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Civil Procedure 2

Remedial Law 2 (Civil Procedure) (University of the Philippines System)

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APPELLATE PRACTICE REMEDIAL LAW AND ETHICS

III. APPEALS IN CIVIL Where taken

To the RTC exercising jurisdiction over the
PROCEDURE; MODES OF area to which the former pertains [Sec. 1, Rule
APPEAL FROM 40]

JUDGMENTS OR FINAL When taken

1. Within 15 days after notice to the appellant
ORDERS OF VARIOUS of the judgment or final order appealed
COURTS / TRIBUNALS from.
2. Where a record on appeal is required, the
appellant shall file a notice of appeal and a
A. Rule 40 Appeal from MTCs record on appeal within 30 days after
to RTCs notice of the judgment or final order.
3. The period of appeal shall be interrupted by
a timely motion for new trial or
Procedure [Rule 40] reconsideration. No motion for extension of
File a notice of appeal with the court that rendered time to file a motion for new trial or
the judgment or final order appealed from [Sec. 3] reconsideration shall be allowed [Sec. 2,
Rule 40].
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 Extension of period to appeal
amount of the appellate court docket and other Period to appeal may be extended but such
lawful fees [Sec. 5] extension is addressed to the sound discretion
of the court [Socco v. Garcia, G.R. No. L-18231
(1962)].
Within 15 days from the perfection of the appeal,
the COC or the branch COC of the lower court
shall transmit the original record or the record on How taken
appeal, together with the transcripts and exhibits, By notice of appeal
which he shall certify as complete, to the proper 1. File a notice of appeal with the trial court
RTC. A copy of his letter of transmittal of the that rendered the judgment or final order
records to the appellate court shall be furnished the appealed from
parties [Sec. 6]
indicating the parties to the appeal, the
judgment or final order or part thereof
Upon receipt of the complete record or the record appealed from, and state the material
on appeal, the COC of the RTC shall notify the dates showing the timeliness of the
parties of such fact [Sec. 7(a)] appeal
2. Copies of the notice of appeal shall be
served on the adverse party [Sec. 3, Rule
Within 15 days from such notice, it shall be the duty
40]
of the appellant to submit a memorandum which
shall briefly discuss the errors imputed to the lower 3. Pay to the COC which rendered the
court, a copy of which shall be furnished by him to judgment or final order appealed from the
the adverse party. Failure of the appellant to file a full amount of the appellate court docket and
memorandum shall be a ground for dismissal of the other lawful fees [Sec. 5, Rule 40]
appeal [Sec. 7(b)]
By record on appeal
1. File a notice of appeal [Sec. 2, Rule 41]
memorandum, the appellee may file his following the steps above.
memorandum [Sec. 7(c)] 2. The form and contents of the record on
appeal shall be as provided in Sec. 6, Rule
41 (See appeals from judgments or final
Upon the filing of the memorandum of the appellee, orders of the RTC)
or the expiration of the period to do so, the case
shall be considered submitted for decision. The
3. Copies of the notice of appeal, and the
RTC shall decide the case on the basis of the record on appeal where required, shall be
entire record of the proceedings had in the court of served on the adverse party [Sec. 3, Rule
origin and such memoranda as are filed [Sec. 7(d)] 40].

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4. Pay to the COC which rendered the B. Rule 41 Appeal from
judgment or final order appealed from the
full amount of the appellate court docket and RTCs
other lawful fees [Sec. 5, Rule 40].
RULE 41
Note: Record on appeal shall be required only Appeal from the RTC to the CA via Rule 41
in: presupposes that
1. Special proceedings 1. The RTC rendered the judgment or final
2. In such other cases of multiple or separate order in the civil action or special
appeals [Sec. 2, Rule 41] proceeding in the exercise of its original
jurisdiction; and
Perfection of appeal 2. That the appeal is taken to the CA on:
The perfection of the appeal and the effect a. Questions of fact or
thereof shall be governed by the provisions of b. Mixed questions of fact and law [1
Sec. 9, Rule 41 [Sec. 4, Rule 40]. Regalado 555, 2010 Ed.]

See appeals from judgments or final orders of NOTICE OF APPEAL

the RTC. Contents
1. Parties to the appeal,
Appeal from order dismissing a case 2. Judgment or final order or part thereof
without trial; lack of jurisdiction appealed from,
Two Scenarios 3. Court to which the appeal is being taken,
1. If an appeal is taken from an order of the and
lower court dismissing the case without a 4. Material dates showing the timeliness of the
trial on the merits appeal [Sec. 5, Rule 41]
a. The RTC may affirm or reverse it, as the
case may be RECORD ON APPEAL
b. In case of affirmance and the ground of General Rule: No record on appeal shall be
dismissal is lack of jurisdiction over the required.
subject matter, the RTC, if it has
jurisdiction thereover, shall try the case Exception: In special proceedings and other
on the merits as if the case was originally cases of multiple or separate appeals where
filed with it the law or the ROC so require.
c. In case of reversal, the case shall be In such cases, the record on appeal shall be
remanded for further proceedings filed and served in like manner [Sec. 2(a),
2. If the case was tried on the merits by the Rule 41].
lower court without jurisdiction over the
subject matter, the RTC on appeal shall not Contents of the record on appeal
dismiss the case if it has original jurisdiction 1. Full names of all the parties to the
thereof, but shall decide the case in proceedings shall be stated in the caption of
accordance with Sec. 7, Rule 40, without the record on appeal,
prejudice to the admission of amended 2. The judgment or final order from which the
pleadings and additional evidence in the appeal is taken and,
interest of justice [Sec. 8, Rule 40] 3. In chronological order, copies of only such
pleadings, petitions, motions and all
Applicability of Rule 41 interlocutory orders as are related to the
The other provisions of Rule 41 shall apply to appealed judgment or final order for the
appeals provided for herein insofar as they are proper understanding of the issue involved,
not inconsistent with or may serve to 4. Together with such data as will show that
supplement the provisions of Rule 40 [Sec. 9, the appeal was perfected on time [Sec. 6,
Rule 40]. Rule 41].

