1997 Rules on Civil Procedure Rule 44

2001 Edition <draft copy. pls. check for errors> Ordinary Appealed Cases

PROCEDURE IN THE COURT OF APPEALS

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

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

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

Anyway, take note that under the present rules when the RTC clerk transmits the records to the
CA, nandoon na ang docket fee. Now, once original record is there, next is you will receive a notice
from the clerk of court that all the records are there, all the documentary evidence. And you are now
given 45 days to file an appellant’s brief under Section 7 which has to be answered by the appellee
under Section 8. And the appellant is given the option to file an appellant’s reply brief under Section 9.
As to the contents of the appellant’s brief and appellee’s brief, you have Sections 13 and 14.

Section 1. Title of cases. In all cases appealed to the Court of Appeals

under Rule 41, the title of the case shall remain as it was in the court of
origin, but the party appealing the case shall be further referred to as the
appellant and the adverse party as the appellee. (1a, R46)

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

Sec. 3. Order of transmittal of record. If the original record or the record

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

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

Sec. 5. Completion of record. Where the record of the docketed case is

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

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

Sec. 7. Appellant’s brief. It shall be the duty of the appellant to file

with the court, within forty-five (45) days from receipt of the notice of the

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clerk that all the evidence, oral and documentary, are attached to the record,
seven (7) copies of his legibly typewritten, mimeographed or printed brief, with
proof of service of two (2) copies thereof upon the appellee. (10a, R46)

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

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

Sec. 10. Time for filing memoranda in special cases. In certiorari,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MOSKOWSKY vs. COURT OF APPEALS

230 SCRA 657

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

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

ISSUE #2: When do you compute the 20-day extension being asked for? Is it on
November 1, the expiration of the period? Or on November 4, the day of the filing of the
motion?
HELD: “The appellant specifically manifested that they will need another extension
from today (November 4) within which to file appellant’s brief, and ‘today’ is November 4.
So, the period commences to run on November 4.” So very liberal no?
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Take note of Section 15 – what questions may an appellant raise on appeal:

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

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

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

RIVERA vs. COURT OF APPEALS

176 SCRA 169 [1989]

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

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

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

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

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

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

Q: If the appellee seeks modification of the judgment, is it enough for him to make assignment of
errors?

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A: In such a case, the appellee must appeal; an assignment of error is not enough. (Oquiñena vs.
Canda, 87 Phiil. 120; Gorospe vs. Peñaflorida, supra; Dy vs. Kuison, supra)

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

-oOo-

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