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Appeals Rule 40: Appeal from MTC to RTC A vs. B 1.

MTC (Rule 40) Mode of Appeal Notice of Appeal within the MTC Appellate Court RTC (No trial denovo) Period of Appeal Within 15 days from notice of judgment and on proper case within 30 days. Where the case in inferior court involves a special proceeding or one which involves multiple appeal is 30 days a record on appeal being required. N.B. When there is a motion for reconsideration of the judgment of RTC, the appeal period is counted from the receipt of the appellant of same (15 or 30 days) the order denying the motion for reconsideration. Same (15 or 30 days) Questions Raised 1. QF 2. OL 3. OF&L

2. RTC Exercise of: a) Original j. A vs. B for specific performance (A won: B appeal) issues raised on appeal

Notice of Appeal Filed with the same RTC that rendered judgment (question of law and question of fact or question or fact only.)

CA (15/30)

Issue raised on appeal

Petition for Review on Certiorari (Rule 45) (question law only)

SC

b) Appellate Jurisdiction Ex. A vs. B MTC; Judgment was Appealed to RTC

CA: Petition for Review

CA (Regardless of the nature of the question raised)

Same (15 or 30 days)

Let us first take the case of a judgment of the MTC. So, if the case is one between A and B and B appeals from the judgment. Q. What would be his mode of appeal? (Mode of Appeal) A. Notice of Appeal Q. To what court must he direct the appeal? (Period of Appeal) A. RTC 15/30 days Q. Within what period must he file the appeal? (Period of Appeal) A. There is only one mode of appeal from a judgment of an inferior court and that is notice of appeal. Q. With what court is this notice of appeal be filed? A. MTC Q. What is the appellate court? A. Only the corresponding RTC. There can be no direct appeal from the MTC to any court other than the corresponding RTC. So, B here cannot appeal directly to the CA. He cannot appeal directly to the SC. If he wants to go to the SC, he can go there, but not by appeal. The period of appeal is as a rule 15 days from notice of judgment. And on a proper case 30 days. Where the case in the inferior court involves a multiple appeal, the period of appeal is 30 days, a record on appeal being required. So, this case now of A and B in the RTC. Q. How will this case of B be resolved by the RTC? Will there be a trial de novo when this case is before the RTC? A. No, there is no trial de novo. Why? Because the RTC now will decide the appeal of B solely on the basis of the records of the case, the evidence presents as forwarded by the clerk of court of the MTC to the clerk of court of the RTC. Q. What is needed for B here to perfect his appeal?

A. Within the period for the taking of an appeal, 15 days or in a proper case 30 days. B should also pay the appellate docket fee. So, there are two things as an appellant here must do. File the notice on appeal on time, and pay the appellate docket fee on time. Q. What now is the duty of the clerk of court of the MTC upon the filing of the notice of appeal and payment of the appellate docket fee? A. He will now examine the records of the case preparatory to the elevation of the appropriate RTC and certify to the correctness of the records, certify to the completeness of the records. Q. What is the duty of the clerk of court with respect to this certificate issued? A. He must furnish the parties: A and B with that certificates. The records of the case are now with the RTC clerk of court. Q. What now is the duty imposed by the rules on the clerk of court? A. Upon receipt of the records, the clerk of court of the RTC will now send a notice to both A and B informing them of the fact that, records are already there. For what? So that B , the appellant, may now file his memorandum on appeal. So its the duty of appellant B to file his memorandum on appeal within 15 days from notice or from within such period that appellate court may grant. Q. What is the effect of the failure of B to file the appellants brief, his memorandum? A. That could be a cause for the dismissal of the appeal of B. The appellee, that is A here may also file the so-called Appellees brief, but in case like this, the brief is called memorandum. So, A may also file his apellees memorandum within 15 days from receipt of the appellants brief or memorandum. Q. Supposing the apellee A does not file the apellees brief or memorandum, can the court decide the case? A. Yes. Why? Because anyway the memorandum of the appellant B is already there. Q. What now will the RTC do on the case?

