How to appeal

In document Remedial Law (Page 92-99)

CIVIL PROCEDURE A. Actions

P. Post Judgment Remedies

3. How to appeal

1. Filing of verified petition for review on certiorari to the SC and full payment of the corresponding docket and other lawful fees and deposition of P500.00 for costs.

a. Proof of service of a copy of the petition on the lower court concerned and on the adverse party.

b. Contents of the petition.

2. Action (of the SC) on the petition:

a. Dismiss the petition for failure to comply with requirements (1) grounds for dismissal of appeal (Rule 56, Sec 5)

(2) disposition of improper appeal (Rule 56, Sec 6); or

b. Deny the petition if without merit

c. Review of the petition based on sound judicial discretion and only when there are special and important reasons therefor, such as:

(1) 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 applecable decisions of the Supreme Court; or

(2) 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 6, Rule 45)

d. Give due course to the petition based on the petition and pleadings, briefs, memoranda or documents submitted

e. Decision of the SC on the merit after petition is given due course and submitted for decision.

e. Issues to be raised on appeal

1. It is already well-settled in this jurisdiction that a party may not change his theory of the case on appeal.

Such a rule has been expressly adopted in Rule 44, Sec 15 which provides – “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.

2. Also, defenses not pleaded in the answer may not be raised for the first time on appeal. A party cannot, on appeal, change fundamentally the nature of the issue in the case. When a party deliberately adopts a certain theory and the case is decided upon that theory in the court below, he will not be permitted to change the same on appeal, because to permit him to do so would be unfair to the adverse party. Accordingly, “courts of justice have no jurisdiction or power to decide a question not in issue.” Thus, a judgment that goes beyond the issues and purports to adjudicate something on which the court did not hear and the parties, is not only irregular but also extrajudicial and invalid. The rule rests on the fundamental tenets of fair play. (CIR v.

Migrant Pagbilao Corporation, GR No. 159593, October 12, 2006)

f. period of appeal

1. The appeal which shall be in the form of a verified petition shall be filed within fifteen (15) days from notice of the judgment, final order or resolution appealed from, or within fifteen (15) days from notice of the denial of the petitioner’s motion for new trial or motion for reconsideration filed in due time (Sec 2, Rule 45).

2. The Supreme Court may, for justifiable reasons, grant an extension of thirty (30) days only within which to file the petition provided (a) there is a motion for extension of time duly filed and served; (b) there is full payment of the docket and other lawful fees and the deposit for costs; and (c) the motion is filed and served and the payment is made before the expiration of the reglementary period (Sec 2, Rule 45)

g. perfection of appeal

a. 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 (Sec 4, Rule 40 in relation to Sec 9, Rule 41)

b. The notice of appeal does not require the approval of the court. The function of the notice of appeal is merely to notify the trial court that the appellant was availing of the right to appeal, and not to seek the court’s permission that he be allowed to pose an appeal (Crisologo v. Daray, A.M. No. RTJ-07-2036, August 30, 2006).

h. appeal from judgments or final orders of the MTC

1. Where to appeal from a judgment or final order of a municipal court

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. (Sec 1, Rule 40)

2. When to appeal

a. An appeal may be taken within fifteen (15) days after notice to the appellant of the judgment or final order appealed from (Sec 2, Rule 40).

b. 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 (Sec 2, Rule 40).

c. A record on appeal shall be required only in special proceedings and in cases of multiple or separate appeals (Sec 3, Rule 40)

3. How to appeal

a. The appeal is taken by (a) filing a notice of appeal with the court that rendered the judgment or final order appealed from and by (b) serving a copy of the notice to the adverse party (Sec 3, Rule 40).

b. Within the period for taking an appeal, the appellant shall pay to the clerk of 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 5, Rule 40)

c. Within fifteen (15) days from the perfection of the appeal, the clerk of court of the lower court shall transmit the original record or the record on appeal, together with transcripts and exhibits, which he shall certify as complete, to the proper Regional Trial Court (Sec 6, Rule 40)

4. Perfection of Appeal

b. 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 (Sec 4, Rule 40 in relation to Sec 9, Rule 41)

c. The notice of appeal does not require the approval of the court. The function of the notice of appeal is merely to notify the trial court that the appellant was availing of the right to appeal, and not to seek the court’s permission that he be allowed to pose an appeal (Crisologo v. Daray, A.M. No. RTJ-07-2036, August 30, 2006).

