APPELLATE

PRACTICE review the case, and in the process, minimize any error of judgment. (Neypes v. CA,
469 SCRA 633)
RULE 37: NEW TRIAL OR RECONSIDERATIONS
Motion for extension
Grounds for new trial You can never move for extension of time for filing an MR/MNT
1. Fraud, accident, mistake or excusable negligence which ordinary prudence This rule applies to all courts except the SC. (Habaluyas v. Japson, G.R. 70895, 1986)
could not have guarded against and by reason of which such aggrieved GSA: dont file for extension.
party has probably been impaired in his rights; or
2. Newly discovered evidence, which he could not, with reasonable diligence, Second motion
have discovered and produced at the trial, and which if presented would Cannot file a 2nd MR
probably alter the result. Can file a 2nd motion for new trial
BUT: You can file 2nd MR of interlocutory order. (Balanoba v. Madriaga, G.R. No.
Extrinsic fraud 160109, 2005)
Fraud that amounts to deprivation of day in court
Affidavit of merit
Excusable negligence Must attach affidavit of merit in the motion for new trial; otherwise, proforma
e.g. gross negligence of lawyer
Note: It should amount to extrinsic fraud or deprivation. What if a verified petition is filed without affidavit of merit?
It is equivalent to an affidavit; thus, it is not pro-forma. (case?)
Mistake
Refers to mistake of fact. But: may refer to mistake of law if difficult question of No new matters in MR
law. Dont introduce new matters in MR.
Same as accident. But, dont rehash your arguments. If rehashed arguments, it is pro-forma. (Dacanay
v. Alvendia)
Grounds for reconsideration Exception: the circumstance that a motion for reconsideration deals with the same
1. that the damages awarded are excessive, issues and arguments posed and resolved by the trial court in its decision does not
2. that the evidence is insufficient to justify the decision or final order, or necessarily mean that the motion must be characterized as merely pro forma.
3. that the decision or final order is contrary to law. (Marikina Valley v. Flojo)

When to file Period for MR of an interlocutory order
Within the period to file an appeal Technically, there is none. But file within 15 days anyway.

Reglementary period APPEALS
If represented by counsel, count period from receipt of decision/order by counsel of
record. Appeal is statutory right
Otherwise, from receipt of the party. Must comply with the requirements under the law.

Fresh period rule 2 types of appeals
If the motion is denied, the movant has a fresh period of 15 days from receipt or Appeal by right as long as you comply with the requirements, you can
notice of the order denying or dismissing the motion for reconsideration within compel the court to review your appeal (Rule 41)
which to file a notice of appeal. This new period becomes significant if either a Discretionary appeal court can preliminarily dismiss the appeal (Rule 45)
motion for reconsideration or new trial has been filed but was denied or dismissed.
(Neypes v. CA, 469 SCRA 633) In an appeal under Rule 41 may the RTC dismiss a notice of appeal where it
can be shown that the questions raised are pure questions of law (Rule 45)?
Rationale for the fresh period rule NO. RTC must grant the notice of appeal. It is the CA which will decide the propriety
To standardize the appeal periods provided in the Rules and to afford fair of the mode of appeal. RTC may only refuse to grant the notice of appeal if it was not
opportunity to appeal their cases, and to give the trial court another opportunity to made within the reglementary period or that the lawful fees were not paid.

CIVIL PROCEDURE APPELLATE PRACTICE NOTES - FILASOL AND MERCADO [D2017] 1

 4. An order denying a motion to set aside a judgment by consent, confession
RULE 40: APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL or compromise on the ground of fraud, mistake or duress, or any other
COURTS ground vitiating consent;
5. An order of execution;
Questions involved 6. A judgment or final order for or against one or more of several parties or in
Questions of fact, law, or both separate claims, counterclaims, cross-claims and third-party complaints,
while the main case is pending, unless the court allows an appeal
Where filed therefrom; and
Filing of notice of appeal is with MTC (court of origin) but appeal is with RTC 7. An order dismissing an action without prejudice.

Rule 40 Rule 41 Modes of appeal
Notice of appeal Notice of appeal 1. Ordinary appeal. The appeal to the Court of Appeals in cases decided by
Appeal memorandum Appellants brief the Regional Trial Court in the exercise of its original jurisdiction shall be
15 days 15 days/30 days taken by (i) filing a notice of appeal with the court which rendered the
Payment of docket fees can be relaxed. Payment of docket fees stricter. judgment or final order appealed from and (ii) serving a copy thereof upon
Failure to pay is not ground for the adverse party.
automatic dismissal. No record on appeal shall be required except in special proceedings and
Assignment of errors not as strict. RTC Strict on assignment of errors. RTC will other cases of multiple or separate appeals where law on these Rules so
may still look at all errors even if not not look into errors not assigned. require. In such cases, the record on appeal shall be filed and served in like
assigned. manner.

Failure to file appeal memorandum 2. Petition for review. The appeal to the Court of Appeals in cases decided by
Failure to file appeal memo is tantamount to not filing a memo. Thus, it is a ground the Regional Trial Court in the exercise of its appellate jurisdiction shall be
for dismissal. (Macadangdang case) by petition for review in accordance with Rule 42.