A. The court will now decide the case on the basis only of the records and the evidence forwarded by the inferior court to the RTC. Q. Will not the court then hear A and B and receive their evidence? A. The general rule is: NO! The court will only decide on the basis of what was presented in the lower court. (Let us assume that A is the appellant) The appeal may have been the result of the following: A for instance appealed from an order disposing the case without trial. Let say B filed a motion t dismiss on the ground that the complaint does not state the cause of action. The appellate court, RTC, will have the power to affirm the order or reverse the order. Let us suppose that the motion to dismiss was based on lack of jurisdiction. So, the MTC, here dismissed the complaint of A on the basis of the motion to dismiss filed by B. (Reason: The MTC has no jurisdiction). Let us say that the RTC agrees with the finding of the MTC that it has no jurisdiction. Q. What will be the action of the RTC on appeal? A. It will affirm the order of the court or it can order a hearing to be held as if this case was filed directly with the RTC. Illustration: This is an action filed by A against B for reivindicacion in the MTC. The value of the property is P50,000 and this property is outside Metro Manila. So, B now files a motion to dismiss on the ground of lack of jurisdiction. So, the court dismissed it because the MTC has jurisdiction over (reivindicacion) cases only when the value of the property outside Metro Manila does not exceed P20,000. Here, since the value exceeds P20,000 it (MTC) has no jurisdiction. So, the basis for the motion to dismiss by B is proper. A now appeals. The RTC affirms the order. In fact the RTC says, the MTC has no jurisdiction. Since the RTC has jurisdiction over reinividicacion involving this amount, the court will try the case if this case was originally filed with the RTC. Let us assume that in this example, the court found that, contrary to the holding of the MTC, the MTC has no jurisdiction. Q. What will the RTC now do? A. It will return the case to the MTC for further proceedings. So, in our example for instance, the motion to dismiss that the court has no jurisdiction but the RTC found that the MTC has jurisdiction, the RTC will not try the case. It will return the case to the MTC for further proceedings. Let us take the second situation. There was a trial between A and B in the MTC. The court (MTC) has no jurisdiction. No jurisdiction notwithstanding, the court rendered now a judgment in favor of A. So B appealed. The court found that indeed the MTC have no jurisdiction. Q. What will be the remedy available to the RTC? A. Like the first case, it will try the case. It will not dismiss. So there are the effects of appeal in the MTC. This is what is mentioned in Sec. 8 Rule 40. Sec. 8 Rule 40 Appeal from orders dismissing case without trial; lack of jurisdiction. If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. In case of reversal, the case shall be remanded for further proceedings. If the case was tried on the merits by the lower court, without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in

accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. (n) Let us take the case of RTC. The judgment of the RTC can be rendered in the exercise of its ORIGINAL JURISDICTION or in the exercise of its APPELLATE JURISDICTION. The distinction is important because the modes of appeals are not the same. Let us assume that the RTC decided a case. A vs. B in the exercise of its original jurisdiction. Let us say that A won the case. B now wants to appeal. Q. What would be the mode of appeal of B? A. It would be a simple notice of appeal filed with the same RTC that rendered the judgment. Appellate court. CA However, if the only issue raised by B on appeal is question of law, then the mode of appeal is no longer a notice of appeal but under Rule 45 in which the case, the appellate court would no longer be the CA but the SC. Let me stress with respect to the judgment of the RTC rendered in the exercise of its original jurisdiction, the mode of appeal may be a simple notice of appeal or a petition of certiorari depending on the question that is raised. If the question raised on appeal is only a question of fact, or a question of fact and law at the same time, the mode of appeal is a simple notice of appeal filed with the RTC, the appellate court is the CA. Where the appeal involves only a question of law, the mode of appeal is a petition for review or certiorari under Rule 45 and the appellate court is the SC. The period is the same, 15 or 30 days. Q. How about the judgment of the RTC rendered in the exercise of its appellate jurisdiction? A. For instance, this (A vs. B) was judgment of the MTC which the court ruled upon on appeal and this judgment of the RTC affirming, modifying or reversing the MTC judgment is in turned appealed. What would the be mode of appeal? A. The mode of appeal is a petition for review (R 42). Q. What would be the appellate court? A. Regardless of the nature of the question raised on appeal. The question raised on appeal may be a question of fact, it may only be a question of law, or it can be a question of fact and law at the same time. It is the CA that has jurisdiction. Period of Appeal The same. But when there is a motion for reconsideration of the judgment of the RTC, the appeal period is counted from receipt by appellant of the order denying the motion for reconsideration. Appeal from judgment of SC-Appellate Court is God! Mode of Appeal-Period of Appeal-Eternally! (Joke only) Why? Q. Is there an appeal from the judgment of SC? A. No more thats why the only appellate court would be God, the mode of appeal is prayer. (Forget that!) RENE NOTES: * failure to file appellants brief cause for dismissal of appeal * failure to file appellees brief, court can still decide appeal based on appellants brief * The judgment on appeal of the RTC is immediately executory, without prejudice to a further appeal that may be taken therefrom. * The Summary Rules no longer apply when the cases is on appeal.

