TO CA (RULE 41)

SEC.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 mattertherein 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 orduress, or any other ground vitiating consent.

(f) An order of execution;

(g) A judgment or final order for or against one or more of severalparties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the courtallows an appeal therefrom; and

(h) An order dismissing an action without prejudice.

In all the above instances where the judgment or final order is notappealable, the aggrieved party may file an appropriate special civil action

under Rule 65.

Neypes v. CA To standardize the appeal periods provided in theRules and to afford litigants fair opportunity toappeal their cases, the Court deems it practical toallow a fresh period of 15 days within which to file

the notice of appeal in the Regional Trial Court,counted from receipt of the order dismissing a

motion for a new trial or motion for reconsideration.

Eda v. CA An appeal is not perfected merely by the payment ofthe appeal fee. Section 9, Rule 41 of the Rules ofCivil Procedure categorically states that an appealby notice of appeal is deemed perfected as tohim upon the filing of the notice of appeal in duetime. In other words, an appeal filed out of time

cannot be perfected.


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Kho v. Camacho Supreme Court ruled that the respondent judge didnot act correctly in disapproving the notice ofappeal. What respondent Judge should have doneunder the circumstances was to sustain his

approval of the notice of appeal and leave it to theCourt of Appeals to certify the case to the propertribunal if warranted. Indeed, Judge Leviste hadabsolutely no authority to disapprove the notice ofappeal. Under the present rules, the RTC judge’srole is to approve or disapprove the record onappeal (when required) and the appeal bond, butnot a notice of appeal. A notice of appeal does

not require the approval of the trial court.

Worldwide Web Corpv. People

A final order is defined as one which disposes of thewhole subject matter or terminated a particularproceeding or action, leaving nothing to be done butto enforce by execution what has been determined;on the other hand, an order is interlocutory if it doesnot disposed of a case completely, but leavessomething more to be done upon its merits.

An application for a search warrant is a judicialprocess conducted either as an incident in a maincriminal case already filed in court or in anticipationof one yet to be filed. Where the search warrant isissued as an incident in a pending case, thequashal of a search warrant is merelyinterlocutory. In contrast, where a searchwarrant is applied for and issued in anticipation

of a criminal case yet to be filed, the orderquashing the warrant (and denial of a motion forreconsideration of the grant) ends the judicialprocess. There is nothing more to be donethereafter.

Spouses Campos v.Republic

As a general rule, an assignment of error isessential to appellate review and only those errorsassigned will be considered. As exceptions to therule, the Court has considered grounds not raised orassigned as errors in instances where:(1) affecting jurisdiction over the subject matter;(2) evidently plain or clerical errors within the

contemplation of the law;(3) consideration is necessary in arriving at a just

decision and complete resolution of the caseor to serve the interest of justice or to avoiddispensing piecemeal justice;

(4) raised in the trial court and are matters of

record having some bearing on the issue

submitted which the parties failed to raise orwhich the lower court ignored;

(5) closely related to the assigned error/s; and(6) determination is necessary to rule on the

question/s properly assigned as errors.

The appellate court reserves the right, resting on itspublic duty, to take cognizance of palpable error onthe face of the record and proceedings, and tonotice errors that are obvious upon inspection andare of a controlling character, in order to prevent amiscarriage of justice due to oversight

Valdez v. FinancieraManila

The CA had no jurisdiction to decide the saidpetition for certiorari. The proper remedy was anappeal, as the case had proceeded from a denial ofa motion for execution of a judgment. Consideringthat an appeal was still available as a remedy forthe assailed Orders of the RTC, the filing of thepetition for certiorari was an attempted substitute foran appeal, after respondent failed to avail itself of

the latter remedy.

Palma v. Galvez Certiorari under Rule 65 is the proper remedybecause under Sec. 1(g) of Rule 41, when the judgment or final order is not appealable andsuch judgment/final order is for or against oneor more of several parties (or in separate claims,counterclaims, cross-claims, and third-party

complaints), the aggrieved party may file anappropriate special civil action for certiorariunder Rule 65. In this case, the RTC Ordergranting Agudo’s MTD and denying Palma’s MR arefinal orders that terminate the proceedings againsther while the complaint for damages against theother defendants are still pending. Since there is no

appeal, or any plain, speedy, and adequate remedyin law, certiorari is proper to promptly relieve the

aggrieved party from the injurious effects of the actsof an inferior court or tribunal

Philexport v. Phil.Infrastructures

Prior to the 1997 Rules of Civil Procedure, an orderdismissing a petition without prejudice may beappealed by way of ordinary appeal. Consideringthat the CA promulgated its decision in 1994, it didnot err in dismissing the petition. At present, no

appeal may be taken from an order dismissingan action without prejudice. It may be subject of


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a special civil action for certiorari under Rule 65.