Note: The requirement that the record on

appeal must show on its face that the appeal
was perfected on time is mandatory and
jurisdictional that if not complied with, the
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APPELLATE PRACTICE REMEDIAL LAW AND ETHICS

appeal must be dismissed [1 Regalado 563, b. Submit the redrafted record for
2010 Ed.]. approval, upon notice to the appellee,
in like manner as the original draft [Sec.
Exception: If the trial court issued an order to 7, Rule 41].
the effect that the appeal was seasonably
perfected with the filing of the notice of appeal Joint record on appeal
and the record on appeal within the Where both parties are appellants, they may
reglementary period [Pimentel v. CA, G.R. file a joint record on appeal within 30 days from
Nos. L-39423 & L-39684 (1975)]. notice of judgment or final order, or that fixed
by the court [Secs. 3 and 8, Rule 41].
If an issue of fact is to be raised on appeal, the
record on appeal shall include by reference all Period to appeal
the evidence taken upon the issue involved. 1. Within 15 days from notice of judgment or
1. The reference shall specify the final order appealed from
a. Documentary evidence by the exhibit 2. Within 30 days from notice of judgment or
numbers or letters by which it was final order where a record on appeal is
identified when admitted or offered at the required
hearing, and 3. Within 48 hours from notice of judgment or
b. Testimonial evidence by the names of final order appealed from in habeas corpus
the corresponding witnesses cases [Sec. 3, Rule 41]
2. If the whole testimonial and documentary
evidence in the case is to be included, a Note: If a MNT/MR was properly filed but the
statement to that effect will be sufficient motion was ultimately dismissed, a fresh period
without mentioning the names of the of 15 days within which to file the notice of
witnesses or the numbers or letters of appeal in the RTC, counted from receipt of the
exhibits. order dismissing the motion is granted [Neypes
3. Every record on appeal exceeding 20 pages v. CA, G.R. No. 141524 (2005)].
must contain a subject index [Sec. 6, Rule
41]. Reckoning point of reglementary period
Period for filing the appeal should be counted
Approval of the record on appeal
1. Upon the filing of the record on appeal for received a copy of the judgment or final order
approval and if no objection is filed by the because that is the effective service of the
appellee within 5 days from receipt of a copy decision. When a party is represented by
thereof, the trial court may: counsel, service of process must be made on
a. Approve it as presented or upon its own counsel, not on the party [Fajardo v. CA, G.R.
motion, or No. 140356 (2001); Sec. 2, Rule 13]
b. At the instance of the appellee, may
direct its amendment Note: The mere filing and pendency of motion
by the inclusion of any omitted for extension to perfect appeal does not
matters which are deemed suspend the running of the reglementary
essential to the determination of period [King v. Corro, G.R. No. L-23617 (1967)]
the issue of law or fact involved in Extension of period to appeal
the appeal. The period to appeal may be extended but
2. If the trial court orders the amendment of the such extension is addressed to the sound
record, the appellant, within the time limited discretion of the court [Gregorio v. CA, G.R.
in the order, or such extension thereof as No. L-43511 (1976)].
may be granted, or if no time is fixed by the
order within 10 days from receipt thereof, Note: If the trial court approves the record on
shall: appeal even if the period for the appeal has
a. Redraft the record by including therein, expired, this is tantamount to a valid order
in their proper chronological sequence, granting the extension prayed for by the
such additional matters as the court appellant if any such motion has been filed
may have directed him to incorporate, [Berkenkotter v. CA, G.R. No. L-36629 (1973)].
and Conversely, dismissal constitutes a denial of
the extension prayed for, in which case the only
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question that can arise is whether the trial court Contents
had gravely abused its discretion in denying 1. Subject index
such extension [PVTA v. Delos Angeles, G.R. 2. Statement of Facts or Counter-Statement of
No. L-29736 (1974)]. Facts
3. Argument [Sec. 14, Rule 44]
Pleadings to be filed
1.
2. Appellee's brief
3. brief, the appellant may file a reply brief

covered in his main brief [Sec. 9, Rule 44].

It shall be the duty of the appellant to file with
the court, within 45 days from receipt of the Extension of time for filing briefs:
notice of the clerk that all the evidence, oral and General Rule: Not allowed
documentary, are attached to the record, 7
copies of his legibly typewritten, Exception: Good and sufficient cause, and
mimeographed or printed brief, with proof of only if the motion for extension is filed before
service of 2 copies thereof upon the appellee the expiration of the time sought to be extended
[Sec. 7, Rule 44]. [Sec. 12, Rule 44]

