4/24/18

RULE 41
APPEALS FROM REGIONAL TRIAL COURTS

RULE 41: Covers an appeal from a judgment of the RTC to the CA

PROPER APPEAL

For appeal to be proper under Rule 41, it should be:

 An appeal of the judgment of the RTC exercising original jurisdiction or

 The RTC is the court where the case is originally filed

The RTC has rendered a decision, and it is now going to be appealed. Appeal is to the CA.

COVERAGE OF APPEAL

An appeal under RULE 41 should only cover:

 questions of facts or
 a mixed of questions of fact and of law

When we say questions of fact, we are taking about a determination of the truthfulness or falsity of a
particular fact as opposed to a question of law, where what we are asking for the court to determine,
is what the applicable law is or how does the law actually apply.

If your appeal is 41, it needs to be question of fact or if it is a question of law, it should be

accompanied by a question of fact also because you cannot use RULE 41 as your basis for your
appeal if what you will raise is a question of law because if it is a question of law, you are allowed to
elevate it directly to the SC under RULE 45.

PERIODS UNDER RULE 41

- Same as RULE 40:
o 15 days if mode of appeal is notice of appeal
o 30 days if it is going to be record on appeal

However, habeas corpus, the appeal should be taken within 48 hours (2 days) from notice of the
judgment or the final order.

PERFECTION OF APPEAL

If appeal is:

 By notice of appeal, it is perfected upon filing is perfected upon the filing of the notice of appeal
in due time. – that means, as long as it is within the 15 day period.
 By record on appeal, it is perfected, upon approval of the record on appeal filed in due time.
 COURTS JURISDICTION

We discussed under RULE 40 that the court will start to lose its jurisdiction:

 Upon perfection of an appeal

 The period of the taking of an appeal by the other party or other parties has expired

RESIDUAL JURISDICTION
- Going to be exercised by the trial court until the records have actually been elevated to the
appellate court.

WHAT ARE THE THINGS THAT CAN BE TAKEN UP

1. Orders for the protection and preservation of the rights of the parties regarding any matters
not litigated by the appeal
2. It can still approve a compromise agreement
3. It can permit the appeal of an indigent litigant
4. It can order execution pending appeal
5. It can order or allow the withdrawal of an appeal

So those things can also be done by the RTC in the exercise of residual jurisdiction.

DEVIATIONS BETWEEN RULE 40 AND RULE 41

1) RULE 41 (Sec.1) contains an enumeration of certain matters which may not be appealed.
What can be appealed only are judgments or final orders. BUT in so far as the following things
there can be no appeal:

 An order denying a petition for relief from judgment or any other similar motion.
- The remedy that is available is a petition for certiorari under RULE 65.

 An interlocutory order.
- It is an order of the court that still requires the court to do something besides it. Kase nga,
when we defined what a judgment is, we said a judgment is an order of the court or a ruling
by the court where it no longer is required to do something else. Pag issue niya ng order
niya, and it is no longer required to do something else, that constitute a judgment. Now an
IO is an order of the court where it is still required to do something else meron pa siyang
kelangan gawin or the case continues to be litigated. If that is the nature of the order,
meaning, upon issuance of the order there is still something to be done by the court, that is
an interlocutory order. That is not appealable.

 Order disallowing or dismissing an appeal.

The way to remedy an order disallowing or dismissing an appeal is by:

 - Certiorari under RULE 65 or
- Mandamus under RULE 65 or
- By way of a petition for relief from judgment

Remember when we talked about RULE 38: It is available for two purposes:

(1) If judgment is taken against you on account of FAME;

(2) You are prevented from taking an appeal on account of FAME.

 Order denying a motion to set aside a judgment by consent, confession, or compromise on the
ground of fraud, mistake, duress, or any other ground vitiating consent.
- It is not appealable because these types of judgments are immediately final or they are
immediately executory upon rendition by the court, it is immediately executory.

o Pagka judgment by compromise, this is a situation where the parties submit a compromise
agreement and the court will review the compromise agreement, and the court will now come
up with a judgment saying that, it has reviewed the compromise agreement, and it has found
it to be not contrary to law, morals, or public policy and giving its stamp of approval to the
compromise agreement. – that is immediately executory; hindi ka nagbibilang ng 15 days;
that’s why it cannot be appealed because it is already final. An appeal ordinarily, is allowed
only when the judgment is not yet final.

o Remedies of said types of judgments: A petition for relief from judgment, a petition to annul
judgment, or certiorari.

o How to choose which remedy is appropriate: you have to figure out what the appropriate
remedy is because the judgment is already final.