Failure to file appellants brief on time 3. Appeal by certiorari. In all cases where only questions of law are raised or
Failure to file appellants brief on time is only a ground for discretionary dismissal. involved, the appeal shall be to the Supreme Court by petition for review
(Kingdom of Belgium case) on certiorari in accordance with the Rule 45.

If I disagree with MTC decision on purely questions of law, can I go to SC Ordinary appeal Petition for review Appeal by certiorari
directly? RTC original jurisdiction RTC appellate RTC original jurisdiction
No. RTC only, whether questions of law, fact or both. jurisdiction
Question of fact, or Questions of fact, law or Purely questions of law
RULE 41: APPEAL FROM REGIONAL TRIAL COURTS mixed fact and law both
Appeal to CA Appeal to CA Appeal to SC
General rule on appeals Rule 41 Rule 42 Rule 45
An appeal may be taken from a judgment or final order that completely disposes of File notice of appeal File a petition for review File a petition for review
the case, or of a particular matter therein when declared by these Rules to be with RTC with the CA on certiorari with SC
appealable.
You disagree with RTC decision in its original jurisdiction on purely questions
Exceptions: Matters not subject to appeal of law. Can you go to CA?
1. An order denying a petition for relief or any similar motion seeking relief Yes, but only if intra-corporate dispute.
from judgment;
2. An interlocutory order; Important rules on appeals
3. An order disallowing or dismissing an appeal; 1. Assign all errors
2. You cannot change your theory on appeal.
3. You cannot raise issues for the first time on appeal.

CIVIL PROCEDURE APPELLATE PRACTICE NOTES - FILASOL AND MERCADO [D2017] 2

 4. MR is not required before appeal. NLRC decision
Immediately executory. Remedy is Rule 65 to the CA. (St. Martin Funeral Home case)
Can RTC deny notice of appeal because wrong appeal was made by appellant?
NO. It is for the CA to deny the appeal. RTC can only deny the notice of appeal if (1) it Ombudsman decisions
was filed beyond the reglementary period or (2) there is failure to pay the required Administrative case Rule 43 to the CA (Fabian v. Desierto)
docket fees. Criminal case Rule 65 to SC (Kuizon v. CA)

Rules when MTC denies case for lack of jurisdiction and appeal was made to Appeal does not stay judgment
RTC Gen. Rule: All appeals stay the judgment.
Without trial With trial Exception: Rule 43
RTC affirms: MTC no RTC has to try the case Review evidence w/o
jurisdiction, RTC has like it was originally filed prejudice to revision of RULE 44: ORDINARY APPEALED CASES
jurisdiction (quasi- before it the pleadings and to
judicial agency must not request for more Contents of appellants brief
have jurisdiction) evidence 1. A subject index of the matter in the brief with a digest of the arguments
RTC sets aside: MTC has Remand Resolve and page references, and a table of cases alphabetically arranged,
jurisdiction textbooks and statutes cited with references to the pages where they are
cited;
How would you appeal the RTC decision affirming the MTC (that the RTC has 2. An assignment of errors intended to be urged, which errors shall be
jurisdiction) separately, distinctly and concisely stated without repetition and
Not settled. numbered consecutively;
GSA: RTC would be acting as if it had original jurisdiction. Therefore, either ordinary 3. Under the heading "Statement of the Case," a clear and concise statement
appeal under Rule 41 or petition for review on certiorari under Rule 45. of the nature of the action, a summary of the proceedings, the appealed
rulings and orders of the court, the nature of the judgment and any other
RULE 42: PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE matters necessary to an understanding of the nature of the controversy
COURT OF APPEALS with page references to the record;
4. Under the heading "Statement of Facts," a clear and concise statement in a
RULE 43: APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL narrative form of the facts admitted by both parties and of those in
AGENCIES TO THE COURT OF APPEALS controversy, together with the substance of the proof relating thereto in
sufficient detail to make it clearly intelligible, with page references to the
List of quasi-judicial agencies not exclusive record;
The list of quasi-judicial agencies in Rule 43 Sec.1 is not exclusive. 5. A clear and concise statement of the issues of fact or law to be submitted,
But, the fact that it is a quasi-judicial agency does not automatically mean it is to the court for its judgment;
covered by the Rule. 6. Under the heading "Argument," the appellant's arguments on each
assignment of error with page references to the record. The authorities
Rules relied upon shall be cited by the page of the report at which the case begins
1. Always look at what type of act is rendered. It must be judicial/quasi- and the page of the report on which the citation is found;
judicial in character. It is quasi-judicial if it involves determining rights of 7. Under the heading "Relief," a specification of the order or judgment which
individuals. the appellant seeks; and
2. If its enumerated in Rule 43 and the act is quasi-judicial, it is covered by 8. In cases not brought up by record on appeal, the appellant's brief shall
the Rule. contain, as an appendix, a copy of the judgment or final order appealed
3. If its not enumerated, determine if its covered. Look at the charter. from.
a. If charter is silent but seems to imply that decision is appealable
Rule 43 Contents of appellees brief
b. If decision is final, there is no mode of appeal. Rule 65 1. A subject index of the matter in the brief with a digest of the arguments
e.g. NLRC and page references, and a table of cases alphabetically arranged,

