Civil Procedure II Apprac Reviewer as of Mar2010 - For Printing

CIVIL PROCEDURE II 2010 | Atty. Guevarra [1]

pdzuniga 2010 megamix notes (Lectures: Civpro 2008, SCA 2008, Apprac 2009, Civpro II 2010; Commentary: Herrera; Reviewers: ALS BarOps; Apprac Notes: JD dela Cuesta)

APPEALS Q: When is an appeal said to be perfected? A: With respect to the appellant, by (1) the filing of the notice of appeal within the reglementary period; AND (2) payment of the appeal fees with the trial court.

With respect to multiple defendants, the reckoning period depends on the date of receipt of the date of receipt of the decision. The lower court does not lose jurisdiction until all the defendants have perfected their appeals (or lapse of the period within which appeal is to be perfected). Records will still be with the lower court. Expanded or Total Court System in the Philippines SEE P. 779 OF HERRERA VOL. 2

FORMS

Sample Notice of Appeal

Republic of the Philippines Regional Trial Court of Makati City Branch 101, NCR Judicial District

Ana Abad, Plaintiff-Appellant, -versus- Civil Case No. 123456 For: Expropriation Dan Cruz, Defendant-Appellee x-----------------------------x

NOTICE OF APPEAL

Comes now the plaintiff by the undersigned attorney, and hereby files notice of appeal from the judgment of this Honorable Court in the above-entitled case, dated July 31, 2010 a copy of which was received by her on August 1, 2010, and appeals the same to the Court of Appeals.

Makati City, August 14, 2010.

Lina Lim Counsel for the Plaintiff-Appellant

Copy Furnished: Juan Tan Counsel for the Defendant-Appellee

APPEALS

RULE 41 APPEAL FROM THE REGIONAL TRIAL COURTS 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. 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. (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.



(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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.

Apprac Notes (2009)

Appeal

Remedy to set aside/reverse/modify a decision on the merits of a case

NOTE: when is there judgment on the merits? It is not a natural right, merely a statutory privilege

* ex. Petition for a tax credit/refund to the CTA is not original; it is an appeal of an adverse decision/resolution of BIR/BOC Q: Is appeal part of due process?

A: Due process means notice and hearing; right to hear appeal is a statutory privilege; there is DP in respect of the appellee – notice of appeal; appeal must be given opportunity to be heard on issues raised on appeal Subject of appeal: Final order that will completely dispose of the case MTD that will trigger disposition (APPEALABLE):

Lack of jurisdiction over SM

Prescription

Res judicata

Stature of frauds Failure to prosecute

Dismissal with prejudice (ex. Forum shopping) = judgment on the merits Q: Can there be disposition of case by final order without presenting evidence? A: YES – MTD for lack of jurisdiction over SM What is being appealed?

1. Judgment: decision on the merits after full-blown trial 2. Final order: disposes of a portion of a case on the merits/disposes of a case on the

merits without trial on the merits o Distinguished from interlocutory order: decides a point or matter but not

a final decision of the whole controversy 3. “Particular matter therein”

o Ex. Expropriation: order granting/denying expropriation is appealable notwithstanding there is more to be done in the exp case

Q: Just because appeal is unavailable, is Rule 65 automatic? A: No. CP has other independent requirement: jurisdictional error Q: Why is an order denying MNT or MR removed from Sec. 1? Is it now appealable? A: It is still NOT appealable; deleted to take (a) away from the operation of the last par. (filing of SCA); MNT denied no appeal, no CP either? (MIG says Rule 65 may still be available if requirements are attendant – if there is jurisdictional error) ** IMPORTANT** What cannot be the subject of appeal (Rule 41 Sec. 1)

An Order denying a petition for relief or any similar motion seeking relief from judgment

An interlocutory order



An order disallowing or dismissing or dismissing an appeal

An order denying a motion to set aside a judgment

An 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

An order dismissing an action without prejudice Denial of a petition for relief

Q: What is a petition for relief? A: Judgment is already final; Grounds: FAME; File in same court that rendered the judgment within 60 days after petitioner learns of judgment and not more than 6 months after such judgment was rendered (twin period)

Because execution will have to await resolution of appeal of denial of pet for relief

Decision which has already been rendered by the trial court will be vacated: as if there is new trial

If appeal is allowed from this, an already final and executory judgment would be vacated, a final and executory judgment will be delayed

Remedy is Rule 65 Interlocutory order

See Investments v. CA

Appeal of interlocutory orders would slow proceedings in the lower court; also, a remedy is still available – court itself can still reverse

Q: nature of the appointment of a receiver? A: interlocutory; Q: remedy? A: may still be reversed as it is still within the power of trial court to modify

Q: Can an IO become final and executory? A: NO; it does not attain finality

Q: What is the proper remedy if there is no jurisdictional error in the issuance of the IO? A: Appeal from the decision in the main case and assign the IO as one of the errors

