RULE 44- Procedure in the CA on Ordinary Appealed Cases

Garrucho v. Court of Appeals, G.R. No. 143791, 14 January 2005.

Doctrine: Under Section 2, Rule 44 of the 1997 Rules of Civil Procedure, the counsel of the parties in
the court of origin shall be considered as their counsel in the CA. In the absence of a proper and
adequate notice to the court of a change of address, the service of the order or resolution of a court
upon the parties must be made at the last address of their counsel on record.
Facts: The petitioner requested the then Commissioner of Immigration and Deportation to issue Hold
Departure Orders against Binamira and Roberto. Subsequently, the Commissioner granted the
request and issued a Hold Departure Order against Binamira and Roberto.
Roberto then filed a complaint for prohibition and damages against the petitioner and the
Commissioner in the RTC. Binamira, for his part, filed a complaint-in-intervention in the case.
Petitioner Garrucho was represented by private practitioners Remollo & Associates.
Later, the trial court rendered judgment in favor of respondent Binamira and found the hold departure
order void ab initio. Thus, the petitioner and the Commissioner Domingo appealed the decision to the
CA. The CA then sent a notice by registered mail to the petitioner’s counsel directing the latter to file
his brief as appellant. However, the notice was returned to the court stamped "Return To Sender,
Moved Out.” The CA then resent the notice to the petitioner’s office butt the notice was returned to the
CA stamped as "unclaimed."
The CA then declares that the service of notice on the petitioner was complete as of May 5, 1999. A
copy of the said resolution was sent by registered mail to the petitioner in the Department of Tourism.
The CA then issued a resolution dismissing the appeal and the notice sent to both the counsel and
the petitioner was returned again, stamped as "Return To Sender, Moved Out” and “unclaimed.”
Later, the CA issued an entry of judgment. A copy of the said entry of judgment was sent to the
petitioner by registered mail at the Department of Tourism.
Binamira then filed a motion for a writ of execution against the petitioner which was granted by the
trial court and it subsequently issued a writ of execution. Thus, the petitioner filed his petition.
Issue: Whether or not the petitioner was deprived of his right to due process when the CA dismissed
his appeal because of his failure to file his brief?
Held: NO. The Court ruled that the contention of the petitioner that he was deprived of his right to due
process when the CA dismissed his appeal because of his failure to file his brief as appellant therein
has no factual and legal basis.
The records show that the counsel of the petitioner in the trial court was the law firm of Remollo &
Associates with offices at Legaspi Village, Makati City. Under Section 2, Rule 44 of the 1997 Rules of
Civil Procedure, the counsel of the parties in the court of origin shall be considered as their counsel in
the CA.
Further, Section 2, Rule 13 of the Rules of Civil Procedure provides that in the absence of a proper
and adequate notice to the court of a change of address, the service of the order or resolution of a
court upon the parties must be made at the last address of their counsel on record.
In the present case, the law firm of Remollo & Associates, the petitioner’s counsel of record, moved
out from their office at the Legaspi Suites to Dumaguete City without informing the court of such fact.
Based on its records, the CA believed that the law office of the petitioner’s counsel was still at the
Legaspi Suites and sent copies of its resolutions to the counsel of the petitioner at the said address.
Neither did the petitioner inform the court of his home or office address after his resignation as
Secretary of the Department of Tourism where copies of the said order or resolution could be sent. As
a result, the Court said that the petitioner has nobody but himself to blame because it was his
responsibility to check the status of his appeal in the CA from time to time, from his counsel or from
the CA which he failed to do so.
Lumbre v. Court of Appeals, G.R. No. 160717, 23 July 2008 - busy na lawyer extension of time
Doctrine: Non-filing of an appellant's brief or a memorandum of appeal is one of the explicitly
recognized grounds to dismiss the appeal which is in accordance with Section 7, Rule 44 of the Rules
of Court.
The 1997 Rules of Civil Procedure, specifically Rules 44 and 50 which are designed for the proper
and prompt disposition of cases before the Court of Appeals, truly cannot be ignored-the rules provide
for a system under which suitors may be heard in the correct form and manner at the prescribed time
in an orderly confrontation before a judge whose authority is acknowledged.
Section 12 of Rule 44 of the Rules of Court provides that an extension of time for the filing of a brief
shall not be allowed, except when there is good and sufficient cause, and only when the motion is
filed before the expiration of the time sought to be extended.
Facts: Florante filed a case for Quieting of Title with Damages against the petitioners with the RTC.
