L125-2014/03/16-p.

1
CIV PRO Mar. 16, 2014
Redea v. CA: Petition for relief is not available in the CA; clarifies any court does
not include CA
R: In B.P. 129, 9(c), 3, the CA can grant new trials (implying R. 37 [MNT] can
be filed with the CA); no substantive or procedural law grants CA the power to
hear petitions for relief
o But under Rule 53, limited to newly-discovered evidence
N.B. Petition for relief is an incident of the original action
APPEALS
(Refer to table)
Material Date Rule: Appellant/petitioner must indicate dates which will show
that the appeal was filed on time, e.g. of notice/receipt of the assailed judgment
o Date of filing is already indicated either in the (1) endorsement [if by
personal filing] or (2) the envelope or the registry receipt, whichever is
duly authenticated [if filed by registered mailing]
Record on Appeal:
o When required: (1) special proceedings; (2) multiple appeals
Implication is when there is a record on appeal, there is a
simultaneously pending action in the lower court (and hence could
not be elevated)
R: Appeal is only as to particular issues
o Prepared by the appellant and approved by the court a quo
The adverse party may raise objections (hence the requirement of
approval)
o All parties must be named (cf. general rule on pleadings, where et al.
would be sufficient)
o Joint Record on Appeal: Where (1) both parties are appellants and (2)
they agree on the contents of the ROA
R: Since their ROAs would be identical, this would be more efficient
and less costly
Appeal will not be perfected if docket fees are not paid within the reglementary
period. (Fil. Estate)

Q: [In Rule 41] What if the record cannot be elevated because transcripts are
missing?
A: (1) Motion for retaking of testimony of the subject witness. (VAA: virtual
re-taking of trial). (2) But if it really cannot be retaken, may be waived by the
other party.
Perfection of appeal not loss of jurisdiction of trial court
o Perfection of appeal is merely compliance with the reglementary period
o Loss of jurisdiction is (1) approval of the records on appeal, and (2)
expiration of all appeal periods. Would result in residual jurisdiction in
lower court.
Court a quo: court whose judgment is directly attacked; may be different from
court of origin
RULE 42/43

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Petition for Review
Why are petitions of review verified? Because the whole case is based on
the petition, unlike a mere notice of appeal. It must be verified so the court will
have an assurance that the petitioner is telling the truth.
Discretionary. May be filed but does not follow that it is automatically taken
cognizance; court gives due course if there is prima facie error that will warrant a
reversal or modification.
Grounds for motu proprio dismissal (4)
1. Petition is patently without merit
2. Manifestly interposed for delay
3. Raises only questions unsubstantial to render a decision
o Otherwise, court will give due course and order the appellee to comment.
Non-Forum Shopping Requirement: Opposite of Rule 7.5, i.e. it is the other
courts/tribunals that will be informed (not the court where the petition is filed)
Plain copies rule: Only one should be original (i.e. personally signed); others
may be plain copies
o Original must be indicated as such
o Cf. Certified true copy: certified (via signature) by official as true copy of
the original PLUS payment of the certification fee (for the authorizing slip);
but in practice, clerk of courts signature would suffice (since his acts are
presumed regular)
Subject of Appeal (R. 41.1.)
Q: May denial of MR/MNT be appealed?
VAA: Despite removal from the rules (per AM No. 07-7-12-SC), no. At the very
least, arguably such denial falls under (a) (any similar motion seeking relief from
judgment)
Non-appealable:
(g) Dismissing an action without prejudice: Not interlocutory
o Interlocutory: Order that still leaves something for the parties to do on the
merits (VAA)
o R: Remedy is to re-file
(f) Judgment or final order for or against one or more of several parties
or in separate claimswhile the main case is pending
o X: Court allows an appeal therefrom (VAA: case of multiple appeal)
o Per GSIS v. Phil. Village Hotel: interlocutory
o VAA: There is inaccuracy here; allows should refer to execution, not
really appeal (since the several judgment really is final (executory), i.e.
the case is terminated as to the parties and the judgment can be
executed)
(e) An order of execution: interlocutory, per jurisprudence
(d) An order denying a motion to set aside jt. by consenton the ground
of [vitiated consent]
o Interlocutory; analogous to denial of an MD
o Remedy is certiorari (Rule 65)
(c) An order disallowing or dismissing an appeal
o VAA: Hasnt decided if its interlocutory; seems to treat execution as
interlocutory

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o

Note: In 3 instances, Rules treat execution as a continuation of litigation

Annulment v. Appeal
o Annulment: Attacks the validity of the proceedings ab initio (from
inception)
o Appeal: Concedes the validity of the proceedings, but merely questions
the exercise of jurisdiction