Note: Under Sec. 5(b) of the Efficient Use of Payment of docket fees
Paper Rule [A.M. No. 11-9-4-SC], file one 1. Within the period for taking an appeal, the
original (properly marked) and 2 copies with appellant shall pay to the clerk of the court
their annexes with the CA. which rendered the judgment or final order
appealed from, the full amount of the
Grounds for dismissal with respect to appellate court docket and other lawful
fees.
1. Failure of the appellant to serve and file the 2. Proof of payment of said fees shall be
required number of copies of his brief within transmitted to the appellate court together
the time provided by the ROC, or with the original record or the record on
2. Absence of specific assignment of errors in appeal [Sec. 4, Rule 41].
-(f), Rule 50]
Note: Payment of docket fees in full is
Contents mandatory and is a condition sine qua non for
1. Subject index the perfection of an appeal. Subsequent
2. Assignment of errors payment of appellate docket fees does not cure
3. Statement of the Case the defect of the appeal because payment is a
4. Statement of Facts jurisdictional requirement [Santander v.
5. Statement of issues Villanueva, G.R. No. L-6184 (1958)].
6. Arguments
7. Relief Perfection of appeal
8. Copy of judgment or final order appealed 1.
from [Sec. 13, Rule 44] deemed perfected as to him upon the filing
of the notice of appeal in due time.
2.
deemed perfected as to him with respect to
brief, the appellee shall file with the court 7 the subject matter thereof upon the
copies of his legibly typewritten, approval of the record on appeal filed in
mimeographed or printed brief, with proof of due time [Sec. 9, Rule 41].
service of 2 copies thereof upon the appellant
[Sec. 8, Rule 44]. Note: An appellant who fails to perfect his
appeal on time due to FAME may file for a
Note: Under Sec. 5(b) of the Efficient Use of petition for relief under Sec. 2, Rule 38. If his
Paper Rule [A.M. No. 11-9-4-SC], file one petition for relief is denied, he can file a petition
original (properly marked) and 2 copies with under Rule 65, since the denial of a petition for
their annexes with the CA. relief is no longer appealable under Sec. 1 of
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Rule 41 [De Luna v. Palacio, G.R. No. L-26927 exhibits or transcripts not included in the
(1969)]. records being transmitted to the appellate
court, the reasons for their non-transmittal,
Effect of perfected appeal and the steps taken or that could be taken
1. In appeals by notice of appeal, the court to have them available.
loses jurisdiction over the case upon the 3. The COC shall furnish the parties with
perfection of the appeals filed in due time copies of his letter of transmittal of the
and the expiration of the time to appeal of records to the appellate court [Sec. 10, Rule
the other parties. 41].
2. In appeals by record on appeal, the court
loses jurisdiction only over the subject Note: Even if the appeal has already been
matter thereof upon the approval of the perfected but the records have not yet been
records on appeal filed in due time and the transmitted to the appellate court, the trial court
expiration of the time to appeal of the other still has jurisdiction to set aside its order
parties [Sec. 9, Rule 41]. approving the record on appeal [Cabungcal v.
Fernandez, G.R. No. L-16520 (1964)].
Residual powers/jurisdiction of the RTC
In either case, prior to the transmittal of the Dismissal of appeal
original record or the record on appeal, the Prior to the transmittal of the original record or
court may the record on appeal to the appellate court, the
1. Issue orders for the protection and trial court may motu proprio or on motion
preservation of the rights of the parties dismiss the appeal for:
which do not involve any matter litigated by 1. Having been taken out of time, or
the appeal 2. Non-payment of the docket and other lawful
2. Approve compromises fees within the reglementary period [Sec.
3. Permit appeals of indigent litigants 13, Rule 41]
4. Order execution pending appeal in
accordance with Sec. 2 of Rule 39, and C. Rule 42 Petition for
5. Allow withdrawal of the appeal [Sec. 9, Rule
41] Review from RTCs to CA