* Residual power of the court prior to the transmittal of the original record or record on appeal: 1. to issue orders of the preservation of the rights which do not involve matters litigated by appeal; 2. to approve compromise prior to the transmittal of the record; 3. permit appeal by an indigent; 4. order execution pending appeal under Rule 39 Sec.2 (motion for execution was filed before the expiration of the period to appeal)

5. petition patently without merit 6. prosecuted manifestly for delay 7. the questions raised are unsubstantial

ORDINARY APPEAL * Matter of right * All the records are elevated from the court of origin * Notice of record on appeal is filed with the record of origin

PETITION FOR REVIEW * Discretionary * No records are elevated unless the court decrees it * Filed with the CA

* If lower court dismissed the case without trial on merits: - RTC may: (a) Affirm; or (b) Reverses, in which case, it shall remand the case for further proceedings. * If dismissal is due to lack of jurisdiction over the subject matter: - RTC may: (a) Affrim: if RTC has jurisdiction, shall try the case on the merits as if the case was originally filed with it, or (b) Reverse, in which case, it remand the case for further proceedings. * If the case was tried on the merits by the lower court without jurisdiction over the subject matter: - RTC shall dismiss the case, if it has original jurisdiction, but shall decide the case, and shall admit amended pleadings or additional evidence. Rule 41: Appeal from Regional Trial Courts * What cannot be appealed? Clue: (WE PAID) 1. WITHOUT PREJUDICE Order dismissing an action without prejudice 2. EXECUTION Order of Execution 3. PENDING Judgments or final orders for or against one or more of several parties or in separate claims while the main case is pending 4. APPEAL Orders disallowing or dismissing an Appeal 5. INTERLOCUTORY orders 6. DENIALS Orders denying P.M.S. (Petition for relief, Motion for new trial or reconsideration and motion to Set aside a judgment, by consent, confession or compromise on the ground of fraud, mistake, duress or any ground vitiating consent.) * Remedy in cases where appeal is not allowed: - Special civil action of certiorari or prohibition if there is lack of jurisdiction or grave abuse of discretion or mandamus if there is no performance of duty. * A judgment based only on compromise is not appealable and is immediately executory. Rule 42 :Grounds for Outright Dismissal 1. petition was filed out of time 2. required fees were not paid 3. copies of the petition were not served on the adverse party - no proof of service 4. failure to comply with the proper form for the petition

Ordinary Appeal (appeal by writ of error) * Case is decided by the RTC in its original jurisdiction Appealed to the CA * File a notice of appeal or a record on appeal with the court of origin (RTC) and give a copy to the adverse party.

* Within 15 days from the notice of the judgment for notice of appeal and within 30 days for records on appeal / The period for filing is interrupted by a timely motion for reconsideration or new trial.

Petition for review (Rule 42) * Case is decided by the MTC. Appealed to the RTC. Petition for review with the CA. * File a verified petition for review with the CA / Pay the docket and lawful fees, and P500 as deposits for costs with the CA / Furnish RTC and adverse party copy of such (R42). Within 15 days from notice of the decision to be reviewed or form the denial of a MR or new trial.

Petition for review on certiorari Rule 45 * The case raises only a question of law.

* File a verified petition for review on certiorari with the SC (R45) / Pay docket and lawful fees and P500 for costs / Submit proof of service of a copy to the lower court and adverse party. * Within 15 days from notice of the judgment or order of denial of the MR or new trial.

Rule 42: Petition for Review from the Regional Trial Courts to the Court of Appeals * Failure to comply with the requirements on form such as: 1) certification against forum shopping 2) non-payment of docket, lawful fees and 3) deposit for costs and 4) failure to show proof of service of the same petition to the adverse party are grounds for dismissal. * Outright dismissal allowed Petition for review is not a matter of right but discretionary on the part of the CA. It may only give due course to the petition if it shows on its face that the lower court has committed an error of fact and/or law. * ACTIONS ON THE PETITION Court may 1. require respondent to file comment 10 days 2. dismiss the petition if it finds that: a) it is patently without merit b) prosecuted manifestly for delay c) the questions raised are unsubstantial * It is merely discretionary on the CA to order the elevation of the records. This is because until the petition is given due course, the trial court may still issue a warrant of execution pending appeal and in some cases such as ejectment and those of Summary Prcedure, the judgments are immediately executory. It is only when the CA deems it necessary that the Clerk of the RTC will be ordered to elevate the records of the case. See Table