Thereafter, trial on the merits ensued and the RTC ruled in favor of Florante. Aggrieved by the RTC
decision, petitioners went to the CA on appeal. The petitioners’ counsel then received the CA’s Notice
to File Brief, which required the filing of the appellants’ brief within forty-five (45) days from receipt of
said notice pursuant to Section 7, Rule 44 of the 1997 Rules of Civil Procedure.
Before the expiration of the 45 days, the petitioners’ counsel filed a Motion for Extension of Time to
File Appellants’ Brief alleging that in view of her daily court appearances and other equally important
professional commitments, the said Brief could not be possibly filed on time; that considering the
nature of the issues involved, she needs additional time to intelligently prepare the required Brief; and
that said Motion for Extension is not intended to delay the proceedings before the CA. Counsel prayed
for an additional period of thirty (30) days or until January 6, 2003, within which to file the Appellants’
Brief which was granted by the CA.
However, the petitioners failed to file the Appellants’ Brief on January 6, 2003. Thus, Florante,
invoking Rule 50 of the Rules of Civil Procedure, filed a Motion to Dismiss the appeal for failure of
petitioners to file the required Appellants’ Brief.
On February 5, 2003, petitioners’ counsel filed an unverified Motion to Admit Herein Attached
Appellants’ Brief and the Appellants’ Brief itself. Counsel provided rehashed excuses as to why he
cannot file the appellants brief on time same with his excuses in his previous motion for extension of
time to file brief.
Thus, the CA denied the motion to admit the attached appellants’ brief for being filed out of time so
the appeal was dismissed pursuant to Section 1(e), Rule 50 of the 1997 Rules of Civil Procedure.
The petitioners then filed their Motion for Reconsideration which was denied.
Hence, this Petition, claiming that the CA gravely abused its discretion, amounting to lack or excess of
jurisdiction, when it denied petitioners’ Motion to Admit Appellants’ Brief and dismissed the appeal
based purely on technicalities.
Issue: Whether the CA acted with grave abuse of discretion in dismissing the appeal for petitioners’
failure to file the appellants’ brief seasonably?
Held: NO. The Court ruled that there is no grave abuse of discretion on the part of the CA because
the CA properly dismissed the appeal on account of petitioners’ failure to file an appellant's brief. This
is in accordance with Section 7, Rule 44 of the Rules of Court, which imposes upon the appellant the
duty to file an appellant's brief in ordinary appealed cases before the CA within forty-five (45) days
from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the
record. Furthermore, Section 1(e) of Rule 50 of the Rules of Court provides that an appeal may be
dismissed by the Court of Appeals, on its own motion or on that of the appellee due to 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.
The Court then discussed the rationale for requiring an appellant’s brief. The Court said that the
appellant's brief is mandatory for the assignment of errors is vital to the decision of the appeal on the
merits. This is because on appeal only errors specifically assigned and properly argued in the brief or
memorandum will be considered, except those affecting jurisdiction over the subject matter as well as
plain and clerical errors.
In the case at bar, the petitioners and their counsel do not deny their procedural infractions, but they
ask this Court’s indulgence to relax the rules. Unfortunately for petitioners, their plea is not entirely for
the Supreme Court to decide because if the SC will grant this prayer, they would effectively be faulting
the CA for its faithful compliance with the rules of procedure. In sum, the Court cannot attribute grave
abuse of discretion to the CA which merely followed the said rules in dismissing the appeal.
Petitioners seek liberality in the application of the rules. They conveniently forget that such liberality
was, at the outset, accorded to them by the CA when the appellate court granted them an extension
of thirty (30) days, giving their counsel a total of seventy-five (75) days to prepare said brief. Despite
such leniency, counsel allowed the extended period to lapse without even filing another motion for
extension. It took nearly a month from the lapse of the extended period before counsel filed an
unverified Motion to Admit Herein Attached Appellants’ Brief together with the said Brief, and only
after Florante had already filed a Motion to Dismiss petitioners’ appeal.
With respect to motions for extension, the Court cited Section 12 of Rule 44 of the Rules of Court
which provides that an extension of time for the filing of a brief shall not be allowed, except when
there is good and sufficient cause, and only when the motion is filed before the expiration of the
extension sought.
To which the SC said that with the obviously rehashed excuses of petitioners’ counsel, the SC found
the petition completely devoid of merit.
WHEREFORE, the petition is DISMISSED.