Ko v. PNB Petitioner’s Counsel erred in filing a Petition forCertiorari under Rule 45. The proper recourse was

to file an Ordinary Appeal with the CA under Rule41, considering that an order for dismissal for failureto prosecute has the effect of an adjudication on themerits. Petitioner’s Counsel should have filed aNotice of Appeal with the CA within the

reglementary period. Perhaps due to failure to file aNotice of Appeal within the remaining 2 days of theappeal period, Petitioner’s Counsel, filed the instant

Petition instead. These Rules are established toprovide order to and enhance the efficiency of our judicial system, hence should not be trifled with oroverlooked.

Samson v. Fiel-Macaraig

Where the issue is an error of law or fact which isa mistake of judgment, the remedy is APPEAL.Also, the remedy to obtain reversal ormodification of the judgment on the merits is

also APPEAL. The dismissal by respondentJudge being a dismissal on the merits, then theremedy should have been an APPEAL and NOTCERTIORARI

Rovira v. Heirs ofDeleste, et al.

Rule 41 of the Rules of Court provides: No recordon appeal shall be required except in specialproceedings and other cases of multiple orseparate appeals where the law or these Rules

so require.

The main action here, being a suit for recovery ofownership and possession, is not one wheremultiple appeals can be taken or are necessary.The choice of asserting a claim for attorney's fees inthe very action in which the services in questionhave been rendered, will not convert a regular caseinto one falling under the category of "other cases of

multiple or separate appeals where the law or theseRules so require." The main case handled bypetitioner lawyer has already been decided withfinality up to the appeal stage and is already inthe execution stage. The trial court has alsoalready resolved the incident of attorney's fees.Hence, there is no reason why the originalrecords of the case must remain with the trial

court. There was also no need for respondents tofile a record on appeal because the original records

could already be sent to the appellate court for theresolution of the appeal on the matter of theattorney's fees. Since the case has not beenmade out for multiple appeals, a record on

appeal is unnecessary to perfect the appeal. Theonly requirement to perfect the appeal is thefiling of a notice of appeal in due time. This therespondents did.

ORDINARY APPEALED CASES (RULE 44)

Contents of the appellant’s brief:

1. subject index—digest of arguments and page references; table ofcases, textbooks and statutes cited, with references to the pages ofthe record where they are cited

2. assignment of errors—separately, distinctly and concisely stated;w/o repetition; numbered consecutively

3. statement of the case—statement of the nature of the action,summary of proceedings, appealed rulings and orders of the court,nature of the judgment, any other necessary matters, with pagereferences

4. statement of facts—in narrative form, with page references5. statement of the issues of facts or law

6. arguments—arguments on each assignment of error, with pagereferences

7. relief8. a copy of the judgment or final order appealed from—ONLY for

cases requiring solely notice of appeal

Contents of the appellee’s brief:1. subject index2. statement of facts (if he accepts the facts as stated by the

appellant), or counter-statement of facts, where he shall point outinsufficiencies or inaccuracies in the appellant’s statement of facts,with page references

3. arguments—for each assignment of error

De Leon v. CA Note that the amended brief was filed without theproper motion for leave to do so and correspondingorder from the respondent court. Even moresignificant, it was filed beyond the extensions oftime granted to appellants. The discretion inaccepting late briefs conferred upon respondentcourt which this Court applied in the cases of Maquivs. CA and Vda. de Haberer vs. CA finds no

application under the present circumstancesbecause, unlike in these two cases, here no validreason was advanced for the late filing of theamended brief.


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(Rule 44 Sec 12 – extension not allowed except forgood and sufficient cause and only if the motion forextension is filed before the expiration of the timesought to be extended.)

While the amended brief might contain nosubstantial and prejudicial changes, it was error forthe respondent court to accept the amended briefas filed and then require petitioner to file appellee’s

brief because admittedly the amended brief wasfiled beyond August 31, 1998, the last period ofextension granted to private respondents.

De Liano v. CA

*this case alsodiscussed thecontents of theappellant’s brief

The issue in this case is whether or not CA erred indismissing the appeal because of puretechnicalities. SC ruled that the CA was correctsince right to appeal is a statutory right. The ruleswere designed to assist the appellate court in theaccomplishment of its tasks, and overall, toenhance the orderly administration of justice. CAdoes not need to go to the merits of the casesince the case was already dismissed in the

completion stage.