2) Rule 43: APPEALS FROM THE CTA AND QUASI JUDICIAL AGENCIES TO THE COURT OF APPEALS Sec. 1 Rule 43 Sec. 1 of Rule 43, the different quasi-judicial bodies which decisions are subject to appeal to the Court of Appeals are enumerated under. To this list, you add two other bodies whose decisions are appellate to the Court of Appeals: 1. the orders of the ombudsman is administrative discipline cases In case of Fabian vs. Desierto, the court declared unconstitutional the provision of the law creating the office of the ombudsman which empowered the SC to review judgment of the ombudsman iN administrative-disciplinary cases. So, under this decision, judgment or orders of the ombudsman in administrative-disciplinary proceedings, are reviewable by the CA. Fabian vs. Desierto G. R. #129742 Sept 16, 1998 2. NLRC (National Labor Relations Commission) Judgment of NLRC are not appealable to the SC but to the CA. Before the decision in Saint Martin Funeral Homes vs. NLRC, the judgment of NLRC were reviewable be certiorari before the SC. In this case, (Saint Martin Funeral Homes vs. NLRC) G.R. # 130866, Sept 16, 1998 295 SCRA 494, SC held that there is no law which authorizes appeals from judgment of the NLRC to the SC. In this case, the SC traced the legislative history of the NLRC and it came into the conclusion that no one of the laws relative the NLRC provided for an appeal from judgment of the NLRC to the SC. Of course you will notice that under Sec. 2 of Rule 43, judgments of the Labor Law of the Philippines are not covered by Rule 43. But under this decision now, Saint Martin case, the decision of the NLRC are now covered by the Rule 43. Except for some differences, the procedure of an appeal from judgment of the quasi-judicial bodies are practically the same as the procedure for the disposition of an appeal from the judgment of the RTC in the exercise of its appellate jurisdiction. They are practically the same. With this difference only. Both are reviewable by petition for review. Example: A vs. B in SEC B lost the case in the SEC. B now wants to appeal from the judgment of the SEC. Q. What is the mode of appeal? A. Petition for Review Q. Period? A. The same. The period is within 15 days from receipt of the copy of the award, judgment or order of the SEC. In case, however, the judgment of a quasi-judicial body requires it to be published in order that a judgment may be valid, the 15 days period is counted from the last day of publication. In case there is a motion for reconsideration of the judgment, order or award of the SEC, the 15-day period is counted from the receipt of the resolution denying the motion for reconsideration. Contents of Petition, Documents to be attached thereto I leave this to you, so we can move Scope of Sec. 1 Rule 43 1) Appeals from judgment or final orders of the court of Tax Appeals;

Appeals form awards, judgments, final orders or resolution of or authorized by any quasi-judicial agency in the exercise of the quasijudicial functions.

List of Agencies 1) Civil Service Commission 2) Central Board of Assessment Appeals 3) Securities and Exchange Commission 4) Office of the President 5) Land Registration Authority 6) Social Security Commission 7) Civil Aeronautics Board 8) Bureau of Patents, Trademarks and Technology Transfer 9) National Electrification Administration 10) Energy Regulatory Board 11) NTC 12) Department of Agrarian Reform under R. A. No. 6657 13) Government Insurance System 14) Employees Compensation Commission 15) Agricultural Inventions Board 16) Insurance Commission 17) Philippine Atomic Energy Commission 18) Board of Investment 19) Construction Arbitrators Authorized by Law 20) National Labor Relations Commission (Saint Martin Funeral Homes vs. NLRC) 21) Ombudsman (Fabian vs. Desierto) 22) Voluntary Arbitrators Action of the CA on the petition It may dismiss outrightly the petition on the ground for instance that (1) the motion was filed out of time; (2) the required fees were not paid; (3) copies of the petition were not served by the adverse party, etc. The court may find that petition is not meritorious at all or the court may find that the petition was filed merely for purposes of delay, or the court may find the issues raised in the petition are too insubstantial to require further proceedings. On the other hand, the court may find it proper to direct the respondent to file a comment with 10 days from notice. So if the court gives the respondent time to comment that means to say that the court may grant to determine whether to give due course or not, to this petition. Let us say now that the comments have been filed Q. What now will the action of the court thereafter? A. The court may then give due course to the petition or deny due course. Q. When will the court give due course here? A. If from the pleading, the comment on the petition itself if there is a prima facie showing that the body whose judgment is subject of petition may have committed an error. This error is of fact or of law. Q. Is it enough that the error was committed either of fact or of law? A. No. An error that may warrant a reversal of the judgment, order or award appeals from or which may warrant at least a modification of the judgment appeals. Q. If the court gives due course, how will the CA decide now the case? A. At its option, it may now require the quasi-judicial body, SEC in our example, elevate to the CA the records of the case. Let us assume that the records have been elevated to the appellate court. Q. Will the case now be submitted for decision? A. Not yet. CA may require the parties to submit their memorandum within a given period of time. Upon the filing of the memorandum or the expiration of