Sibayan v. Costales, G.R. No. 191492, 4 July 2016. =abandoned na ang case
=failure to file Appellant's Brief, though not jurisdictional, results in the abandonment of the appeal
which may be the cause for its dismissal.
Doctrine: The usage of the word may in Section 1(e) of Rule 50 indicates that the dismissal of the
appeal upon failure to file the appellant's brief is not mandatory, but discretionary. Verily, the failure to
serve and file the required number of copies of the appellant's brief within the time provided by the
Rules of Court does not have the immediate effect of causing the outright dismissal of the appeal.
This means that the discretion to dismiss the appeal on that basis is lodged in the CA, by virtue of
which the CA may still allow the appeal to proceed despite the late filing of the appellant's brief, when
the circumstances warrant its liberality.
However, the failure to file Appellant's Brief, though not jurisdictional, results in the abandonment of
the appeal which may be the cause for its dismissal.
Facts: The petitioner initiated an action for Recovery of Possession and Ownership with Damages
against respondents before the RTC. Thereafter, the RTC rendered a Decision dismissing the case
filed by the petitioner. It was found by the court a quo that respondents were occupying the disputed
portion for 52 years already and the action of the petitioner to remove them from the said lot is already
barred by laches.
Dissatisfied, petitioner elevated the adverse RTC Decision to the CA by filing a Notice of Appeal
before the lower court. Pursuant to Section 7, Rule 44 of the Revised Rules of Court, the appellate
court ordered petitioner to file her corresponding Appellant's Brief within 45 days from the receipt of
the copy of the notice. A copy of the said notice was received by petitioner's counsel on 17 November
2008; petitioner has therefore until 31 January 2009 to file the required brief. Unfortunately, petitioner
was able to file her Appellant's Brief only 139 days after the lapse of the reglementary period. This
long delay prompted the CA to consider the appeal abandoned and dismissed in a Resolution.
Faulting her counsel for the non-filing of the Appellant's Brief within the reglementary period, petitioner
sought for the reconsideration of the earlier CA Resolution dismissing her appeal. She averred that
she should not be allowed to suffer from the consequences of her counsel's negligence and prayed
for the liberality of the court to afford her the opportunity to ventilate her case on the merits. To rule
otherwise, the petitioner claimed, is tantamount to deprivation of her right to enjoy her property without
due process. However, the CA only denied petitioner’s MR.
Hence, this petition.
Issue: Whether or not the CA erred in denying the motion to admit appellant’s brief and considering
the appeal as dismissed and abandoned?
Held: NO. Section 7, Rule 44 of the Rules of Court provides that it shall be the duty of the appellant to
file with the court, within forty-five (45) days from receipt of the notice of the clerk that all the evidence,
oral and documentary, are attached to the record. Corollarily, the CA, under Section 1e, Rule 50 of
the Rules of Court has the discretion to dismiss or not to dismiss respondent's appeal for 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.
Expounding on the discretion of the appellate court to dismiss or allow the appeal to proceed despite
belated service and filing of the required brief, the Court cited Diaz v. People, where the Court said
that the usage of the word may in Section 1(e) of Rule 50 indicates that the dismissal of the appeal
upon failure to file the appellant's brief is not mandatory, but discretionary. Verily, the failure to serve
and file the required number of copies of the appellant's brief within the time provided by the Rules of
Court does not have the immediate effect of causing the outright dismissal of the appeal . By virtue of
which the CA may still allow the appeal to proceed despite the late filing of the appellant's brief, when
the circumstances so warrant its liberality.
The CA in the case at bar opted to dismiss the appeal interposed by petitioner considering the
negligence of the counsel as merely simple which binds petitioner from the adverse consequence
thereof.
Thus, the Court found no reason to disturb the appellate court's exercise of discretion in dismissing
the appeal. The Court found nothing that would compel it to reverse the appellate court. The
attribution of negligence to the counsel does not automatically shield the client from adverse
consequence of her own negligence and relieve her from the unfavorable result of such lapse. Truly, a
litigant bears the responsibility to monitor the status of his case, for no prudent party leaves the fate of
his case entirely in the hands of his lawyer.
The Court then said that the failure to file Appellant's Brief, though not jurisdictional, results in the
abandonment of the appeal which may be the cause for its dismissal. In the present case, petitioner
failed to file the required brief within the period prescribed under Section 7, Rule 44 of the Rules.
Thus, the appellate court rightly considered her appeal abandoned and consequently dismissed the
same.

