ii. Appeal from RTC (Rule 41)

R. Remedies before Finality of Judgment (part 3 of 4)

Section 1. Title of cases. – In all cases appealed to the Court of Appeals under Rule 41, the title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee. (1a, R46) Section 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) Section 3. Order of transmittal of record. – If the original record or the record on appeal is not transmitted to the Court of Appeals within thirty (30) days after the perfection of the appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal. (3a, R46) Section 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. (4a, R46) Within ten (10) days from receipt of said notice, the appellant, in appeals by record on appeal, shall file with the clerk of court seven (7) clearly legible copies of the approved record on appeal, together with the proof of service of two (2) copies thereof upon the appellee. Any unauthorized alteration, omission or addition in the approved record on appeal shall be a ground for dismissal of the appeal. (n) Section 5. Completion of record. – Where the record of the docketed case is incomplete, the clerk of court of the Court of Appeals shall so inform said court and recommend to it measures necessary to complete the record. It shall be the duty of said court to take appropriate action towards the completion of the record within the shortest possible time. (n) Section 6. Dispensing with complete record. – Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult causes, the court, on its own motion or on motion of any of the parties, may declare that the record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the appeal, and shall issue an order explaining the reasons for such declaration. (n) Section 7. Appellant’s brief. – It shall be the duty of the appellant to file with the court, within forty-five (45) days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee. (10a, R46) Section 8. Appellee’s brief. – Within forty-five (45) days from receipt of the appellant’s brief, the appellee shall file with the court seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellant. (11a, R46) Section 9. Appellant’s reply brief. – Within twenty (20) days from receipt of the appellee’s brief, the appellant may file a reply brief answering points in the appellee’s brief not covered in his main brief. (12, R46) Section 10. Time for filing memoranda in special cases. – In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of briefs, their respective memoranda within a non-extendible period of thirty (30) days from receipt of the notice issued by the clerk that all the evidence, oral and documentary, is already attached to the record. (13a, R46) The failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of the appeal. (n) Section 11. Several appellants or appellees or several counsel for each party. – Where there are several appellants or appellees, each counsel representing one or more but not all of them shall be served with only one copy of the briefs. When several counsel represent one appellant or appellee, copies of the brief may be served upon any of them. (14a, R46) Section 12. Extension of time for filing briefs. – Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended. (15, R46) Section 13. Contents of appellant’s brief. – The appellant’s brief shall contain, in the order herein indicated, the following:

(a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited;

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

(c) Under the heading “Statement of the Case,” a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record;

(d) Under the heading “Statement of Facts,” a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record;

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

(f) Under the heading “Argument,” the appellant’s arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found;

(g) Under the heading “Relief,” a specification of the order or judgment which the appellant seeks; and

(h) In cases not brought up by record on appeal, the appellant’s brief shall contain, as an appendix, a copy of the judgment or final order appealed from. (16a, R46) Section 14. Contents of appellee’s brief. – The appellee’s brief shall contain, in the order herein indicated, the following:

(a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited;

(b) Under the heading “Statement of Facts,” the appellee shall state that he accepts the statement of facts in the appellant’s brief, or under the heading “Counter-Statement of Facts,” he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant’s statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellant’s statement of facts; and

(c) Under the heading “Argument,” the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. (17a, R46)

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

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 A.M. No. 07-7-12-SC, December 12, 2007.) Section 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. (1a, 5a) Section 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. (1a) Section 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. (2a) Section 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. (3a) Section 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. (4a) Section 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. (n) Section 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. (2a) Section 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. (n)

RULE 64: REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT

Instances when trial on the merits is NOT necessary when the relief sought may be:

• The allowance of an appeal after the expiration of the reglementary period.
• The staying of immediate execution despite failure to pay or deposit the rents due to FAME.

IMPORTANT: An order GRANTING the petition for relief is interlocutory hence not immediately appealable. However, certiorari lies if there is grave abuse of discretion or lack/excess of jurisdiction.

An order DENYING the petition for relief is now subject only to certiorari under Rule 65, as provided in Section 1(b) of Rule 41.

Appeal

Appeal may be made forty-eight (48) hours from notice of the judgment or final order.

This shall be in the form of a notice of appeal. (R41, S3)

Prisoner discharged upon a writ of habeas corpus shall not be again imprisoned for the same offense, unless, by lawful order or process of a court having jurisdiction over the cause or offense.