the period of the filing thereof, the case may now be submitted for decision. (Thats how simple it is!) Q. What is the difference between the effect of an appeal from a judgment rendered by a quasi-judicial body on the execution of the judgment appealed from the effect of an appeal in an ordinary case from the judgment of CA where the judgment is that of a RTC? A. In the case of a judgment of the quasi-judicial body, the appeal therefore does not stay the execution of the judgment. It is immediately executory. However, this is subject to an exception where the appeal from the judgment of the SEC or any quasi-judicial body for that matter stay the execution when the CA itself orders the stay of an execution. On the other hand, a judgment of the RTC appealed from cannot be executed during the pendency of the appeal, that is the general rule. In other words, an appeal from a judgment of the RTC to the CA is stayed. Q. Is there a case however, where a judgment is that of a RTC and yet an appeal therefore does not stay the execution? A. Yes. That is when the judgment rendered by the RTC involves a case which is decided under the rules on summary procedure in which case, the appeal therefore does not stay the execution of the judgment. Example: The RTC affirmed the judgment of the inferior court in a forcible entry case, which ordered the defendant to vacate the premises. The RTC affirmed the judgment. The defendant B filed a petition for review under Rule 42 (petition for Review from the RTC to SC). Q. May this judgment against him be enforced notwithstanding his appeal therefore in CA? A. Yes. Its the only exception.

Rule 45: Appeal by Certiorari to the Supreme Court * Appeals to the Supreme Court can be taken from a judgment or final order for resolution of the CA, the Sandiganbayan, the RTC or such other court as may be authorized by law and only by a verified petition for review on certiorari on questions of law except in appeals from judgments of the RTC in criminal cases wherein the penalty imposed is life imprisonment, or reclusion perpetua which shall be elevated by ordinary appeal, or wherein the death penalty is imposed which is subject to automatic review. QUESTIONS OF LAW * doubt of controversy as to what the law is on ceratin facts QUESTIONS OF FACT * doubt or difference arises as to the truth or falsehood of facts, or as to probative value of the evidence presented * the determination involves evaluation or review of evidence * qeury invites the calibration of the whole evidence considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances and relation to each other and the whole probabilities of the situation

* if the appellate court can determine the issue raised without reviewing or evaluating the evidence * can involve questions of interpretation of the law with respect to the ceratin set of facts

RENE NOTES: Grounds for Outright Dismissal 1. Petition filed out of time 2. Required fees were not paid 3. Copies of the petition were not served on the adverse party 4. Contents of appeal does not follow the prescribed form Grounds for Dismissal (Upon motion) 1. Patently without merit 2. Prosecuted manifestly foe delay 3. Questions raised are unsubstantial to require consideration PROCEDURE IN THE COURT OF APPEALS RULE 44: Ordinary Appealed Cases Time to File a) appellants brief 45 days from notice of clerk of court b) appellees brief 45 days from receipt of appellants brief c) appellants reply brief 20 days from receipt of appellees brief * Failure to file appellants brief on time is a ground for dismissal of the appeal. * If a motion to dismiss an appeal has been filed, it suspends the running of the period for filing the appellant brief, as the same would be unnecessary should the motion be granted. * The failure of the appellant to make specific assignment for errors in his brief or page references to the record as required in this section is a ground for dismissal for his appeal.

* As a general rule, the findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the SC. Exceptions to Conclusiveness of Facts: 1. When the finding is grounded entirely on speculations, surmise of conjecture; 2. When inference made is manifestly absurd, mistaken or impossible; 3. When the judgment is premised on a misrepresentation of facts; 4. When there is grave abuse of discretion in the appreciation of facts; 5. When the findings of facts are conflicting; 6. When the CA in making its findings went beyond the issues of the case and the same is contrary to both the admissions of appellants and appellees; 7. When the findings of fact of the CA are at variance with those of the trial court, the SC has to review the evidence in order to arrive at the correct findings based on the record; 8. When the findings of fact are conclusions without citation of specific evidence on which they are based; 9. When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondents; 10. The findings of fact of the CA is premised on the supposed evidence and is contradicted by the evidence on record; 11. When certain material facts and circumstances have been overlooked by the trial court which, if taken into account, would alter the result of the case in that they would entitle the accused to acquittal.

* Certiorari under Rule 45 vs. certiorari under Rule 65 (special civil action) CERTIORARI UNDER RULE 45 * petition is based on questions of law CERTIORARI UNDER RULE 65 * petition raises the issue as to whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion Special civil action * directed against an interlocutory order of the court or where there is no appeal or any other plain, speedy or adequate remedy * filed not later than 60 days from

It is a mode of appeal * involves the review of the judgment award or final order on the merits

* must be made within the

reglementary period * stays the judgment or order appealed from

notice of judgment, order of resolution appealed from * unless a writ of preliminary injunction or temporary restraining order is issued does not stay the challenged proceeding * the parties are the aggrieved party against the lower court or quasijudicial agency and the prevailing parties * Motion for reconsideration or for new trial is required * File a motion for reconsideration or new trial is filed, the period shall not only be interrupted but another 60 days shall be given to the petitioner (SC Admin. Matter 002-03) * court exercises original jurisdiction