Jurisprudence: Investments v. CA A "final" judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res adjudicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties' next move (which among others, may consist of the filing of a motion for new trial or reconsideration, or the taking of an appeal) and ultimately, of course, to cause the execution of the judgment once it becomes "final" or, to use the established and more

distinctive term, "final and executory." Conversely, an order that does not finally dispose of the case, and does not end the Court's task of adjudicating the parties' contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is "interlocutory," e.g., an order denying a motion to dismiss under Rule 16 of the Rules, or granting a motion for extension of time to file a pleading, or authorizing amendment thereof, or granting or denying applications for postponement, or production or inspection of documents or things, etc. Unlike a "final" judgment or order, which is appealable, as above pointed out, an "interlocutory" order may not be questioned on appeal except only as part of an appeal that may eventually be taken from the final judgment rendered in the case.

Final Judgment Final and Executory Judgment

Disposes of, adjudicates, or determines the rights of parties

Becomes final and executor by operation of law

Still subject to appeal After lapse of period to appeal and no appeal was perfected, no further action can be had

Execution of judgment NOT a matter of right Execution of judgment a matter of right

Jurisprudence: Balgami v. CA No appeal was perfected from the decision of the trial court within the reglementary period, for which reason the decision sought to be appealed to the CA had become final and executory and, therefore, immutable. Thus, the CA was without jurisdiction to review the same.31 Otherwise stated, beyond the period to appeal, a judgment is no longer within the scope of the power of review of any court. Perfection of an appeal in the manner and within the period laid down by law is not only mandatory but also jurisdictional. The failure to perfect an appeal as required by the rules has the effect of defeating the right to appeal of a party and precluding the appellate court from acquiring jurisdiction over the case. The right to appeal is not a natural right nor a part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law. The party who seeks to avail of the same must comply with the requirement of the rules. Failing to do so, the right to appeal is lost. **Note: negligence on the part of the ppellant justified the strict application of the rule by the Court Order Dismissing or Disallowing and Appeal

Remedy: Rule 65, but allege jurisdictional error; mandamus also available if can be proven

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

Compromise Judgment is immediately executor

Remedy: Rule 65 Order of Execution



Presupposes that the judgment is already final and executory Judgment or Final order for or against one or more 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

Keeps proceedings simple (different aspects of the case may end up in different divisions of the CA)

Dismissal without prejudice

Rule 16 o If dismissal is with prejudice, the remedy is appeal (Sec. 5 Rule 16)

Res Judicata, prescription Claim has been paid, waived, extinguished Claim is unenforceable under statute of frauds

Demurrer o Demurrer – dismissal due to lack of evidence o Denial of demurrer not appealable – not appealable (interlocutory) o Q: What is the effect of a grant of demurrer? A: dismissal with prejudice;

remedy is appeal Appeal periods Q: Decision rendered June 1. Appeal period? A: Depends on receipt by defendant Q: Receipt by actual party – June 15. Receipt by counsel – June 30. What matters? A: Receipt by counsel Q: What if party shows counsel the decision? What is the effect? A: Even if counsel has informal notice, there must be actual receipt by him Receipt by counsel = receipt by client; receipt by client ≠ receipt by counsel Q: What is the period to file MR? A: Same period for taking an appeal (15 days from notice of judgment) Q: Defendant filed MR on 15th day. After adversarial proceedings, court resolves MR 2 mos later – denied! Effect? A: New 15-day period to appeal counted from notice of order denying MR (Fresh Period Rule – Neypes case) Q: Can you file a motion for extension of time to file a MR? A: NO Q: Can you file a motion for extension of time to file a notice of appeal? A: NO Period of appeal is not just mandatory but jurisdictional Q: Decision from MTC. Defendant wishes to appeal on error of law. To which court?

A: To the RTC which has territorial jurisdiction over the MTC. Rule 40 does not distinguish which cases to bring to RTC (all cases) Q: Is a notice of appeal required in the SC (appeal on question of law)? A: NO; petition for review under Rule 45 Q: When is a record on appeal required: A:

1. Special proceedings 2. Where multiple appeals are allowed 3. Where special appeals are allowed

Docket fees

Rule of thumb: 2% of claim

Q: To which court do you pay? A: The court which rendered the judgment (not the appellate court)

Pay docket fees within the period to appeal Prevailing jurisprudence on nonpayment: appellate court retains jurisdiction to

allow the payment of docket fees within the period (discretion) – does not result in automatic dismissal of appeal

Q: What if payment was incomplete? A: Practice is that the trial court must direct payment within the period

Perfection of appeal

Requirements of perfection of appeal by record on appeal: 1. Approval of record on appeal 2. Filing of notice of appeal (in addition to record on appeal) 3. Payment of docket fees

Q: When does the lower court lose jurisdiction? A: Upon filing of notice of appeal; if no NOA filed: until expiration of period to appeal in Record on Appeal: only with respect to subject matter in NOA: as to the whole case

Powers under residual jurisdiction: 1. Protection orders 2. Approval of compromise 3. Prosecution of pauper’s appeals 4. Exec. Of judgment pending appeal 5. Dismissal of appeal for filing out of time or docket fees not paid * BUT the records of the case must still be with the trial court; if records are forwarded, trial court may not exercise powers under residual jurisdiction



RULE 40 APPEAL FROM MUNICIPAL TRIAL COURTS TO

THE REGIONAL TRIAL COURTS 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. Sec. 2. When to appeal. An appeal may be taken within fifteen (15) days after notice to the appellant 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 after notice of the judgment or final order. 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. 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. 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. 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. 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. 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. 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. 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.