The Rules of Court prescribe two modes of appealfrom decisions of the RTC to the CA:1. When the trial court decides a case in the

exercise of its original jurisdiction, the mode ofreview is by an ordinary appeal in accordancewith Section 2(a) of Rule 41. (applicable tocase at bar!) [questions of fact, and mixed

questions of law and fact] (bawal questions oflaw only if the appeal is under Rule 41!!)

2. When the assailed decision was rendered bythe trial court in the exercise of its appellate

jurisdiction, the mode of appeal is via a petitionfor review pursuant to Rule 42. [questions oflaw, questions of fact, and mixed]

Cases elevated to the CA are treated differentlydepending upon their classification into one of three(3) categories: appealed civil cases, appealedcriminal cases, and special cases. All cases areunder the supervision and control of the members ofthe CA in all stages, from the time of filing until theremand of the cases to the courts or agencies oforigin.

Ordinary appealed civil cases undergo two (2)stages. The first stage consists of completion ofthe records. The second stage is for study andreport, which follows when an appealed case is

deemed submitted for decision (check Sec 1,Rule 51!)

• if no hearing – upon the filing of lastpleading/brief/memo, or the expiration of

period for filing• hearing is held – upon termination of hearing,

or filing of last pleading/memo, expiration forfiling

At each stage, a separate raffle is held (One rafflefor completion, another raffle for study and report).Each stage is distinct; it may happen that theJustice to whom the case was initially raffled forcompletion may not be the same Justice who willwrite the decision thereon.

The aforesaid distinction has a bearing on the caseat bar. It becomes apparent that the merits of the

appeal can only be looked into during the secondstage. The Justice in-charge of completion exceedshis province should he examine the merits of thecase since his function is to oversee completiononly. The prerogative of determining the merits ofan appeal pertains properly to the Justice to whomthe case is raffled for study and report.

The case at bar did not reach the second stage;

it was dismissed during completion stage pursuant to Section 1(f) of Rule 50. Consequently,petitioner’s contention that the appellate courtshould have considered the substance of the appealprior to dismissing it due to technicalities does not

gain our favor.

Mon v. Ca The settled rule in this jurisdiction is that a partycannot change his theory of the case or his cause of

action on appeal. We have previously held that“courts of justice have no jurisdiction or power todecide a question not in issue.”8 A judgment thatgoes outside the issues and purports to adjudicatesomething on which the court did not hear theparties, is not only irregular but also extrajudicialand invalid.9 The rule rests on the fundamentaltenets of fair play. In the present case, the Court

must stick to the issue litigated in the DARAB and inthe Court of Appeals, which is whether petitioner


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has the right to eject the Spouses Velasco from theland under RA 3844.

Tuazon v. Del

Rosario

Failure to file appellee’s brief merely means

waiver of the right to file said brief. The CAcorrectly deemed the case submitted for its decisionand could have decided based on the appellant’sbrief and the records of the case forwarded by theRTC. It did not mean, however, that the CA should

automatically rule in favor of the appellant.

Canlas v. Tubil 1. Tubil’s allegations in the complaint clearly makea case for an unlawful detainer, essential to

confer jurisdiction on the MTC over the subjectmatter. It is settled that as long as theseallegations demonstrate a cause of action forunlawful detainer, the court acquires jurisdictionover the subject matter. This principle holds,even if the facts proved during the trial do notsupport the cause of action thus alleged, inwhich instance the court - after acquiring

jurisdiction - may resolve to dismiss the actionfor insufficiency of evidence. 2. Having ruled thatthe MTC acquired jurisdiction over Civil Case No.3582, it thus properly exercised its discretion indismissing the complaint for unlawful detainerfor failure of the respondent to prove toleranceby sufficient evidence.

Consequently, Section 8 (2nd par.) of Rule 40 of

the Rules of Court which ordains the RegionalTrial Court not to dismiss the cases appealed toit from the metropolitan or municipal trial courtwhich tried the same albeit without jurisdiction,but to decide the said case on the merits, findsno application here.