Note: There is no residual jurisdiction to speak RULE 42

of where no appeal or petition has even been Petition for review from the RTC to the CA
filed [Fernandez v. CA, G.R. No. 131094 Appeal via Rule 42 is proper when one appeals
(2005)]. from a decision of the RTC in the exercise of its
appellate jurisdiction. It may be taken on either
Duty of clerk upon perfection of appeal questions of fact, questions of law, or on mixed
1. Within 30 days after perfection of all the questions of fact and law [Macawiwili Gold
appeals in accordance with the preceding Mining and Development Co., Inc. v. CA, G.R.
section, it shall be the duty of the COC of No. 115104 (1998)].
the lower court:
a. To verify the correctness of the original This mode of appeal is not a matter of right but
record or the record on appeal and to is a matter of discretion on the part of the CA,
make a certification of its correctness; on whether or not to entertain the appeal [1
b. To verify the completeness of the Regalado 581, 2010 Ed.]
records that will be transmitted to the
appellate court; Note: Since Rule 42 is a petition for the
c. If found to be incomplete, to take such purpose of appeal and not petitions in original
measures as may be required to actions, lower courts/judges that rendered the
complete the records, availing of the judgment complained of are not impleaded as
authority that he or the court may parties in the appeal [1 Regalado 579, 2010
exercise for this purpose; and Ed.].
d. To transmit the records to the appellate
court How taken
2. If the efforts to complete the records fail, he If a party desires to appeal from a decision of
shall indicate in his letter of transmittal the the RTC in its appellate jurisdiction:
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1. File a verified petition for review with the CA both lower courts, certified correct by the
a. Within 15 days from notice of judgment COC of the RTC,
or final order, or 6. The requisite number of plain copies thereof
b. Within 15 days from notice of denial of and of the pleadings, and
7. Other material portions of the record as
2. Pay at the same time to the clerk of the CA would support the allegations of the petition,
the corresponding docket and other lawful 8. Certification of non-forum shopping [Sec. 2,
fees, Rule 42]
3. Deposit PHP 500.00 for costs, and
4. Furnish the RTC and the adverse party with Effect of failure to comply
a copy of the petition [Sec. 1, Rule 42]. Failure to comply with any of the following
requirements shall be sufficient ground for
Period to appeal dismissal:
The petition shall be filed and served within 15 1. Payment of docket and other lawful fees
days from notice of the decision sought to be Note: In petitions for review under Rules
reviewed or of the denial of the petitioner's 42, 43, and 45, the docket fee is paid in the
MNT or MR filed in due time after judgment appellate courts
[Sec. 1, Rule 42]. 2. Deposit for costs
3. Proof of service of petition
Extension of period 4. Contents of the documents which should
Upon proper motion and the payment of the full accompany the petition [Sec. 3, Rule 42]
amount of the docket and other lawful fees and
the deposit for costs before the expiration of the Note: Failure to append the pleadings and
reglementary period, the CA may grant an material portions of the record does not justify
additional period of 15 days only within which the outright dismissal of the petition. There is
to file the petition for review. No further substantial compliance when the pleadings
extension shall be granted except for the most were attached to the MR [Mendoza v. David,
compelling reason and in no case to exceed 15 G.R. No. 147575 (2004)].
days [Sec. 1, Rule 42].
Perfection of appeal
Form and contents Appeal is deemed perfected as to petitioner
1. In 7 legible copies, with the original copy upon the
intended for the court being indicated as 1. Timely filing of the petition, and
such by the petitioner 2. Payment of the corresponding docket and
Note: Under Sec. 5(b) of the Efficient lawful fees [Sec. 8(a), Rule 42]
Use of Paper Rule [A.M. No. 11-9-4-
SC], file one original (properly marked) Jurisdiction of the RTC
and 2 copies with their annexes with 1. The RTC loses jurisdiction over the case
the CA upon the perfection of the appeals filed in
2. Full names of the parties to the case, due time and the expiration of the time to
without impleading the lower courts or appeal of the other parties.
judges thereof either as petitioners or 2. However, before the CA gives due course to
respondents, the petition, the RTC may:
3. Specific material dates showing that it was a. Issue orders for the protection and
filed on time, preservation of the rights of the parties
4. A concise statement of the which do not involve any matter litigated
a. Matters involved, by the appeal, approve corn-promises
b. Issues raised, b. Permit appeals of indigent litigants
c. Specification of errors of fact or law, or c. Order execution pending appeal in
both, allegedly committed by the RTC, accordance with Sec, 2 of Rule 39, and
and d. Allow withdrawal of the appeal [Sec.
d. Reasons or arguments relied upon for 8(a), Rule 42].
the allowance of the appeal
5. Clearly legible duplicate originals or true Note: The Doctrine of Residual Jurisdiction of
copies of the judgments or final orders of the RTC, at item (2) above, applies as in cases
under Rule 42, except that the RTC must
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exercise this jurisdiction before the CA gives Due course
due course to the petition [Sec. 8(a), Rule 42]. 1. If upon the filing of the comment or such
In contrast, the RTC must exercise residual other pleadings as the court may allow or
jurisdiction in Rule 41 prior to transmittal of the require, or
original record or the record on appeal [Sec. 9, 2. After the expiration of the period for the
Rule 41]. filing thereof without such comment or
pleading having been submitted,
Effect of appeal the CA finds prima facie that the lower court
General Rule: The appeal shall stay the has committed an error of fact or law that will
judgment or final order. warrant a reversal or modification of the
appealed decision, it may accordingly give due
Exceptions: course to the petition [Sec. 6, Rule 42].
1. Civil cases decided under the Rule on
Summary Procedure, or Whenever the CA deems it necessary, it may
2. The CA, the law, or ROC provide otherwise order the COC of the RTC to elevate the
[Sec. 8(a), Rule 42] original record of the case including the oral
and documentary evidence within 15 days from
Action on petition notice [Sec. 7, Rule 42].
The CA may:
1. Require the respondent to file a comment Submission for decision
on the petition, not a motion to dismiss, 1. If the petition is given due course, the CA
within 10 days from notice; or may
2. Dismiss the petition if it finds a. set the case for oral argument or
a. The same to be patently without merit or b. require the parties to submit memoranda
prosecuted manifestly for delay, or within a period of 15 days from notice.
b. That the questions raised therein are too 2. The case shall be deemed submitted for
insubstantial to require consideration decision upon the filing of the last pleading
[Sec. 4, Rule 42] or memorandum required by these Rules or
by the court itself [Sec. 9, Rule 42].
Note: Under this Rule, appeal is discretionary
on the CA which may give its due course only D. Rule 43 Appeals from
when the petition shows prima facie that the
lower court has committed error [1 Riano 600, CTA, CSC, and QJA
2011 Ed.]
1. Appeal from Judgments or Final
Contents of comment Orders of The Court of Tax
1. In 7 legible copies Appeals
Note: Under Sec. 5(b) of the Efficient
Use of Paper Rule [A.M. No. 11-9-4- Mode of review
SC], file one original (properly marked) The CTA is no longer a quasi-judicial agency
and 2 copies with their annexes with under R.A. 9282, as of April 7, 2004. The CTA
the CA is no longer covered by Rule 43.
2. Certified true copies of such material
portions of the record referred to therein, A party adversely affected by a decision or
3. Together with other supporting papers, ruling of the CTA en banc may file with the SC
4. Whether or not he accepts the statement of a verified petition for review on certiorari under
matters involved in the petition, Rule 45 [Sec. 11, R.A. 9282 and A.M. No. 07-
5. Such insufficiencies or inaccuracies as he 7-12-SC].

matters involved but without repetition, and 2. Review of Final Judgments or

6. The reasons why the petition should not be Final Orders of The Civil Service
given due course.
Commission
A copy thereof shall be served on the petitioner
[Sec. 5, Rule 42].
See Rule 43 on Review of QJAs below.