In the RTC, the parties were A and B. A judgment was rendered against B. This judgment became final. Q. Well, what did we learn under Rule 39? A. When a judgment becomes final, there is nothing left to be done but to execute it. Q. Why did this judgment become final? A. Because B failed to file a notice of appeal. Because B failed to file a motion for reconsideration: because B failed to file a motion for new trial; because B failed to file a petition for relief. The lost of any of these rights was not due to the fault of B. If the lost of any of these remedies was on account for the fault of B, then B cannot file an action for annulment. Period within which B may now file an action for annulment in CA The period depends on the ground whether the ground is extrinsic fraud or the ground is lack of jurisdiction. If the ground is fraud, he Has four (4) years from discovery of the fraud with which to file an action. If it is lack of jurisdiction, at any time before the action is barred by laches or estoppel. These are the only periods. Q. What are the grounds? A. Its either extrinsic fraud or lack of jurisdiction These are the only two (2) grounds available to B. Q. What is an extrinsic fraud as contradicting intrinsic fraud? A. Lets illustrate each of them Example: Supposing during the trial, in the RTC, A submitted in evidence a forged document. Exhibit A. And on the basis of this forged document alone, the court rendered a judgment in favor of A. Q. B files an action to annul this judgment on the ground of extrinsic fraud. Is this ground (forgery) an extrinsic fraud? A. No, what then? Intrinsic fraud. Lets reverse the situation Example: A and B received the notice of pre-trial setting the pre-trial for specific date. Before the date of the pre-trial, A met B and said, B, I already filed a motion for postponement. The court has already granted it. You do not have to appear anymore in the court for the pre-trial. Believing on the truthfulness of A, B did not appear for the pre-trial. On the day of the pre-trial, however A appeared in court. Because of the absence of B, A now moves that he be allowed to present his evidence ex parte. Thereafter, the court rendered judgment. The judgment in favor of A became final. B now wants to file an action for annulment based on extrinsic fraud. Q. With what extrinsic fraud consist of? A. According to him (B), the misrepresentation of A that the pre-trial set on the scheduled date was cancelled. Q. Is it the contention of B here correct? A. Yes, it is correct. Why? That kind of a fraud committed against him was committed outside the trial. Whereas, the fraud consisting in the introduction of evidence in court of that Exhibit A is an intrinsic fraud. Q. What is the difference?

* the petitioner and the respondent are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded * Motion for reconsideration is not required

* the court is in the exercise of its appellate jurisdiction and the power of review

Rule 46:Original Cases (In the CA) Under BP Blg. 129, the CA has original jurisdiction to issue writ of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs or processes, whether or not they are in aid of its appellate jurisdiction, and it has executive original jurisdictions over actions for annulment of judgments of Regional Trial Courts. The court acquires jurisdiction: (1) Over petitioner by filing of the petition (2) Over the respondent by the service on the latter of the order or resolution indicating the courts initial action on the petition and NOT by the service on him of the petition. Procedural Outline (original cases in the Court of Appeals) 1) Filing of the petition 2) Order to acquire jurisdiction over respondents OR Outright dismissal for failure to comply to requirements also form and payment of docket and other legal fees. 3) Require respondents to file COMMENT within 10 days from NOTICE 4) Court may require the filing of a REPLY or such other pleadings as it may deem necessary 5) Determination of FACTUAL ISSUES the court may delegate the reception of evidence on such issues to any of its members.

Rule 47: Annulment of Judgment or Final Orders and Resolutions (Annulment of Judgments rendered by the RTC and Annulment of Judgment rendered by the Inferior Court) Q. When may a judgment of the RTC be the subject of a petition for annulment in the CA? A. If a judgment has already become final and the loosing party lost the right to file a petition for review or lost any other remedy against this judgment without his fault then he may file a petition for annulment of this judgment. This means to say that if the party against whom the judgment was rendered lost the right to file a petition for relief or lost any other remedy which could have been available to him because of his fault, then he cannot avail of this Rule 47. Example:

A. In the case of an intrinsic fraud, there is an opportunity for the adverse party to counteract that fraud. In this case, B could have presented on the fact that this document is a forgery. He did not. That is his (B) fault. But in the case of the second misrepresentation, B would not have rebut it with contrary evidence because that was not committed outside the trial. This is the concept of extrinsic fraud. Of course the other ground is lack of jurisdiction. Procedure. If B is to file the petition. The contents of the petition are stated in Rule 47, do not have to repeat, except for this matter. The petition should be accompanied by affidavits of witnesses of the party filing the petition. In our example, the petition of B should be accompanied by affidavits of his witnesses. So, since he was the defendant in the trial below (RTC), the affidavit of his witnesses must be those which would support his defense against the action of A. If it were A who filed his petition, his petition should be accompanied by affidavits of his witnesses on the cause of action of A. The petition is now there in court (CA). Q. What now will be the action of CA, will it immediately give the due course or it can dismiss outright the petition? A. There are two (2) causes of action that CA may take this case: 1) immediately dismiss the petition. Ground the petition in its (CA) view is not impressed with merits. In other words, it is not meritorious. Then the court can immediately dismiss it. 2) The court finds the petition to be impressed with merits (with prima facie merit). Q. Then what shall CA do? A. Then it will give it due course. How? The rule now says, that this case will now be treated as if it were an ordinary case filed in the RTC. Thats why the respondent in this case now, A will have to be summoned. Q. What will be required of B here? A. B will be required to file his answer and thereafter, trial shall proceed as if this were a case pending in the RTC. Q. Will there be an actual trial in the CA or in short may the CA receive the evidence itself? A. There are several options available to the C.A. regarding the Evidence which it is required to receive. It may authorize any of its members to receive the evidences. In other words, the members of the CA assigned to receive the evidence will act as if he were a judge of RTC conducting a trial. The CA may delegate the reception of the evidence to another judge, an appropriate judge. Any judge? No, Judge of the RTC. So these are the options available to the CA. Q. What is the extent of the power of the RTC judge to whom the reception of the evidence of the parties has been delegated by the CA? May the RTC decide the case? A. No. Why? Because the power delegated to him is the power to receive the evidence, not the power to decide the case. It will still be the CA that will render the judgment. So after the reception of the evidence either by the CA itself or by a judge of the RTC, the CA will now decide the case. The decision may be dismissal of the petition. This means to say that the grounds have not been proven. So the decision of the RTC stands.

The judgment of the CA may be to grant the already expired decision. This is what is meant by this suspension of prescriptive period (Sec. 8 Rule 47)

Sec. 7 Rule 47 (Effect of Judgment) A judgment of annulment shall be set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refilled in the proper court. However, where the judgment or final order or resolutions set aside on the ground of extrinsic fraud, the court may on motion order trial to try the case as if a timely motion for new trial had been granted therein.

Sec. 8 Rule 47 Suspension of Prescriptive Period The prescriptive period for the refilling of the aforesaid original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. We said that, where the judgment is declared void, this action can be refilled. However, where the ground, which serves as the basis of the CA in setting aside the judgment of RTC was extrinsic fraud, instead of having this case refilled, the trial may be declared to hear anew the case as if a motion for new trial was granted. Example: The judgment of the RTC was set aside. The ground was extrinsic fraud. We say that as a result of this judgment, the plaintiff here, A, may refile the case or instead of refilling the case, the CA may direct the RTC to continue hearing the case. It is as if there was a new trial granted. However, if the basis of the CA in setting aside the judgment of the RTC was lack of jurisdiction, obviously, the CA cannot direct the RTC to hear this case. It has to be re-filed. The prescriptive period for the filing of the aforesaid original action shall be deemed suspended from the filing of said original action until the finality of judgment of annulment. However, the prescriptive period cannot be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. Example: RTC-A vs. B. Lets say that the cause of action that can be brought within four (4) years from the happening. Let say this cause of action became the subject of a complaint filed by A against B on January 2, 1993. Q. What do you notice here? A. At the time the action was filed, only one (1) year of the prescriptive period remained. This judgment in favor of A became final on Jan. 3, 1994. this judgment however, was rendered in favor of A. So, in the CA now, B filed an action for annulment on Jan. 5, 1995. A judgment annulling this decision of the RTC that was rendered by the CA and became final on Jan. 6, 1997. Since the extrinsic fraud by A and A elected to re-file the case in the RTC. He filed this case A vs. B on Jan. 7, 1999. Q. Has his action prescribe or did not prescribe? A. The law says Since A was the one guilty of extrinsic fraud, the period between the time he filed the original complaint (Jan. 2, 1993) and the time judgment became final (jan. 6, 1997). The period between the first time the case was filed and time of the judgment of CA (Jan. 6, 1997) became final, this was not suspended.

So, if you add therefore the period from Jan. 1, 1990 to the time he filed the second action (Jan. 7, 1999), you have already a period of nine (9) years. He only has four (4) years. Prescribed! If however, the ground of the annulment was not in jurisdiction, not fraud, for purposes of refilling the case, this period is suspended. Therefore, at the time this case was re-filed, the period may not have yet prescribed. January 1, 1990 A vs. B January 2, 1993 The cause of action arose on Jan. 1, 1990. The cause of action prescribes in four (4) years from happening. A filed a complaint against B in RTC (original complaint) (at the time of filing, only one (1) year left in the prescriptive period) January 3, 1994 Judgment in RTc became final. Judgment in favor of A. (By reason of extrinsic fraud committed by A) January 5, 1995 B filed an action for annulment by reason of extrinsic fraud committed by A. January 6, 1997 The judgment of CA annulling the decision of the RTC became final January 7, 1999 Since the extrinsic fraud was committed by A, he (A) (elected to) re-filed the case in the RTC, A vs. B. Note* Nine (9) years have elapsed. Not suspended because extrinsic fraud by A. The period from January 2, 1993 (first case was filed to) January 6, 1997 (CA decision became final) was not suspended because the extrinsic fraud was committed by a (plaintiff). Therefore, from January 1, 1990 to January 7, 1999, the cause of action already prescribed. Note that the cause of action in the above example prescribes in four (4) years.