DISMISSAL OF APPEAL (RULE 50)

SECTION 1. Grounds for dismissal of appeal—An appeal may be dismissedby the Court of Appeals, on its own motion or on that of the appellee, on thefollowing grounds:

(a) Failure of the record on appeal to show on its face that the appeal wastaken within the period fixed by these Rules;

(b) Failure to file the notice of appeal or the record on appeal within theperiod prescribed by these Rules;

(c) Failure of the appellant to pay the docket and other lawful fees as

provided in section 4 of Rule 41;

(d) Unauthorized alterations, omissions or additions in the approvedrecord on appeal as provided in section 4 of Rule 44;

(e) Failure of the appellant to serve and file the required number of copiesof his brief or memorandum within the time provided by these Rules;

(f) Absence of specific assignment of errors in the appellant’s brief, or ofpage 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 correctionor completion of the record within the time limited by the court in itsorder;

(h) Failure of the appellant to appear at the preliminary conference underRule 48 or to comply with orders, circulars, or directives of the court

without justifiable cause; and(i) the fact that order or judgment appealed from is not appealable.

PNB v. PhilippineMilling

"(a)n appeal may be dismissed by the Court of Appeals, on its own motion or on that of theappellee" upon the ground, among others, of "failureof the appellant ... to serve and file the requirednumber of copies of his brief," within thereglementary period. Manifestly, this provision

confers a power and does not impose a duty. Whatis more, it is directory, not mandatory.

Atlas ConsolidatedMining v. CA

Section 9 of BP 129 vests in the CA exclusiveappellate jurisdiction over all final decisions andorder of the regional trial courts, except those fallingwithin the appellate jurisdiction of the SC

The rule therefore is that direct appeals to the SCfrom the trial court of questions of law have to bethrough the filing a petition for review on certiorari.

Furthermore, the SC issued Circular No. 2-90,which states that: “Except in criminal cases where

the penalty imposed is life imprisonment orreclusion perpetua, judgments of regional trial

courts may be appealed to the SC only by petitionfor review on certiorari in accordance with Rule 45of the Rules of Court in relation to Section 17 of theJudiciary Act of 1948, as amended, this being theclear intendment of the provision of the InterimRules that appeals to the Supreme Court shall betaken by petition for certiorari which shall begoverned by Rule 45 of the Rules of Court.”

Under the foregoing considerations, the inescapableconclusion is that Atlas adopted the correct mode of


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appeal by filing with this court a petition for reviewon certiorari the decision of the RTC of Pasig andraising therein purely questions of law.

While it is true that Circular No. 2-90 now prohibitsthe transfer of appeals erroneously taken to theSupreme Court or to the Court Appeals towhichever of these tribunals has appropriate

appellate jurisdiction, this petition does not involve

an erroneous mode of appeal. Respondent court,was, therefore, not justified in refusing to decide thecase on merits.

Cu-Unjieng v. CA Well-settled is the rule that payment of the docketand other legal fees within the prescribed period isboth mandatory and jurisdictional, noncompliancewith which is fatal to an appeal. Nonpayment of theappellate court docket and other lawful fees withinthe reglementary period as provided under Section

4, Rule 41, supra, is a ground for the dismissal of anappeal under Section 1(c) of Rule 50

Belgium v. CA (1) The general rule is for the CA to dismiss anappeal when no appellant’s brief is filed withinthe reglementary period prescribed by therules;

(2) The power conferred upon the CA to dismissan appeal is discretionary and directory and

not ministerial or mandatory;(3) The failure of an appellant to file his brief

within the reglementary period does not havethe effect of causing the automatic dismissal ofthe appeal;

(4) In case of late filing, the appellate court hasthe power to still allow the appeal; however, for

the proper exercise of the court’s leniency it isimperative that:

(a) the circumstances obtaining warrantthe court’s liberality;

(b) that strong considerations of equity justify an exception to the proceduralrule in the interest of substantial justice;

(c) no material injury has been suffered by

the appellee by the delay;(d) there is no contention that the

appellees’ cause was prejudiced;(e) at least there is no motion to dismiss

filed.

(5) In case of delay, the lapse must be for areasonable period; and

(6) Inadvertence of counsel cannot be consideredas an adequate excuse as to call for the

appellate court’s indulgence except: (a) where the reckless or gross negligence

of counsel deprives the client of dueprocess of law;

(b) when application of the rule will resultin outright deprivation of the client’sliberty or property; or

(c) where the interests of justice so

require.

Bachrach v.Philippine Ports Authority

Rule 50, Section 1 of the Rules of Courtenumerates the grounds for the dismissal ofappeals; paragraph (e) thereof provides that anappeal shall be dismissed upon - [f]ailure of theappellant to serve and file the required number ofcopies of his brief or memorandum within the timeprovided by these Rules. In a long line of cases, this

Court has held that the CA’s authority to dismiss anappeal for failure to file the appellant’s brief is a

matter of judicial discretion. Thus, a dismissal basedon this ground is neither mandatory nor ministerial;the fundamentals of justice and fairness must beobserved, bearing in mind the background and webof circumstances surrounding the case.

