Appellate remedies; notes.

APPELLATE PRACTICE
(Based on the MCLE lectures of my friend Court of Appeals Associate Justice Magdangal de Leon, Past Chairman, Las Pinas City Bar Association). Rules Rules 40-56 -- civil actions Rule 122-125 -- criminal actions See also: Batas Pambansa Blg. 129 (Judiciary Reorganization Act of 1980, effective Aug. 14, 1981); PD 1606 (law creating Sandiganbayan), amended by RA 7975 and RA 8249; Art. VIII, 1987 Constitution; Adm. Code of 1987. Purpose To review errors of judgment committed by a court with jurisdiction over the subject matter and the persons of the parties. Contradistinguish: Rule 65 (special civil action for CPM) errors of jurisdiction. Possibilities: o modify or reverse the judgment or final order, or o remand the case to the court of origin if it finds that further proceedings are necessary. Not Matter of Right Mere statutory privilege to be exercised only in the manner and in accordance with the provisions of the law granting that right. When judgments or final orders of trial courts which can be appealed as a matter of right: Judgments or final orders of the MTC, RTC and Family Court in civil cases and special proceedings (Sec. 1, Rule 41; Sec. 1, Rule 109). Judgments of conviction rendered by a trial court, provided accused not placed in double jeopardy (Sec. 1, Rule 122). As a general rule, appeal from a decision rendered by a court in the exercise of its appellate jurisdiction is not a matter of right (appeal via petition for review or appeal via petition for review on certiorari). Discretionary appeal one which a reviewing court may or may not allow. Example: Sec. 6, Rule 45 (petition for review on certiorari or appeal by certiorari) review not a matter of right but of sound judicial discretion; will be granted only when there are special and important reasons therefor. * Also, see Sec. 4, Rule 42 and Sec. 8. Rule 43. Proper Remedy Policy now strictly enforced that wrong remedy will be quickly rejected and dismissed (SC Circular No. 2-00 dated March 19, 1990 based on Murillo vs. Consul, Undk. No. 9748, Feb. 27, 1990).

 Election of proper remedy depends on whether or not judgment or final order has become final and unappealable. A. Not Yet Final and Unappealable 1. Ordinary Appeal notice of appeal within period specified (15 days from receipt of decision or order/resolution denying a motion for reconsideration [Neypes doctrine]). upon errors or questions of fact and law applies to judgments or final orders of MTC to RTC in civil cases (Rule 40) of RTC to CA in civil cases (Rule 41) of RTC to SB involving public officers and employees (PD 1606, am. by RA 8249) of RTC to CA in criminal cases (Rules 122 & 124, as am. by A.M. No. 00-5-03-SC, Oct. 15, 2004)

2. Petition for Review to CA from RTC - if judgment to be appealed from is rendered in the exercise of its appellate jurisdiction (Rule 42) from quasi-judicial agency (Rule 43)

3. Petition for Review on Certiorari to SC under Rule 45 upon pure questions of law from RTC, CA or SB B. Final and Unappealable 1. Petition for CPM (orig. special civil action under Rule 65) o ground: judgment rendered without or in excess of jurisdiction or grave abuse of discretion amounting to lack of jurisdiction 2. Petition for Relief from Judgment under Rule 38 o grounds: fraud, accident, mistake, excusable negligence (FAME) 3. Petition for Annulment of Judgment under Rule 47 o grounds: extrinsic fraud or lack of jurisdiction Improper Appeal An appeal may be dismissed on the ground that it is improper. - Appeal under Rule 41 taken from RTC to CA raising only pure questions of law (Sec. 2, Rule 50).

(a) Trial court without authority to dismiss an appeal by notice of appeal on the ground that issues involved only questions of law (Kho vs. Camacho, 204 SCRA 150; PNB vs. Judge Romillo, Jr., 130 SCRA 320). (b) Appeal by certiorari from RTC to SC raising only questions of fact may be referred by SC to CA for decision or appropriate action (Sec. 6, Rule 56). Appeal from appellate judgment of RTC taken by notice of appeal to CA proper mode is petition for review under Rule 42. An erroneous appeal does not always result in its dismissal. o Interest of substantial justice (People vs. Barrera, 262 SCRA 63). o Lapse of slight nature and causes no prejudice to any party (People vs. Omotoy, 267 SCRA 143).