RULE 45
Pure question of law doctrine
If there is only a pure question of law on appeal, SC has exclusive jurisdiction per
the constitution
o Therefore, such other courts in Rule 45 may refer to all other courts (inc.
MTC, Sharia)
o SOLE EXCEPTION: QJAs; (1) text of the Const. (Art. VIII, 5(2)) refers to
lower courts; (2) Rule 45
Review is discretionary (6)
Review is not a matter of right
Will be granted for special and important reasons
Parameters in 6: (1) court a quo decided (a) a question of substance not
determined by the SC, (b) probably not accord in law or applicable decisions of
the SC; (2) (a) so far departed from the accepted and usual course of judicial
proceedings; (b) so far sanctioned such departure by a lower court
Cases
Heirs of Poe v. Malayan Insurance:
Reiterated Neypes fresh period rule; retroactive application warranted by
jurisprudence and nature of Neypes rule as procedural law
o Rule: when there is an MR/MNT, 15 day reglementary period is counted
from the date of the denial of the MR/MNT; Basis: disjunctive or
o VAA: There is really no fresh period, but a reinterpretation of the tacking
of the period
o R: Better rule for uniformity and standardization (removes unpredictability)
o VAA: But Santa Rosa and Magdalena rulings (infra) apply only when there
is no MR or MNT. Neypes only applies when there is an MR or MNT.
Rule on superseded judgments triggering fresh periods was simplified
VAA: If the decision were finally resolved in 2004 and Neypes was promulgated in
2005, the new doctrine would not have mattered, on the basis of (1) immutability
and (2) law of the case [it is the law between the parties]
GSIS v. Phil. Village Hotel
Doctrine: No right to appeal a partial summary judgment, which is interlocutory;
assuming arguendo, mode of appeal should have been record on appeal (since
this will be a case of multiple appeals)
o VAA: Agrees that ruling on the mode is correct, but disagrees with the
interlocutory part
o VAA: In effect, SC seemed to be saying not to appeal decisions piecemeal
Fil-Estate v. Homena-Valencia

L125-2014/03/16-p. 4

Neypes ruling applies also to rule on payment of appellate docket fees during the
reglementary period

Palma v. Galvez
Because this was a several judgment (and there is a pending case), no appeal
under Rule 41.1.g.
Contradistinguish with GSIS, which was not a several judgment but a partial
summary jt.
VAA: Distinguished with R. 65
o In R. 65, there must be grave abuse.
o In appeal, CA has no choice but to review. Discretion is narrower in R. 65.
o Effect: shakier ground if Rule 65
Calderon v. Roxas
Orders (1) granting support pendente lite, and (2) denying support in arrears, is
interlocutory, as the final settlement of the issue of support is in the judgment
Interlocutory because even when the court can decide issues pending final
judgment, it does not dispose of the issues completely and finally
Diesel v. Jollibee
Resolutions granting a stay of execution [N.B. Rule 41.1.e. discuss order of
execution] are interlocutory; therefore, appeal on certiorari would not be a proper
remedy to assail them.
CHED v. Dasig
[N.B. res judicata = there can be no re-litigation of a matter adjudged because
it serves as the law between the parties]
VAA: Court seemed to imply that its findings on the fitness of a lawyer is binding
on all courts and tribunals (i.e. even if there was no vinculum juris between the
appeal and the disbarment case), but this is not a sound or feasible ruling
Maramag v. Maramag
CA has no jurisdiction over an appeal where there is only a question of law.
RULE 40

Primary
Rule

RULE 41

RULE 42

RULE 43
Check accura
idems

MTC

RTC

MTC to RTC

QJA

To

RTC

CA

CA

CA

Mode

[Same as Rule 41]

Ordinary Appeal (R41)

Petition for Review

Petition for Revi

[Same as Rule 41]

Notice of Appeal
+ Record on Appeal (if
required)

Petition for Review

Petition for Revi

[Same as Rule 41]

For NOA: 15 days

For ROA: 30 days [but
NOA must still be filed

15 days from notice of

(1) judgment or final
order; or (2) denial of
MR or MNT

15 days from (1
notice of the aw
judgments, fina
orders, or resolu

From

Pleading
Period

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[From notice of (1)
judgment or final
order, or (2) denial of
MR or MNT]
[Same as Rule 41]

No extension for NOA,

by implication in R40.2
(i.e. non-extendibility
of period for MR/MNT)
But period for ROA can
be extended

First extension: 15
days
Second extension: 15
days for most
compelling reasons

First extension:
days
Second extensio
days for most
compelling reas

[Same as Rule 41]