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3. Review of Final Judgments or decision. In observance of the doctrine of
Final Orders of The Ombudsman hierarchy of courts, this should be filed with the
CA [St. Martin Funeral Homes v. NLRC, G.R.
Unappealable decisions No. 130866 (1998)].
The following decisions are unappealable:
1. In administrative cases where respondent From the CA, the remedy of the aggrieved
is absolved of the charge party is a petition for review by certiorari to the
2. In case of conviction, where penalty SC [Dongon v. Rapid Movers and Forwarders,
imposed is public censure or reprimand, or G.R. No. 163431 (2013)].
suspension of not more than one month or
a fine equivalent to one month salary [Sec. E. Review of Final
7, Rule III, Admin Order No. 7] Judgments or Final Orders of
Jurisdiction of the CA Quasi-judicial Agencies
Appeals from decisions of the Office of the
Ombudsman in administrative disciplinary Scope
cases should be taken to the CA under the Appeals from awards, judgments, final orders,
provisions of Rule 43 [Fabian v. Desierto, G.R. or resolutions of or authorized by any quasi-
No. 129742 (1998)]. judicial agency (QJA) in the exercise of its
quasi-judicial functions [Sec. 1, Rule 43]
Note: The CA has jurisdiction over orders,
directives and decisions of the Office of the A quasi-judicial agency or body is an organ of
Ombudsman in administrative disciplinary government other than a court and other than
cases only. It cannot review the orders, a legislature, which affects the rights of private
directives or decisions of the Office of the parties though either adjudication or rule-
Ombudsman in criminal or non-administrative making [United Coconut Planters Bank v. E.
cases [Duyon v. The Former Special Fourth Ganzon, Inc., G.R. No. 168859 (2009)].
Division of the Court Of Appeals, G.R. No.
172218 (2014)]. Quasi-judicial agencies covered by Rule 43:
1. Civil Service Commission,
Jurisdiction of the SC 2. Securities and Exchange Commission,
Decisions of the Ombudsman in criminal cases 3. Office of the President,
are unappealable. However, where the findings 4. Land Registration Authority,
of the Ombudsman on the existence of 5. Social Security Commission,
probable cause (in criminal cases) are tainted 6. Civil Aeronautics Board,
with grave abuse of discretion amounting to 7. Bureau of Patents, Trademarks and
lack or excess of jurisdiction, the aggrieved Technology Transfer,
party may file before the SC a petition for 8. National Electrification Administration,
certiorari under Rule 65 [Duyon v. The Former 9. Energy Regulatory Board,
Special Fourth Division of the Court Of 10.National Telecommunications Commission,
Appeals, supra] 11.Department of Agrarian Reform under R.A.
6657,
4. Review of Final Judgments or 12.GSIS,
13.Employees Compensation Commission,
Final Orders of The National Labor 14.Agricultural Inventions Board,
Relations Commission 15.Insurance Commission,
16.Philippine Atomic Energy Commission,
Appeal from the NLRC 17.Board of Investment,
Appeal from quasi-judicial agencies under Rule 18.Construction Industry Arbitration
43 does not apply to judgments or final orders Commission, and
issued under the Labor Code [Sec. 2, Rule 43]. 19.Voluntary arbitrators authorized by law

The remedy of a party aggrieved by the Where to appeal

decision of the NLRC is to file a MR and, if Appeal may be taken to the CA on questions of
denied, file a special civil action for certiorari fact, of law, or mixed questions of fact and law.
under Rule 65 within 60 days from notice of the [Sec. 3, Rule 43]
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Period to appeal 3. Clearly legible duplicate original or a
Within 15 days from certified true copy of award, judgment, final
1. Notice of award, judgment, final order, or order, or resolution appealed from
resolution; or 4. Certified true copies of such material
2. Date of its last publication, if publication is portions of record referred to in the petition
required by law for its effectivity; or and other supporting papers
3. 5. Certificate of non-forum shopping
in accordance with the governing law of the 6. Statement of specific material dates
court or agency a quo showing timeliness of appeal [Sec. 6, Rule
[Sec. 4, Rule 43] 43]

Extension of period Effect of failure to comply

Upon proper motion and the payment of the full Failure to comply with the following is sufficient
amount of the docket fee before the expiration ground for the CA to dismiss the appeal:
of the reglementary period, the CA may grant 1. Payment of docket and lawful fees
an additional period of 15 days only within 2. Deposit for costs
which to file the petition for review. No further 3. Proof of service of petition
extension shall be granted except for the most 4. Contents of petition
compelling reason and in no case to exceed 15 5. Documents which should accompany the
days [Sec. 4, Rule 43]. petition [Sec. 7, Rule 43]

How taken Action on the petition

1. File a verified petition for review in 7 legible The CA may
copies with the CA. 1. Require the respondent to file a Comment
a. The original copy of the petition intended within 10 days from notice, or
for the CA shall be indicated as such by 2. Dismiss the petition if CA finds the same to
the petitioner. be
b. Under Sec. 5(b) of the Efficient Use of a. Patently without merit
Paper Rule [A.M. No. 11-9-4-SC], file b. Prosecuted manifestly for delay, or
one original (properly marked) and 2 c. Questions raised are too insubstantial to
copies with their annexes with the CA require consideration [Sec. 8, Rule 43]
2. Proof of service of a copy thereof on the
adverse party and on the court or agency a Contents of comment
quo. 1. Filed within 10 days from notice in 7 legible
3. Upon the filing of the petition, pay to the copies;
COC of the CA the docketing and other a. Under Sec. 5(b) of the Efficient Use of
lawful fees and deposit PHP 500.00 for Paper Rule [A.M. No. 11-9-4-SC], file
costs. one original (properly marked) and 2
a. Exemption from payment of docketing copies with their annexes with the CA
and other lawful fees and the deposit for 2. Accompanied by clearly legible certified true
costs may be granted by the CA upon a copies of such material portions of the
verified motion setting forth valid record referred to therein together with other
grounds therefor. supporting papers;
b. If the CA denies the motion, the 3. Point out insufficiencies or inaccuracies in
petitioner shall pay the docketing and
other lawful fees and deposit for costs and
within 15 days from notice of the denial 4. State the reasons why the petition should be
[Sec. 5, Rule 43]. denied or dismissed.
A copy thereof shall be served on the
Contents of petition petitioner, and proof of such service shall be
1. Full names of parties to the case, without filed with the CA [Sec. 9, Rule 43].
impleading the court or agencies
2. Concise statement of facts and issues Due course
involved, and grounds relied upon for review The CA may give due course to the petition
1. If upon