- If you are still within the 60 days, 6 months, your remedy is petition for relief from
judgment.
- If you are already beyond that. Then your remedy is annulment of judgment.

Annulment of judgement can only be had if your grounds constitute extrinsic fraud within 4 years
from the date of discovery of the fraud.

If you do not fall within the two, then that only leaves you, certiorari under Rule 65. On the
allegation that the court rendered the judgment without jurisdiction or with grave abuse of
discretion amounting to a lack of or in excess of jurisdiction. So that is what is going to dictate the
choice of remedy. It really depends on what circumstances you find yourself in.

 Order of execution is likewise not appealable, certiorari is the remedy.

 Judgment/final order in separate claims, counterclaims, crossclaims or 3 rd party claims,while the

main action is pending, is not appealable, unless you get the permission of the court
 Remember when we are talking of Record on appeal. This is one of the case instances when you
have multiple appeals but you have to ask the court’s permission for you to be able to appeal it.

 Order dismissing an action without prejudice is also not appealable.

MANNER OF APPEAL

*(RULE 40) How is an appeal under RULE 40 disposed of by the appellate court?

Ang mangyayare, requiring upon transmittal of the records, then the appellant is required to file a
memorandum within 15 days and within 15 days from receipt of the appellants memorandum, the
appellee files its co-memorandum; it is now submitted for resolution. Except that, you have to
contend with Section 8 of Rule 40 which refers to cases which have been decided or dismissed by
the MTC and elevated on appeal to the RTC; then the RTC may affirm or may deny as the case may
be. However, if the MTC has dismissed an action, without trial and the ground is lack of SM
jurisdiction, the RTC that has jurisdiction shall try the case as if it was originally filed with it. If it
disagrees with the MTC and the MTC is the one with the jurisdiction, it should remand. The other
situation is, the MTC has tried the case without jurisdiction. So upon elevation to the RTC, the RTC
that has jurisdiction, should not dismiss but should resolve it, by requiring the filing of a
memorandum, in a manner prescribed by Section 7, and without prejudice to amendment of
pleadings and the admission of additional evidence.

*(RULE 41) On the other hand, how is an appeal under RULE 41 disposed of by the appellate court?

Assuming that the appeal by notice of appeal or record on appeal has been perfected already,
meaning- filed within time of notice, and record on appeal- approved already by the trial court.

 Showing everything has been done already, then there’s going to be transmission of the records
to the appellate court or CA.
 Once the records have been transmitted to the CA, the clerk of court of the CA should make
determination whether or not the records are complete. I
 f the records are incomplete, then it will inform the clerk of court of the RTC that the records
are incomplete and the records shall be completed at the soonest possible time.
 If there are changes, modifications, and there are omissions and they are deliberate, that would
be grounds for a dismissal of the appeal.
 Once that has been determined already, the clerk of court now of the CA will cause the issuance
of an order directing the appellant to file his appellant’s brief, the appellants brief is to be filed
within 45 days from receipt of the order requiring the filing of appellants brief.

What is to be contained in the appellants brief are the following:

- a subject index,
- assignment of errors,
- statement of the case,
- statement of the facts,
- statement of the issues,
 - the arguments that are interposed in support of the issues,
- the relief,
- And if it is not by record on appeal, there needs to be annex or attachments of a copy of the
judgment or final order appealed from.

 Once the appellants brief has been filed, the appellee now has a life period of 45 days from
receipt of the appellants brief to file his appellees brief.

