Appellate Practice Notes

GAP-JDT APPRAC REVIEWER (ATTY.
AQUINO)
MEMORY AID / CASE DOCTRINES
A.
MR v. MNT v. PFR v. AJ
MNT (Rule 37)
Ground
FAME by reason of such party has

probably been impaired in his rights
MR (Rule 37)
Damages excessive
PFR (Rule 38)
AJ (Rule 47)
Decision/final order entered through

FAME
Evidence insufficient
Period
Second
Motion/Petition
Where to file
Who can avail

When applicable
To What
applicable
!! !
1
!
Lack of jurisdiction (person or

subject matter) not GADALEJ
Newly discovered evidence (material

& relevant)
Decision/final order contrary to law
Within period for taking appeal

(15/30) no motion for extension
Within period for taking appeal

(15/30) no motion for extension
*Tolls reglementary period for appeal

(fresh-period) except if pro forma
*Tolls reglementary period for appeal

(fresh-period) except if pro forma
May be allowed if ground not existing

st
at the time 1 is filed
Prohibited (may be allowed for MR of

interlocutory orders)
Remedy: appeal
Remedy: appeal
Court that rendered
Court that rendered
Court that rendered
Parties
Parties
Parties
Before judgment final
Before judgment final
After judgment final (but MNT or MR

must not have been availed of)
Judgments or final orders
Judgments or final orders
Judgments, final orders, and other

proceedings (LR, SpecPro,
Execution)
Judgments, final orders, resolutions
Verified
Verified alleging:
facts and the law
good and substantial
cause of action/ defense
(so parang Affidavit of
Merit din)
FAME Affidavit of Merit

NDE affidavits of witnesses or duly
authenticated documents
Form and
Content
Extrinsic fraud
Since its a motion:

1. Notice of Hearing, specifying
date of hearing not later than
10 days after filing and
served at least 3 days
before hearing
2. In writing
3. State the grounds
Point out to findings or conclusions

not supported by evidence or contrary
to law
Prevented from appealing through

FAME
Within 60 days after knowledge
BUT not more than 6 months after
entry (finality) never extendible and
never interrupted; both complied with
EF within 4 years from discovery
Prohibited
Prohibited
Remedy: 65
Remedy: 45
CA if by RTC (can dismiss outright)
RTC if by MTC (cant dismiss
outright)
*independent civil action
Affidavit of Merit
Express reference to testimonial or
documentary evidence or to
provisions of law
Since its a motion:
1. Notice of Hearing, specifying
date of hearing not later than
10 days after filing and
served at least 3 days
before hearing
GAP&JDT!Reviewer!|!Special!Thanks!to!Apprac!B!2014!(under!Atty.!Aquino)!
LJ before barred by
laches/estoppel
Anyone as long as he was affected

After judgment final (but MNT, MR,
PFR must no longer be available
by no fault of petitioner)
7 legible copies
Certified true copy of judgment/final
order/resolution attached to the
original copy
!
2.
3.
Effect of Filing
(Action of
Court)
In writing
State the grounds
Grant new trial
Amend judgment/final order
Deny motion
Deny motion
Affidavits of witnesses or
documents
Order to file an answer (within 15
days; no default)
Preliminary injunction (bond; shall not
discharge any lien)
Two hearings:
1. Determine whether
judgment should be set
aside
2. Hearing on the merits
Certification of non-forum shopping

Two stages:
1. Preliminary evaluation of
petition for prima facie
merit
2. Issuance of summons and
such appropriate
proceedings thereafter
CA may dismiss outright if no
substantial merit
Procedure in ordinary civil cases (if
trial necessary, reception of
evidence may be referred to
member of CA or judge of RTC)
Effect of
Granting
Vacated then trial de novo (recorded

evidence, if material and competent,
may be shall be used)
Amend
No trial de novo for NDE; only for the

purpose of admitting the new
evidence
Remedy if no
longer available
When not
applicable
!! !
2
!
Sec 1 as if MR or MNT filed
EF as if MNT was filed
Sec 2 lower court required to give

due course to appeal and elevate
records
LJ - Set aside and declare null and

void (without prejudice to refilling)
May include damages, attorneys
fees, restitution, and other relief
May grant partial new trial as to

issues/matters/parties (enter as to the
rest or stay)
Appeal
Appeal
Petition for Annulment of Judgment
Petition for Relief from Judgment
Petition for Relief from Judgment
Direct or collateral attack if judgment

is void ab initio for lack of jurisdiction

Summary Procedure

Summary Procedure
Summary Procedure
Availed of MNT, MR, or PFR
Small Claims
Small Claims
Small Claims
Judgments by quasi judicial bodies
Availed of MNT or MR
Decisions or orders of Ombudsman

in administrative cases
Bye bye
Affidavit of Merit recites the nature and character of FAME and states good and substantial cause of action or defense
1. Nature and character of FAME
2. Facts constituting good and substantial defense or valid cause of action
3. Evidence which he intends to present
*Affidavit of Merit need not be in a separate document as long as everything needed to be alleged is in the petition/motion but for PFR, attach evidence!!!
Pro Forma Motion does not satisfy the requirements of the rules and treated as a motion intended to delay
1. For MNT
a. No Affidavit of Merit
b. Ground was available
2. For MR
nd
a. 2 MR
b. Did not specify
c. Did not substantiate
GR: Negligence of counsel binds the client:
EX:
1. Deprives client of due process of law
2. Result to outright deprivation of clients liberty or property
3. Interest of justice
Requisites of Newly Discovered Evidence
1. Discovered after trial
2. Could not have been discovered and produced at trial even with reasonable diligence
3. Would probably alter the result
4. Material and not collateral, cumulative or corroborative
!! !
3
!
B.
APPEALS IN CIVIL CASES

40
41
42
Where
MTC -> RTC
RTC (original) -> CA
When
15/30
Extendible? No but MR and
MNT tolls (fresh)
15/30/48 hours
Extendible? No but MR and
MNT tolls (fresh)
Notice of appeal with the

court that rendered
Notice of appeal with the

court that rendered
Notice of Appeal + Record on

appeal for SpecPro and
cases that allow
multiple/separate appeals
Notice of Appeal + Record on

appeal for SpecPro and
cases that allow
multiple/separate appeals
Copies served on adverse

party
Copies served on adverse

party
Pay full amount of appellate

court docket and other lawful
fees to the court that
rendered
Pay full amount of appellate

court docket and other lawful
fees to the court that
rendered
Q of fact, law, or both
Q of fact, or fact and law
Notice of Appeal
1. Parties
2. Judgment
3. Material Dates
*Perfection: upon filing
*Court loses jurisdiction: upon
perfection and expiration to
appeal of others
Notice of Appeal
1. Parties
2. Judgment
3. Specify the court where
youre taking appeal
4. Material Dates
*Perfection: upon filing
perfection and expiration to
appeal of others
7 copies of Petition:
1. Parties (without
impleading lower
court/judge)
2. Material dates
3. Matters/ issues/ errors
of fact or law, or both/
reason or arguments
4. Duplicate originals or
true copies of the
judgments/ final orders
of BOTH (certified by
RTC clerk)
5. Material portions of the
record (not certified)
How
Question
Form and
Content
Record on Appeal
1. Parties (caption)
2. Judgment/final order
(chronological order)
3. Copies of pleadings/
petitions/ motions/
!! !
4
!
Record on Appeal
1. Parties (caption)
2. Judgment/final order
(chronological order)
43
45
CA, CTAEB,
Sandiganbayan, RTC
(pure questions of law) > SC
15
Extendible? 30 for
justifiable reasons
Extendible some more?
nope
RTC (appellate) -> CA
QJA -> CA
15
Extendible? 15
15 for the most compelling
reason (but Sir said forget
about this)
Verified petition with CA
15
Extendible? 15
15 for the most
compelling reason (but
Sir said forget about this)
Verified petition with CA
Pay docket, other lawful

fees, and deposit P500 for
costs to the CA

fees, and deposit P500
for costs to the CA

fees, and deposit P500
for costs to the SC
Copies served on the RTC

and adverse party
Copies served on court/

agency and adverse
party
Copies served on lower

court and adverse party
Verified petition with SC
Proof of service on LC
and adverse party

But Q of fact, if
supported by substantial
evidence, is conclusive
1. Parties (without
impleading court/
agency)
2. Fact, issue, and
grounds
3. Material dates
4. Duplicate original or
certified true copy of
the judgment
5. Certified true copies
of material portions of
the record (but see
jurisprudence
contradicting this,
Purely questions of law

unless an exception
(see below)
1. Parties (without
impleading lower
court/ judge)
2. Material dates
3. Matters, reasons,
arguments
4. Duplicate original or
certified true copy of
judgment
5. Material portions of
the record (not
certified)
6. Verification
7. Certification on non!
interlocutory orders
4. Material Dates
5. If issue of fact is raised,
include by reference all
evidence
a. Testimonial names
b. Documentary exhibit
number/letter
c. Whole statement to
that effect
6. Subject index (exceeding
20 pages)
*Perfection: upon approval
(may amend within 10 days
from order)
approval and expiration
*May be objected t within 5
days from receipt
Clerk of LC transmit record or
record on appeal with
transcript/ exhibits (which he
shall certify) to the AC within
15 days from perfection
Copy of transmittal furnished
to parties
Effect of
Filing
Prior to transmittal of records,

LC may issue:
1. Order for protection/
preservation of rights
2. Approve compromise
3. Permit appeals by indigent
4. Order execution
5. Allow withdrawal of appeal
Upon receipt, RTC shall notify
parties
15 days from notice,
appellant shall submit a
memorandum
15 days from receipt of
appellants memorandum,
appellee may submit
memorandum
!! !
5
!
3. Copies of pleadings/
petitions/ motions/
interlocutory orders
4. Material Dates
5. If issue of fact is raised,
include by reference all
evidence
a. Testimonial names
b. Documentary exhibit
number/letter
c. Whole statement to
that effect
6. Subject index (exceeding
20 pages)
*Perfection: upon approval
(may amend within 10 days
from order)
approval and expiration
*May be objected t within 5
days from receipt
Clerk of TC transmit within 30
days from perfection:
1. Original record/ record on
appeal
2. Proof of payment
3. Certified true copy of the
minutes
4. Order of approval
5. Certificate of correctness
6. Original documentary
evidence
7. Original and 3 copies of
transcripts
Prior to the transmittal of
records, LC may issue:
1. Order for protection/
preservation of rights
2. Approve compromise
3. Permit appeals by indigent
4. Order execution
5. Allow withdrawal of appeal
6. Dismiss motu proprio for
late filing or non-payment
of docket and other lawful
fees (STRICT)
Upon receipt, CA shall docket
case and notify parties
6. Verification
7. Certification on nonforum shopping
which Sir said is

controlling)
6. Verification
7. Certification on nonforum shopping
Residual powers still in

effect prior to CA giving it
due course

effect prior to CA giving it
due course

effect prior to SC giving
it due course
CA may require
respondent to comment
(not MTD) within 10 days
CA may require
respondent to comment
(not MTD) within 10 days
CA may dismiss if:

1. Patently without merit
2. Manifestly for delay
3. Questions too
unsubstantial
4. Failure to comply with
payment, deposit,
proof of service and
contents of petition
CA may dismiss if:

3. Questions too
unsubstantial
4. Failure to comply with
payment, deposit,
proof of service, and
contents of petition
CA may give due course

to petition after filing or
expiration to file comment
if it finds prima facie merit
CA may give due course

to petition after filing or
expiration to file
comment if it finds prima
facie merit
Review not a matter of

right! So reasons
warranting review:
1. LC decided a
question of
substance not
determined by the
SC
2. LC decided it in a
way probably not in
accord with law or
jurisprudence
3. LC has departed
from the accepted
and usual course of
judicial proceedings
4. LC has sanctioned
such departure by
another LC
CA may require
transmittal of record
within 15 days from
notice (record may be
abridged by agreement)
SC may dismiss if:

1. Without merit
3. Questions too
unsubstantial
CA may order elevation of

record within 15 days from
notice
CA may set the case for
oral arguments or require
forum shopping
Upon filing of last

memorandum or expiration of
period for filing, deemed
submitted for decision
Stays? Yes
10 days from notice,

appellant in record of appeal,
shall file 7 copies of approved
record on appeal + proof of
service of 2 copies upon
appellee
45 days from notice of clerk
that record is complete,
appellant shall submit 7
copies of his appellants brief
+ proof of service of 2 copies
on appellee
parties to submit
memoranda within 15
days from notice
*Note: only time elevated

record need to be
certified
Case deemed submitted

for decision upon filing of
the last pleading
CA may set the case for

oral argument or require
parties to submit
memoranda within 15
days from notice
Stays? Yes
Ex?
1. Summary Procedure
2. CA directs otherwise
3. Rules direct otherwise
Case deemed submitted

for decision upon filing of
the last pleading
Stays? No
Ex?
1. CA directs otherwise

appellants brief, appellee
shall file 7 copies of
appellees brief + proof of
service of 2 copies on
appellant
4. Failure to comply
with payment,
deposit, proof of
service, and contents
of petition
SC may require
elevation of the record
within 15 days from
notice
SC may require filing of
pleadings/ briefs/
memoranda/ documents
as it may deem
necessary within such
periods and under such
conditions it may
consider appropriate
Stays? Yes
Ex? SC directs
otherwise

appellees brief, appellant
may file appellants reply brief
Filing of briefs extendible?
Yes
For certiorari, prohibition,
mandamus, quo warranto,
and habeas corpus parties
shall file their memoranda
(mandatory) instead of briefs
within 30 days from notice of
clerk
Appellants Memorandum:
mandatory
1. Discuss the errors
*Served on adverse party
Form and
Content of
Memorandum/
Brief
!! !
6
!
Appellees Memorandum
Stays? Yes
Ex? CA directs otherwise
Appellants Brief: mandatory
1. Subject index
2. Assignment of errors
3. Statement of the Case
4. Statement of Facts
5. Statement of Issues
6. Argument
7. Relief
8. Copy of judgment if not
record on appeal
Appellants Petition (see

above)

above)

above)
7 copies of Comment:
1. Whether he accepts
statement of matters
2. Point out
insufficiencies/
inaccuracies
3. Why it should not be
given due course
7 copies of Comment:
1. Point out
insufficiencies/
inaccuracies
2. Reason why should
be denied
3. Material portions of
the record and other
Other pleadings/ briefs/

memoranda, up to the
SC
Appellees Brief:
1. Subject index
2. Statement of Facts or
Counter-Statement of Facts
3. Argument
4. Material portions of the

record (certified)
supporting papers
(certified)
* Proof of service filed
with CA
Appellants Reply Brief:

Answer points in the
appellees brief not covered in
main brief
Subject of Appeal: Judgment/final order that completely disposes of the case OR of
a particular matter (if declared to be appealable), but not:
1. Denying petition for relief from judgment
2. Interlocutory order
3. Disallowing or dismissing appeal
4. Denying motion to set aside a judgment by consent, confession or
compromise on the ground of fraud, mistake or duress, or any other vitiation
of consent
5. Order of execution
6. Judgment/final order for or against a particular party/claim while main case is
pending unless court allows
7. Dismissing action without prejudice
*Remedy? 65
Lack of Jurisdiction (MTC-RTC)
1. Trial on the merits
a. RTC may affirm and try; or
b. RTC may reverse and remand
2. With trial on the merits
a. RTC shall not dismiss if it has original jurisdiction and decide +
admit
GR: Failure to file appellants brief on time is a ground for dismissal
EX:
1. Case involves life, liberty, honor, or property
2. Counsels negligence without any participatory negligence of client
3. Compelling circumstances
4. Merit in the case
5. Not entirely attributable to the fault/negligence of party
6. Lack of any showing that the review sought is merely frivolous or dilatory
7. Other party will not be unjustly prejudiced
Government of Belgium case:
1. GR is to dismiss if no AB is filed within period
2. This is discretionary not ministerial or mandatory
3. Failure to file within period does not mean automatic dismissal
4. Requisites for leniency:
a. Circumstances warrant
b. Strong considerations of equity/interest of justice
!! !
7
!
5.
6.
c. No material injury suffered by appellee

d. Appellees cause not prejudiced (no contention)
e. At least no motion to dismiss filed
Delay must be for a reasonable period
Inadvertence of counsel cannot excuse client, except: (see above)
GR: AC may only review errors assigned & properly argued

EX:
1. Question affect jurisdiction
2. Evidently plain or clerical errors
3. Consideration necessary for just & complete resolution
4. Matters of record having bearing on the issue that parties failed to raise or
which LC ignored
5. Matters closely related to error assigned
6. Determination of a question is dependent
Grounds for Dismissal of Appeal
1. Failure of the record on appeal to show on its face that it was taken within
the period
2. Failure to file the notice of appeal or the record on appeal within the period
(only one thats mandatory)
3. Failure of the appellant to pay docket or other lawful fees
4. Unauthorized alteration, omissions, or additions in the approved record on
appeal
5. Failure of appellant to serve and file the required number of copies within the
period
6. Absence of specific assignment of errors or of page references to the record
7. Failure of the appellant to take the necessary steps for the correction or
completion within the period
8. Failure of the appellant to appear at the PC or to comply with
orders/circulars/directives of the court
9. Not appelable
Question of Law
1. Doubt or controversy as to what the law is
2. AC can determine without reviewing or evaluating evidence
3. Can involve questions of interpretation of the law with respect to certain set
of facts
GR: SC is not a trier of facts

EX:
1. Speculations, surmise, or conjecture
2. Manifestly absurd, mistaken, or impossible
3. Premised on misrepresentation of facts
4. Grave abuse of discretion in the appreciation of facts
5. Findings are conflicting
6. CA went beyond issues and is contrary to both admissions of appellants and
appellees
7. Findings of fact of CA are at variance to TC
8. Without citation of specific evidence
9. Facts set forth in petition and petitioners briefs are not disputed
C.
10. Findings of fact of CA premised on supposed evidence but contradicted by

evidence on record
11. Material facts and circumstances have been overlooked, which would alter
the result
12. Habeas Data
13. Writ of Amparo
14. Writ of Kalikasan
15. Criminal case and Reclusion Perpetua/ life/ death
Appeal in special cases:
1. Writ of Amparo 45 to the SC (5 working days)
2. Writ of Habeas Data 45 to the SC (5 working days)
3. Writ of Kalikasan 45 to the SC (15 days)
RULE 43
CASES COVERED
1. CSC
2. CBAA
3. SEC
4. OP
5. LRA
6. SSC
7. CAB
8. BPTT (now IPO)
9. NEA
10. ERB
11. NTC
12. DAR
13. GSIS
14. ECC
15. AIB
16. IC
17. PAEC
18. BOI
19. CIAC
20. VA
*Not exclusive list
21. Office of the Ombudsman (administrative)
1.
2.
3.
4.
5.
6.
7.
8.
9.
CASES NOT COVERED

NLRC 65 to CA
CTA EB 45 to CA
Office of the Ombudsman (criminal and non-administrative cases) 65 to SC
Secretary of DOJ Office of the President
COMELEC 64 to SC
COA 64 to SC
Sandiganbayan (less than D/LI/RP and civil cases) 45 to SC
Sandiganbayan (LI/RP) notice of appeal to SC
Sandiganbayan (death) automatic review to CA
If not here check the following?

1. Is it a QJ agency?
2. Does it exercise QJ function?
3. Check the IRR
a. Does it provide mode of appeal? 43
b. Does it say immediately executory? 65
!! !
8
!
D.
CIVIL v. CRIMINAL APPEAL

CIVIL
Who
How
Fresh Period?
MTC-RTC
Any party
1.
2.
3.
Ordinary appeal by notice of appeal (RTC/CA)

Petition for review (CA)
Petition for review on Certiorari (SC)
YES (Neypes)
1. Within 5 days, clerk must transmit record
2. Clerk of RTC, upon receipt, notify parties
3. Within 15 days, appellant must file memorandum
Appellants Brief
45 days from receipt of notice

7 copies
Proof of service of 2 copies
Appellees Brief
45 days from receipt of Appellants Brief

7 copies
20 days from receipt of Appellees Brief
Yes
Appellants Reply Brief

Extendible?
!! !
9
!
CRIMINAL
Any party but judgment of acquittal is final except
1. Appeal of civil aspect
2. Appeal criminal provided no double jeopardy
a. Made upon motion or with consent of accused
b. Not on the merits
c. Question is purely legal and if found incorrect, would have to be
remanded
3. Appeal criminal if there is violation of due process
Any party means all those affected:
1. Accused
2. Government (provided one of the above)
3. Offended party (private)
4. Employers under Art. 103
5. Bailee
Same but it becomes complicated with the death/RP/LI so
1. Ordinary appeal
a. MTC/MeTC/MCTC -> RTC
b. RTC (original) -> CA
c. RTC (RP/LI/same occasion) -> CA
d. CA (RP/LI) -> SC
2. Petition for Review (42)
a. RTC (appellate) -> CA
3. Petition for Review on Certiorari (45)
a. RTC (pure questions of law) -> SC
b. CA (appellate and not death/RP/LI) -> SC
4. Automatic Review (no need to file notice of appeal)
a. RTC (death) -> CA
b. CA (affirms death) -> SC
Yes (Yu)
1. Within 15 days, clerk must transmit record
2. Clerk of RTC, upon receipt, notify parties
3. Within 15 days, appellant must file memorandum
Special Rule if Death Penalty
Record forwarded to CA for automatic review within 20 but not earlier than
15 days from promulgation or denial of MR/MNT
30 days from receipt of notice from clerk that evidence is already attached to the
record
7 copies
30 days from receipt of Appellants Brief
7 copies
20 days from receipt of Appellees Brief
Yes
Contents of Brief
Grounds for Dismissal
MNT
AJ
Stays?
See above (certified true copy of decision only if not brought

up by record on appeal)
Usually its:
3. Questions too unsubstantial
4. Failure to comply with payment, deposit, proof of
service and contents of petition
5. Rule 50
Grounds:
1. FAME
2. NDE
Applicable
Yes, except 43
Same as in civil but must append certified true copy of decision at all times
CA may dismiss (motu proprio or on motion, with notice):
1. Appellant fails to file his brief within time except when represented by
counsel de officio
2. Appellant escapes from prison
3. Appellant jumps bail
4. Appellant flees to a foreign country during pendency
Grounds (But take note this is under procedure in CA):
1. NDE
Not applicable
Remedy if extrinsic fraud or lack of jurisdiction? 65 or Habeas Corpus
Yes
Counsel de Officio
1. Confined
a. Unless if requested within 10 days from receipt of notice to file brief and the right established by affidavit
2. Without counsel de parte
3. Signed the notice of appeal himself
GR: Findings of judge who tried the case and heard witnesses are not disturbed
Ex: shown that TC overlooked certain facts that might affect result
Other Powers of CA
1. Try cases and conduct hearings
2. Receive evidence
3. Perform any and all acts necessary:
a. Falling under jurisdiction
b. Including new trials or further proceedings
E.
45 v. 65
45
Mode of appeal
Review final judgments/final orders
Only questions of law (except if one of exceptions)
Filed within 15 days fro notice of judgment/final order
Does not require MR
Stays Judgment
Parties are original parties
! 0! !
1
!
65
Special Civil Action; original and independent action
May be directed against interlocutory order
Questions of jurisdiction
Filed not later than 60 days from notice of judgment/order/resolution or notice of denial of
MNT/MR
Requires MR as a general rule
Does not stay judgment or order unless enjoined or restained
Tribunal/board/officer is impleaded as respondent
CASE DOCTRINES
The period of appeal shall be interrupted by a timely
motion for new trial or reconsideration.
MOTION FOR NEW TRIAL
GROUNDS:
(a) Fraud, accident, mistake or excusable negligence which ordinary
prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights; or
(b) Newly discovered evidence, which he could not, with reasonable
diligence, have discovered and produced at the trial, and which if presented
would probably alter the result.
The 15 day period begins to run upon receipt of

notice of the decision or final order appealed from.
Such period has been considered to begin upon
receipt of notice by the counsel of record, which is
considered notice to the parties.
Bernaldez v. Francia
REQUISITES OF NEWLY DISCOVERED EVIDENCE: (Berry Rule)

. Must have been discovered after trial
. Could not have been discovered & produced at trial even with exercise of
reasonable diligence
. Evidence is of such weight that if admitted, would probably alter the result
of the trial
. Must be material & relevant, not merely collateral, cumulative or
corroborative
Habaluyas v. Japson
. the evidence is discovered after trial;
no motion for extension of time to file a MNT or MR

may be filed with the MeTC or MTC, RTC, and IAC.
Such a motion may be filed only in cases pending
with the SC, which may in its sound discretion either
grant or deny the extension requested.
In appeals in special proceedings and in other
cases wherein multiple appeals are allowed, a
motion for extension of time to file the record on
appeal may be filed within the reglementary period
of 30 days.
If the court denies the motion for extension, the
appeal must be taken within the original period,
inasmuch as such a motion does not suspend the
period for appeal. The trial court may grant said
motion after the expiration of the period for appeal
provided it was filed within the original period.
Delos
Santos
Elizalde
! 1! !
1
!
v.
Within the reglementary period, the aggrieved party

may also move for reconsideration upon the
grounds that the damages awarded are excessive,
that the evidence is insufficient to justify the
decision or final order, or that the decision or final
order is contrary to law.
The MNT on ground of newly discovered

evidence shall be granted on the concurrence of
the following requisites:
the evidence could not have been discovered

and produced during trial even with the exercise
of reasonable diligence; and
the evidence is material and not merely

corroborative, cumulative or impeaching and is
of such weight that if admitted, would probably
change the judgment. In order that a particular
piece of evidence may be regarded as newly
discovered for purposes of granting a new trial,
it is essential to show that the offering party
exercised reasonable diligence in seeking to
locate such evidence before or during trial
but had nonetheless failed to secure it.
The Court notes that although petitioners found out
about the existence of said TCT only after trial, they
could have easily discovered the same before or
during the trial of the case had they bothered to
check the TCT of respondents lot to ascertain
whether or not it overlapped with their own lot.
Capuz v. CA
The SC however, held that the petition is

meritorious in that his motion for lifting the
default order and setting aside the judgment
could be regarded as a motion for new trial
because It alleges FAME and a meritorious
defense. Though there was no affidavit of merit
according to the dismissal by the CA, it should
be noted that there is no need to attach a
separate document for the affidavit of merit. It
could be embodied in the petition itself
Libudan v. Gil
The fraud must be extrinsic, not intrinsic.