Pilipinas Shell Petroleum Corporation v. Royal Ferry Services, Inc., G.R. No. 188146, 1
February 2017.
Doctrine: This case is about the failure of the appellant to comply with Section 13, Rule 44 of the
Rules of Court which is among the enumerated grounds for dismissal of an appeal in Section 1, Rule
50 of the Rules of Court.
The term "may" in Rule 50, Section 1 of the Rules of Court means that the Court of Appeals has
discretion to dismiss an appeal based on the enumerated grounds. The Court of Appeals exercised its
discretion when it decided that the interest of justice would be better served by overlooking the
pleading's technical defects. Time and again, this Court has declared that dismissal on purelv
technical grounds is frowned upon. It is judicial policy to determine a case based on the merits so that
the parties have full opportunity to ventilate their cause and defenses.
Facts: Royal Ferry filed a verified Petition for Voluntary Insolvency before the RTC. It alleged that in
2000, it suffered serious business losses that led to heavy debts. The RTC thereafter, declared Royal
Ferry insolvent in its Order.
Pilipinas Shell then filed before the RTC a Formal Notice of Claim and a Motion to Dismiss for
improper venue but the RTC only denied Pilipinas Shell’s motion to dismiss for lack of merit.
Pilipinas Shell moved for reconsideration where the RTC reconsidered the denial of Pilipinas Shell's
Motion to Dismiss. Thus, the petition for voluntary insolvency was DISMISSED.
Aggrieved, Royal Ferry filed a Notice of Appeal.
The CA then reinstated the insolvency proceedings. Pilipinas Shell moved for reconsideration, but the
Motion was denied. Hence, this Petition.
Petitioner contended that the CA should not have taken cognizance of respondent Royal Ferry's
appeal because it "failed to comply with Section 13, paragraphs (a), (c), (d), (e), (f), and (h), Rule 44
of the Rules of Court.”
Petitioner alleges that respondent's Appellant's Brief has failed to comply with Rule 44, Section 13,
paragraphs (a), (c), (d), (e), (f), and (h) of the Rules of Court.
First, the Appellant's Brief is bereft of page references to the record in its "Statements of Facts and of
the Case" and its discussion supporting its assignment of errors, in violation of Section 13 (c), (d) and
(f) of Rule 44.
Second, the Appellant's Brief failed to include a statement of the issues of fact or law to be submitted
to the CA for judgment, in violation of Section 13(e), Rule 44.
Third, the Appellant's Brief does not contain the page of the report on which the citation of authorities
is found, in violation of Section 13(f), Rule 44. Fourth, the table of cases is not alphabetically
arranged, in violation of Section 13(a), Rule 44. Fifth, the Appellants Brief does not contain, as an
appendix, a copy of the judgment or final order appealed from, in violation of Section 13(h), Rule 44.
Issue: Whether the Court of Appeals erred in taking cognizance of Royal Ferry's appeal despite its
violation of Rule 44, Section 13 of the Rules of Court?
Held: NO. The Court ruled that the CA committed no reversible error in deciding to rule on the merits.
The term "may" in Rule 50, Section 1 of the Rules of Court means that the Court of Appeals has
discretion to dismiss an appeal based on the enumerated grounds. The Court of Appeals exercised its
discretion when it decided that the interest of justice would be better served by overlooking the
pleading's technical defects.
Time and again, the SC has declared that dismissal on purely technical grounds is frowned upon. It is
judicial policy to determine a case based on the merits so that the parties have full opportunity to
ventilate their cause and defenses. The Court of Appeals therefore did not err in taking cognizance of
the appeal.

National Power Corporation v. Court of Appeals, G.R. No. 137034, 23 February 2004.
Doctrine: Section 10 of Rule 44 of the Rules of Court gives the Court of Appeals the discretion to
dismiss petitioners’ appeal for failure to file their memorandum within the prescribed period.
However, realizing the heavy workload of the OSG, the Court under A.M. No. 99-2-03-SC granted the
OSG an extension of 60 to 90 days to file its comment or brief because the non-extendible 30-day
period granted by the appellate court is not enough for the preparation of the memorandum.
Facts: Verdeflor of Nymex executed a sworn statement reporting alleged anomalous practices in a
bidding. The sworn statement identified Atty. Fuentes and Arel as participants in the anomaly.
Thereafter, the internal audit department recommended the filing of a formal administrative charge
against the respondents and other members of the Bidding Committee.
NPC then proceeded to conduct a formal administrative investigation. Subsequently, the respondent
having been declared in default, the NPC considered the case submitted for resolution.