Subject to Appeal 1. 2. 3. 4. 5. Order denying motion for new trial or reconsideration Order denying petition for relief or similar motion seeking relief from judgment. Interlocutory order Order disallowing or denying an appeal Order denying motion to set aside judgment by consent, confession or compromise on the ground of fraud, mistake or duress or any other ground vitiating consent. 6. Order of execution 7. Judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross claims, and third party complaints, while the main case is pending, unless the court allows an appeal therefrom. 8. Order dismissing an action without prejudice.

ORDINARY APPEAL Rules 40 and 41 Rule 40 MTC to RTC Rule 41 RTC to CA Similarities: 1. Same period to appeal 15 days/30 days 2. How appeal taken - notice of appeal/notice of appeal plus record on appeal; appellant has a new period of 15 days after denial of motion for reconsideration or new trial (Neypez ruling). 3. Same manner of perfection (Sec. 9, Rule 41). 4. Residual powers (Sec. 9, Rule 41) 5. Power to dismiss appeal (Sec. 13, Rule 41). Difference in pleadings to be filed Rule 40 memoranda Rule 41 briefs

What to file in special cases (under Rule 41) -- In appeals from decisions in certiorari, prohibition, mandamus, quo warranto and habeas corpus memorandum in lieu of brief (Sec. 10, Rule 44). Effect of Non-Appeal General rule: appellate court cannot reverse or modify the trial courts judgment involving a party who did not appeal. Exceptions: 1. solidarity in obligations (Citytrust Banking Corp. vs. CA (196 SCRA 553; Universal Motors Corp. vs. CA, 205 SCRA 448). 2. interest of justice (Batingal vs. CA, 351 SCRA 60).

PETITION FOR REVIEW RULES 42 and 43 Rule 42 - petitions for review of decisions of RTC in exercise of appellate jurisdiction over cases decided by MTC. [ N.B. Decisions of RTC in exercise of its appellate jurisdiction in tax collection cases and criminal cases arising from violations of NIRC, TCC and other laws administered by BIR and BOC appealable to CTA within 30 days from receipt of decision under procedure analogous to that provided under Rule 42 (RA 9282). ] Rule 43 - petitions for review of decisions, final orders, resolutions of quasi-judicial agencies such as CSC, SEC, OP, LRA, etc. Rule 43 covers: DAR decisions under RA 6657 Voluntary arbitrators (Silver Trading Co. vs. A.V.A. Tomas E. Semana, et al., G.R. No. 152456, Apr. 28, 2004) Ombudsman resolutions or orders in administrative cases (Fabian vs. Desierto, 295 SCRA 470) Note - Ombudsman resolutions or orders in criminal cases petition for certiorari to SC under Rule 65 (Garcia Rueda vs. Pascasio, 278 SCRA 769 ) Decisions of the Board of Commissioners of the Bureau of Immigration (Agus Dwikarna vs. Domingo, G.R. No. 153454, July 7, 2004) Decisions and final orders of commercial courts under RA 8799 (A.M. No. 04-9-07-SC, Oct. 15, 2004) [ N.B. Decisions or rulings of Central Board of Assessment jurisdiction appealable to CTA under procedure analogous to that in Rule 43 Appeals in exercise of its appellate