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a. The filing of the comment or such other F. Rule 45 Appeals by
pleadings or documents as may be
required or allowed by the CA or Certiorari to the Supreme Court
b. The expiration of the period for the filing
thereof, and RULE 45
2. On the basis of the petition or the records, Appeal by certiorari from the RTC to the SC
the CA finds prima facie that the court or via Rule 45
agency concerned has committed errors of RTC must have rendered judgment in the
fact or law that would warrant reversal or exercise of its original jurisdiction [1 Regalado
modification of the award, judgment, final 609, 2010 Ed.].
order or resolution sought to be reviewed
[Sec. 10, Rule 43]. If the RTC is in exercise of its appellate
jurisdiction, proper remedy is to appeal to the
The findings of fact of the court or agency CA via Rule 42 even if only questions of law are
concerned, when supported by substantial raised [1 Regalado 609, 2010 Ed.].
evidence, shall be binding on the CA [Sec. 10,
Rule 43]. Note: A question of law exists when there is a
doubt/controversy as to what the law is on a
Transmittal of records certain state of facts. There is a question of fact
Within 15 days from notice that the petition has when the doubt/ difference arises as to the
been given due course, the CA may require the truth/ falsehood of facts [Ramos v. Pepsi, G.R.
court or agency concerned to transmit the No. L-22533 (1967)]. If the test is whether the
original or a legible certified true copy of the appellate court can determine the issue
entire record of the proceeding under review. raised without reviewing or evaluating the
The record to be transmitted may be evidence, it is a question of law. The question
abridged by agreement of all parties to the must not involve the examination of the
proceeding. probative value of the evidence presented
The CA may require or permit subsequent [Vda. De Arroyo v. El Beaterio del Santissimo
correction of or addition to the record [Sec. Rosario de Molo, G.R. No. L-22005 (1968)].
11, Rule 43].
Grave abuse of discretion is not an allowable
Effect of appeal ground under Rule 45 [Martires v. CA, G.R.
General Rule: Appeal shall not stay the Nos. 78036-37 (1990)].
award, judgment, final order or resolution
sought to be reviewed. 1. Appeal from Judgments or Final
Orders of The Court of Appeals
Exception: The CA shall direct otherwise upon
such terms as it may deem just [Sec. 12, Rule Any alleged errors committed in the exercise of
43]. its jurisdiction will amount to nothing more than
errors of judgment which are reviewable by
Submission for decision timely appeal and not by special civil action of
If petition is given due course, the CA may certiorari [Chuidian v. Sandiganbayan (Fifth
a. Set the case for oral argument or Division), G.R. No. 139941 (2001)].
b. Require parties to submit memorandum
within 15 days from notice. As provided in Rule 45, decisions, final orders
or resolutions of the CA in any case, i.e.,
Upon filing of the last pleading or memorandum regardless of the nature of the action or
required by the ROC or the CA, case is proceedings involved, may be appealed to the
deemed submitted for decision [Sec. 13, Rule SC by filing a petition for review, which would
43]. be but a continuation of the appellate process
over the original case [Fortune Guarantee and
Insurance Corp. v. CA, G.R. No. 110701
(2002)].

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Certiorari as mode of appeal and as special the petitioner and
civil action respondents
Appeal by
Certiorari as SCA
certiorari
[Rule 65]
[Rule 45] MR is a condition
Writ of certiorari precedent [Villa Rey
issues for the Prior filing of a MR is Transit v. Bello, G.R.
correction of errors not required [Sec. 1] No. L-18957 (1963)],
Brings up for review, of jurisdiction only or subject to certain
errors of judgment grave abuse of exceptions
committed by the discretion amounting Higher court
court to lack or excess of Appellate court is in exercises original
jurisdiction [Silverio the exercise of its jurisdiction under its
v. CA, G.R. No. L- appellate jurisdiction power of control and
39861 (1986)] and power of review supervision over the
Petition raises the [Regalado 543-544, proceedings of lower
Based on questions issue as to whether 1977 Ed.] courts [Regalado
of law which the the lower court acted 543-544, 1977 Ed.]
appellant desires the without or in excess [2 Herrera 643-645, 2000 Ed.]
appellant court to of jurisdiction or with
resolve grave abuse of Procedure [Rule 45]
discretion File a verified petition for review on certiorari, which
May be directed may include an application for a writ of preliminary
against an injunction or other provisional remedies [Sec. 1]
interlocutory order of
Involves the review the court prior to Proof of service of a copy thereof on the lower court
of the judgment, appeal from the concerned and on the adverse party shall be
submitted together with the petition [Sec. 3]
award or final order judgment or where
on the merits there is no appeal or
any other plain, Pay the corresponding docket and other lawful fees
speedy or adequate to the COC of the SC and deposit the amount of
remedy
petition [Sec. 3]
May be filed not later
than 60 days from
Must be made within SC may dismiss or deny the petition [Sec. 5], or
notice of the
the reglementary give due course to it [Sec. 8]
judgment, order or
period for appeal
resolution sought to
be assailed If the petition is given due course, the SC may
require the elevation of the complete record of the
Unless a writ of case or specified parts thereof within 15 days from
preliminary notice [Sec. 8]
Stays the judgment, injunction or a TRO
award or order shall have been
appealed from issued, does not stay Propriety as a mode of appeal
the challenged A party desiring to appeal by certiorari from a
proceeding judgment or final order or resolution of the CA,
the Sandiganbayan, the RTC or other courts
The parties are the
Petitioner and whenever authorized by law, may file with the
aggrieved party
respondent are the SC a verified petition for review on certiorari
against the lower
original parties to the [Sec. 1, Rule 45].
court or quasi-
action, and the lower
judicial agency and
court or quasi- Only questions of law are allowed
the prevailing
judicial agency is not The petition shall raise only questions of law
parties, who thereby
to be impleaded [Sec. 1, Rule 45].
respectively become