Apprac Notes (2009)

Pleadings in the RTC:

Memorandum of appellant

Appellee’s brief: arguments which tend to support position of appellee Records + Memoranda = judgment rendered by RTC (no trial de novo)



Q: MTD on the ground of prescription. Case filed before MTC. MTD granted. (No trial conducted by MTC) Appealed to RTC. If RTC reversed the dismissal what will happen to the case? A: Remanded for further proceedings to MTC. Q: If RTC affirms dismissal? A: Case dismissed. Q: Remedy available to losing party in case of dismissal of appeal? A: Petition for review with CA. Q: MTD on lack of juris over SM. MTC granted dismissal. What if RTC reverses? A: Case remanded for further proceedings to MTC [NOTE: nature of order of remand is INTERLOCUTORY] Q: What if RTC affirms? A: If it has jurisdiction, RTC to try the case on the merits Remedy of the aggrieved party = SCA for certiorari (on jurisdictional error) Q: If MTC does not have juris over the SM, does this ipso facto mean the RTC will have juris? A: NO; not when quasi-judicial agencies have jurisdiction (ex. Money claims against employer based on EER – LA/NLRC) Q: MTC has no jurisdiction but conducted trial. MTC found in favor of plaintiff. Appeal. What happens to the case? A: RTC to try case if it has juris. (should not dismiss case) Q: What if RTC reverses MTC decision? (finds in favor of defendant) What is plaintiff’s recourse? A: Petition for review to CA

RULE 42

PETITION FOR REVIEW FROM THE REGIONAL TRIAL

COURTS TO THE COURT OF APPEALS 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. 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. 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. 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. 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. 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. 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. 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. (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. 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.

Apprac Notes (2009)

Q: Can a petition for review raise only questions of law? A: YES

Appeal on pure q. of law from RTC (exercising orig. juris) goes to SC on appeal by certiorari ** Note: Appeal by Certiorari: Mode of appeal (Rule 45) Petition for Review on Certorari: Form of appeal (Rule 45) Petition for Certiorari: Rule 65 Petition for Review: Rule 42, 43: Rule 42 - mode of appeal from a judgment rendered by the RTC in the exercise of its appellate jurisdiction Appeal from RTC on pure questions of law: go to SC (Rule 45) Petition for review from RTC on pure questions of law: go to CA (Rule 42) Q: In a petition for review, is a NOA/ROA required? A: No; the service of a copy of the petition on the RTC and on the adverse party serves as notice Requirements of PFR:

1. Payment of docket fees with appellate court 2. Serving copies of petition 3. Cert. of non-forum shopping 4. Petition must be verified

Q: Is the court/RTC judge impleaded in the PFR? A: NO because he is not a party to the original case which is continued by the PFR Q: Can a petitioner file for motion for extension to file PFR beyond the 15-day period? A: Yes



RULE 43

APPEALS FROM THE COURT OF TAX APPEALS AND

QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS 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. Sec. 2. Cases not covered. This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines. 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. 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. 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

PFR filed

CA resolution finds PFR sufficient in form and

substance

Respondent to comment

if petitioner wants file Reply: ask for leave of court

CA to det. w/n to give due course (prima facie det.)

due course granted

if necessary CA can order: (1) elevation of records; (2)

oral arguments; (3) submission of memoranda

CA DECIDES

due course denied: PFR dismissed (same grounds)

CA resolution dismisses PFR outright (failure to comply with formal reqs./patently

w/o merit)



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

Apprac Notes (2009)

PFR: CA is called upon to exercise discretion in allowing/disallowing appeals from quasi-judicial agencies Doctrine of primary jurisdiction: courts cannot take cognizance of cases pending before administrative agencies of special competence. Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is initially lodged with an administrative body of special competence. Appeals from CTA and Central Board of Assessments now to the CTA (RA 9282)



Sec 10: Findings of fact are binding on CA Q: In a case before LA, employer lost. Appeal to NLRC. Appeal bond must be filed before appeal is perfected. NLRC decides. Recourse? A: Appeal to CA via SCA for certiorari (Rule 65)