Extrinsic (or collateral) fraud connotes any
fraudulent scheme executed by a prevailing litigant
outside the trial of a case against the defeated
party, or his agents, attorneys or witnesses,
whereby said defeated party is prevented from
presenting fully and fairly his side of the case. But
intrinsic fraud takes the form of acts of a party in a
litigation during the trial, such as the use of forged
instruments or perjured testimony, which did not
affect the presentation of the case, but did prevent a
fair and just detemination of the case.
Alfarero v. Sevilla
Rule 37, Section 1 of the 1997 Rules of Civil

Procedure clearly provides that a motion for new
trial should be made within the period for
taking an appeal. Instead, what the record shows
is that Alfarero, in effect, only asked for a new trial
after the appellate court had rendered its
decision on appeal. Such a situation is definitely
not permissible under the Rules. It is well accepted
that a motion for new trial based on newly
discovered evidence may indeed be filed after
judgment, but within the period for perfecting an
appeal.
Ybiernas v. TancoGabaldon
! 2! !
1
!
The question of whether evidence is newly

discovered has two aspects: a temporal one, i.e.,
when was the evidence discovered, and a predictive
one, i.e., when should or could it have been
discovered. It is to the latter that the requirement of
due diligence has relevance. We have held that in
order that a particular piece of evidence may be
properly regarded as newly discovered to justify
new trial, what is essential is not so much the time
when the evidence offered first sprang into
existence nor the time when it first came to the
knowledge of the party now submitting it; what is
essential is that the offering party had exercised
reasonable diligence in seeking to locate such
evidence before or during trial but had
nonetheless failed to secure it. The Rules do not
give an exact definition of due diligence, and
whether the movant has exercised due diligence
depends upon the particular circumstances of each
case. Nonetheless, it has been observed that the
phrase is often equated with reasonable
promptness to avoid prejudice to the defendant. In
other words, the concept of due diligence has both
a time component and a good faith component. The
movant for a new trial must not only act in a timely

fashion in gathering evidence in support of the
motion; he must act reasonably and in good faith as
well. Due diligence contemplates that the defendant
acts reasonably and in good faith to obtain the
evidence, in light of the totality of the circumstances
and the facts known to him. Tanco relied in good
faith on the veracity of the Order dated June 30,
1989 which the heirs presented in court. Given this
circumstance, we hold that respondents exercised
reasonable diligence in obtaining the evidence. The
certifications therefore qualify as newly discovered
evidence.
MOTION FOR RECONSIDERATION
Grounds:
a. that the damages awarded are excessive,
b. that the evidence is insufficient to justify the decision or final order, or
c. that the decision or final order is contrary to law.
Rule 15, Section 4.
(Hearing of motion)
Except for motions which the court may act upon

without prejudicing the rights of the adverse party,
every written motion shall be set for hearing by
the applicant.
Every written motion required to be heard and the
notice of the hearing thereof shall be served in
such a manner as to ensure its receipt by the other
party at least 3 days before the date of hearing,
unless the court for good cause sets the hearing on
shorter notice.
Rue 15, Section 5

(Notice of hearing)
The notice of hearing shall be addressed to all

parties concerned, and shall specify the time and
date of the hearing which must not be later than
ten days after the filing of the motion.
Cansino v. CA
Allowing the Spouses to present new evidence in its

motion for reconsideration cannot be allowed
because Rule 37 implies that a motion for
reconsideration must not be used as a vehicle for
presenting new evidence. Piecemeal presentation
of evidence is not in accord with orderly justice.
Dacanay v. Alvenida
A MR which has no other purpose than to gain time

is pro forma and does not stop the period of appeal
from slipping away. The Court stressed on the fact
that after July 15, August 29, and October 23,
Dacanays theory and arguments have not changed

and his last MR on November 21 was no different,
which leads to the conclusion that it was pro forma.
As the MR did not suspend the running of the
reglemantry period, his appeal should have been
filed on November 27, 1963.
Mere citation and/or amplification of authorities not
previously brought to the court's attention on the
same argument does not remove the pleading from
the ambit of the pro forma doctrine.
National Commercial
bank of Saudi Arabia
v. CA
Mere citation and/or amplification of authorities not

previously brought to the court's attention on the
same argument does not remove the pleading from
the ambit of the pro forma doctrine. The filing of a
belated notice of hearing cannot cure this defect.
Marikina
Development
v. Flojo
An MR that deals with the same issues and

arguments posed and resolved by the trial court in
its decision does not necessarily mean that its
merely pro forma. The movant must point out
succinctly why reconsideration is warranted. Also,
where the circumstances of a case do not show an
intent on the part of the movant merely to delay the
proceedings, the SC has refused to characterize the
motion as simply pro forma.
Balanoba
Madriaga
Corp.
v.
1. The provision states: No party shall be allowed a

2nd MR of a judgment or final order. Plainly, this
statement means that any party -- whether the
winning or the losing litigant -- is prohibited.
Accordingly, winning litigants may also move for
reconsideration of a part or parts of a decision or a
final order. In the event that the motion is denied, an
attempt at a 2nd MR would be prohibited under the
said provision.
2. What is proscribed is a 2nd MR of a judgment or
final order. The provision frowns upon the
piecemeal impugnment of a judgment or final order
by the filing of successive MRs. Also, it is consistent
with the policy that all litigations must come to an
end at some point. The filing of successive motions
is certainly not the case here. Thus: the prohibition
against 2nd MRs applies only to judgments or
final orders, not to orders authorizing the
execution of final judgments
! 3! !
1
!
The decision of the trial court was already final and

executory; yet, Madriaga has obtained only a partial
execution of his money judgment. It was to effect a
full execution that he filed a Motion for Issuance of
a Notice of Garnishment. The series of MRs he
subsequently filed referred to matters attendant to a
complete execution of the Decision in his favor.
Those Motions were not for the reconsideration
of the final judgment.
APPEAL FROM MTC TO RTC (RULE 40)
Badillo v. Tayag
SC ruled that NHA is exempted from paying docket

fees since it is in performance of its governmental
functions and in appeals from MTC to RTC, the
failure to pay the appellate docket fees does not
automatically result in the dismissal of the
appeal, the dismissal being discretionary on the
part of the appellate court. It is appeals from RTC
to CA where payment of docket fees is an essential
requirement.
failure to pay the appellate docket fee within the 15day reglementary period bestows on the appellate
court a directory, not a mandatory, power to dismiss
an appeal
Estate
Macadangdang
Gaviola
of
v.
The general rule is that a client is bound by the acts,

even mistakes, of his counsel in the realm of
procedural technique.
There are exceptions to this rule, such as when the
reckless or gross negligence of counsel deprives
the client of due process of law, or when the
application of the general rule results in the outright
deprivation of ones property through a technicality.
In this case, respondents counsel advanced this
reason for his failure to submit the appeal
memorandum: That there was a delay in the filing of
Gaviolas appeal memorandum due to the heavy
backlog of legal paperwork piled on the table of
the undersigned counsel, and he realized his
failure
to
submit
defendants[]
appeal
memorandum when he received a copy of the
dismissal of the case. This was NOT gross
negligence accdg to the SC.
Mejillano v. Lucillo
Macaslang
Zamora
According to Section 7b of Rule 40, it is the duty

of the appellant to submit a memorandum to
discuss briefly the errors imputed to the lower
court. It also states that failure to file a
memorandum shall be a ground for the
dismissal of the appeal. It is obligatory on his
part to file the memorandum within 15 days. The
law is mandatory and compulsory. In rules of
procedure, an act which is jurisdictional, or of
the essence of the proceedings, or is prescribed
for the protection or benefit of the party affected
is mandatory. The argument that the procedural
rules should be relaxed so as not to defeat his rights
is also unmeritorious because it has been
jurisprudentially held that, while the rules of
procedure are liberally construed, the provisions on
reglementary
periods
are
strictly
applied,
indispensable as they are to the prevention of
needless delays, and are necessary to the orderly
and speedy discharge of judicial business. Also, the
right to appeal is neither a natural right nor a part of
due process; it is merely a statutory privilege, and
may be exercised only in the manner and in
accordance with the provisions of law. n appeal
being a purely statutory right, an appealing party
must strictly comply with the requisites laid down in
the Rules of Court. In other words, he who seeks to
avail of the right to appeal must play by the rules.
This, the petitioner failed to do when he did not
submit his memorandum on appeal.
v.
GN: Appellate court may only review errors

assigned and properly argued
Exceptions:
(a) When the question affects jurisdiction
(b) Matters that evidently plain or clerical errors
(c) Matters whose consideration is necessary for a
just and complete resolution
(d) Matters of record having bearing on the issue
that parties failed to raise
(e) Matters closely related to an error assigned
(f) Matters upon which the determination of a
question is dependent
Herrera v. Bollos
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!
In the case, the MTC dismissed the case for lack of

jurisdiction, and the RTC reversed the dismissal but
rendered judgment ejecting Herrera from the parcel
of land involved, and condemning them to pay
damages and attorneys fees. This is not correct. In
case of reversal, the case shall be remanded to

the MTC for further proceedings. The RTC, in
reversing an appealed case dismissing the
action, cannot decree the eviction of the
defendants and award damages.
APPEAL FROM RTC TO CA (RULE 41)
SEC.1: Subject of appeal.An appeal may be taken from a judgment or
final order that completely disposes of the case, or of a particular matter
therein when declared by these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or reconsideration;
(b) An order denying a petition for relief or any similar motion seeking
relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or
duress, or any other ground vitiating consent.
(f) An order of execution;
(g) A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and thirdparty complaints, while the main case is pending, unless the court
allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil action
under Rule 65.
Neypes v. CA
To standardize the appeal periods provided in the

Rules and to afford litigants fair opportunity to
appeal their cases, the Court deems it practical to
allow a fresh period of 15 days within which to file
the notice of appeal in the Regional Trial Court,
counted from receipt of the order dismissing a
motion for a new trial or motion for reconsideration.
Eda v. CA
An appeal is not perfected merely by the payment of

the appeal fee. Section 9, Rule 41 of the Rules of
Civil Procedure categorically states that an appeal
by notice of appeal is deemed perfected as to
him upon the filing of the notice of appeal in due
time. In other words, an appeal filed out of time
cannot be perfected.
Kho v. Camacho
Worldwide Web Corp

v. People
Supreme Court ruled that the respondent judge did

not act correctly in disapproving the notice of
appeal. What respondent Judge should have done
under the circumstances was to sustain his
approval of the notice of appeal and leave it to the
Court of Appeals to certify the case to the proper
tribunal if warranted. Indeed, Judge Leviste had
absolutely no authority to disapprove the notice of
appeal. Under the present rules, the RTC judges
role is to approve or disapprove the record on
appeal (when required) and the appeal bond, but
not a notice of appeal. A notice of appeal does
not require the approval of the trial court.
A final order is defined as one which disposes of the
whole subject matter or terminated a particular
proceeding or action, leaving nothing to be done but
to enforce by execution what has been determined;
on the other hand, an order is interlocutory if it does
not disposed of a case completely, but leaves
something more to be done upon its merits.
An application for a search warrant is a judicial
process conducted either as an incident in a main
criminal case already filed in court or in anticipation
of one yet to be filed. Where the search warrant is
issued as an incident in a pending case, the
quashal of a search warrant is merely
interlocutory. In contrast, where a search
warrant is applied for and issued in anticipation
of a criminal case yet to be filed, the order
quashing the warrant (and denial of a motion for
reconsideration of the grant) ends the judicial
process. There is nothing more to be done
thereafter.
Spouses Campos v.
Republic
! 5! !
1
!
As a general rule, an assignment of error is

essential to appellate review and only those errors
assigned will be considered. As exceptions to the
rule, the Court has considered grounds not raised or
assigned as errors in instances where:
(1) affecting jurisdiction over the subject matter;
(2) evidently plain or clerical errors within the
contemplation of the law;
(3) consideration is necessary in arriving at a just
decision and complete resolution of the case
or to serve the interest of justice or to avoid
dispensing piecemeal justice;
(4) raised in the trial court and are matters of
record having some bearing on the issue
submitted which the parties failed to raise or

which the lower court ignored;
(5) closely related to the assigned error/s; and
(6) determination is necessary to rule on the
question/s properly assigned as errors.
The appellate court reserves the right, resting on its
public duty, to take cognizance of palpable error on
the face of the record and proceedings, and to
notice errors that are obvious upon inspection and
are of a controlling character, in order to prevent a
miscarriage of justice due to oversight
Valdez v. Financiera
Manila
The CA had no jurisdiction to decide the said

petition for certiorari. The proper remedy was an
appeal, as the case had proceeded from a denial of
a motion for execution of a judgment. Considering
that an appeal was still available as a remedy for
the assailed Orders of the RTC, the filing of the
petition for certiorari was an attempted substitute for
an appeal, after respondent failed to avail itself of
the latter remedy.
Palma v. Galvez
Certiorari under Rule 65 is the proper remedy

because under Sec. 1(g) of Rule 41, when the
judgment or final order is not appealable and
such judgment/final order is for or against one
or more of several parties (or in separate claims,
counterclaims, cross-claims, and third-party
complaints), the aggrieved party may file an
appropriate special civil action for certiorari
under Rule 65. In this case, the RTC Order
granting Agudos MTD and denying Palmas MR are
final orders that terminate the proceedings against
her while the complaint for damages against the
other defendants are still pending. Since there is no
appeal, or any plain, speedy, and adequate remedy
in law, certiorari is proper to promptly relieve the
aggrieved party from the injurious effects of the acts
of an inferior court or tribunal
Philexport v.
Infrastructures
Phil.
Prior to the 1997 Rules of Civil Procedure, an order

dismissing a petition without prejudice may be
appealed by way of ordinary appeal. Considering
that the CA promulgated its decision in 1994, it did
not err in dismissing the petition. At present, no
appeal may be taken from an order dismissing
an action without prejudice. It may be subject of
a special civil action for certiorari under Rule 65.