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APPELLATE PRACTICE REMEDIAL LAW AND ETHICS

Whether an appeal involves only questions of 2. Inference made is manifestly mistaken,
law or both questions of law and fact is best left absurd or impossible [Luna v. Linatoc, G.R.
to the determination of an appellate court and No. L-48403 (1942)]
not by the court which rendered the decision 3. There is grave abuse of discretion in the
appealed from [PNB v. Romillo, et al., G.R. No. appreciation of facts [Buyco v. People, G.R.
70681 (1985)]. No. L-6327 (1954)]
4. Judgment is based on a misapprehension of
Questions of law Questions of fact facts [De la Cruz v. Sosing, G.R. No. L-4875
Doubt as to the truth (1953)]
or falsehood of facts, 5.
Doubt as to what the [Casica v. Villaseca, G.R. No. L-9590
or as to probative
law is on certain facts (1957)]
value of the
evidence presented 6. The CA, in making its findings, went beyond
If the appellate court the issues of the case and the same is
can determine the The determination contrary to the admissions of both appellant
issue without involves evaluation and appellee [Nakpil & Sons v. CA, G.R. No.
reviewing or or review of L-47851 (1986)]
evaluating the evidence 7. The CA manifestly overlooked certain
evidence relevant facts not disputed by the parties
Query involves the and which, if properly considered, would
calibration of the justify a different conclusion [Abellana v.
whole evidence Dosdos, G.R. No. L-19498 (1965)]
considering mainly 8. The CA
the credibility of those of the trial court, or are mere
Can involve conclusions without citation of specific
witnesses,
questions of evidence, or where the facts set forth by the
existence, and
interpretation of law petitioner are not disputed by the
relevancy of specific
with respect to a respondent, or where the findings of fact of
surrounding
certain set of facts the CA are premised on absence of
circumstances and
relation to each evidence but are contradicted by the
other and the whole evidence of record [Manlapaz v. CA, G.R.
probabilities of the No. L-56589 (1987)]
situation
[1 Regalado 609, 2010 Ed., citing Bernardo v. Period of appeal
CA, G.R. No. 101680 (1992); Pilar Within 15 days from notice of the
Development Corp. v. IAC, G.R. No. 72283 1. Judgment or final order or resolution
(1986); Vda. de Arroyo v. El Beaterio del appealed from, or
Santissimo Rosario de Molo, G.R. No. L-22005 2. or MR filed in
(1968)] due time after notice of the judgment [Sec.
2, Rule 45].
Conclusiveness of findings of fact
General Rule: The SC is not a trier of facts, Note: The Neypes doctrine which gives a fresh
and is not to review or calibrate the evidence 15-day period to the appellant is also
on record. Moreover, findings of facts of trial applicable to Rule 45 petitions [Neypes v. CA,
court, as affirmed on appeal by the CA, are G.R. No. 141524 (2005)].
conclusive on the court [Boston Bank of the
Philippines v. Manalo, G.R. No. 158149 Extension of period
(2006)]. On motion duly filed and served, with full
payment of the docket and other lawful fees
Exceptions: and the deposit for costs before the
expiration of the reglementary period, the
the SC on appeal by certiorari when: SC may for justifiable reasons grant an
1. Conclusion is a finding grounded entirely on extension of 30 days only within which to file
speculations, surmises or conjectures the petition [Sec. 2, Rule 45].
[Joaquin v. Navarro, G.R. No. L-5426
(1953)]
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Form and contents of petition copies to the lower court and to the adverse
1. In 7 legible copies, with the original copy party shall result in the outright dismissal of the
intended for the court being indicated as appeal. This is because the service is for the
such by the petitioner; purpose of giving the lower court notice that its
a. Under Sec. 5(a) of the Efficient Use of judgment should not be entered since it is not
Paper Rule [A.M. No. 11-9-4-SC], file yet executory due to the pending petition [1
one original (properly marked) and four Regalado 615-616, 2010 Ed.].
copies, unless the case is referred to the
SC en banc, in which event, the parties Review is discretionary
shall file ten additional copies and A review is not a matter of right, but of sound
simultaneously soft copies of the same judicial discretion, and will be granted only
and their annexes (the latter in PDF when there are special and important reasons
format) either by email to the -mail therefore.
address or by compact disc (CD) The following are examples that may be
2. Full names of the parties to the case, considered by the court:
without impleading the lower courts or 1. When the court a quo has decided a
judges thereof either as petitioners or question of substance, not theretofore
respondents; determined by the SC, or has decided it in a
3. Specific material dates showing that it was way probably not in accord with law or with
filed on time; the applicable decisions of the SC, or
4. A concise statement of the 2. When the court a quo has so far departed
a. Matters involved from the accepted and usual course of
b. Issues raised judicial proceedings, or so far sanctioned
c. Specification of errors of fact or law, or such departure by a lower court, as to call
both, allegedly committed by the RTC, for an exercise of the power of supervision
and [Sec. 6, Rule 45]
d. Reasons or arguments relied upon for
the allowance of the appeal Elevation of records
5. Clearly legible duplicate originals or true If the petition is given due course, the SC may
copies of the judgments or final orders of require the elevation of the complete record of
both lower courts, certified correct by the the case or specified parts thereof within 15
COC of the RTC; days from notice [Sec. 8, Rule 45].
6. Requisite number of plain copies thereof
and of the pleadings and other material 2. Appeal from Judgments or Final
portions of the record as would support the Orders of The Sandiganbayan
allegations of the petition;
7. Certificate of non-forum shopping [Sec. 2,
Mode of review
Rule 45]
Decisions and final orders of the
Sandiganbayan shall be appealable to the SC
Grounds for denial of petition by petition for review on certiorari raising pure
The SC may dismiss the petition on motion or questions of law in accordance with Rule 45 of
motu proprio upon showing: the ROC [Sec. 7, P.D. 1606, as amended; Sec.
a. Failure of petitioner to comply with 1, Rule 45].
1. Payment of docket or other lawful fees;
2. Deposit for costs.
3. Proof of Service; and
3. Appeal from Judgments or Final
4. Contents of and documents which would Orders of The Court of Tax
accompany the petition Appeals
b. Appeal is without merit
c. It is prosecuted manifestly for delay Mode of review
d. That the questions raised are so The CTA is no longer a quasi-judicial agency
unsubstantial as to require consideration under R.A. 9282, as of April 7, 2004. The CTA
[Sec. 5, Rule 45] is no longer covered by Rule 43.