Grounds for Dismissal (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 fee and other lawful fees as provided in Section 5 of Rule 40 and Section 4 of Rule 41; (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, paragraph (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 the order or judgment appealed from is not appealable. (1a) * An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. * An appeal will be withdrawn as a matter of right at anytime before the filing of the appellees brief. Thereafter, the withdrawal will be allowed in the discretion of the court. Rule 51: Judgment A case shall be deemed submitted for judgment: A. In ordinary appeals 1) Where no hearing on the merits of the main case is held a) upon the filing of the last pleading, brief or memorandum; or b) expiration of the period for filing 2) Where hearing on the merits of the main case is held a) upon its termination; b) upon the filing of the last pleading or memorandum; or c) expiration of the period for filing A. In original action and petition for review 1) Where no comment is filed a) upon the expiration of the period to comment; 2) Where no hearing is held a) upon the filing of the last pleading; or b) expiration of the period for filing; 3) Where hearing is held a) upon its termination; b) upon the filing of the last pleading or memorandum; or c) expiration of the period for filing. Rule 52: Motion for Reconsideration * The rules now prohibit a second motion for reconsideration. * The pendency of a motion for reconsideration filed on time shall stay the execution of the judgment. * The rules now require the service of the motion to the adverse party.

RENE NOTES: Rule 47: When to File - if failed to file without fault 1) notice of appeal 2) motion for reconsideration 3) motion for new trial 4) petition for relief Extrinsic Fraud Fraud committed outside the trial and not in the course of the trial * extrinsic fraud shall NOT be a valid ground if: it was availed of or could have been availed of in a: a) motion for new trial b) petition for relief Effect of Judgment a) annulment based on lack of jurisdiction original action may be refilled. b) based on extrinsic fraud trial court will try the case. (as if a motion for new trial was granted) Rule 48: Preliminary Conference * Not mandatory Things taken up: 1. possibility of an amicable settlement 2. clarification of issues 3. formulation or stipulation of facts 4. other matters which may aid in the prompt disposition of the case Rule 49: Oral Argument * Not mandatory * The oral argument shall be limited to such matters as the court may specify in its order or resolution. Rule 50: Dismissal of Appeal

Rule 53: New Trial

Q. When may a motion for new trial in CA be filed? A. At anytime after the appeal has been perfected up to the time the CA has not yet lost jurisdiction over the case. Q. What is the jurisdiction here? A. Example: A vs. B in the RTC. Lets say that B appealed to CA. B wants to file a motion for new trial. Q. Within what period must he file it? A. The law says, at anytime after the appeal has been perfected. Let us say that the appeal made was perfected on Dec. 1, 1998, until then the court still retains jurisdiction. Let us say that a judgment was rendered by the CA on Dec. 1, 1998. Let us assume also that B received the copy of the decision on Dec. 3, he has a 15-day period therefrom within which to file a petition for certiorari in the SC. So, the last day for him to file would be Dec. 18, 1998. Q. When then can he file a motion for new trial? A. At anytime between the date (Dec. 1, 1998 to Dec. 18, 1998) before the court lost its jurisdiction. Because if there is no perfected petition for certiorari as of Dec. 18, 1998, the following day, the judgment already becomes final. So, the court no longer has any jurisdiction. So, between these two dates (Dec. 1 to Dec. 18). There is only one ground for a motion for new trial under Rule 53.

The motion for new trial in the CA can be based only on one ground that is newly discovered evidence. Evidence which would not have been discovered while the case is pending before trial in RTC (in our example). Even with due diligence, B in this example, would not have presented that evidence and which if presented will probably alter the judgment of CA already rendered. This is in contrast with the ground of a motion for new trial under Rule 37. There are two grounds where a judgment which has been rendered against a party because of FAME that affected the substantial rights. This is not available in the CA. Q. How will the CA here resolve this motion for new trial? A. It will conduct a hearing. Q. Who may receive the evidence in this case? A. Unlike a motion for new trial in a criminal case which can be conducted by a trial court, a motion for new trial in a civil case can be heard only by CA itself . This is a distinction between the two. Q. When should this motion for new trial be resolved? A. Within 90 days from the date the motion for new trial is submitted for resolution. Assuming now that the motion for new trial has been granted, what will be the next proceeding? Unless the court otherwise directs, the procedure in the new trial shall be the same as that granted by the RTC. How RTC conducts a trial following the grant of a motion for new trial.