The appellees brief contains:

- a subject index,
- a statement as to his agreement as to the acceptance of the statement of facts,
- or a counter statement of facts.
- Then he will also include there his arguments.
 After filing by the appellee of his appellees brief, the appellant is given a 20 day period from
receipt of the appellees brief to file a reply brief.
 Once the brief has been filed, the case will be considered as submitted for resolution.
 The failure of the appellant to file his appellant’s brief is ground for a dismissal.
 However, in certain cases, like
- certiorari,
- prohibition,
- mandamus,
- quo warranto,
- habeas corpus,

The court in lieu of filing of the appellants brief will instead require the filing of a memoranda.
The failure of the appellant to file a memoranda, is ground for a dismissal of the appeal.

*That procedure if situated or found under RULE 44. Dun mo makikita yung procedure in so far
as your appeal in RULE41.

42 PETITION FOR REVIEW FROM THE RTC TO THE CA

42 is your Appeal of the judgment of RTC , but the RTC should be acting in the exercise of
Appellate Jurisdiction.
That means now for the first time, we are talking of the jurisdiction which is originated in
the MTC, elevated to RTC and is now being elevated to CA.
Period: You have 15 days within which to file your petition for review with the CA.
 You can ask for an extension of 15 days, and you can again if you wish to, ask for
another extension of 15 days so TWO EXTENSIONS OF 15 days but you need to
have a compelling reason to be able to ask for a subsequent extension of 15 days.
 However , when you willingly file your petition within the period, you’re already
required to pay the docket fees and deposit for cost.
 If you are simply asking for an extension of the period when you file you petition for
extension of period, you must now pay the docket fees and the deposit for cost.
What is the form of your petition for review?

 You are supposed to file 7 copies of you petition for review, indicating the original copy
intended for the Court of Appeals containing the:
a. full names of parties, without impleading the lower court / judges
b. specific material dates indicating that it is filed on time
c. statement of matters, issues, specification of errors of fact / law and reasons /
arguments relied upon
d. accompanied by clearly legible duplicate copies or true copies of judgment of the lower
courts, certified correct by Regional Trial Court clerk of court, pleadings and other
material portions supporting the allegations of the petition
e. certification against forum shopping and verification.
o You failure to comply as to the form and to pay the docket fees or deposit for cost is ground
for the DISMISSAL OF THE APPEAL

When is your Appeal perfected?

 Upon its timely filing and the payment of docket fees.

When can RTC lose jurisdiction?

 RTC will lose jurisdiction upon perfection of your appeal and the expiration of the period for
taking an appeal by the other parties. During that period, it can still exercise residual
jurisdiction. (5 powers)
 Under rules 40 and 41, the exercise of residual jurisdiction will continue until the records
are elevated to the appellate court.
 Under rule 42, residual power will be exercised until the petition is given DUE COURSE or
the CA issue some order saying that it has been given DUE COURSE.

What exactly does the CA do upon the filing of a petition for review?

1. CA can require the filing of a “comment”.

 A comment being required by the CA should contain the ff:
(a) Statement of whether or not the respondent accepts the statement of matters
(b) Point out the insufficiencies / inaccuracies
(c) State reasons why it should not be given due course. Copy of which must be
served on adverse party.
 You do not argue the issues being raised in your comment. The time to argue them
will come if the petition is given due course.
 When you file your comment in effect, you are just telling the court whether or not
you actually have some basis to convince the court that the petition should not be
given DUE COURSE.
2. CA can Dismiss the petition if found to be patently without merit, prosecuted manifestly for
delay, or questions raised therein are too unsubstantial to require consideration.

So those are the two things that could happen: dismiss or require the filing of a comment.
What will happen if it is not dismissed?

 Then the petition is going to be given due course. Because when the petition is given due
course, that means that the CA has found the prima Facie that the lower court has
committed an error of fact / law that will warrant a reversal / dismissal. So kapag nabigyan
na ng due course, the CA will require the lower court to elevate the entire records to the CA.
 Then the court now will require the filing of appropriate pleadings or appropriate papers in
all probability, is to require the party to subsequently file a memoranda.

So you now have a petition, then a comment, then if given due course, you file a memoranda. That is
the time now, if you are the respondent, you can interpose your counter arguments to the issues
being raised by the petition. So the petition now is being deemed submitted for resolution after the
filing of the last pleading or memoranda. However, the court in exercise its discretion , may require
oral arguments or pwedeng additional pleadings or papers to support the parties respective
positions. Yan ang rule 42.