Note: Although the lower court is not a party to A party adversely affected by a decision or
the case, failure to present proof of service of ruling of the CTA en banc may file with the SC
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a verified petition for review on certiorari under 2. Review of Final Judgments or
Rule 45 [Sec. 11, R.A. 9282 and A.M. No. 07- Final Orders of The Commission
7-12-SC]. on Elections
G. Rule 64 Review of Mode of review
judgments or final orders of the A judgment or final order or resolution of the
Commission on Elections (COMELEC) may be
COA and COMELEC brought by the aggrieved party to the SC on
certiorari under Rule 65, except as hereinafter
1. Review of Final Judgments or provided [Sec. 2, Rule 64]
Final Orders of The Commission
on Audit Unless otherwise provided by law, or by any
specific provisions in the COMELEC Rules of
Mode of review Procedure, any decision, order or ruling of the
A judgment or final order or resolution of the Commission may be brought to the SC on
Commission on Audit (COA) may be brought certiorari by the aggrieved party within 30 days
by the aggrieved party to the SC on certiorari from its promulgation [Sec. 1, Rule 37,
under Rule 65, except as hereinafter provided COMELEC Rules of Procedure].
[Sec. 2, Rule 64].
a. Dismissal, reinstatement, and
Filing of the petition withdrawal of appeal
1. The petition shall be filed within 30 days
from notice of the judgment or final order or Grounds for dismissal of appeal
resolution sought to be reviewed. 1. Failure of the record on appeal to show on
2. The filing of a MNT or MR of said judgment its face that the appeal was taken within the
or final order or resolution, if allowed under period fixed by the ROC;
the procedural rules of the Commission 2. Failure to file the notice of appeal or the
concerned, shall interrupt the period herein record on appeal within the period
fixed. prescribed by the ROC;
3. If the motion is denied, the aggrieved party 3. Failure of the appellant to pay the docket
may file the petition within the remaining and other lawful fees as provided in Sec. 4,
period, but which shall not be less than 5 Rule 41;
days in any event, reckoned from notice of 4. Unauthorized alterations, omissions or
denial [Sec. 3, Rule 45]. additions in the approved record on appeal
as provided in Sec. 4 of Rule 44;
Effect of filing 5. Failure of the appellant to serve and file the
The filing of a petition for certiorari shall not required number of copies of his brief or
stay the execution of the judgment or final order memorandum within the time provided by
or resolution sought to be reviewed, unless the the ROC;
SC shall direct otherwise upon such terms as it 6. Absence of specific assignment of errors in
may deem just [Sec. 8, Rule 64]. ferences
to the record as required in Sec. 13(a), (c),
When the decision, order or resolution (d) and (f) of
adversely affects the interest of any 7. Rule 44;
government agency, the appeal may be taken 8. Failure of the appellant to take the
by the proper head of that agency [Sec. 1, Rule necessary steps for the correction or
XII, 2009 Revised Rules of Procedure of the completion of the record within the time
Commission on Audit]. limited by the court in its order;
9. 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
10.The fact that order or judgment appealed
from is not appealable [Sec. 1, Rule 50];

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11. Appeal under Rule 41 taken from the RTC
to the CA raising only questions of law;
12. Appeal by notice of appeal instead of by
petition for review from the appellate
judgment of a RTC [Sec. 2, Rule 50]

Other grounds
1. By agreement of the parties (i.e., amicable
settlement)
2. Where appealed case has become moot or
academic
3. Where appeal is frivolous or dilatory [1
Regalado 644-645, 2010 Ed.]

Withdrawal of appeal
1. An appeal may be with-drawn as a matter
of right at any time before the filing of the

2. Thereafter, the withdrawal may be allowed

in the discretion of the court [Sec. 3, Rule
50].

Dismissal by the SC
The appeal may be dismissed motu proprio or
on motion of the respondent on the following
grounds:
1. Failure to take the appeal within the
reglementary period
2. Lack of merit in the petition
3. Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for
costs
4. Failure to comply with the requirements
regarding proof of service and contents of
and the documents which should
accompany the petition
5. Failure to comply with any circular, directive
or order of the SC without justifiable cause
6. Error in the choice or mode of appeal, and
7. The fact that the case is not appealable to
the SC [Sec. 5, Rule 56]

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Comparative table on the modes of appeal

When Proper
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
ORDINARY APPEAL
Matter of Right; Filed with the court PETITIONS FOR REVIEW
of origin Discretionary; No records are elevated unless the court decrees it
All records are elevated from court of Filed with the appellate court
origin
Appeal from
Appeal from a a decision of Appeals to the SC from a
judgment or final the RTC in judgment or final order or
order of a the exercise resolution of the CA,
Appeals from
MTC/MeTC/MCTC of its original Sandiganbayan, RTC or
awards, judgments,
jurisdiction Appeal from a such other courts as may
final orders or
decision of the be authorized by law
resolution of or
RTC rendered in
authorized by any Decisions, final orders, or
the exercise of its
quasi-judicial resolutions of the CA in
appellate
Rule 41 provisions shall apply to agency in the any case, regardless of
jurisdiction
Rule 40 if not consistent with Rule 40 exercise of its quasi- the nature of the action or
provisions judicial functions proceedings involved,
may be appealed to the
SC by filing a petition for
review
Where to File
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Filed with the
Filed with the MTC RTC Filed with the CA Filed with the CA Filed with the SC
Appeal to the RTC Appeal to the Appeal to the CA Appeal to the CA Appeal to the SC
CA
Questions of Questions of fact, Questions of fact,
Questions of fact or
fact or mixed questions of law, questions of law, or
mixed questions of Only questions of law
questions of or mixed mixed questions of
fact and law
fact and law questions of both fact and law
Time for Filing
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Within 15 days from:
1. Notice of award,
judgment, final Within 15 days from:
BY NOTICE OF APPEAL
Within 15 days order, or 1. Notice of judgment,
Within 15 days after notice of
from notice of resolution; final order, or
judgment or final order
decision, or 2. Date of resolution appealed
Within 15 days publication, if from; or
BY RECORD ON APPEAL
from notice of publication is 2. Notice of denial of
Within 30 days from notice of
denial of required by law MNT or
judgment or final order by filing a
for its effectivity; reconsideration filed
notice of appeal and a record on
or reconsideration or in due time after
appeal
3. Denial of notice of judgment
pe
or MR

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