Jurisprudence

Rule 45 vs. Rule 65 ABEDES V. COURT OF APPEALS, 536 SCRA 268 A petition for certiorari under Rule 65 is proper if a tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction and there is no appeal, or any plain, speedy and adequate remedy in the ordinary course of law.[35] However, the proper remedy of petitioner from the assailed Decision and Resolution of the Court of Appeals is an ordinary appeal[36] to this Court via a petition for review under Rule 45 and not a petition for certiorari under Rule 65.[37] To draw a distinction, an appeal by petition for review on certiorari under Rule 45 is a continuation of the judgment complained of, while that under Rule 65 is an original or independent action.[38] We have underscored that the remedy of certiorari is not a substitute for lost appeal. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.[39] Hence, the special civil action for certiorari under Rule 65 is not and cannot be a substitute for an appeal, where the latter remedy is available.[40] Such a remedy will not be a cure for failure to timely file a petition for review on certiorari under Rule 45.[41] Rule 45 is clear that decisions, final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to this Court by filing a petition for review, which would be but a continuation of the appellate process over the original case. Rule 45 as Rule 65 AAA v. Carbonell, 524 SCRA 496 A petition for review on certiorari under Rule 45 is distinct from a petition for certiorari under Rule 65. Rule 65 – concerns errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction Rule 45 – brings up for review errors of judgment; grave abuse of discretion is NOT an allowable ground A petition for review on certiorari under Rule 45 may be considered a petition for certiorari under Rule 65 where it is alleged that the respondents abused their discretion in their questioned actions, as in the instant case. In this case, AAA raised an alleged grave abuse of discretion on the part of Judge CARBONELL in ordering the dismissal of the rape case.

Question of Fact vs. Question of Law Binay v. Odeña, G.R. No. 163683, June 8, 2007 A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact. Thus, the test of whether a question is one of law or of fact is not the appellation given to such question by the party raising the same; rather, it is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise it is a question of fact. In this case, petitioners seek this Court's determination of the weight, credence, and probative value of the evidence presented. (attendance sheet, logbook, certifications of supervisor, letter from PWU to prove Advertising course of respondent) These issues are factual. As the issues raised are not purely questions of law and are, therefore, not cognizable by this Court in a petition for review under Rule 45, we are constrained from exercising our jurisdiction in this case. This Court is not a trier of facts. It is not for the Court to weigh these pieces of evidence all over again. Its jurisdiction is limited to reviewing and revising errors of law imputed to the lower court, its findings of fact being conclusive and not reviewable by this Court. Factual findings of quasi-judicial bodies like the CSC, when adopted and confirmed by the CA and if supported by substantial evidence, are accorded respect and even finality by this Court. While this Court has recognized several exceptions to this rule, none of these exceptions finds application in this case. General Rule of Rule 45 AMA Computer College v. Valmonte, 520 SCRA 58 Section 1, Rule 45 states: The petition shall raise only questions of law which must be distinctly set forth. In a petition for review on certiorari, this Court is limited to reviewing errors of law absent any showing that the findings of fact of the appellate court are not supported by the records. Petitioner, in urging us to reverse the Decision of the Court of Appeals and thus suspend respondent from the practice of law, alleged in its petition that the promissory notes executed by Tayao in favor of FELN have been simulated; that FELN is a fictitious entity; that Civil Case No. 89-4567 is a "mock suit"; that the Compromise Agreement is a sham; and that respondent fraudulently prevented petitioner from exercising its right to purchase the property. In other words, petitioner wants to relitigate the facts and issues already passed upon by the trial court and sustained by the Court of Appeals. Obviously, petitioner pleads that we substitute our own judgment to those of the trial court and the appellate court by conducting our own evaluation of the evidence. This contravenes Section 1, Rule 45 of the Rules requiring the petition to raise only questions of law. This Court is not a



trier of facts. It is not its function to analyze or weigh evidence all over again, subject to certain exceptions, none of which is present here. Philippine Transmarine Carriers, Inc vs. Carilla 525 SCRA 586 To begin with, the question of whether respondent was dismissed for just cause is a question of fact which is beyond the province of a petition for review on certiorari. It is fundamental that the scope of a judicial review under Rule 45 is confined only to errors of law and does not extend to questions of fact. More so, in labor cases where the doctrine lies with greater force. The LA and the NLRC have ruled on the factual issue, and these were affirmed by the CA. Thus, they are accorded not only great respect but also finality and are deemed binding upon the court as long as they are supported by substantial evidence. Belgica v. Belgica 531 SCRA 331 Time and again, we have stressed that the remedy of appeal by certiorari under Rule 45 of the Rules of Court should involve only questions of law, not questions of fact. There exists a question of law when there is doubt on what the law applicable to a certain set of facts is. Questions of fact, on the other hand, arise when there is an issue regarding the truth or falsity of the statement of facts. Questions on whether certain pieces of evidence should be accorded probative value or whether the proofs presented by one party are clear, convincing and adequate to establish a proposition are issues of fact. Such questions are not subject to review by this Court. As a general rule, we review cases decided by the CA only if they involve questions of law raised and distinctly set forth in the petition. Exceptions to Rule 45 UNIWIDE SALES, INC. vs. MIRAFUENTE & NG, INC., 530 SCRA 664 Albeit the court entertains factual determination of a case brought to it via Rule 45 under certain circumstances: a.) when there is grave abuse of discretion b.) when the finding is grounded entirely on speculations, surmises or conjectures c.) when the inference made is manifestly mistaken, absurd or impossible d.) when the judgment of the CA was based on a misapprehension of facts e.) when the factual findings are themselves conflicting f.) when the CA, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee g.) when the CA manifestly overlooked certain relevant facts not disputed by the parties and which if properly considered, would justify a different conclusion h.) where the findings of fact of the CA are contrary to those of the trial court i.) where the findings of fact are mere conclusions without citation of specific evidence on which it is based j.) where the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record