Sometime, after having been in default before the NPC proceedings, private respondents filed a
Petition for Certiorari, Prohibition and Mandamus before the RTC which ruled in their favor. Thus, the
petitioners appealed to the Court of Appeals. The Court of Appeals then sent a notice to petitioners
regarding its petition requiring the petitioner to file in lieu of briefs, their respective memoranda within
a non-extendible period of THIRTY (30) DAYS from receipt hereof. The notice also provided that
failure of the appellants to comply with this rule may be a ground for dismissal of the appeal.
Petitioners received the notice on 21 July 1998. Thereafter, the petitioners filed on 24 August 1998 an
Urgent Motion for Extension of Time to File Memorandum. The motion prayed for an additional period
of 15 days within which to file their memorandum. Subsequently, the petitioners finally filed their
memorandum on 7 September 1998.
The Court of Appeals however, issued a resolution on 23 September 1998 a resolution denying the
motion for extension of time to file a memorandum and dismissing the case pursuant to Rule 44,
Section 10 of the 1997 Rules of Civil Procedure.
Petitioners then moved to reconsider the dismissal of their petition but it was denied. Hence, this
petition. Petitioners questioned the dismissal of their appeal by the Court of Appeal.
Issue: Whether or not the CA erred in dismissing NPC’s appeal pursuant to Section 10, Rule 44 of
the Rules of Court?
Held: YES. Section 10 of Rule 44 of the Rules of Court gives the Court of Appeals the discretion to
dismiss petitioners’ appeal for failure to file their memorandum within the prescribed period. The
failure of the appellant to file his memorandum within the period therefor may be a ground for
dismissal of the appeal.
However, realizing the heavy workload of the OSG, the Court under A.M. No. 99-2-03-SC granted the
OSG an extension of 60 to 90 days to file its comment or brief because the non-extendible 30-day
period granted by the appellate court is not enough for the preparation of the memorandum.
Even if an appellant failed to file a motion for extension of time to file his brief before the expiration of
the reglementary period, the Court of Appeals does not necessarily lose jurisdiction to decide the
appealed case. The Court of Appeals has discretion to dismiss or not to dismiss appellant’s appeal,
which discretion must be soundly exercised in accordance with the tenets of justice and fair play
having in mind the circumstances obtaining in each case.
WHEREFORE, the petition is GRANTED.

De Leon v. Court of Appeals, G.R. No. 13884, 6 June 2002.

Doctrine: There is already substantial compliance with the requirements of Section 13(c) and (d),
Rule 44 of the Rules of Court where the citations found in the appellants’ brief could sufficiently
enable the appellate court to locate expeditiously the portions of the record referred to.
Facts: Petitioner de Leon filed with the RTC of Bataan a complaint for a sum of money against the
private respondents Avelino and Estelita Batungbacal. Estelita admitted to the loan obligation, but
Avelino denied liability on the ground that his wife had no authority to bind the conjugal partnership
and that Estelita contracted the obligation without his consent.
Based on Estelita’s admission, De Leon filed for a motion for partial judgment which the trial court
granted and no appeal was taken. After trial of merits, the RTC ordered Avelino to pay the principal
and the interest of the loan and other amounts and Avelino filed a notice of appeal which was denied
saying that it was filed beyond the reglementary period.
Spouses Batungbacal filed an appeal with the CA. De Leon filed a Motion to Dismiss averring among
others, that there are no page references to the record in the statements of the case and of the facts
in the appellants’ brief submitted by private respondents. Neither is there reference to the pages in the
record where the particular cited or quoted portions of the decision can be found.
Petitioner likewise alleges that the authorities relied upon in the appellants’ brief of private
respondents are also not cited by the page on which the citation is found, as required in Sec. 13 (f) of
Rule 44 of the Rules of Court. Page references to the record are also required in Section 13,
paragraphs (c), (d) and (f) of Rule 44 and absence thereof is a ground for dismissal of the appeal,
pursuant to Sec. 1(f) of Rule 50 of the Rules of Court.
CA denied the motion to dismiss and took cognizance of the appeal. A subsequent MR was likewise
denied. Thus, De Leon filed for petition for certiorari and prohibition, arguing that CA erred in taking
cognizance of the appeal.
Issue: Whether or not the appellate court erred or committed grave abuse of discretion when it
considered the appeal as submitted for decision?