5. Duty of the Clerk of Court

Upon receipt of the complete record or the record on appeal, the clerk of court of the RTC shall notify the parties of such fact (Sec 7[a], Rule 40). Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum, copy of which shall be furnished the appellee. For the appellant, the filing of a memorandum is vital to his appeal. Failure to so file shall be a ground for the dismissal of the appeal. The memorandum shall briefly discuss the errors imputed to the lower court. The appellee may, if his so desires, file his memorandum within fifteen (15) days from receipt of the appellant’s memorandum (Sec 7[b], Rule 40).

6. When case is deemed submitted for decision

The case shall be considered submitted for decision upon the filing of the memorandum of the appellee, or the expiration of the period to do so. The RTC 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 7[c], Rule 40).

7. Appeal from an order dismissing a case for lack of jurisdiction

A case may be dismissed in the MTC without a trial on the merits. This occurs when a motion to dismiss is filed and granted in accordance with Rule 16. If an appeal is taken from the dismissal by the lower court, the RTC may affirm or reverse it. If the order of dismissal is reversed, the case shall be remanded to the lower court for further proceedings. If the order is affirmed, then it is a declaration of the merits of the dismissal.

However, if the dismissal is made on the ground of lack of jurisdiction over the subject matter, and the RTC affirms the dismissal, the action of the latter court shall not be confined to a mere affirmation of the dismissal. Instead, the rule obligates the RTC to try the case on the merits as if the case was originally filed with it.

The same rule prevails if the case was tried on the merits in the lower court without jurisdiction over the subject matter and was subsequently dismissed on such ground. On appeal, the RTC, if it has original jurisdiction shall not dismiss the case, but shall decide the case in the same manner as a case dismissed by the lower court without trial on the merits. The RTC may allow amendment of the pleadings and may receive additional evidence in he interest of justice (Sec 8, Rule 40).

i. Appeal from judgments or final orders of the RTC

1. Three Modes of appeal from the decision of the RTC:

a. An ordinary appeal or appeal by virtue of error, where judgment was rendered by the court in the exercise of its original jurisdiction. This is governed by Rule

41 and is taken to the CA on questions of fact or mixed questions of fact and law.

b. Petition for review, where judgment was rendered by the court in the exercise of its appellate jurisdiction. This is governed by Rule 42 and is taken to the CA on questions of fact, questions of law or mixed questions of fact and law.

c. Petition for review on certiorari or appeal by certiorari to the SC. This mode is brought to the SC from the decision of the RTC in the exercise of its original jurisdiction and only questions of law (Sec 2, Rule 41; Five Star Marketing Corp v. Booc, 535 SCRA 28; Quezon City v. ABS CBN broadcasting Corp, GR No.

166408, October 6, 2008).

2. Application of Rule 41 in Ordinary Appeal

Rule 41 applies to appeals from the judgment or final order of the RTC in the exercise of its original jurisdiction (Sec 2[a], Rule 41). This appeal is called ordinary appeal.

On the other hand, if a litigant loses in the MTC and on appeal loses in the RTC, the mode of appeal to the CA is by way of Rule 42. This is because the decision of the RTC is in exercise of its appellate jurisdiction.

3. When to 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 (Sec 3, Rule 41).

4. How to appeal

a. The appeal to the CA in cases decided by the RTC in the exercise of its original jurisdiction shall be taken by (a) filing a notice of appeal with the court which rendered the judgment or final order appealed from, and (b) serving a copy thereof upon the adverse party. A record on appeal shall be required in special proceedings and other cases of multiple or separate appeals when so required by law or the rules (Sec 2[a], Rule 41).