AMKOR Technology Philippines, Inc. v. Juangco 512 SCRA 325 (2007) “While it is not the function of this Court to re-examine the evidence submitted by the parties in a petition for review on certiorari on Rule 45…, we are constrained to determine anew the findings of fact of the Court of Appeals, considering that they are in conflict with those of the National Labor Relations Commission. The NLRC, relying on the affidavits of the officers of petitioner-company, found that respondent was not coerced into signing the notice of voluntary retirement. On the other hand, the Court of Appeals found that respondent was coerced to retire. When the findings of the Court of Appeals clash with those of the voluntary arbitrator or the NLRC, we are compelled to go over the records of the case as well as the submission of the parties.” McDonald's Corporation v. MacJoy Fastfood Corporation, 514 SCRA 95 As regards the respondent’s argument that the petition raises only questions of fact which are not proper in a petition for review, suffice it to say that the contradictory findings of the IPO and the CA constrain us to give due course to the petition, this being one of the recognized exceptions to Section 1, Rule 45 of the Rules of Court. True, this Court is not the proper venue to consider factual issues as it is not a trier of facts. Nevertheless, when the factual findings of the appellate court are mistaken, absurd, speculative, conjectural, conflicting, tainted with grave abuse of discretion, or contrary to the findings culled by the court of origin, as here, this Court will review them. PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, INC. v. BALBASTRO 519 SCRA 233 “The jurisdiction of this Court in a petition for review on certiorari is limited to reviewing only errors of law, not of fact, unless the factual findings being assailed are not supported by evidence on record or the impugned judgment is based on a misapprehension of facts. We find that those exceptions are present in the instant case.” (519 SCRA at 244) (citing German Machineries v. Endaya, 444 SCRA 329)

PROCEDURE IN THE COURT OF APPEALS [Rules 44 to 55]

RULE 44 ORDINARY APPEALED CASES 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. chan robles virtual law library 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. 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. 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. 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. 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. 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.

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. 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. The failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of the appeal. 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. 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. 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. 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. 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.

Purpose of appellant's brief: The purpose of the brief 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 in arriving at a just and proper conclusion. The brief should be so prepared as to minimize the labor of the court in the examination of the record upon which the appeal is heard and determined. (De Liano v. CA)

Contents of appellant's brief: (De Liano v. CA)

Subject index

The index is intended to facilitate the review of appeals by providing ready reference, functioning much like a table of contents. Unlike in other jurisdictions, there is no limit on the length of appeal briefs or appeal memoranda filed before appellate courts. The danger of this is the very real possibility that the reviewing tribunal will be swamped with voluminous documents. This occurs even though the rules consistently urge the parties to

be “brief” or “concise” in the drafting of pleadings, briefs, and other papers to be filed in court. The subject index makes readily available at one’s fingertips the subject of the contents of the brief so that the need to thumb through the brief page after page to locate a party’s arguments, or a particular citation, or whatever else needs to be found and considered, is obviated.

Assignment of errors

An assignment of errors in appellate procedure is an enumeration by appellant or plaintiff in error of the errors alleged to have been committed by the court below in the trial of the case upon which he seeks to obtain a reversal of the judgment or decree; it is in the nature of a pleading, and performs in the appellate court the same office as a declaration or complaint in a court of original jurisdiction. Such an assignment is appellant’s complaint, or pleading, in the appellate court, and takes the place of a declaration or bill; an appeal without an assignment of errors would be similar to a suit without a complaint, bill, or declaration. The assignment is appellant’s declaration or complaint against the trial judge, charging harmful error, and proof vel non of assignment is within the record on appeal. The object of such pleadings is to point out the specific errors claimed to have been committed by the court below, in order to enable the reviewing court and the opposing party to see on what points appellant or plaintiff in error intends to ask a reversal of the judgment or decree, and to limit discussion to those points. The office of an assignment of errors is not to point out legal contentions, but only to inform the appellate court that appellant assigns as erroneous certain named rulings; the function of the assignment is to group and bring forward such of the exceptions previously noted in the case on appeal as appellant desires to preserve and present to the appellant.[12] It has been held that a general assignment of errors is unacceptable under the rules. Thus, a statement of the following tenor: that “the Court of First Instance of this City incurred error in rendering the judgment appealed from, for it is contrary to law and the weight of the evidence,” was deemed insufficient.*13+ The appellant has to specify in what aspect of the law or the facts that the trial court erred.