(RA 9282). ] Excluded from Rule 43: Judgments and final orders issued under the Labor Code (Sec. 2). NLRC decisions (St. Martin Funeral Home vs. NLRC, 295 SCRA 494) petition for certiorari to CA under Rule 65. Decisions of Secretary of Labor (National Federation of Labor vs. Laguesma, 304 SCRA 407 ) and Director of BLR (Abbot Laboratories Phils. vs. Abbot Laboratories Employees Union, 323 SCRA 392 ) petition for certiorari to CA under Rule 65. CTA decisions petition for review on certirari under Rule 45 (RA 9282). Decisions of the DOJ Secretary in petitions for review - petition for certiorari to CA under Rule 65 (Public Utilities Dept., Olongapo City vs. Guingona, Jr., 365 SCRA 467). Under Rules 42 and 43 How appeal taken and time for filing only one motion for reconsideration allowed (Sec. 4, Rule 43). Service of copy of petition on lower court and adverse party serves as notice of appeal Perfection of appeal Effect of failure to comply with requirements (Sec. 3, Rule 42; Sec. 7, Rule 43) Review discretionary may be dismised outright (Sec. 4, Rule 42; Sec. 8, Rule 43) may not be given due course (Sec. 6, Rule 42; Sec. 10,Rule 43) Pure question of law may be brought to CA (Secs. 2 and 6, Rule 42; Sec. 3. Rule 43) Effect of appeal shall stay judgment or final order (Sec. 8, Rule 42) shall not stay judgment or final order (Sec. 12, Rule 43) PETITION FOR REVIEW ON CERTIORARI RULE 45 How appeal taken and time for filing (Secs. 1 & 2) Only questions of law may be raised (Sec. 1) Proof of service on lower court and adverse party (Sec. 3) Dismissal or denial of petition (Sec. 5) When petition given due course (Sec. 6) Distinguished from certiorari as a special civil action Factual findings of CA binding on SC. There are 11 Exceptions (Remalante vs. Tibe and related cases)

Exception to Rule 45 as a mode of appeal to SC -- notice of appeal where CA imposes reclusion perpetua, life imprisonment or a lesser penalty (Sec. 13 (c), Rule 124, as amended by A.M. No. 00-5-03-SC; Mateo doctrine)

PETITION FOR CERTIORARI - RULE 65

How taken and time for filing (Secs. 1 & 4) If involving acts or omissions of a quasi-judicial agency, petition filed in CA (Sec. 4) Ground: grave abuse of discretion, etc. No appeal or any plain, speedy and adequate remedy. Generally, if appeal is available, certiorari cannot be resorted to. Appeal and certiorari mutually exclusive and not alternative or successive.

Certiorari filed instead of appeal during period of appeal did not toll period or prevent judgment from becoming final (Del Rosario vs Galagot, 166 SCRA 429). If remedy of appeal lost due to petitioners neglect or error in choice of remedies, certiorari not substitute or Regulations Commission vs. CA, 292 SCRA 155). Exceptions:

tool to shield petitioner from adverse effects (Professional

Where appeal not adequate, or equally beneficial, speedy and sufficient (PNB vs. Sayoc, 292 SCRA 365). When rigid application will result in manifest failure or miscarriage of justice (Mejares vs. Reyes, 254 SCRA 425). Where remedies not incompatible, filing of certiorari not abandonment of appeal. (Appeal is from decision in main case while certiorari is against order denying motion for new trial [Lansang, Jr. vs. CA, 184 SCRA 230; St. Peter Memorial Park vs. Campos, 63 SCRA 180]). In the interest of justice, petition for certiorari considered as petition for review under Rule 45, provided filed within required period (Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305). Motion for reconsideration required before certiorari can be filed. Exceptions (Tan, Jr. vs. Sandiganbayan, 292 SCRA 452; Marawi Marantao General Hospital vs. CA, 349 SCRA 321).

RELIEF FROM JUDGMENT RULE 38 Available only after (a) decision or final order from which relief is sought has become final and executory, and (b) loss of the right to appeal. Not available where (a) a party has another adequate remedy available him (motion for new trial or appeal) and (b) he is not prevented from filing such motion or taking the appeal. Relief will not be granted when a partys loss of legal remedy is due to his own negligence or mistaken mode of procedure. Requisites: FAME - fraud, accident, mistake or excusable negligence, and presence of good and substantial cause of action or defense, as the case may be.

(1) (2)

Time for filing petition within 60 days after learning, and not more than 6 months after judgment or order entered, or proceeding taken.

Exceptions: A few days in excess of 60-day requirement not fatal if petition filed within 6 months from entry of order (Papa vs. CA, 303 SCRA 600). Petition filed beyond required period considered seasonably filed to avoid a miscarriage of justice (Funtilla vs. CA, 93 SCRA 251). Where counsels negligence deprived his client of his day in court, it entitled petitioner to file petition fo relief despite lapse of reglementary period (PHHC vs. Tongco, 12 SCRA 471. ANNULMENT OF JUDGMENT RULE 47 Cannot be availed of where party had availed of remedy of new trial, appeal, petition for relief or other appropriate remedy and lost therefrom; or where he failed to avail of any such remedy thru his own fault or negligence.