Those who recommits or imprisons or causes to be committed or imprisoned for the same offense any person set at liberty, shall forfeit the sum of one thousand pesos (P1000) and may also be punished for contempt. (R102, S17)

NO Appeal May be Taken From:

• An order denying a petition for relief or any similar motion seeking relief from judgment;
• An interlocutory order;

Note: An interlocutory order does NOT dispose of the entire case; it does not put an end to a case before the court.

• An order disallowing or dismissing an appeal;
• 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;
• An order of execution;
• 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 ending, unless the court allows an appeal therefrom; and
• An order dismissing an action without prejudice. (Rule 41, Sec. 1)

Period of Ordinary Appeal;

• Fifteen (15) days from notice of the judgment or final order appealed from.
• If a record on appeal is required, file notice of appeal and record on appeal within thirty (30) days from notice of the judgment or final order.
• In HABEAS CORPUS cases, forty-eight (48) hours from notice of judgment or final order appealed from.
• The period shall be interrupted by a timely Motion for New Trial or Motion for Reconsideration.
• No motion for extension of time to file a Motion for Reconsideration or Motion for New Trial shall be allowed (same rule as MTC-RTC appeals), except in cases pending with the Supreme Court. (Rule 41, Section 3)

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 shall be transmitted to appellate court together with the original record or the record on appeal, as the case may be. (Rule 41, Sec. 4)

Note: Please see notes on General Rule and Exceptions with regard to Payment of Fees under Rule 40 in the previous section of this reviewer.

Notice of Appeal

The notice of appeal must:

• Indicate the parties to the appeal.
• Specify 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. (Rule 41, Section 5)

Record on Appeal

The Record on Appeal shall include:

• Full names of all the parties to the proceedings shall be stated in the caption
• The judgment or final order from which the appeal is taken.
• 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 issues involved; and
• Together with such data as will show that the appeal was perfected on time (Material Data Rule). (Rule 41, Sec. 6)

Approval of Record on Appeal

Upon filing of the record on appeal for approval AND if no objection is filed by the appellee within five (5) days from receipt of the copy thereof the trial court (RTC) 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. (Rule 41, Sec. 7)

If the trial court orders the amendment thereof, the appellant shall redraft the record by including therein, in their proper chronological sequence, such additional matters as the court may have directed him/her to incorporate, and shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like matter as the original draft.

A record on appeal does not have to be set for hearing in the trial court by the appellant, as it is deemed submitted for approval upon its filing and the rule merely requires the adverse party to file any objection thereto within five (5) days.

Joint Record on Appeal

Can be applied when both parties are appellants. (Rule 41, Sec. 8)

Duty of the 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:

• 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;
• To verify the completeness of the records that will be transmitted to the appellate court;
• 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
• To transmit the records to the appellate court.

If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or transcripts not included in the records being transmitted to the appellate court, the reasons for their non-transmittal, and the steps taken or that could be taken to have them available. The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the appellate court. (Rule 41, Sec. 10)

Transmittal

The branch clerk of court of the RTC shall transmit to the appellate court the original record or the approved record on appeal:

• Within 30 days from the perfection of the appeal.
• With proof of payment of the appellate court docket and other lawful fees.
• A certified true copy of the minutes of the proceedings.
• An order of approval.
• A certificate of correctness.
• Original documentary evidence; and
• Original and three copies of the transcript. (Rule 41, Sec. 12)

Dismissal of Appeal

PRIOR to the transmittal of the original record or the record on the appeal to the appellate court, the trial court may, motu proprio or on motion, dismiss the appeal for having been taken out of time OR for nonpayment of the docket and other lawful fees within the reglementary period. (Rule 41, Sec. 13)

Rule 41 does not allow a trial court to disallow an appeal on grounds other than an appeal being taken out of time/non-payment of docket and other fees within reglementary period; only the CA may dismiss the appeal. Rule 41 is an appeal as a matter of right, once it is perfected, only the CA may disallow an appeal (Kho v. Camacho, G.R. No. 82789, 1991)

The period to appeal is mandatory and jurisdictional.

Failure to appeal on time makes the decision final and executory and deprives the appellate court of jurisdiction.

However, in a few instances, the court has allowed due course to such appeals on strong and compelling reasons of justice. (Note: This is applicable to the Supreme Court only, NOT the trial courts.)

Rule 41 vs. Rule 42