Statement of the case

A statement of the case gives the appellate tribunal an overview of the judicial antecedents of the case, providing material information regarding the nature of the controversy, the proceedings before the trial court, the orders and rulings elevated on appeal, and the judgment itself. These data enable the appellate court to have a better grasp of the matter entrusted to it for its appraisal.

Statement of facts

the statement of facts comprises the very heart of the appellant’s brief. The facts constitute the backbone of a legal argument; they are determinative of



the law and jurisprudence applicable to the case, and consequently, will govern the appropriate relief. Appellants should remember that the Court of Appeals is empowered to review both questions of law and of facts. Otherwise, where only a pure question of law is involved, appeal would pertain to this Court. An appellant, therefore, should take care to state the facts accurately though it is permissible to present them in a manner favorable to one party. The brief must state the facts admitted by the parties, as well as the facts in controversy. To laymen, the distinction may appear insubstantial, but the difference is clear to the practitioner and the student of law. Facts which are admitted require no further proof, whereas facts in dispute must be backed by evidence. Relative thereto, the rule specifically requires that one’s statement of facts should be supported by page references to the record. Indeed, disobedience therewith has been punished by dismissal of the appeal.[14] Page references to the record are not an empty requirement. If a statement of fact is unaccompanied by a page reference to the record, it may be presumed to be without support in the record and may be stricken or disregarded altogether.

Statement of issues

The statement of issues is not to be confused with the assignment of errors: they are not one and the same, for otherwise, the rules would not require a separate statement for each. The statement of issues puts forth the questions of fact or law to be resolved by the appellate court. What constitutes a question of fact or one of law should be clear by now: At this point, the distinction between a question of fact and a question of law must be clear. As distinguished from a question of law which exists “when the doubt or difference arises as to what the law is on certain state of facts”—“there is a question of fact when the doubt or difference arises as to the truth or the falsehood of alleged facts;” or when the “query necessarily invites calibration of the whole evidence considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to each other and to the whole and the probabilities of the situation.”*16+

Arguments An appellant’s arguments go hand in hand with his assignment of errors, for the former provide the justification supporting his contentions, and in so doing resolves the issues. It will not do to impute error on the part of the trial court without substantiation. The mere elevation on appeal of a judgment does not create a presumption that it was rendered in error. The appellant has to show that he is entitled to the reversal of the judgment appealed, and he cannot do this unless he provides satisfactory reasons for doing so. It is therefore essential that

xxx [A]s far as possible, the errors and reasons assigned should be supported by a citation of authorities. The failure to do so has been said to be inexcusable; and, although a point made in the brief is before the court even though no authorities are cited and may be considered and will be where a proposition of well established law is stated, the court is not required to search out authorities, but may presume that counsel has found no case after diligent search or that the point has been waived or abandoned, and need not consider the unsupported errors assigned, and ordinarily will not give consideration to such errors and reasons unless it is apparent without further research that the assignments of errors presented are well taken.[17] In this regard, the rules require that authorities should be cited by the page of the report at which the case begins, as well as the page of the report where the citation is found. This rule is imposed for the convenience of the appellate court, for obvious reasons: since authorities relied upon by the parties are checked for accuracy and aptness, they are located more easily as the appellate court is not bound to peruse volume upon volume, and page after page, of reports.

Reliefs In so doing, the appellate court is left in no doubt as to the result desired by the appellant, and act as the circumstances may warrant.

Appellant's versus Appellee's brief:

Appellant's brief (Sec. 13) Appellee's brief (Sec. 14)

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;

An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively;

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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

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nature of the controversy, with page references to the record;

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;

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

A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment;

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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;

Under the heading "Relief," a specification of the order or judgment which the appellant seeks; and

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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.

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Q: When is a Memorandum of Appeal filed? A: In CPM, QW, Habeas Corpus cases only Q: May the appellee make his own assignment of errors? A: It depends on the objective or purpose of the appellee. If the purpose is the modification of judgment: the appellee canNOT assign errors, unless he himself filed a notice of appeal (questioning the disposition of the case). General Rule: Only assigned errors can be considered by the appellate court

Exceptions:

1. Issues affecting jurisdiction of the subject matter of the action

2. Issues raised affect the very validity of judgment (ex. Lack of due process, fraud) 3. Those which are closely related to or dependent on the assigned errors

4. Plain or clerical error Note: Page references must refer to the ROLLO in the appellate court. Questions that may be raised on appeal (Sec. 15): Only questions of facts or law raised in the trial court, which is within the issues framed by the parties may be raised on appeal. (Change of theory not permitted on appeal.)