Important:

 A petition for review under Rule 42 will stay the judgment.

 Under rule 40, when you appeal, the judgment is stayed even without being executed
because the decision does not become final.
 Under rule 41, the judgment is also stayed , because decision has not become final.
 Under rule 42, the judgment is also stayed EXCEPT, if the case is covered by the rules on
summary procedure.
o If covered by the rule on summary procedure, it is immediately executory.
Example: Let us say that the subject matter of the case is collection of a sum of money which is
300k. so MTC, talo si defendant so nag appeal siya sa RTC under rule40. Talo siya sa RTC, so
nag appeal siya sa CA under Rule 42. The judgment that finds him liable for 300k cannot be
executed because the filing of rule 42 petition for review will stay the judgment. Kler!
If it is covered by the rules on summary procedure, that will not be the case. Like for
example:
UNLAFUL DETAINER.
 So when the RTC affirms the decision of the MTC, saying that the defendant should
vacate and surrender the possession of the property that the he occupies, that is
immediately executory. Even if the defendant will file a petition for review under rule
42. The way for the defendant to stop or stay the judgment will be to include to its
petition for review an application for INJUNCTION. Because a rule 42 petition does
not stay an action covered by the RSP.

RULE 43: APPEALS FROM THE COUT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES
TO THE CA

 In a case decided by QJB or the Regional Trial Court sitting as a special commercial
court, the mode of appeal to CA is under rule 43.
  When we speak of a QJB, I’m referring to the : Court of Tax Appeals and other QJB.
When we say QSb, there are really executive bodies that is exercising a judicial power.
Kasi nga, when judicial power is exercised by one who is not a judge or a court, then
that is a QJB.

EXCEPTION: NLRC, because an appeal of the decision of NLRC to the CA is by way of

petition for certiorari under rule 65.

An appeal of the decision of RTC exercising original jurisdiction is ordinarily by

41.
But if the RTC is sitting on a special commercial court, the appeal is 43, a petition
for review under 43.

PERIOD: Ito na ngayon ang complicated, RTC sitting in a commercial court is 15 days from the
receipt of the judgment. But if it is A petition for CORPORATE REHABILITATION , it is 30 days. It is
30 days because you are required to file a record on appeal.

That is the peculiarity and I expected that to be corrected at times at least sooner rather than later
kasi nga, bakit ang RTC sitting as commercial court is under 43. The reason is that the SC issued a
circular saying that appeal should be by way of rule 3 instead of rule 41. Kaya lang in the ruling in
the case of BPI family bank vs. gasses 653 SCRA 42, which case it refers to a corporate
rehabilitation . ying petition for CR, was treated in that case as a special proceeding. Normally,
special proceedings if going to be appealed will require a Record of Appeal. That is why RA. It’s a
situation where the SC addressed particular issue individually not realizing that it created conflict.
The conflict continues to subsist until now, so kailangan iexplain.

So ngayon, when you are appealing under rule 43, the appeal can include:

1. Questions of fact
2. Questions of law
3. Mixed Question of fact/law

Now, ordinarily, the appeal shall be taken within fifteen (15) days from notice if the award,
judgment, and final order of resolution, or from the date of its last publication, if publication is
required by law for its effectivity, or of the denial of the petitioner’s motion for new trial or
reconsideration duly filed in accordance with the governing law of the court or agency a quo.

Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of
the payment of the full amount of the docket fee before the expiration of the reglementary period,
the Court of Appeals may grant an additional period of fifteen (15) days only within which to file
the petition for review. No further extension shall be granted except for the most compelling reason
and in no case to exceed fifteen (15) days.

All other procedural matters and requirements are similar to a Petition for Review under
Rule 42 EXCEPT that an appeal under this Rule shall not stay the award, judgment, final order or
resolution unless the Court of Appeals deems otherwise. The thing that is different is that under
rule 42, judgment is STAYED except in case of RSP. Under rule 43, ALL judgments are NOT
STAYED,therefore, for you to be able to stay it, you must ask for a writ of INJUNCTION.

Tomorrow: 45,46,47 brief discussion