Ko v. PNB
Samson
Macaraig
Petitioners Counsel erred in filing a Petition for

Certiorari under Rule 45. The proper recourse was
to file an Ordinary Appeal with the CA under Rule
41, considering that an order for dismissal for failure
to prosecute has the effect of an adjudication on the
merits. Petitioners Counsel should have filed a
Notice of Appeal with the CA within the
reglementary period. Perhaps due to failure to file a
Notice of Appeal within the remaining 2 days of the
appeal period, Petitioners Counsel, filed the instant
Petition instead. These Rules are established to
provide order to and enhance the efficiency of our
judicial system, hence should not be trifled with or
overlooked.
v.
Fiel-
Where the issue is an error of law or fact which is

a mistake of judgment, the remedy is APPEAL.
Also, the remedy to obtain reversal or
modification of the judgment on the merits is
also APPEAL. The dismissal by respondent
Judge being a dismissal on the merits, then the
remedy should have been an APPEAL and NOT
CERTIORARI
Rovira v. Heirs of
Deleste, et al.
Rule 41 of the Rules of Court provides: No record

on appeal shall be required except in special
proceedings and other cases of multiple or
separate appeals where the law or these Rules
so require.
The main action here, being a suit for recovery of
ownership and possession, is not one where
multiple appeals can be taken or are necessary.
The choice of asserting a claim for attorney's fees in
the very action in which the services in question
have been rendered, will not convert a regular case
into one falling under the category of "other cases of
multiple or separate appeals where the law or these
Rules so require." The main case handled by
petitioner lawyer has already been decided with
finality up to the appeal stage and is already in
the execution stage. The trial court has also
already resolved the incident of attorney's fees.
Hence, there is no reason why the original
records of the case must remain with the trial
court. There was also no need for respondents to
file a record on appeal because the original records
! 6! !
1
!
could already be sent to the appellate court for the

resolution of the appeal on the matter of the
attorney's fees. Since the case has not been
made out for multiple appeals, a record on
appeal is unnecessary to perfect the appeal. The
only requirement to perfect the appeal is the
filing of a notice of appeal in due time. This the
respondents did.
ORDINARY APPEALED CASES (RULE 44)
Contents of the appellants brief:
1. subject indexdigest of arguments and page references; table of
cases, textbooks and statutes cited, with references to the pages of
the record where they are cited
2. assignment of errorsseparately, distinctly and concisely stated;
w/o repetition; numbered consecutively
3. statement of the casestatement of the nature of the action,
summary of proceedings, appealed rulings and orders of the court,
nature of the judgment, any other necessary matters, with page
references
4. statement of factsin narrative form, with page references
5. statement of the issues of facts or law
6. argumentsarguments on each assignment of error, with page
references
7. relief
8. a copy of the judgment or final order appealed fromONLY for
cases requiring solely notice of appeal
Contents of the appellees brief:
1. subject index
2. statement of facts (if he accepts the facts as stated by the
appellant), or counter-statement of facts, where he shall point out
insufficiencies or inaccuracies in the appellants statement of facts,
with page references
3. argumentsfor each assignment of error
De Leon v. CA
Note that the amended brief was filed without the

proper motion for leave to do so and corresponding
order from the respondent court. Even more
significant, it was filed beyond the extensions of
time granted to appellants. The discretion in
accepting late briefs conferred upon respondent
court which this Court applied in the cases of Maqui
vs. CA and Vda. de Haberer vs. CA finds no
application under the present circumstances
because, unlike in these two cases, here no valid
reason was advanced for the late filing of the
amended brief.
(Rule 44 Sec 12 extension not 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.)
Ordinary appealed civil cases undergo two (2)

stages. The first stage consists of completion of
the records. The second stage is for study and
report, which follows when an appealed case is
deemed submitted for decision (check Sec 1,
Rule 51!)
While the amended brief might contain no

substantial and prejudicial changes, it was error for
the respondent court to accept the amended brief
as filed and then require petitioner to file appellees
brief because admittedly the amended brief was
filed beyond August 31, 1998, the last period of
extension granted to private respondents.
De Liano v. CA
*this
case
also
discussed
the
contents
of
the
appellants brief
The issue in this case is whether or not CA erred in

dismissing
the
appeal
because
of
pure
technicalities. SC ruled that the CA was correct
since right to appeal is a statutory right. The rules
were designed to assist the appellate court in the
accomplishment of its tasks, and overall, to
enhance the orderly administration of justice. CA
does not need to go to the merits of the case
since the case was already dismissed in the
completion stage.
At each stage, a separate raffle is held (One raffle

for completion, another raffle for study and report).
Each stage is distinct; it may happen that the
Justice to whom the case was initially raffled for
completion may not be the same Justice who will
write the decision thereon.
The aforesaid distinction has a bearing on the case
at bar. It becomes apparent that the merits of the
appeal can only be looked into during the second
stage. The Justice in-charge of completion exceeds
his province should he examine the merits of the
case since his function is to oversee completion
only. The prerogative of determining the merits of
an appeal pertains properly to the Justice to whom
the case is raffled for study and report.
The Rules of Court prescribe two modes of appeal

from decisions of the RTC to the CA:
1. When the trial court decides a case in the
exercise of its original jurisdiction, the mode of
review is by an ordinary appeal in accordance
with Section 2(a) of Rule 41. (applicable to
case at bar!) [questions of fact, and mixed
questions of law and fact] (bawal questions of
law only if the appeal is under Rule 41!!)
2.
When the assailed decision was rendered by

the trial court in the exercise of its appellate
jurisdiction, the mode of appeal is via a petition
for review pursuant to Rule 42. [questions of
law, questions of fact, and mixed]
Cases elevated to the CA are treated differently

depending upon their classification into one of three
(3) categories: appealed civil cases, appealed
criminal cases, and special cases. All cases are
under the supervision and control of the members of
the CA in all stages, from the time of filing until the
remand of the cases to the courts or agencies of
origin.
! 7! !
1
!
if no hearing upon the filing of last

pleading/brief/memo, or the expiration of
period for filing
hearing is held upon termination of hearing,
or filing of last pleading/memo, expiration for
filing
The case at bar did not reach the second stage;

it was dismissed during completion stage
pursuant to Section 1(f) of Rule 50. Consequently,
petitioners contention that the appellate court
should have considered the substance of the appeal
prior to dismissing it due to technicalities does not
gain our favor.
Mon v. Ca
The settled rule in this jurisdiction is that a party

cannot change his theory of the case or his cause of
action on appeal. We have previously held that
courts of justice have no jurisdiction or power to
decide a question not in issue.8 A judgment that
goes outside the issues and purports to adjudicate
something on which the court did not hear the
parties, is not only irregular but also extrajudicial
and invalid.9 The rule rests on the fundamental
tenets of fair play. In the present case, the Court
must stick to the issue litigated in the DARAB and in
the Court of Appeals, which is whether petitioner
has the right to eject the Spouses Velasco from the

land under RA 3844.
Tuazon
Rosario
v.
Canlas v. Tubil
Del
Failure to file appellees brief merely means

waiver of the right to file said brief. The CA
correctly deemed the case submitted for its decision
and could have decided based on the appellants
brief and the records of the case forwarded by the
RTC. It did not mean, however, that the CA should
automatically rule in favor of the appellant.
1. Tubils allegations in the complaint clearly make
a case for an unlawful detainer, essential to
confer jurisdiction on the MTC over the subject
matter. It is settled that as long as these
allegations demonstrate a cause of action for
unlawful detainer, the court acquires jurisdiction
over the subject matter. This principle holds,
even if the facts proved during the trial do not
support the cause of action thus alleged, in
which instance the court - after acquiring
jurisdiction - may resolve to dismiss the action
for insufficiency of evidence. 2. Having ruled that
the MTC acquired jurisdiction over Civil Case No.
3582, it thus properly exercised its discretion in
dismissing the complaint for unlawful detainer
for failure of the respondent to prove tolerance
by sufficient evidence.
Consequently, Section 8 (2nd par.) of Rule 40 of
the Rules of Court which ordains the Regional
Trial Court not to dismiss the cases appealed to
it from the metropolitan or municipal trial court
which tried the same albeit without jurisdiction,
but to decide the said case on the merits, finds
no application here.
DISMISSAL OF APPEAL (RULE 50)

SECTION 1. Grounds for dismissal of appealAn appeal may be dismissed
by the Court of Appeals, on its own motion or on that of the appellee, on the
following grounds:
(a) Failure of the record on appeal to show on its face that the appeal was
taken within the period fixed by these Rules;
(b) Failure to file the notice of appeal or the record on appeal within the
period prescribed by these Rules;
(c) Failure of the appellant to pay the docket and other lawful fees as
provided in section 4 of Rule 41;
! 8! !
1
!
(d) Unauthorized alterations, omissions or additions in the approved

record on appeal as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the required number of copies
of his brief or memorandum within the time provided by these Rules;
(f) Absence of specific assignment of errors in the appellants brief, or of
page references to the record as required in section 13, paragraphs
(a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the correction
or completion of the record within the time limited by the court in its
order;
(h) Failure of the appellant to appear at the preliminary conference under
Rule 48 or to comply with orders, circulars, or directives of the court
without justifiable cause; and
(i) the fact that order or judgment appealed from is not appealable.
PNB v.
Milling
Philippine
"(a)n appeal may be dismissed by the Court of

Appeals, on its own motion or on that of the
appellee" upon the ground, among others, of "failure
of the appellant ... to serve and file the required
number of copies of his brief," within the
reglementary period. Manifestly, this provision
confers a power and does not impose a duty. What
is more, it is directory, not mandatory.
Atlas Consolidated
Mining v. CA
Section 9 of BP 129 vests in the CA exclusive

appellate jurisdiction over all final decisions and
order of the regional trial courts, except those falling
within the appellate jurisdiction of the SC
The rule therefore is that direct appeals to the SC
from the trial court of questions of law have to be
through the filing a petition for review on certiorari.
Furthermore, the SC issued Circular No. 2-90,
which states that: Except in criminal cases where
the penalty imposed is life imprisonment or
reclusion perpetua, judgments of regional trial
courts may be appealed to the SC only by petition
for review on certiorari in accordance with Rule 45
of the Rules of Court in relation to Section 17 of the
Judiciary Act of 1948, as amended, this being the
clear intendment of the provision of the Interim
Rules that appeals to the Supreme Court shall be
taken by petition for certiorari which shall be
governed by Rule 45 of the Rules of Court.
Under the foregoing considerations, the inescapable
conclusion is that Atlas adopted the correct mode of
appeal by filing with this court a petition for review

on certiorari the decision of the RTC of Pasig and
raising therein purely questions of law.
(5) In case of delay, the lapse must be for a

reasonable period; and
(6) Inadvertence of counsel cannot be considered
as an adequate excuse as to call for the
appellate courts indulgence except:
(a) where the reckless or gross negligence
of counsel deprives the client of due
process of law;
(b) when application of the rule will result
in outright deprivation of the clients
liberty or property; or
(c) where the interests of justice so
require.
While it is true that Circular No. 2-90 now prohibits

the transfer of appeals erroneously taken to the
Supreme Court or to the Court Appeals to
whichever of these tribunals has appropriate
appellate jurisdiction, this petition does not involve
an erroneous mode of appeal. Respondent court,
was, therefore, not justified in refusing to decide the
case on merits.
Cu-Unjieng v. CA
Belgium v. CA
! 9! !
1
!
Well-settled is the rule that payment of the docket

and other legal fees within the prescribed period is
both mandatory and jurisdictional, noncompliance
with which is fatal to an appeal. Nonpayment of the
appellate court docket and other lawful fees within
the reglementary period as provided under Section
4, Rule 41, supra, is a ground for the dismissal of an
appeal under Section 1(c) of Rule 50
(1) The general rule is for the CA to dismiss an
appeal when no appellants brief is filed within
the reglementary period prescribed by the
rules;
(2) The power conferred upon the CA to dismiss
an appeal is discretionary and directory and
not ministerial or mandatory;
(3) The failure of an appellant to file his brief
within the reglementary period does not have
the effect of causing the automatic dismissal of
the appeal;
(4) In case of late filing, the appellate court has
the power to still allow the appeal; however, for
the proper exercise of the courts leniency it is
imperative that:
(a) the circumstances obtaining warrant
the courts liberality;
(b) that strong considerations of equity
justify an exception to the procedural
rule in the interest of substantial
justice;
(c) no material injury has been suffered by
the appellee by the delay;
(d) there is no contention that the
appellees cause was prejudiced;
(e) at least there is no motion to dismiss
filed.
Bachrach
Philippine
Authority
v.
Ports
Rule 50, Section 1 of the Rules of Court

enumerates the grounds for the dismissal of
appeals; paragraph (e) thereof provides that an
appeal shall be dismissed upon - [f]ailure of the
appellant to serve and file the required number of
copies of his brief or memorandum within the time
provided by these Rules. In a long line of cases, this
Court has held that the CAs authority to dismiss an
appeal for failure to file the appellants brief is a
matter of judicial discretion. Thus, a dismissal based
on this ground is neither mandatory nor ministerial;
the fundamentals of justice and fairness must be
observed, bearing in mind the background and web
of circumstances surrounding the case.
PETITION FOR REVIEW (RTC to CA) (RULE 42)