PETITION FOR REVIEW (RTC to CA) (RULE 42)

Lanaria v. Planta The PFR filed in this case failed to attach plaincopies of the pleadings and other material portionsof the record such as, Complaint for UnlawfulDetainer, Answer with Counterclaim, Parties'Position Paper, Memorandum on Appeal and

Motion for Reconsideration

However, they subsequently submitted the ff

documents annexed to their MR: complaint forejectment, TCT, affidavits, position papers,memorandum of appeal, etc.

SC held: “Submission of a document together withthe motion for reconsideration constitutessubstantial compliance with the requirement thatrelevant or pertinent documents be submitted alongwith the petition, and calls for the relaxation of


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procedural rules”

Only the judgments or orders of the lowercourts must be duplicate originals or be dulycertified true copies. Moreover, the phrases

"duplicate originals" and "true copies" of the judgments or orders of both lower courts, beingseparated by the disjunctive word "OR" indicate thatonly the latter are required to be certified correct bythe clerk of court.

On the argument that there was neither an Affidavitof Service nor Proof of Service attached to thepetition, the SC said there was substantial

compliance: an explanation was provided by thecounsel that the filing of the PFR was done throughregistered mail because of the distance betweenIloilo (where counsel’s office was) and Manila(where CA was).

Perez v. Falcatan Under Rule 42 Sec 2: The petitioner shall alsosubmit together with the petition a certification underoath that he has not theretofore commenced any

other action involving the same issues in the SC,the Court of Appeals or different divisions thereof, orany other tribunal or agency; if there is such otheraction or proceeding, he must state the status of thesame.

However, this Court has relaxed this rule incases where, as here, there is need to conduct areview. In those instances, the Court allowed

petitioners to comply with the requirement after theyhad filed their petitions. Hence, the Court of Appealsdid not err in observing the same liberality torespondents’ petition.

Ang v. Grageda Perfection of an appeal within the statutory orreglementary period is not only mandatory but also jurisdictional; fa ilure to do so renders the questioneddecision/final order final and executory, and

deprives the appellate court of jurisdiction to alterthe judgment or final order, much less to entertainthe appeal.

Under Sec. 7 of R46, failure of the appellant to file amemo within 15 days from notice from the clerk ofcourt is a ground for the dismissal of an appeal.

Balgami v. CA When a party is represented by a counsel in anaction in court, notices of all kinds, includingmotions and pleadings of all parties and all orders ofthe court, must be served on his counsel.

Perfection of an appeal in the manner and within theperiod laid down by law is not only mandatory butalso jurisdictional. The failure to perfect an appealas required by the rules has the effect of defeatingthe right to appeal of a party and precluding the

appellate court from acquiring jurisdiction over thecase.

Heirs of Esplana vCA

Under Rule 42, sec. 1, the law was clear that theparties are allowed only an extension of 15 daysand another 15 for compelling reasons. Thereasons adduced by the heirs (ie. Death of previouscounsel, voluminous paperwork) were notcompelling. The heirs also failed to pay the docketand other lawful fees to be entitled to an extension.Lastly, a motion for extension is not a matter of rightbut only based on a sound discretion of the court.

Montajes v People The PFR was filed out of time based on our

clarification in A.M. No. 00-2-14-SC that the 15-dayextension period prayed for should be tacked tothe original period and commences immediatelyafter the expiration of such period. Thus,counting 15 days from the expiration of the periodwhich was on May 19, 2007, the petition filed on

June 5, 2007 was already two days late.

However, we find the circumstances obtaining inthis case to merit the liberal application of the rule inthe interest of justice and fair play. The PFR wasalready filed on June 5, 2007, which was longbefore the CA issued its Resolution datedSeptember 21, 2007 dismissing the petition for

review for being filed out of time. There was noshowing that respondent suffered any material

injury or his cause was prejudiced by reason ofsuch delay.

Plopenio v.Department of Agrarian Reform

In this case, Plopenia filed a petition with theProvincial Agrarian Reform Adjudicator (PARAD),who decided against them. They filed an “appeal”with the RTC acting as a Special Agrarian Court,who ruled against them as well. On pure questions

of law, they went up to the SC.