RULE 45

APPEAL BY CERTIORARI TO THE SUPREME COURT SECTION 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. (As amended by AM No. 07-7-12-SC) Sec. 2. Time for filing; extension. The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner’s motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition. Sec. 3. Docket and other lawful fees; proof of service of petition. Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition.



Sec. 4. Contents of petition. The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) 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; (c) set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of the petition; (d) be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; and (e) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. Sec. 5. Dismissal or denial of petition. The failure of the petitioner to comply with any of the foregoing requirements 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. Review discretionary. A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered: (a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or (b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. Sec. 7. Pleadings and documents that may be required; sanctions. For purposes of determining whether the petition should be dismissed or denied pursuant to section 5 of this Rule, or where the petition is given due course under section 8 hereof, the Supreme Court may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate, and impose the corresponding sanctions in case of non-filing or

unauthorized filing of such pleadings and documents or non-compliance with the conditions therefor. Sec. 8. Due course; elevation of records. If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice. 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.

Apprac Notes (2009)

Rule 45

Appeal by Certiorari Rule 65

Special Civil Action for Certiorari

An appeal from a judgment or final order or resolution of the CA, CTA, Sandiganbayan, RTC or other courts, whenever authorized by law, only on questions of law

When a tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction or with GADALEJ, and there is no appeal, or plain, speedy and adequate remedy in the ordinary course of law

Petition is based on questions of law which the appellant desires the appellate court to resolve

Petition raises the issue as to whether the lower court acted without or in excess of jurisdiction of with GADALEJ

Review of the judgment, award or final order on the merits

May be directed against an interlocutory order of the court prior to appeal from the judgment or where there is no appeal or any other plain, speedy or adequate remedy

Must be made within the reglementary period for appeal (15 days)

May be filed not later than 60 days from notice of the denial of the MR

Stays the judgment, award or order appealed from (*from Herrera; check this given the amendment)

Does not stay the challenged proceeding unless a writ of prelim. injunction or a TRO shall have been issued

Petitioner and respondent are the original parties to the action; lower court or quasi-judicial agency is not to be impleaded

Petitioner and respondent are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties



Prior filing of MR not required Prior filing of MR required

Higher court is exercising its appellate jurisdiction and the power of review

Higher court is exercising original jurisdiction and the power of control and supervision over the proceedings of lower courts

The remedies of appeal and certiorari are mutually exclurive and not alternative or successive. (Abedes v. CA)

Question of Law versus Question of Fact (Binay v. Odena)

Question of Law Question of Fact

When the doubt arises to what the law is on a certain state of facts

When the doubt arises as to the truth or falsity of the alleged facts

Does not call for an examination of the probative value of the evidence

Calls for an examination of the probative value of the evidence

The test of whether a question is one of law or of fact is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence.

Q: Can an appeal by certiorari under Rule 45 be treated as a petition for certiorari under Rule 65? A: YES. A petition for review on certiorari under Rule 45 may be considered a petition for certiorari under Rule 65 where it is alleged that the respondents abused their discretion in their questioned actions. (AAA v. Carbonell) Q: Can a petition for certiorari under Rule 65 be treated as an appeal by certiorari under Rule 45 ? MIG says: NO. A petition for certiorari under Rule 65 cannot be used as a substitute for appeal (especially if filed outside the 15-day period) General Rule for Appeal by Certiorari: In an appeal by certiorari, the Supreme Court is limited to reviewing errors of law. The SC is not a trier of facts. It is not its function to analyze or weigh evidence all over again. (AMA Computer College v. Valmonte) Exceptions: The SC may entertain factual determination of a case brought to it via Rule 45 under certain circumstances: (Uniwide Sales v. Mirafuente)

1. where there is grave abuse of discretion; 2. when the finding is grounded entirely on speculations, surmises or conjectures; 3. when the inference made is manifestly mistaken, absurd or impossible;

4. when the judgment of the Court of Appeals was based on a misapprehension of facts;

5. when the factual findings are themselves conflicting; 6. when the Court of Appeals, in making its findings, went beyond the issues of the

case and the same are contrary to the admissions of both appellant and appellee; 7. when the Court of Appeals manifestly overlooked certain relevant facts not

disputed by the parties and which, if properly considered, would justify a different conclusion;

8. where the findings of fact of the Court of Appeals are contrary to those of the trial court;

9. where the findings of fact are mere conclusions without citation of specific evidence on which they are based; and

10. where the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record

Rule on Motion for Extension of Time: A motion for extension of time to file a petition for review on certiorari may be filed with the SC within the reglementary period, paying at the same time the corresponding docket fee. Copies of the motion for extension of time and of the subsequent petition for review on certiorari must be served on the lower court and on the adverse party. (No payment, no “motion duly filed and served” = SC may deny motion) (Sec. 2) Q: Is a notice of appeal required? A: NO. Only the petition for review on certiorari is required, and there must be proof of service of a copy thereon on the lower court concerned and on the adverse party. (Sec. 3) Pleadings required in an Appeal by Certiorari:

1. Petition proper of appellant 2. Comment by appellee

Q: Can the appellant file a Reply? A: Generally, NO. The appellant must first apply for prior leave of court to file a Reply. If there is none, then the reply is expunged.