Lanaria v. Planta
The PFR filed in this case failed to attach plain

copies of the pleadings and other material portions
of the record such as, Complaint for Unlawful
Detainer, Answer with Counterclaim, Parties'
Position Paper, Memorandum on Appeal and
Motion for Reconsideration
However, they subsequently submitted the ff
documents annexed to their MR: complaint for
ejectment, TCT, affidavits, position papers,
memorandum of appeal, etc.
SC held: Submission of a document together with
the
motion
for
reconsideration
constitutes
substantial compliance with the requirement that
relevant or pertinent documents be submitted along
with the petition, and calls for the relaxation of
procedural rules
Balgami v. CA
Only the judgments or orders of the lower

courts must be duplicate originals or be duly
certified true copies. Moreover, the phrases
"duplicate originals" and "true copies" of the
judgments or orders of both lower courts, being
separated by the disjunctive word "OR" indicate that
only the latter are required to be certified correct by
the clerk of court.
On the argument that there was neither an Affidavit
of Service nor Proof of Service attached to the
petition, the SC said there was substantial
compliance: an explanation was provided by the
counsel that the filing of the PFR was done through
registered mail because of the distance between
Iloilo (where counsels office was) and Manila
(where CA was).
Perez v. Falcatan
Under Rule 42 Sec 2: The petitioner shall also

submit together with the petition a certification under
oath that he has not theretofore commenced any
other action involving the same issues in the SC,
the Court of Appeals or different divisions thereof, or
any other tribunal or agency; if there is such other
action or proceeding, he must state the status of the
same.
Perfection of an appeal in the manner and within the

period laid down by law is not only mandatory but
also jurisdictional. The failure to perfect an appeal
as required by the rules has the effect of defeating
the right to appeal of a party and precluding the
appellate court from acquiring jurisdiction over the
case.
Heirs of Esplana v
CA
Under Rule 42, sec. 1, the law was clear that the
parties are allowed only an extension of 15 days
and another 15 for compelling reasons. The
reasons adduced by the heirs (ie. Death of previous
counsel, voluminous paperwork) were not
compelling. The heirs also failed to pay the docket
and other lawful fees to be entitled to an extension.
Lastly, a motion for extension is not a matter of right
but only based on a sound discretion of the court.
Montajes v People
The PFR was filed out of time based on our

clarification in A.M. No. 00-2-14-SC that the 15-day
extension period prayed for should be tacked to
the original period and commences immediately
after the expiration of such period. Thus,
counting 15 days from the expiration of the period
which was on May 19, 2007, the petition filed on
June 5, 2007 was already two days late.
However, this Court has relaxed this rule in

cases where, as here, there is need to conduct a
review. In those instances, the Court allowed
petitioners to comply with the requirement after they
had filed their petitions. Hence, the Court of Appeals
did not err in observing the same liberality to
respondents petition.
Ang v. Grageda
Perfection of an appeal within the statutory or

reglementary period is not only mandatory but also
jurisdictional; failure to do so renders the questioned
decision/final order final and executory, and
deprives the appellate court of jurisdiction to alter
the judgment or final order, much less to entertain
the appeal.
Under Sec. 7 of R46, failure of the appellant to file a
memo within 15 days from notice from the clerk of
court is a ground for the dismissal of an appeal.
! 0! !
2
!
When a party is represented by a counsel in an

action in court, notices of all kinds, including
motions and pleadings of all parties and all orders of
the court, must be served on his counsel.
However, we find the circumstances obtaining in

this case to merit the liberal application of the rule in
the interest of justice and fair play. The PFR was
already filed on June 5, 2007, which was long
before the CA issued its Resolution dated
September 21, 2007 dismissing the petition for
review for being filed out of time. There was no
showing that respondent suffered any material
injury or his cause was prejudiced by reason of
such delay.
Plopenio v.
Department of
Agrarian Reform
In this case, Plopenia filed a petition with the

Provincial Agrarian Reform Adjudicator (PARAD),
who decided against them. They filed an appeal
with the RTC acting as a Special Agrarian Court,
who ruled against them as well. On pure questions
of law, they went up to the SC.
Under Section 60 of the Comprehensive Agrarian
Reform Law (CARL):
While the general rule is that appeals raising pure

questions of law from decisions of RTCs are taken
to this Court via a Rule 45 petition, decisions of
trial courts designated as SACs are only
appealable to the CA.
Gutierrez v. Cabrera
The correct procedure is not to implead the lower

court or agency which rendered the assailed
decision. However, impleading a lower court judge
as respondent in a petition for review is merely a
formal defect, and does not automatically mean
dismissal of the appeal. It merely authorizes the
dismissal of the petition.
While the Court has unquestionably the
discretion to dismiss the appeal for being
defective, sound policy dictates that it is far
better to dispose of the case on the merits,
rather than on technicality as the latter
approach may result in injustice. This is in
accordance w/ Rule 1 Sec. 6, which encourages a
reading of the procedural requirements in a manner
that will help secure and not defeat justice.
Yamane v. BA
Lepanto
! 1! !
2
!
proper remedy of the Corp. from the RTC judgment

is an ordinary appeal under Rule 41 to the CA.
An appeal may be taken from the decision

of the Special Agrarian Courts by filing a
petition for review with the Court of
Appeals within fifteen (15) days from
receipt of notice of the decision; otherwise,
the decision shall become final.
An appeal from the decision of the CA, or
from any order, ruling or decision of the
DAR, as the case may be, shall be by a
PFR with the SC within a non-extendible
period of 15 days from receipt of a copy of
said decision.
Clearly, petitioners should have appealed
the SAC-RTC Decision to the Court of
Appeals.
The LGC, or any other statute for that matter, does

not expressly confer appellate jurisdiction on the
part of RTC from the denial of a tax protest by a
local treasurer. On the other hand, Sec. 22 of
BP129
expressly
delineates
the
appellate
jurisdiction of the RTC, confining as it does said
appellate jurisdiction to cases decided by MeTC,
MTC, and MCTC. Unlike in the case of the CA,
BP129 does not confer appellate jurisdiction on
RTC over rulings made by non-judicial entities.
Thus, it is evident that the stance of the City
Treasurer is correct as a matter of law, and that the
Difference between
jurisdiction:
original
and
appellate
Original jurisdiction is the power of the

Court to take judicial cognizance of a case
instituted for judicial action for the first time
under conditions provided by law.
Appellate jurisdiction is the authority of a
Court higher in rank to re-examine the final
order or judgment of a lower Court which
tried the case now elevated for judicial
review.
Thus, if a case was decided by the City Treasurer

or any non-judicial entity as per Sec. 22 of BP
129was taken to the RTC, it is considered as an
original petition filed before the RTC exercising its
original jurisdiction.
CTA and QUASI-JUDICIAL AGENCIES to CA (RULE 43)
St. Martin Funeral
Home v. NLRC
NLRC ! CA via 65
The special civil action of certiorari (Rule 65) is

under the concurrent original jurisdiction of the CA
and the SC. But the hierarchy of courts must still be
respected. So lodge first with the CA an action for
certiorari under Rule 65 before bring it to the SC.
For NLRC decisions, appeals directly to the SC
were eliminated by BP 129. The propery remedy
therefore for NLRC decisions is Rule 65 to the
CA first, and then to SC.
CA is equipped to review and reweigh ALL the
evidence on record, while SC has no power to do so
because it is not a trier of facts and they usually
just remand the case to the NLRC.
Philtranco v.
Philtranco Workers
Union
Sec. of Labor (even
if acting as VA) !
CA via 65
The remedy of an aggrieved party in a decision of

the Sec. of Labor (even if he/she is acting as a
voluntary arbitrator) is to timely file an MR as a
precondition for any further or subsequent remedy
and then seasonably file a special civil action for
certiorari under Rule 65 to the CA
Even though an MR is not required or even
prohibited by the concerned government office, and
the petitioner files the motion just the same, the 60
day period shall nonetheless be counted from notice
of the denial of the motion.
Fabian v. Desierto
Ombudsman Admin
! CA via 43
Tirol v.
Sandiganbayan
Ombudsman Crim !
CA via 65
RA 6770 provides: All administrative disciplinary

cases, orders, directives or decisions of the Office
of the Ombudsman may be appealed to this Court
in accordance with Rule 45 of the Rules of Court.
But this law violated the consti provision which
provides that No law shall be passed increasing the
appellate jurisdiction of the Supreme Court as
provided in this Constitution without its advise and
consent." Thus, the aforequoted provision in RA
6770 is void and is of no legal effect.
and resolutions of the Sec. of Justice on preliminary

investigations of criminal cases via PFR, except for
those offenses punishable by reclusion perpetua to
death. So water you gonna do?
Appeals from judgments and final orders of quasijudicial agencies are now required to be brought to
the CA on a verified PFR, under the requirements
and conditions in Rule 43 which was precisely
formulated and adopted to provide for a uniform rule
of appellate procedure for quasi-judicial agencies.
Rule 43 applies not only to "ordinary" quasijudicial agencies, but also to the Office of the
Ombudsman, which is a "high constitutional body."
Side doctrine: An investigating prosecutor performs

functions of a quasi-judicial nature in the conduct of
a preliminary investigation. However, since he does
not make a determination of the rights of any party
in the proceeding, or pronounce the respondents
guilt or innocence (thus limiting his action to the
determination of probable cause to file an
information in court), an investigating prosecutors
function still lacks the element of adjudication
essential to an appeal under Rule 43.
All appeals from decision of the Ombudsman in

administrative disciplinary cases may be taken to
the CA via an appeal under Rule 43. The problem
is that such right of appeal is not granted to parties
aggrieved by orders and decisions of the
Ombudsman in criminal cases, like finding probable
cause to indict accused persons.
However, an aggrieved party is not without recourse
where the finding of the Ombudsman as to the
existence of probable cause is tainted with
gadalej. The remedy is for an aggrieved party to file
a petition for certiorari under Rule 65.
Elma v. Jacobi
DOJ crim [reclusion
perpetua to death] !
OP ! CA via 43
DOJ crim [less than
reclusion perpetua]
! CA via 65
Rule 43 excludes the DOJ from the list of quasijudicial agencies whose decisions are reviewable by
the CA. This is because the DOJ is under the
control of the President, so that DOJ decisions are
reviewable by the President. But the Office of the
President (OP) is in the enumeration in Rule 43,
which means that decisions by the OP are
appealable to the CA via Rule 43. Thus, a person
aggrieved by a decision of the DOJ must first seek
recourse to the OP before going to the court (to
satisfy the requirement of exhaustion of remedies).
Heres the catch: Memorandum Circular No. 58 of
the OP bars an appeal from the decisions, orders,
! 2! !
2
!
DOJ crim [reclusion perpetua to death] ! OP ! CA

via 43
DOJ crim [less than reclusion perpetua] ! CA via
65
DepEd v. Cuanan
CSC ! CA via 43
Kuizon v. Desierto
Ombudsman Admin
! CA via 43
Ombudsman Crim !
CA via 65
General Rule: CSC resolutions are appealable to

CA via Rule 43
Exceptions:
a. When public welfare and the advancement of
public policy dictates;
b. When the broader interest of justice so
requires;
c. When the writs issued are null and void; or
d. When the questioned order amounts to an
oppressiveexercise of judicial authority.
(This case is a mere reiteration of Fabian v.
Desierto and Tirol v. Sandiganbayan)
Here, Kuizon filed an action for certiorari under Rule
65 with the CA, when he should have filed an
appeal under Rule 43. The erroneous filing of the
Rule 65 action for certiorari with the CA did not toll
the running of the period within which the proper
appeal under Rule 43 may be filed.
Formal Requirements for RULE 43

Dalton-Reyes v. CA
As a rule, the requirements for perfecting an appeal

within the reglementary period provided by law must
be strictly followed. Nonetheless, the Court, in some
instances, has been liberal and has excused a
litigants procedural defects and lapses in the

interest of substantial justice, to wit:
(1) matters of life, liberty, honor or property;
(2) counsels negligence without any
participatory negligence on the part of the
client;
(3) the existence of special or compelling
circumstances;
(4) the merits of the case;
(5) a cause not entirely attributable to the fault or
negligence of the party favored by the
suspension of the rules;
(6) a lack of any showing that the review sought
is merely frivolous and dilatory; and
(7) the other party will not be unjustly prejudiced
thereby.
fairly and logically arising therefrom, but also

questions substantial enough to merit consideration,
or show that there are special and important
reasons warranting the review that she seeks.
Coca Cola v. Cabalo
The requirement for personal service is

mandatory such that Sec. 1 Rule 13 gives the court
the discretion to consider a pleading or paper as not
filed if the other modes of service of filing were
resorted to and no explanation was made as to why
personal service was not done. In deciding whether
a liberal interpretation of Sec. 11 Rule 13 is
warranted, the Court must take into account three
things:
1) the practicability of personal service;
2) the importance of the subject matter of the
case or the issues involved therein; and
3) the prima facie merit of the pleading sought to
be expunged for violation of Sec. 11.
In this case, the last day for filing the petition for
review fell on a Friday. Reyes filed her motion for
extension of time to file the petition for review on
June 11, Monday, which was the next working day.
The delay was actually for 1 day only. Considering
that she was not assisted by a lawyer, this may be
considered as an excusable negligence on her part.
Where no element of intent to delay the
administration of justice could be attributed to
Reyes, a 1-day delay does not justify the appeals
denial.
Basmayor v. Atencio
! 3! !
2
!
In this case, it cannot be said that personal service

was neither practical nor realistic given that Coca
Colas law firm (Bocobo Rondain Mendiola Cruz
and Formoso) had one of the biggest corporations
in the country for its client, so its safe to assume
that it had enough people in its employ to effect
personal service.
Rule 43 doctrine:
Anent the question of whether or not the CSC
should be impleaded as respondent in this case,
the correct procedure, is not to implead the
lower court or agency which rendered the
assailed decision, pursuant to Rule 43. Hence,
we agree with the petitioner that it is not necessary
to implead the CSC as respondent in her petition.
Rule 45 doctrine:
In petitions for review or appeal under Rule 45 of
the Rules of Court, the appellate tribunal is limited
to the determination of whether the lower court
committed reversible errors. The errors which are
reviewable by this Court in a petition for review on
certiorari from a decision of the Court of Appeals
are only those allegedly committed by said court. It
is the burden of the party seeking review of a
decision of the Court of Appeals or other lower
tribunals to distinctly set forth in her petition for
review, not only the existence of questions of law
There is no substantial distinction between a

photocopy or a Xerox copy and a true copy as
long as the photocopy is certified by the proper
officer of the court, tribunal, agency, or office
involved or his duly-authorized representative and
that the same is a faithful reproduction of the
original.
BE San Diego v
Alzul
It is only Rule 43 that specifically states that the

material portions to be appended to the petition
should be certified true copies.
Rule 41 doesnt require attachment of the

pertinent records since the entire records
are elevated to the CA.
Rule 42 on PFR (RTC appellate to CA)

speaks of plain copies of the material
portions of the record as would support the
allegations of the petition.
Even Rule 45 simply speaks of material

portions of the records without indicating
that these should be certified true copies.