Under Section 60 of the Comprehensive AgrarianReform Law (CARL):


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• An appeal may be taken from the decision

of the Special Agrarian Courts by filing apetition for review with the Court ofAppeals within fifteen (15) days fromreceipt of notice of the decision; otherwise,the decision shall become final.

• An appeal from the decision of the CA, or

from any order, ruling or decision of theDAR, as the case may be, shall be by aPFR with the SC within a non-extendibleperiod of 15 days from receipt of a copy ofsaid decision.

• Clearly, petitioners should have appealedthe SAC-RTC Decision to the Court of Appeals.

While the general rule is that appeals raising pure

questions of law from decisions of RTCs are takento this Court via a Rule 45 petition, decisions oftrial courts designated as SACs are onlyappealable to the CA.

Gutierrez v. Cabrera The correct procedure is not to implead the lowercourt or agency which rendered the assailed

decision. However, impleading a lower court judgeas respondent in a petition for review is merely aformal defect, and does not automatically meandismissal of the appeal. It merely authorizes thedismissal of the petition.

While the Court has unquestionably thediscretion to dismiss the appeal for beingdefective, sound policy dictates that it is farbetter to dispose of the case on the merits,

rather than on technicality as the latterapproach may result in injustice. This is inaccordance w/ Rule 1 Sec. 6, which encourages areading of the procedural requirements in a mannerthat will help secure and not defeat justice.

Yamane v. BALepanto

The LGC, or any other statute for that matter, doesnot expressly confer appellate jurisdiction on thepart of RTC from the denial of a tax protest by a

local treasurer. On the other hand, Sec. 22 ofBP129 expressly delineates the appellate jurisdiction of the RTC, confining as it does saidappellate jurisdiction to cases decided by MeTC,MTC, and MCTC. Unlike in the case of the CA,BP129 does not confer appellate jurisdiction onRTC over rulings made by non-judicial entities. Thus, it is evident that the stance of the City

Treasurer is correct as a matter of law, and that the

proper remedy of the Corp. from the RTC judgmentis an ordinary appeal under Rule 41 to the CA.

Difference between original and appellate jurisdiction:

• Original jurisdiction is the power of theCourt to take judicial cognizance of a caseinstituted for judicial action for the first timeunder conditions provided by law.

•

Appellate jurisdiction is the authority of aCourt higher in rank to re-examine the finalorder or judgment of a lower Court whichtried the case now elevated for judicial

review.”

Thus, if a case was decided by the City Treasurer—or any “non-judicial entity” as per Sec. 22 of BP129—was taken to the RTC, it is considered as anoriginal petition filed before the RTC exercising itsoriginal jurisdiction.

CTA and QUASI-JUDICIAL AGENCIES to CA (RULE 43)

St. Martin FuneralHome v. NLRC

NLRC ! CA via 65

The special civil action of certiorari (Rule 65) isunder the concurrent original jurisdiction of the CAand the SC. But the hierarchy of courts must still berespected. So lodge first with the CA an action forcertiorari under Rule 65 before bring it to the SC.

For NLRC decisions, appeals directly to the SCwere eliminated by BP 129. The propery remedytherefore for NLRC decisions is Rule 65 to the

CA first, and then to SC.

CA is equipped to review and reweigh ALL theevidence on record, while SC has no power to do sobecause “it is not a trier of facts” and they usually just remand the case to the NLRC.

Philtranco v.Philtranco Workers

Union

Sec. of Labor (evenif acting as VA)! CA via 65

The remedy of an aggrieved party in a decision ofthe Sec. of Labor (even if he/she is acting as a

voluntary arbitrator) is to timely file an MR as aprecondition for any further or subsequent remedyand then seasonably file a special civil action forcertiorari under Rule 65 to the CA

Even though an MR is not required or evenprohibited by the concerned government office, andthe petitioner files the motion just the same, the 60–day period shall nonetheless be counted from noticeof the denial of the motion.


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Fabian v. Desierto

Ombudsman Admin! CA via 43

RA 6770 provides: “All administrative disciplinarycases, orders, directives or decisions of the Officeof the Ombudsman may be appealed to this Courtin accordance with Rule 45 of the Rules of Court.”

But this law violated the consti provision whichprovides that “No law shall be passed increasing theappellate jurisdiction of the Supreme Court asprovided in this Constitution without its advise andconsent." Thus, the aforequoted provision in RA6770 is void and is of no legal effect.