CIVIL PROCEDURE APPELLATE PRACTICE NOTES - FILASOL AND MERCADO [D2017] 3

 textbooks and statutes cited with references to the pages where they are Rule 45 v. Rule 65
cited; Rule 45 Rule 65
2. Under the heading "Statement of Facts," the appellee shall state that he 1. Nature Mode of appeal Special civil action that is an
accepts the statement of facts in the appellant's brief, or under the heading original action and not a
"Counter-Statement of Facts," he shall point out such insufficiencies or mode of appeal
inaccuracies as he believes exist in the appellant's statement of facts with 2. Subject Seeks to review final May be directed against an
references to the pages of the record in support thereof, but without matter judgments or final orders interlocutory order or
repetition of matters in the appellant's statement of facts; and matters where no appeal
3. Under the heading "Argument," the appellee shall set forth his arguments may be taken from
in the case on each assignment of error with page references to the record. 3. Issue Raises question of law Raises questions of
The authorities relied on shall be cited by the page of the report at which jurisdiction
the case begins and the page of the report on which the citation is found. 4. Period of Filed within 15 days from Filed not later than 60 days
filing notice of judgment, final from notice of judgment,
Compliance with the contents of appellants/appellees briefs order or resolution order or resolution sought
For appellants briefs, appellant must comply with the contents in the exact order appealed from to be assailed. In case of a
provided for under Rule 44. Failure to comply is a ground to dismiss appeal. (De motion for reconsideration
Liano v. CA, G.R. No. 142316, 2011) or a new trial is timely filed,
the 60-day period shall be
For appellees briefs, strict compliance is not required. counted from notice of
denial of said motion
RULE 45: APPEAL BY CERTIORARI TO THE SUPREME COURT 5. Requirement Does not require a prior Requires, as a general rule, a
of prior MR motion for motion for reconsideration
Question of law reconsideration
When the doubt or difference arises as to what the law is on a certain state of facts 6. Effect on Stays the judgment Does not stay the judgment
(Sesbreo v. CA, G.R. No. 84096, 1995) judgment or appealed from or order subject of the
order petition unless enjoined or
Question of fact restrained
When the doubt or difference arises as to the truth or falsehood of alleged facts; or 7. Parties Parties are the original The tribunal, board or
when the "query necessarily invites calibration of the whole evidence considering parties with the appealing officer exercising judicial or
mainly the credibility of witnesses, existence and relevancy of specific surrounding party as the petitioner quasi-judicial functions is
circumstances, their relation to each other and to the whole and the probabilities of and the adverse party as impleaded as respondent
the situation. (Sesbreo v. CA, G.R. No. 84096, 1995) respondent without
impleading the lower
court or its judge
8. Where filed Filed only with the SC May be filed with the RTC,
the CA, or the SC

RULE 38: RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS

Period for filing
Within 60 days after the petitioner learns of the judgment, final order or proceeding
and not more than 6 months after such judgment or final order was entered, or such
proceeding was taken. (Sec. 3)
Note: If you miss appeal or MR, this is your remedy

CIVIL PROCEDURE APPELLATE PRACTICE NOTES - FILASOL AND MERCADO [D2017] 4

Grounds
1. When a judgment or final order entered, or any other proceeding is Rule 41 Rule 42 Rule 43 Rule 45 Rule 64 Rule 65
thereafter taken against the petitioner in any court through fraud, accident, Period 15 15 15 15 30 60
mistake or excusable negligence (Sec. 1); or Extendible X 15 15 30 X X
2. When the petitioner has been prevented from taking an appeal by fraud, Period
accident, mistake or excusable negligence (Sec. 2). Prior MR X X X X
Verification X
If you miss this, your only remedy is Rule 47. CNFS X
Stays? X X X
Where filed? CTC of X
Same court. assailed
decisions
Verification and CNFS
Plain X
Verification is required but CNFS is not.
copies of

material
RULE 47: ANNULMENT OF JUDGMENTS OF FINAL ORDERS AND RESOLUTIONS
portions


Grounds
Appellants
1. Extrinsic fraud
Brief
2. Lack of jurisdiction (Sec. 2)
Period 45

Period of filing Extension 45
1. 4 years from discovery, if the ground is extrinsic fraud period
2. Lack of jurisdiction may be raised at any time but it must be made before Verification No
being barred by laches or estoppel (Sec. 3) CNFS No
CTC No
Where to file? Plain Yes(?)
CA
But if what is sought to be annulled is an MTC decision, file with RTC

Note: Not a remedy against judgment of CA and SC

*last chance/remedy

CIVIL PROCEDURE APPELLATE PRACTICE NOTES - FILASOL AND MERCADO [D2017] 5