Rule 46 on original cases to the SC only
requires plain copies of the material
portions of the records.
Rule 65 on special civil actions requires
only copies of relevant and pertinent
pleadings and documents.
It is also only in Rule 43 that we encounter the

requirement of annexing supporting papers to
the petition. This can be interpreted to mean other
documents, pictures, and pieces of evidence not
forming parts of the records of the lower court or
agency that can bolster and shore up the petition.
While not so specified in Sec. 3 of Rule 43, it is
inarguable that said papers must also be relevant
and material to the petition.
With respect to the other supporting documents of

the petition as set forth in Section 6, Rule 43, their
legible copies should have been attached to the
petition or to the motion for reconsideration filed
against the resolution dismissing the petition.
In this case, considering that the petitioners appeal
also assailed the CSC Resolution which found her
guilty, she should have furnished the CA with a
certified true copy of that resolution.
APPEAL BY CERTIORARI TO THE SC (RULE 45)
Sesbreno v. CA
Sec. 7 of Rule 43 does not prescribe outright

rejection of the petition if it is not accompanied by
the required documents but simply gives the
discretion to the CA to determine whether such
breach constitutes a sufficient ground for
dismissal.
Manebo v. CA &
CSC
! 4! !
2
!
Rule 43 clearly requires the petition for review to be

accompanied by a clearly legible duplicate original
or a certified true copy of the award, judgment, final
order or resolution appealed from, together with
certified true copies of such material portions of the
record referred to therein and other supporting
papers.
The
requirement
is
intended
to
immediately enable the CA to determine
whether to give due course to the appeal
or not by having all the material necessary
to make such determination before it.
This is because an appeal under Rule 43

is a discretionary mode of appeal, which
the CA may either dismiss if it finds the
petition to be patently without merit, or
prosecuted manifestly for delay, or that the
questions
raised
therein
are
too
unsubstantial to require consideration; or
may process by requiring the respondent
to file a comment on the petition, not a
motion to dismiss, within 10 days from
notice.
Question of law when the doubt or

difference arises as to what the law is on
certain state of facts
Question of fact when the doubt or
difference arises as to the truth or the
falsehood of alleged facts; or when the query
necessarily invites calibration of the whole
evidence considering mainly the credibility of
witnesses, existence and relevancy of
specific surrounding circumstances, their
relation to each other and to the whole and
the probabilities of the situation
In this case, the only issue to be resolved by the

CA, which it did resolve, was whether Rodis could
be held liable for estafa under the facts obtaining in
the criminal case. This certainly is a question of law
that should fall within the jurisdiction of the SC.
Republic v. Ortigas
Appeals from the decisions of the RTC, raising

purely questions of law must, in all cases, be taken
to the SC on a PFRC in accordance with Rule 45.
An appeal by notice of appeal from the decision of
the RTC in the exercise of its original jurisdiction to
the CA is proper if the appellant raises questions of
fact or both questions of fact and questions of law.
CGP v. PCI
Rule 41/Notice of appeal (RTC orig to CA):

questions of fact, or mixed
Rule 42/PFR (RTC appellate to CA):
questions of fact, questions of law, or mixed
Rule 45/PFRC (RTC orig to SC): questions of
law only
CGP filed a petition for review on certiorari with the

SC, but questions of fact were involved. Since only
questions of law may be raised in a Rule 45 appeal,

the SC deemed it proper to further refer the subject
petition to CA.
This disposition by the SC is justified under Rule 56.
Specifically, under Sec. 5(f), an appeal MAY be
dismissed on the ground of incorrect mode of
appeal. Similarly, under Sec. 6 of the same Rule 56,
the SC MAY instead refer the case to the CA. The
use of the term may in both sections denotes
discretion on the part of the SC in whether to
dismiss a case OR refer the same to the CA.
Guanellians v. Jody
King Construction
premised on the absence of evidence but

such findings are contradicted by the
evidence on record.
Perez-Rosario v. CA
The issues raised by the Guanellians involve w/n

there were delays in the construction of the project,
w/n the billings failed to reflect the necessary
deductions and cash advances, etc. Clearly these
are questions of fact which the SC cannot take
cognizance of.
Under Rule 45, the reglementary period to appeal is

15 days from notice of judgment or denial of the
motion for reconsideration. Rule 45 is clear that
decisions, final orders or resolutions of the CA in
any case, i.e., regardless of the nature of the action
or proceedings involved, may be appealed to the
SC by filing a petition for review, which would be but
a continuation of the appellate process over the
original case. A special civil action under Rule 65
will not cure the failure to timely file a petition for
review on certiorari under Rule 45.
General Rule: Where the factual findings of the trial

court are affirmed in toto by the CA, there is great
reason for not disturbing such findings and for
regarding them as not reviewable by this Court.
Exceptions:
(1) when the factual findings of the CA and the
trial court are contradictory;
(2) when the conclusion is a finding grounded
entirely on speculation, surmises, or
conjectures;
(3) when the inference made by the CA from its
findings of fact is manifestly mistaken,
absurd, or impossible;
(4) when there is a grave abuse of discretion in
the appreciation of facts;
(5) when the CA went beyond the issues of the
case and such findings are contrary to the
admissions of both appellant and appellee;
(6) when the judgment of the CA is premised on a
misapprehension of facts;
(7) when the CA failed to notice certain relevant
facts which, if properly considered, would
justify a different conclusion;
(8) when the findings of fact are themselves
conflicting;
(9) when the findings of fact are conclusions
without citation of the specific evidence on
which they are based; and
(10) when the findings of fact of the CA are
! 5! !
2
!
Under Rule 65, the petitioners must show that they

have no plain, speedy, and adequate remedy in
the ordinary course of law against the error that they
seek to correct. A remedy is considered "plain,
speedy, and adequate" if it will promptly relieve the
petitioners from the injurious effects of the judgment
and the acts of the lower court or agency. In this
case, an appeal under Rule 45 by way of petition
for review on certiorari was not only available
but also a speedy and adequate remedy. Thus, a
review under Rule 65 is improper.
Decisions and resolutions of the DARAB and CA, as

well as their findings of fact, are in accord with law
and jurisprudence. In an appeal via certiorari, only
questions of law may be reviewed.
Selegna v. UCPB
A writ of preliminary injunction is a provisional

remedy that may be resorted to by litigants, only
to protect or preserve their rights or interests
during the pendency of the principal action. To
authorize a temporary injunction, the plaintiff must
show, at least prima facie, a right to the final relief.
Moreover, it must show that the invasion of the right
sought to be protected is material and substantial,
and that there is an urgent and paramount necessity
for the writ to prevent serious damage. In the
absence of a clear legal right, the issuance of the
injunctive writ constitutes grave abuse of discretion.
Injunction is not designed to protect contingent or
future rights. Likewise, it is not proper when the
complainants right is doubtful or disputed.
Under Rule 45, Sec. 1: The petitioner may seek the

same provisional remedies by verified motion filed
in the same action or proceeding at any time during
its pendency.
International
Corporate Bank v.
CA
According to Ybanez v. CA: "A petition cannot be

subsumed simultaneously under Rule 45 and Rule
65 of the Rules of Court, and neither may
petitioners delegate upon the court the task of
determining under which rule the petition should
fall." This means that the remedies of appeal and
certiorari are mutually exclusive and not
alternative or successive.
Differences between Rule 45 and Rule 65:
Nature
Caption
Purpose
! 6! !
2
!
Rule 45
Rule 65
An appeal
Petition for
Review on
Certiorari, or
Appeal by
Certiorari
Intended to
resolve pure
questions of law;
May be used to
assail a mistake
in judgment
Not an appeal
Petition for
Certiorari, or
Special Civil
Action for
Certiorari
Manner of
filing
Parties are the

original parties
Subject
matter
Only judgments,
final orders, or
those which the
RoC declares to
be appealable
(excludes
interlocutory
orders)
May be directed
against
interlocutory
orders of the lower
court, aside from
judgments or final
orders
Power of
court
Power of review
Jurisdiction
Exclusive with the

SC
Supervision and
control
Concurrent in the
SC, CA and in
some cases, RTC
MR
required?
No
60 days from
notice of judgment,
final order, or
interlocutory order
Generally, yes,
because (1) it
affords the tribunal
the opportunity to
correct errors, and
(2) an MR is an
adequate remedy
For Rule 65, an MR need not be resorted to if:

(1) MR would be useless
(2) Time is of the essence
The SC may allow for a liberal treatment in case of
a resort to an erroneous remedy. The requisites
for this relaxation of the rules are:
(1) the Petition for Certiorari must have been
filed within the reglementary period for
filing a Petition for Review on Certiorari (ie.
15 days);
(2) errors of judgment (not just errors of
jurisdiction) must be averred;
(3) there must be sufficient reason to justify
relaxation of the rules (liberality must
serve the interest of substantial justice or
prevent miscarriage of justice)
Intended to correct
error of jurisdiction
Parties are: (1) the
aggrieved party,
and (2) the lower
court or quasijudicial agency
joined with the
prevailing party
15 days from
notice of
judgment or final
order
Requisites of a petition for certiorari under Rule

65:
(1) the writ must be directed against a tribunal,
board, or officer exercising judicial or
quasi-judicial functions;
(2) said tribunal, board, or officer has acted
without or in excess of jurisdiction, or with
gadalej;
(3) there is no appeal, or any plain, speedy, or
adequate remedy in the ordinary course of
law.
However, the SC may set aside technicality for

justifiable reasons. If such is the case, the SC will
treat the petition as having been filed under Rule 45
(if erroneously filed under Rule 65).
Tagle v EquitablePCI
Period of
filing
In this case, Tagle had made too many mistakes

already (e.g. filing two motions for recon and filing
the Rule 65 petition beyond the reglementary
period), thus he cannot justify a relaxation of the
rules before the SC.
San Miguel Bukid v.
City of Mandaluyong
Section 1, Rule 65 states that certiorari may be

resorted to when there is no appeal, nor any plain,
speedy, and adequate remedy in the ordinary
course of law. The Resolutions of the CA which the

Association seeks to nullify are orders of dismissal.
The remedy should be an appeal, not certiorari. The
present case involves a final order of dismissal
issued by the CA, so the proper course of action
would have been to file a petition for review on
certiorari under Rule 45. Although there are
exceptions to the general rule, the Association
utterly failed to allege and prove that the
extraordinary remedy of the writ of certiorari should
be granted, because an appeal, although available,
would be inadequate, insufficient and not speedy
enough to address the urgency of the matter. Also,
certiorari, as a special civil action, is an original
action invoking the original jurisdiction of a court to
annul or modify the proceedings of a tribunal, board
or officer exercising judicial or quasi-judicial
functions.
Phil. Hawk v. Lee
through fraud, accident, mistake, or excusable

negligence xxx.
Fraud must be extrinsic or collateral, that

is, the kind which prevented the aggrieved
party from having a trial or presenting his
case to the court.
Mistake refers to mistake of fact, not of

law, which relates to the case
Excusable negligence must be

excusable and generally imputable to the
party because if it is imputable to the
counsel, it is binding on the client.
SC has relaxed the rule on the binding effect of
counsels negligence and allowed a litigant another
chance to present his case
(1) where [the] reckless or gross negligence
of counsel deprives the client of due
process of law
(2) when [the rules] application will result in
outright deprivation of the clients
liberty or property
(3) where the interests of justice so require.
General Rule: Only errors claimed and assigned by

a party will be considered by the court
Exceptions:
1. errors affecting jurisdiction over the subject
matter
2. errors affecting the validity of the judgment
appealed from, or the proceedings therein
3. unassigned error is closely related to or
dependent on an assigned error and properly
argued in his brief
4. the consideration of the error is necessary in
arriving at a just decision of the case
For a claim of counsels gross negligence to

prosper, nothing short of clear abandonment of the
clients cause must be shown. Belated filing by the
parties counsel of a defective MR is NOT
considered gross negligence.
A petition under Rule 38 must be filed within sixty
(60) days after the petitioner-spouses learns of the
judgment, final order, or other proceeding to be set
aside, and not more than six (6) months after such
judgment or final order was entered, or such
proceeding was taken. Filing a defective MR does
not toll the running period.
In this case, the trial court overlooked awarding the

additional damages, which were prayed for by
respondent in her Amended Complaint. The
appellate court is clothed with ample authority to
review matters, even if they are not assigned as
errors in the appeal, if it finds that their
consideration is necessary in arriving at a just
decision of the case.
Lastly, as an equitable remedy, a petition for relief

from judgment is available only as a last recourse,
when the petitioner-spouses has no other remedy.
This is not true here because petitioners had at their
disposal other remedies which they in fact availed
of, albeit belatedly or defectively, such as when they
filed their MR and MNT in the trial court.
PETITION FOR RELIEF FROM JUDGMENTS, ORDERS, OR OTHER