Appeals from judgments and final orders of quasi- judicial agencies are now required to be brought to

the CA on a verified PFR, under the requirementsand conditions in Rule 43 which was preciselyformulated and adopted to provide for a uniform ruleof appellate procedure for quasi-judicial agencies.Rule 43 applies not only to "ordinary" quasi- judicial agencies, but also to the Office of theOmbudsman, which is a "high constitutional body."

Tirol v.

Sandiganbayan

Ombudsman Crim ! CA via 65

All appeals from decision of the Ombudsman in

administrative disciplinary cases may be taken to

the CA via an appeal under Rule 43. The problemis that such right of appeal is not granted to partiesaggrieved by orders and decisions of theOmbudsman in criminal cases, like finding probablecause to indict accused persons.

However, an aggrieved party is not without recoursewhere the finding of the Ombudsman as to the

existence of probable cause is tainted withgadalej. The remedy is for an aggrieved party to filea petition for certiorari under Rule 65.

Elma v. Jacobi

DOJ crim [reclusionperpetua to death] ! OP! CA via 43

DOJ crim [less than

reclusion perpetua]! CA via 65

Rule 43 excludes the DOJ from the list of quasi-

judicial agencies whose decisions are reviewable bythe CA. This is because the DOJ is under thecontrol of the President, so that DOJ decisions arereviewable by the President. But the Office of the

President (OP) is in the enumeration in Rule 43,which means that decisions by the OP areappealable to the CA via Rule 43. Thus, a personaggrieved by a decision of the DOJ must first seekrecourse to the OP before going to the court (tosatisfy the requirement of exhaustion of remedies).

Here’s the catch: Memorandum Circular No. 58 ofthe OP bars an appeal from the decisions, orders,

and resolutions of the Sec. of Justice on preliminaryinvestigations of criminal cases via PFR, except forthose offenses punishable by reclusion perpetua todeath. So water you gonna do?

DOJ crim [reclusion perpetua to death] ! OP ! CAvia 43

DOJ crim [less than reclusion perpetua] ! CA via

65

Side doctrine: An investigating prosecutor performsfunctions of a quasi-judicial nature in the conduct ofa preliminary investigation. However, since he doesnot make a determination of the rights of any party

in the proceeding, or pronounce the respondent’sguilt or innocence (thus limiting his action to thedetermination of probable cause to file aninformation in court), an investigating prosecutor’sfunction still lacks the element of adjudicationessential to an appeal under Rule 43.

DepEd v. Cuanan

CSC ! CA via 43

General Rule: CSC resolutions are appealable toCA via Rule 43

Exceptions:a. When public welfare and the advancement of

public policy dictates; b. When the broader interest of justice so

requires;c. When the writs issued are null and void; ord. When the questioned order amounts to an

oppressiveexercise of judicial authority.

Kuizon v. Desierto

Ombudsman Admin! CA via 43

Ombudsman Crim! CA via 65

(This case is a mere reiteration of Fabian v.Desierto and Tirol v. Sandiganbayan)

Here, Kuizon filed an action for certiorari under Rule65 with the CA, when he should have filed anappeal under Rule 43. The erroneous filing of the

Rule 65 action for certiorari with the CA did not tollthe running of the period within which the properappeal under Rule 43 may be filed.

Formal Requirements for RULE 43

Dalton-Reyes v. CA As a rule, the requirements for perfecting an appealwithin the reglementary period provided by law mustbe strictly followed. Nonetheless, the Court, in some

instances, has been liberal and has excused a


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litigant’s procedural defects and lapses in theinterest of substantial justice, to wit:

(1) matters of life, liberty, honor or property;(2) counsel’s negligence without any

participatory negligence on the part of theclient;

(3) the existence of special or compellingcircumstances;

(4) the merits of the case;(5) a cause not entirely attributable to the fault or

negligence of the party favored by thesuspension of the rules;

(6) a lack of any showing that the review soughtis merely frivolous and dilatory; and

(7) the other party will not be unjustly prejudicedthereby.

In this case, the last day for filing the petition forreview fell on a Friday. Reyes filed her motion forextension of time to file the petition for review onJune 11, Monday, which was the next working day.The delay was actually for 1 day only. Consideringthat she was not assisted by a lawyer, this may be

considered as an excusable negligence on her part.Where no element of intent to delay theadministration of justice could be attributed toReyes, a 1-day delay does not justify the appeal’sdenial.

Basmayor v. Atencio Rule 43 doctrine: Anent the question of whether or not the CSCshould be impleaded as respondent in this case,

the correct procedure, is not to implead thelower court or agency which rendered theassailed decision, pursuant to Rule 43. Hence,we agree with the petitioner that it is not necessary

to implead the CSC as respondent in her petition.