Where both parties are appellants, they may file a joint record on appeal (Sec 8, Rule 41)

b. Within the period for taking an appeal, the appellant shall pay to the clerk of court which rendered the judgment or final order appealed from, the full amount of the appellate court docket fee (Sec 4, Rule 41)

c. Within thirty (30) days after perfection of all the appeals, the clerk of court shall verify the correctness and completeness of the records and if incomplete, to take such measures to complete such records, certify to the correctness of the records, to transmit the same to the appellate court, and to furnish the parties with copies of his letter of transmittal of the records to the appellate court (Sec 10, Rule 41)

d. Upon receiving the original record on appeal and the accompanying documents 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 CA shall docket the case and notify the parties (Sec 4, Rule 44).

e. Within forty-five (45) days from receipt of the notice of the clerk of court, the appellant shall file a brief with proof of service upon the appellee.

Within forty-five days from receipt of the appellant’s brief, the appellee shall file his own brief with proof of service to the appellant.

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.

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.

In petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, briefs are not filed. Instead, the paties shall file their respective memoranda within a non-extendible period of thirty (30) days from receipt of the notice that all the evidence are already attached to the record.

5. Questions that may be raised on appeal

The appellant may include in his assignment of errors any question of law or fact that has been raised in the court below and is within the issues framed by the parties (Sec 15, Rule 44).

6. Residual jurisdiction

This term refers to the authority of the trial court to 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 Sec 2, Rule 39, and allow withdrawal of the appeal provided these are done prior to the transmittal of the original record or the record on appeal even if the appeals have already been perfected or despite the approval of the record on appeal (Sec 9, Rule 41) or in case of a petition for review under Rule 42 before the CA gives due course to the petition (Sec 8, Rule 42)

j. Appeal from judgments or final orders of the CA

k. Appeal from judgments or final orders of the CTA

1. Under Sec 11 of RA 9282, March 30, 2004, no civil proceeding involving matters arising under the NIRC, the Tariff and Customs Code of the LGC shall be maintained, except as herein provided, until and unless an appeal has been previously filed in accordance with the Court of Tax Appeals and disposed of in accordance with the provisions of this Act.

A party adversely affected by a resolution of a Division of the CTA on a motion for reconsideration or new trial, may file a petition for review with the CTA en banc.

2. Sec 11 of the same Act further provides that a party adversely affected by a decision or ruling of the CTA en bane may file with the SC a verified petition for review on certiorari pursuant to Rule 45.

l. Review of final judgments or final orders of the COA

A judgment, resolution or final order of the COA may be brought by the aggrieved party to the SC on certiorari under Rule 65 (Sec 2, Rule 64) by filing a petition within thirty (30) days from notice (Sec 3, Rule 64).

m. Review of final judgments or final orders of the COMELEC

A judgment, resolution or final order of the COMELEC may be brought by the aggrieved party to the SC on certiorari under Rule 65 (Sec 2, Rule 64) by filing a petition within thirty (30) days from notice (Sec 3, Rule 64).

n. Review of final judgments or final orders of the CSC

A judgment, resolution or final order of the CSC may be taken to the CA under Rule 43 (Secs 1, 3, Rule 43)

o. Review of final judgments or final orders of the Ombudsman

1. The Ca has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative disciplinary cases only. It cannot, therefore, review orders, directives or decisions of the Office of the Ombudsman in criminal or non-administrative cases (Golangco v. Fung, Office of the Ombudsman, GR Nos. 147640-147762, October 12, 2006).

2. In criminal cases, the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65.

p. Review of final judgments or final orders of the NLRC

1. The remedy of a party aggrieved by the decision of the NLRC is to promptly move for the reconsideration of the decision and if denied to timely file a special civil action of certiorari under Rule 65 within sixty (60) days from notice of the decision. In observance of the doctrine of hierarchy of courts, the petition for certiorari should be filed in the CA (St. Martin Funeral Homes v. NLRC, GR NO. 130866, September 16, 1998)

2. Because of St. Martin, all special civil actions arising out of any decision or final resolution or order of the NLRC filed with the SC after June 1, 1999 shall be dismissed instead of referring the action to the CA (A.M. No. 99-2-01-SC).

q. Review of final judgments or final orders of quasi judicial bodies

Appeals from judgments and final orders of quasi-judicial bodies/agencies enumerated in Rule 43 are now required to be brought the CA (Carpio v. Sulu Resource Dev. Corp., 387 SCRA 128).

In document Remedial Law (Page 92-99)