Ruling: NO. The Court said that the grounds for dismissal of an appeal under Section 1 of Rule 50 of
the Rules of Court are discretionary upon the Court of Appeals. This can be seen from the very
wording of the Rules which uses the word ‘may’ instead of ‘shall.’ Thus, the Court said that the CA
rightly exercised its discretion when, in denying petitioner’s motion to dismiss, it ruled that the citations
contained in the appellants’ brief were in substantial compliance with the rules.
Where the citations found in the appellants’ brief could sufficiently enable the appellate court to locate
expeditiously the portions of the record referred to, there is substantial compliance with the
requirements of Section 13(c) and (d), Rule 46 of the Rules of Court. Such determination was properly
within the appellate court’s discretion. Thus, the Court held that the respondent Court of Appeals did
not err when it did not dismiss the appeal based on the allegation that appellants’ brief failed to
comply with the internal rules of said court.

Bote v. Spouses Veloso, G.R. No. 194270, 3 December 2012.

Doctrine: An issue which was neither averred in the complaint nor raised during the trial in the court a
quo cannot be raised for the first time on appeal as it would be offensive to the basic rules of fair play,
justice and due process. This principle forbids the parties from changing their theory of the case.
Nevertheless, such rule admits of an exception when the factual bases thereof would not require
presentation of any further evidence by the adverse party in order to enable it to properly meet the
issue raised in the new theory.
Facts: NHA was the agency in charge of the Dagat-Dagatan project. It awarded disputed land
allegedly belonging to the heirs of Baello and Rodriguez to Gloria Veloso who then leased it to Bote.
Bote then undertook to pay the spouses Veloso Php 850k as purchase price for said property but
Bote failed to pay purchase price. Thus, the spouses Veloso filed a case with the RTC for a collection
of sum of money. At a Pre-Trial Conference, the parties agreed that the issue would only be for a sum
of money collection. Thereafter, the trial court ruled that the spouses Veloso failed to adduce evidence
to show a rightful claim over the subject property.
The Spouses Veloso then appealed the RTC Decision to the CA. In their Appellant’s Brief, they
interposed for the first time their status as builders in good faith and are, thus, entitled to possession
of the house that Gloria built. As a result, the CA remanded the case to the court a quo for the proper
determination of the value of the controverted residential house constructed by Gloria in the lot, now
owned by Bote. It also ruled that the value so determined shall be forthwith paid by the Bote to the
Spouses Veloso, otherwise, the latter shall be restored to the possession of the said residential house
until payment of the required indemnity.
Bote then filed a MR but it was denied. Hence, this petition. Bote alleges that the spouses are
precluded from raising this issue on appeal.
Issue: Whether or not the Spouses Veloso should be allowed to allege for the first time on appeal
their status as builders in good faith?
Held: NO. It is already well-settled in this jurisdiction that a party may not change his theory of the
case on appeal. Such a rule has been expressly adopted in Rule 44, Section 15 of the 1997 Rules of
Civil Procedure, which limits the questions that may be raised on appeal. It provides that an appellant
may include in his assignment of errors any question of law or fact that has been raised in the court
below and which is within the issues framed by the parties.
In Union Bank of the Philippines v. CA, the Court clarified this provision of the Rules of Court stating
that, "It is settled jurisprudence that an issue which was neither averred in the complaint nor raised
during the trial in the court below cannot be raised for the first time on appeal as it would be offensive
to the basic rules of fair play, justice and due process." This principle thus forbids the parties from
changing their theory of the case.
Nevertheless, as enunciated in Canlas vs Tubil, such rule admits of an exception when the factual
bases would not require presentation of any further evidence by the adverse party in order to enable it
to properly meet the issue raised in the new theory, the Court may give due course to the petition and
resolve the principal issues raised therein.
However, the instant case does not fall under this exception. To stress, the issue of whether or not the
spouses Veloso were builders in good faith is a factual question that was never alleged, let alone
proven before the trial court. Thus, Bote was not able to present evidence which would refute the
contention of the Spouses Veloso that they are builders in good faith because again, it was only on
appeal that the spouses Veloso belatedly raised the issue that they were builders in good faith.
In view of this, the petition is GRANTED in the interest of justice and fair play.
The "theory of the case"- the particular line of reasoning of either party to a suit, the purpose being to
bring together certain facts of the case in a logical sequence and to correlate them in a way that
produces in the decision maker’s mind a definite result or conclusion favored by the advocate.
-It is the legal basis of the cause of action or defense, which a party is not permitted to change on
appeal.