PROCEEDINGS (PFRJ) (RULE 38)
Que v. CA
! 7! !
2
!
Under Section 1, Rule 38 (Section 1), the court

may grant relief from judgment only [w]hen a
judgment or final order is entered, or any other
proceeding is taken against a party in any court
Mesina v. Meer
While Rule 38 uses the phrase any court, it refers

only to MTC/RTC. As it stands, neither the RoC nor
the Revised Internal Rules of the CA allow the
remedy of PFRJ in the CA. Most importantly, it

should be filed with the same court which
rendered the decision.
Land Bank of the
Philippines v.
Natividiad
Gomez v. Montalban
Redena v. CA
Dela Cruz v.
Quiazon
! 8! !
2
!
As can be clearly gleaned from Section 1, Rule 38,

the remedy of PFRJ can only be resorted to on
grounds of fraud, accident, mistake or excusable
negligence. Negligence to be excusable must be
one which ordinary diligence and prudence could
not have guarded against. Measured against this
standard, the reason proffered by Land Banks
counsel, i.e. that his heavy workload prevented him
from ensuring that the motion for reconsideration
included a notice of hearing, was by no means
excusable.
When a party has another remedy available to
him, which may be
(1) MNT
(2) MR
(3) Motion to lift order of default
(4) Appeal
(5) Certiorari (rule 65)
and he was not prevented by FAME from filing
such motion or taking such appeal, he cannot
avail himself of the remedy of PFRJ. Indeed,
relief will not be granted to a party who seeks
avoidance from the effects of the judgment when
the loss of the remedy at law was due to his own
negligence. Otherwise, the petition for relief can be
used to revive the right to appeal which had been
lost thru inexcusable negligence.
Conveyance and Waiver of Rights.

SC held that PFRJ is a remedy available to a party
who, through FAME, was prevented from taking an
appeal from a judgment or final order therein.
Therefore, the personality to file a PFRJ resides
in a person who is a party to the principal case.
This legal standing is not lost by the mere
transfer of the disputed property pendente lite.
The original party (Quiazon) does not lose her
personality as a real party-in-interest merely
because of the transfer of interest to another
pendent lite.
ANNULMENT OF JUDGMENTS (RULE 47)
Jose v. Intra Strata
As the 2nd paragraph of the above-quoted rule

clearly provides, it is only extrinsic fraud, not lack of
jurisdiction, which is excluded as a valid ground for
annulment "if it was availed of, or could not have
been availed of, in a motion for new trial or petition
for relief."
Ramos v. Combong
Under Section 2 of Rule 38, a party prevented from

taking an appeal from a judgment or final order of a
court by reason of FAME may file in the same court
and in the same case a petition for relief praying
that his appeal be given due course. This
presupposes, of course, that no appeal was taken
precisely because of any of the aforestated reasons
which prevented him from appealing his case.
Hence, a PFRJ under Rule 38 cannot be availed of
in the CA, the latter being a court of appellate
jurisdiction.
In this case, Quiazon, prior to filing the PFRJ,
waived her rights over the property subject of
litigation in favor of her siblings through a Deed of
Extrinsic fraud shall not be a valid ground if it

was availed of, or could have been availed of, in
a motion for new trial or petition for relief.
Section 3 of Rule 47 lays down the period within

which to bring an action for annulment of judgment
based on extrinsic fraud, to wit: SEC. 3. Period for
filing action.- If based on extrinsic fraud, the action
must be filed within four (4) years from its discovery;
and if based on lack of jurisdiction, before it is
barred by laches or estoppel.
A perusal of the petition filed before the CA shows
that there is no indication of the dates or time from
whence Petitioners discovered Respondents
alleged fraudulent acts. While Rule 47 does not
explicitly require that a statement of material dates
should accompany the petition, nevertheless, there
must be a manifest showing in the petition that it
was filed within the four-year period. Consequently,
the CA was right in dismissing the petition, as it had
no basis for determining the timeliness of the filing
of the petition.
Alaban v. CA
Petitioners argue that they were never made parties

to the case because they were not notified of the
probate proceedings. SC ruled that MNT/MR/PRJ

were available to the parties to the case. The
Petitioners, through publication of notice of the time
and place of the probate proceedings in the
newspaper, already constituted notice to them. This
is so because probate proceedings are actions in
rem, which requires notice through publication.
Thus, even if they were not personally notified,
the fact that the notice was published already
constituted notice to them. Thus, they are
parties to the case. Thus, further, they should have
availed first of MNT/MR/PRJ.
by laches.
Republic v. G
Holdings
Second, Petitioners argue that the proceedings

were attended with extrinsic fraud, which is a
ground for annulment of the RTC judgment under
Rule 47. Same Rule also provides that a person
need not be a party to the judgment sought to
be annulled, and it is only essential that he can
prove his allegation that the judgment was
obtained by the use of fraud and collusion and
he would be adversely affected thereby. SC ruled
that the Petitioners, not being compulsory or testate
heirs of the Deceased Soledad, are not entitled to
notice of the probate proceedings. Even so, notice
was sent through publication. Thus, no extrinsic
fraud could have attended.
Last, Petitioners failed to notify the SC that there is
another petitionfiled by Dolores Flores, one of the
petitionersfiled with the CA regarding the same
arguments, same grounds, same case, and
involving the same parties. Thus, they violated the
rule against forum shopping.
Ancheta v. Ancheta
! 9! !
2
!
In a case where a petition for the annulment of a

judgment or final order of the RTC filed under Rule
47 is grounded on lack of jurisdiction over the
person of the respondent or over the nature or
subject of the action, the petitioner need not allege
in the petition that the ordinary remedy of new trial
or reconsideration of the final order or judgment or
appeal therefrom are no longer available through no
fault of her own. This is so because a judgment
rendered or final order issued by the RTC without
jurisdiction is null and void and may be assailed any
time either collaterally or in a direct action or by
resisting such judgment or final order in any action
or proceeding whenever it is invoked, unless barred
A petition for annulment of judgment is an

extraordinary action. By virtue of its exceptional
character, the action is restricted exclusively to the
grounds specified in the rules, namely, (1) extrinsic
fraud and (2) lack of jurisdiction. Lack of jurisdiction
as a ground for annulment of judgment refers to
either lack of jurisdiction over the person of the
defending party or over the subject matter of the
claim. This does NOT contemplate the concept
of grave abuse of discretion amounting to lack
of jurisdiction as a ground.
In addition, extrinsic fraud refers to any fraudulent
act of the prevailing party in the litigation which is
committed outside of the trial of the case, whereby
the unsuccessful party is prevented from fully
proving his case, by fraud or deception practiced on
him by his opponent.
Here, the fraudulent act being complained of by the
Petitioner (Republic) was caused by the Solicitor
General, or the Republics own counsel. To render
a judgment void, the fraud must be committed
by the adverse party and not by ones own
counsel.
Benatiro v. Heirs of
Cuyos
Although under Sec. 2 of R47 extrinsic fraud is one

of the grounds, jurisprudence recognizes denial of
due process as additional ground. In this case,
since the other heirs were not present to protect
their interests during the meeting, they were
deprived of due process. The records are barren of
proof that the heirs were indeed informed of the
scheduled meeting.
Also, the report, which embodied the alleged
agreement of the heirs, did not bear the signatures
of the alleged attendees to show their consent and
conformity thereto. Considering that the assailed
Order is a void judgment for lack of due process of
law, it is no judgment at all.
Gregorio Araneta
University
Foundation v. RTC
Caloocan
Here, the court acquired jurisdiction over petitioner

GAUF when it sought to intervene in an earlier land
registration case between the owner of the land (the
Bajamontes) and the current tenants. The
intervention was done via a Kasunduan between
GAUF and the tenants for priority rights. But

regardless, the Kasunduan was null and void, so
the transfer of the rights in favor of GAUF was also
void.
Tamayo v. CA
The court having actually acquired jurisdiction over

GAUF, it cannot avail of the Rule 47 remedy, which
requires lack of jurisdiction over the person of the
petitioner.
Grande v. UP
The annulment of judgments, as a recourse, is

equitable in character, allowed only in exceptional
cases, as where there is no available or other
adequate remedy. However, it does not pertain to
the nullification of decisions of the Court of
Appeals.
The only original cases cognizable before the SC
are "petitions for certiorari, prohibition, mandamus,
quo warranto, habeas corpus, disciplinary
proceedings against members of the judiciary and
attorneys, and cases affecting ambassadors, other
public ministers and consuls." Petitions for
annulment of judgment are not among the cases
originally cognizable by the SC.
Here, Tamayo isnt responsible cause he was

waiting for the resolution of his MR. It must be
recalled that, in his motion he prayed for the
reinstatement of his appeal and that he be given
sufficient time to file his brief in the event of
reinstatement of his appeal. It wouldve been
improper for Tamayo to presume the favorable
outcome of the motion he filed. He wasnt expected
to file his brief right after moving for the
reconsideration of the dismissal of his appeal w/o
an order from the court directing him to do so.
People v. Latayada
When an appellant escapes detention pending

appeal, the appeal is normally dismissed, and the
lower courts judgment thus becomes final and
executory. However, this Court has held in previous
cases that this rule does not apply to death cases,
in which an automatic review is mandated by law
even if appellant has absconded.
Vitto v. CA
An appeal by the accused is considered

abandoned where he fails to properly prosecute
his appeal or does some act inconsistent with
its prosecution, such as when he refuses to submit
himself to the jurisdiction of the authorities. In this
case, the Accused failed to file his appellants brief,
despite having already asked for an extension. The
SC considered this as fatal to his appeal.
Quesada v. DOJ
A petition for certiorari under Rule 65, as amended,

must be filed with the Court of Appeals whose
decision may then be appealed to the SC by way of
a petition for review on certiorari under Rule 45. A
direct recourse to this Court is warranted only where
there are special and compelling reasons
specifically alleged in the petition to justify such
action. Such is in accordance with the rule on
hierarchy of courts. (Thus: CA via 65 ! SC via 45)
APPEAL IN CRIMINAL CASES (RULE 122)

People v. Mateo
Pobre v. CA
! 0! !
3
!
SC has assumed direct appellate review over all

criminal cases in which the penalty imposed is
death, reclusion perpetua or life imprisonment (or
lower but involving offenses committed on the same
occasion or arising out of the same occurrence that
gave rise to the more serious offense for which the
penalty of death, reclusion perpetua, or life
imprisonment is imposed). It is provided by the
Consti and the RoC. However, the laws do not
prohibit the SC from providing for an
intermediate appeal. The SC in this case said that
since the CA can review the factual findings, though
the case is reclusion perpetua, bring to CA first so
that the SC would have less room for error after CA
has reviewed the factual issues.
The 60-day reglementary period may now be
reckoned from the notice denying an MR/MNT on
the assailed judgment, order, or resolution. The
Omnibus Motion contesting the order fixing Pobres
bail is considered an MR.
A distinction should be made between the failure to

file a notice of appeal within the reglementary
period and the failure to file a brief within the
period granted by the appellate court. The former
results in the failure of the appellate court to acquire
jurisdiction over the appealed decision resulting in
its becoming final and executory upon failure of the
appellant to move for reconsideration. The latter
simply results in the abandonment of the appeal
which can lead to its dismissal upon failure to move
for its reconsideration.
People v. Bayotas
Yu v Tatad
Civil liability ex delicto is extinguished by the

death of the accused as per Article 89 of the RPC.
Furthermore, in pursuing the recovery of civil liability
arising from crime, the final determination of the
criminal liability is a condition precedent to the
prosecution of the civil action such that when the
criminal action is extinguished by the demise of the
accused-appellant pending appeal thereof, said civil
action cannot survive. Upon the death of the
accused pending appeal of his conviction, the
criminal action is extinguished inasmuch as there is
no longer a defendant to stand as the accused; the
civil action instituted therein for recovery of civil
liability ex delicto is extinguished, grounded as it is
on the criminal.
Neypes ruling applies to crim cases!
CRIMINAL PROCEDURE IN THE CA (RULE 124)