Copy of Notice of
Appeal to adverse
party

Service of petition on
(1) adverse party, (2)
court a quo

Service of petiti
(1) adverse part
QJA

[Same as Rule 41]

For NOA: Upon (1)

filing of NOA in due
time (R41.9) + (2)
payment of appellate
docket fees
For ROA: Upon (1)
approval of ROA in due
time (R41.9) + (2)
payment of appellate
docket fees

Upon (1) filing of NOA

in due time + (2)
payment of appellate
docket fees + (3)
payment of deposit for
costs

Upon (1) filing o

in due time + (2
payment of app
docket fees + (3
payment of dep
costs

Notice of Appeal: (1)

Parties [same title of
the case, but with
additional
designations]; (2)
judgment or final
order or portion
thereof appealed from;
(3) material dates
showing [timeliness]
(3)
Record on Appeal:
Apply R41.6, per
R40.3

Notice of Appeal: (1)

Parties [same title of
the case, but with
additional
designations]; (2)
judgment or final
order or portion
thereof appealed from;
(3) material dates
showing [timeliness];
(4) to which court the
appeal is taken (5)
Record on Appeal: (1)
Name of all the
parties; (2)
reproduction of the
judgment or final
order; (3) all
pleadings, petitions,
motions, and all
interlocutory orders as
are related to the
appealed judgment, in
chronological order;
(4) material dates

Verified petition
Material date rule
Full names of parties
(without impleading
the court)
Statement of matters
on appeal
[Statement of
procedural
antecedents]
Assignment of errors
Arguments or reasons
relied upon for petition
Duplicate originals or
true copies of
judgments of final
orders (certified
correct by clerk of
court)
Pleadings and other
material portions of
the record (e.g. TSN)
as would support
allegations
Certification of nonforum shopping

[Same as Rule 4

[Same as Rule 41]

Docket fee and other

lawful fees only (i.e.

(1) Docket fee and

other lawful fees, (2)

[Same as Rule 4

Extendible
?

Service

Perfection

Content /
Accompanyi
ng
Documents

Fees

or (2) notice of
of MR, MNT; (3)
publication, if re

L125-2014/03/16-p. 6

Procedure
on Appeal

no deposit), paid to
the court which
rendered judgment

deposit

(1) Upon receipt of the

record, clerk of RTC
will notify the parties;
(2) Appellant must file
memorandum within
15 days of notice;
failure to do so will be
ground for dismissal
(analogous to
abandonment); (3)
Appellee must file
within 15 days from
receipt of appellants
memorandum; failure
to do will result in case
being deemed for
submitted for decision
[on the basis of the
entire record; the
memorandum is only a
guide]

Clerk of trial court will

transmit, within 30
days from perfection
of the appeal, (a)
record, (b) proof of
payment of appellate
docket fees, (c)
minutes [constancia],
(d) order of approval,
(e) certificate of
correctness, (d)
original documentary
evidence, (e) original
+ 3 copies of
transcripts. But copies
of transcripts/certified
true copies of
documentary evidence
shall remain in the
lower court. (12)

Give due course

Order comment
Set case for oral
arguments or require
submission of
memoranda (if it sees
fit)

[Same as Rule 4

[Same as Rule 41]

(1) Untimely filing; (2)

Non-payment of
docket fees; (3) Noncompliance with any
of the requirements

[Same as Rule 4

If appealed order was

without trial on the
merits: (1) if affirmed
on lack of jurisdiction
over subj. matter and
RTC had jurisdiction,
RTC shall try the case;
(2) if reversed, case
shall be remanded for
further proceedings.
If case was tried on
the merits by MTC

Prior to transmittal of
the original record:
Issuance of orders of
protection, (2) approve
compromises [at the
instance of the
parties; tantamount to
withdrawal], (3) permit
appeals of indigent
litigants, (4) order
execution pending
appeal, (5) allow

(1) Untimely filing; (2)

Non-payment of
docket fees; (3) Nonpayment of deposit;
(4) Non-compliance
with the requirements
(i.e. proof of service,
accompanying
documents, contents)
Motu Proprio
dismissal: (1) Petition
is patently without
merit; (2) Manifestly
interposed for delay;
(3) Raises only
questions
unsubstantial to
render a decision
G: Stay of execution
X: Assailed judgment
is rendered under
Rules of Summary
Procedure

Grounds for
Dismissal

Special
Rules

(1) Only 1 MR (B
from QJA AOJR;
Findings of fact
binding on CA if
supported by
substantial evid

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without subject matter
jurisdiction, RTC shall
decide the case if it
has original
jurisdiction. (8)

withdrawal [i.e. on
motion of appellant] of
appeal (9)