Rule 45 doctrine:In petitions for review or appeal under Rule 45 ofthe Rules of Court, the appellate tribunal is limited

to the determination of whether the lower courtcommitted reversible errors. The “errors” which arereviewable by this Court in a petition for review oncertiorari from a decision of the Court of Appealsare only those allegedly committed by said court. Itis the burden of the party seeking review of adecision of the Court of Appeals or other lowertribunals to distinctly set forth in her petition for

review, not only the existence of questions of law

fairly and logically arising therefrom, but alsoquestions substantial enough to merit consideration,or show that there are special and importantreasons warranting the review that she seeks.

Coca Cola v. Cabalo There is no substantial distinction between aphotocopy or a Xerox copy and a true copy aslong as the photocopy is certified by the properofficer of the court, tribunal, agency, or officeinvolved or his duly-authorized representative andthat the same is a faithful reproduction of the

original.

The requirement for personal service ismandatory such that Sec. 1 Rule 13 gives the courtthe discretion to consider a pleading or paper as notfiled if the other modes of service of filing wereresorted to and no explanation was made as to whypersonal service was not done. In deciding whethera liberal interpretation of Sec. 11 Rule 13 iswarranted, the Court must take into account three

things:

1) the practicability of personal service;2) the importance of the subject matter of the

case or the issues involved therein; and3) the prima facie merit of the pleading sought to

be expunged for violation of Sec. 11.

In this case, it cannot be said that personal servicewas neither practical nor realistic given that Coca

Cola’s law firm (Bocobo Rondain Mendiola Cruzand Formoso) had one of the biggest corporationsin the country for its client, so it’s safe to assumethat it had enough people in its employ to effectpersonal service.

BE San Diego v Alzul

It is only Rule 43 that specifically states that thematerial portions to be appended to the petitionshould be certified true copies.

• Rule 41 doesn’t require attachment of thepertinent records since the entire recordsare elevated to the CA.

• Rule 42 on PFR (RTC appellate to CA)speaks of plain copies of the materialportions of the record as would support theallegations of the petition.

• Even Rule 45 simply speaks of materialportions of the records without indicating


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that these should be certified true copies.

• Rule 46 on original cases to the SC only

requires plain copies of the materialportions of the records.

• Rule 65 on special civil actions requires

only copies of relevant and pertinentpleadings and documents.

It is also only in Rule 43 that we encounter the

requirement of annexing “supporting papers” tothe petition. This can be interpreted to mean otherdocuments, pictures, and pieces of evidence notforming parts of the records of the lower court or

agency that can bolster and shore up the petition.While not so specified in Sec. 3 of Rule 43, it isinarguable that said papers must also be relevantand material to the petition.

Sec. 7 of Rule 43 does not prescribe outrightrejection of the petition if it is not accompanied bythe required documents but simply gives thediscretion to the CA to determine whether such

breach constitutes a “sufficient ground” for

dismissal.

Manebo v. CA &CSC

Rule 43 clearly requires the petition for review to beaccompanied by “a clearly legible duplicate originalor a certified true copy of the award, judgment, finalorder or resolution appealed from, together withcertified true copies of such material portions of therecord referred to therein and other supporting

papers.”

• The requirement is intended toimmediately enable the CA to determine

whether to give due course to the appealor not by having all the material necessary

to make such determination before it. • This is because an appeal under Rule 43

is a discretionary mode of appeal, whichthe CA may either dismiss if it finds thepetition to be patently without merit, orprosecuted manifestly for delay, or that thequestions raised therein are toounsubstantial to require consideration; ormay process by requiring the respondentto file a comment on the petition, not amotion to dismiss, within 10 days from

notice.

With respect to the other supporting documents ofthe petition as set forth in Section 6, Rule 43, theirlegible copies should have been attached to thepetition or to the motion for reconsideration filed

against the resolution dismissing the petition.

In this case, considering that the petitioner’s appealalso assailed the CSC Resolution which found herguilty, she should have furnished the CA with acertified true copy of that resolution.

APPEAL BY CERTIORARI TO THE SC (RULE 45)

Sesbreno v. CA • Question of law – when the doubt ordifference arises as to what the law is oncertain state of facts

• Question of fact – when the doubt or

difference arises as to the truth or thefalsehood of alleged facts; or when the querynecessarily invites calibration of the wholeevidence considering mainly the credibility of

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