People v. Dela
Concha
Appellants brief did not contain a table of cases or

authorities cited. It must be pointed out that this is
not just a trivial technicality as it is designed to
provide easy reference for the reviewing court.
Likewise, there is no statement of issues included.
Page references to the record were also lacking.
These, however, are procedural lapses that are
NOT fatal to the SC. While absence of such
requirements is a ground for dismissal for appeals
filed with the CA, such is not a ground for dismissal
of appeals filed with the SC.
Masas v. People
Section 8 of Rule 124 provides for an exception in

the dismissal of appeal for failure to file the
appellants brief, that is, where the appellant is
represented by a counsel de oficio.
This notwithstanding, also under Section 8, a
criminal case may be dismissed by the
CA motu proprio and with notice to the appellant if
the latter fails to file his brief within the prescribed
time. The phrase with notice to the appellant
means that a notice must first be furnished the
appellant to show cause why his appeal should not
be dismissed. No notice was given to petitioner to
this effect. Besides, petitioner, in his motion for
reconsideration, reiterated to the court that it cannot
order the dismissal of the appeal without prior
notice to the appellant.
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3
!
CRIMINAL PROCEDURE IN THE SUPREME COURT (RULE 125)

People v. Labriaga
Where the decision is already final, the appropriate

remedy of an accused to secure release from prison
in view of the retroactive effect of a favorable law is
to file a petition for habeas corpus. Nonetheless,
although the remedy availed of by the appellant is a
motion for reconsideration with modification of
sentence, it may be treated as a substantial
compliance with the rules on habeas corpus.
PETITION FOR CERTIORARI (RULE 65)

Reinier Pacific v.
Guevarra
AM 00-2-14-SC provides: The Court Resolves, for

the guidance of the Bench and the Bar, to declare
that Section 1, Rule 22 speaks only of "the last day
of the period" so that when a party seeks an
extension and the same is granted, the due date
ceases to be the last day and hence, the provision
no longer applies. Any extension of time to file the
required pleading should therefore be counted from
the expiration of the period regardless of the fact
that said due date is a Saturday, Sunday or legal
holiday.
The clarification provided in A.M. 00-2-14-SC
actually covers a situation where the due date falls
on a Saturday, Sunday, or holiday. Precisely, what
such clarification wanted to address is the
erroneous claim that "the period of extension" in
such a case "is to be reckoned from the next
working day and not from the original expiration of
the period." The correct rule, according to the
clarification, is that "[a]ny extension of time to file
the required pleading should x x x be counted from
the expiration of the periodregardless of the fact
that said due date is a Saturday, Sunday or legal
holiday."
For example, if a pleading is due on July 10 and this
happens to be a Saturday, the time for filing it shall
not run, applying Section 1 of Rule 21, on July 10
(Saturday) nor on July 11 (Sunday) but will resume
to run on the next working day, which is July 12
(Monday). The pleading will then be due on the
latter date. If the period is extended by 10 days,
such 10 days will be counted, not from July 12
(Monday) but from the original due date, July 10
(Saturday) "regardless of the fact that said due
date is a Saturday." Consequently, the new due

date will be 10 days from July 10 or precisely on
July 20.
e.
f.
Philippine Rabbit v.
Goimco
The extraordinary writ of certiorari issues only for

the correction of errors of jurisdiction or grave abuse
of discretion amounting to lack or excess of
jurisdiction. Grave abuse of discretion is such
capricious and whimsical exercise of judgment
which is equivalent to an excess or lack of
jurisdiction, meaning that the abuse of discretion
must be so patent and so gross as to amount to an
evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by
reason
of
passion
or
hostility.
g.
h.
i.
Davao Merchant v.
CA;
Cervantes v. CA
Preferred Home v.
CA
Cervantes v. CA;
Siok Ping Tan v.
Subic Bay
The petition for certiorari under Rule 65 of the Rules

of Court, as amended, filed with this Court is
inappropriate. The proper remedy from the CA
decision is a petition for review on certiorari under
Rule 45. This is so because (a) the CA had
jurisdiction on the petition for certiorari filed by
respondent Sy, the petitioner therein; and (b) a
petition under Rule 45 of the Rules of Court is a
speedy, inexpensive and adequate remedy in the
ordinary course of law. (If you can avail of 45,
dont go 65!)
The plain and adequate remedy referred to in
Rule 65 is an MR of the assailed Order or
Resolution, the filing of which is an indispensable
condition to the filing of a special civil action for
certiorari, subject to certain exceptions, to wit:
a.
b.
c.
d.
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3
!
New Ever v CA
where the order is a patent nullity, as where

the court a quo has no jurisdiction;
where the questions raised in the certiorari
proceedings have been duly raised and
passed upon by the lower court, or are the
same as those raised and passed upon in
the lower court;
where there is an urgent necessity for the
resolution of the question and any further
delay would prejudice the interests of the
Government or of the petitioner or the
subject matter of the action is perishable;
where, under the circumstances, a motion
for reconsideration would be useless;
where petitioner was deprived of due

process and there is extreme urgency for
relief;
where, in a criminal case, relief from an
order of arrest is urgent and the granting of
such relief by the trial court is improbable;
where the proceedings in the lower court are
a nullity for lack of due process;
where the proceedings was ex parte or in
which the petitioner had no opportunity to
object; and
where the issue raised is one purely of law
or public interest is involved
While the special civil action of certiorari may be

availed of in the alternative situation where an
appeal would not constitute a plain, speedy, and
adequate remedy, this is on the theoretical
assumption that the right to appeal is still available
in the case. If, however, the remedy by appeal had
already been lost and the loss was occasioned by
petitioners own neglect or error in the choice of
remedies, certiorari cannot lie as a substitute or a
tool to shield the petitioner from the adverse
consequences of such neglect or error
Petitioner invokes substantial justice on the
reasoning that the failure of its former counsel to
furnish copies of the petition to the NLRC and the
private respondents was not due to an error of law,
but to an error in the interpretation of the provision
of Section 6, Rule 65 of the Rules of Court which
should be considered as an excusable mistake.
The submission is untenable. Section 1, Rule 65 in
relation to Section 3, Rule 46, clearly states that in a
petition filed originally in the Court of Appeals, the
petitioner is required to serve copies of the petition,
together with the annexes thereto, on the lower
court or tribunal concerned, in this case, the NLRC,
and on the adverse parties, the herein
respondents, before the filing of said petition. The
clear import of the provisions does not reasonably
admit of any other interpretation.
Flores v. Joven
A special civil action for certiorari may be filed by

the persons aggrieved, which, in a criminal case,
are the State and the private offended party or
complainant, in line with the underlying spirit of the
liberal construction of the rules in order to promote
its object. Having an interest in the civil aspect of

the case, the complainant may file such action, in
his name, questioning the decision or action of the
respondent court on jurisdictional grounds.
Colmenares v. Heirs
of Rosario
Concepcion, Jr. v.
CA
Section 1, Rule 65 of the RoC, in relation to Section

3, Rule 46 thereof, explicitly requires that a petition
for certiorari shall be verified and accompanied by
a sworn certification of non-forum shopping.
The last paragraph of Section 3, Rule 46
unequivocally states that a petitioners failure to
comply with these requirements shall be sufficient
ground for the dismissal of the petition. The
foregoing misstep, taken together with petitioners
violation of the rule on hierarchy of courts, contrary
to petitioners misleading presentation of issues,
cannot be cured by simply invoking motherhood
statements like substantial justice.
Although Section 1 of Rule 65 provides that
certiorari may be availed of by a "person aggrieved"
by the orders or decisions of a tribunal, the term
"person aggrieved" is not to be construed to mean
that any person who feels injured by the lower
courts order or decision can question the said
courts disposition viacertiorari. To sanction a
contrary interpretation would open the floodgates to
numerous and endless litigations which would
undeniably lead to the clogging of court dockets.
In a situation wherein the order or decision being
questioned underwent
adversarial
proceedings
before a trial court, the "person aggrieved"
referred to under Section 1 of Rule 65 who can
avail
of
the
special
civil
action
ofcertiorari pertains to one who was a party in
the proceedings before the lower court. The
correctness of this interpretation can be gleaned
from the fact that a special civil action
for certiorari may be dismissed motu proprio if the
party elevating the case failed to file a motion for
reconsideration of the questioned order or decision
before the lower court. Obviously, only one who was
a party in the case before the lower court can file a
motion for reconsideration since a stranger to the
litigation would not have the legal standing to
interfere in the orders or decisions of the said court.
In relation to this, if a non-party in the proceedings
before the lower court has no standing to file a
motion for reconsideration, logic would lead us to
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3
!
the conclusion that he would likewise have no

standing to question the said order or decision
before the appellate court via certiorari.
As applied to the case: The "person aggrieved"
under Section 1 of Rule 65 who can avail of the
special civil action of certiorari pertains only to one
who was a party in the proceedings before the
court a quo, or in this case, before the COA. To hold
otherwise would open the courts to numerous and
endless litigations.
Eagle Ridge v. CA
The RoC requires the petitioner, not his counsel, to

sign under oath the requisite certification against
non-forum shopping. Such certification is a peculiar
personal representation on the part of the principal
party, an assurance to the court that there are no
other pending cases involving basically the same
parties, issues, and cause of action.
In the instant case, the sworn verification and
certification of non-forum shopping in the petition for
certiorari of Eagle Ridge filed before the CA carried
the signature of its counsel without the requisite
authority. Eagle Ridge tried to address its faux
pas by submitting its board secretarys Certificate,
attesting to the issuance of a Board Resolution
authorizing its counsel of record, Atty. Piezas, to
represent it before the CA.
While indeed, a certification of non-forum shopping
signed by counsel without the proper authorization
is defective and constitutes a valid cause for
dismissal of the petition, the submission of the
board secretarys certificate through a motion for
reconsideration of the CAs decision dismissing the
petition for certiorari may be considered a
substantial compliance with the Rules of Court. Yet,
this rule presupposes that the authorizing board
resolution, the approval of which is certified to by
the secretarys certification, was passed within the
reglementary period for filing the petition.
In this case, the authorization for its counsel,
however, was only issued a couple of days beyond
the 60-day reglementary period referred to in filing a
certiorari action. Thus, there was no substantial
compliance with the Rules.
Ang Biat v. CA
"without jurisdiction" means lack of

jurisdiction from the beginning
"excess of jurisdiction" signifies that the
tribunal, board or officer overstepped such
jurisdiction.
grave abuse of discretion is the
capricious and whimsical exercise of
judgment that is equivalent to lack of
jurisdiction. The abuse of discretion must
be grave as where the power is exercised
in an arbitrary or despotic manner due to
passion or personal hostility. It must be
patent and gross as to amount to an
evasion of positive duty or virtual refusal to
perform a duty enjoined by law.
Supreme Court Circular 28-91, as amended by SC

Administrative Circular 04-94, mandates strict
compliance with the rules against forum
shopping. A verification and certification of nonforum shopping must be signed by the petitioner or
any of the principal parties. If the petitioner is a
juridical entity as in the present case, the signatory
must show proof of his or her authority to sign on
behalf of the corporation.
DOLE v. Maceda
The remedy for seeking the reversal or

modification of a judgment rendered on the
merits of the case is appeal. This is true even if
the error imputed to the officer, body, or tribunal
constitutes alleged lack of jurisdiction over the
subject matter of the case or grave abuse of
discretion in making its or his findings of fact or of
law.
Areno v. Sky Cable
Section 6, Rule 65, which grants discretionary

authority to the CA in ordering parties to file
responsive and other pleadings in petitions for
certiorari filed before it, is merely directory in
nature.
This is so because the word may
employed by the rule shows that it is not mandatory
but discretionary on the part of the CA to require the
filing of pleadings which it deems necessary to
assist it in resolving the controversies.
! 4! !
3
!

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Appellate Practice Notes

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GAP-JDT APPRAC REVIEWER (ATTY.

FAME by reason of such party has

PFR (Rule 38)

Decision/final order entered through

Who can avail

Lack of jurisdiction (person or

Newly discovered evidence (material

Decision/final order contrary to law

Within period for taking appeal

Within period for taking appeal

*Tolls reglementary period for appeal

*Tolls reglementary period for appeal

May be allowed if ground not existing

Prohibited (may be allowed for MR of

Court that rendered

Court that rendered

Court that rendered

Before judgment final

Before judgment final

After judgment final (but MNT or MR

Judgments or final orders

Judgments or final orders

Judgments, final orders, and other

Judgments, final orders, resolutions

FAME Affidavit of Merit

Since its a motion:

Point out to findings or conclusions

Prevented from appealing through

EF within 4 years from discovery

Anyone as long as he was affected

Grant new trial

Amend judgment/final order

Certification of non-forum shopping

Vacated then trial de novo (recorded

No trial de novo for NDE; only for the

Sec 1 as if MR or MNT filed

EF as if MNT was filed

Sec 2 lower court required to give

LJ - Set aside and declare null and

May grant partial new trial as to

Petition for Annulment of Judgment

Petition for Relief from Judgment

Petition for Relief from Judgment

Direct or collateral attack if judgment

Petition for Annulment of Judgment

Petition for Annulment of Judgment

Availed of MNT, MR, or PFR

Judgments by quasi judicial bodies

Decisions or orders of Ombudsman

APPEALS IN CIVIL CASES

MTC -> RTC

RTC (original) -> CA

Notice of appeal with the

Notice of appeal with the

Notice of Appeal + Record on

Notice of Appeal + Record on

Copies served on adverse

Copies served on adverse

Pay full amount of appellate

Pay full amount of appellate

Q of fact, law, or both

Q of fact, or fact and law

Q of fact, law, or both

RTC (appellate) -> CA