Rule 50: DISMISSAL OF APPEAL

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 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.

[mnemonic: PS FU SATAN]

Pay fees (failure to) Show (failure to, within period)

Serve copies (failure to) Assignment of errors (absence)

Take steps (failure to, correct records)

File (failure to, within period) Appear (failure to, at prelim. conf.)

Unauthorized alterations Not appealable

Effect of failure to file brief [1(e)]

The mere lapse of the period to file appellant's brief does not automatically result in the dismissal of the appeal. There is still a need for the appellate court to act – to order the dismissal of the appeal upon motion by the appellee, or to order dismissal motu proprio. There is discretion to dismiss or not to dismiss the appeal. This is because the filing of appellant's brief is not a jurisdictional requirement.

Exception to [1(f)] (Absence of specific assignment of errors)

Criminal cases are an exception because the entire case is thrown into review upon appeal

Dismissal of improper appeal (Sec. 2, Rule 50)

Remand of improper appeal (Sec. 8, Rule 40)

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. An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright.

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.

Rule 56-B: PROCEDURE IN THE SUPREME COURT;

APPEALED CASES

Sec. 5. Grounds for dismissal of appeal. The appeal may be dismissed motu proprio 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 or mode of appeal; and (g) The fact that the case is not appealable to the Supreme court.



[mnemonic: PS MEN CR]

pay (failure to) merit (lack of) circular (failure to comply)

service (failure to comply) error in choice or mode reglementary period (failure to)

not appealable

Note on Sec. 7: Whether decided en banc or in division, it is the decision of the entire Supreme Court itself. The SC en banc is NOT higher than the division.

APPEALS IN CRIMINAL CASES (RULE 122 and 124) Effect of an appeal: An appeal opens the whole case for review. This includes the review of the penalty, indemnity and the damages involved. Q: Can the appellant be given a higher penalty upon appeal? A: YES because the whole case is opened for review. Q: Does the appeal taken by one co-accused affect the other co-accused who did not appeal? A: Generally, NO. However, it can affect the others when the judgment in the appellate court is favorable to the others – the judgment will inure to their benefit as well. Modes of review: Similar to civil cases:

1. Ordinary appeal 2. Petition for review 3. Petition for review on certiorari 4. Automatic appeal (death penalty)

Effect of acquittal: A judgment of acquittal becomes final immediately after promulgation. It cannot even be the subject of certiorari. This is because an appeal would place the accused in double jeopardy. However, the offended party may appeal the civil aspect of the case. Q: Does the fresh period rule (Neypes) apply in criminal cases? A: YES. Although the SC has made this ruling on a civil case, it is submitted that if the court has applied this rule to all other appeals involving civil cases, with more reason should the defendant in a criminal case be given ample time to file his appeal. (Sabio and MIG)

Effect of withdrawal of appeal: Q: Will finality of judgment retroact to prior to the withdrawal of appeal or will it take effect on the date of approval by the court? A: MIG says the latter. Distinction from appeals in civil cases:

Assignment of errors: An accused-appellant may change his theory on appeal; thus, the whole case opens the whole action for review on any questioning including those not raised by the parties. Unlike in civil actions, it is not necessary for the appellant to make assignment of errors in his brief, as on appeal, the whole record of the case is submitted to and reviewable by the appellate court.

Dismissal of appeal: The appeal of a criminal case may be dismissed for abandonment or failure to prosecute. (Section 8, Rule 124)

o Failure on the part of the appellant to file his brief within the reglementary period, except when he is represented by counsel de oficio (*tantamount to abandonment of appeal)

o Escape of the appellant from prison (*tantamount to failure to prosecute) o Appellant jumps bail (*tantamount to failure to prosecute) o Flight of the appellant to a foreign country during the pendency of the

appeal (*tantamount to failure to prosecute)

Rule 47 (Annulment of Judgments or Final Orders and Resolutions) does not apply to criminal cases. The proper remedy for lack of jurisdiction or extrinsic fraud is certiorari (Rule 65) or habeas corpus (Rule 102).

Effect of failure to prosecute:

1. Judgment of the lower court becomes final 2. Accused cannot be afforded the right to appeal unless

a. he voluntarily submits to the jurisdiction of the court or b. he is otherwise arrested within 15 days from notice of judgment against him

Note on Sandiganbayan: In appeals from decisions of the SB in criminal cases, the procedure is the same as civil cases, including filing of notice of appeal to the SC where penalty imposed is reclusion perpetua. If the penalty is lower than RP, then the mode of appeal is by way of Rule 45 (petition for review on certiorari).

Documents

Civil Procedure II Apprac Reviewer as of Mar2010 - For Printing