Grounds and period for filing: (1) Extrinsic fraud aggrieved party must show that he failed to avail of new trial, appeal, petition for relief or other appropriate remedy due to extrinsic fraud done against him. Fraud must be committed by adverse party. Fraud under Rule 38 precluded petitioner from fully ventilating his case. Fraud under Rule 47 - prevented him from resorting to any remedy. Petition must be filed within four (4) years from discovery. (2) Lack of jurisdiction - judgment rendered without jurisdiction is null and void. Nullity may be shown not only by what appears on the face of the decision but also by the documentary and testimonial evidence found in the record. Petition filed before it is barred by laches or estoppel. Appeal in Criminal Cases Appeal by prosecution from dismissal of criminal complaint or information -- where trial court issued dismissal order before accused was arraigned (Comelec vs. Silva, 285 SCRA 177). No double jeopardy for lack of arraignment. State cannot appeal from judgment of acquittal based on merits of case due to double jeopardy. But judgment or order of acquittal may be challenged in a petition for certiorari under Rule 65 for grave abuse of discretion amounting to lack or excess of jurisdiction. Ex. denial of due process. Appeal from MTC to RTC Where MTC has jurisdiction over offense (imprisonment not more than 6 yrs.) How appeal taken and time for filing (Secs. 3 & 6, Rule 122)

Appeal from RTC to CA

Original jurisdiction of RTC (Sec. 3 (a), Rule 122) Where RTC imposed reclusion perpetua, life imprisonment or where lesser penalty imposed for offenses committed on same occasion, etc. notice of appeal to CA (Sec. 3 (c), Rule 122, as am. by A.M. No. 00-5-03-SC pursuant to People vs. Mateo) Where RTC imposed death penalty automatic review by CA (Sec. 3 (d), Rule 122, as am. by A.M. No. 00-5-03-SC, pursuant to People vs. Mateo) Appellate jurisdiction of RTC How appeal taken and time for filing petition for Appeal from CA and SB to SC By petition for review under Rule 45 Exceptions: CA where CA imposes reclusion perpetua, life imprisonment or a lesser penalty etc. notice of appeal to SC (Sec. 13 (c), Rule 124, per A.M. No. 00-5-03-SC) N.B. (1) Where CA finds that death penalty should be imposed, will render judgment but refrain from making entry of judgment and certify case and elevate entire record to SC for review (Sec. 13 (a), Ibid.) (2) Where judgment also imposes lesser penalty for offenses committed on same occasion or arose out of same occurrence that gave rise to more severe offense for which death penalty is imposed, and accused appeals, appeal shall be included in case certified for review to SC (Sec. 13 (b), Ibid.) SB where SB imposes death, reclusion perpetua or life imprisonment Original jurisdiction death automatic review by SC reclusion perpetua or life imprisonment or lesser

review under Rule 42 (Sec. 3 (b), Rule 122).

penalty imposed etc. notice of appeal to SC

Appellate jurisdiction Where SB finds that death penalty, reclusion perpetua or life imprisonment should be imposed, will render judgment but refrain from making entry of judgment and certify case and elevate entire record to SC for review (Section 7, PD 1606, as amended, and Rule X, Revised Internal Rules of Sandiganbayan, as reiterated in SC Resolution dated October 12, 2004). Fugitive from justice waives his right to appeal Accused escaped from detention and was tried in absentia (Moslares vs. CA, 291 SCRA 340). Accused escaped during pendency of appeal (People vs. Codilla, 224 SCRA 104). Exception where death penalty is imposed, which is automatically appealed (to CA, per Mateo ruling). Appeal in election cases action of public prosecutor authorized to investigate election cases appealable to Comelec within 10 days from notice (Sec. 34, Comelec Rules of Procedure). Comelec decision or order reviewable by SC via petition for certiorari within 30 days from promulgation (Rule 37, Ibid.; Rule 64, Rules of Court).