1997 Rules on Civil Procedure 2001 Edition <draft copy. pls.

check for errors>

Rule 44 Ordinary Appealed Cases

We will now go to Rule 44 which is Procedure in the Court of Appeals in Ordinary Appealed Cases. This is just the continuation of Rule 41. When a case is appealed to the CA under Rule 41, this is ordinary appeal decisions of RTC pursuant to its original jurisdiction!, so what will happen here" Ta#e note that the procedure in the CA is not only found in the Rules of Court. The $nternal Rules of the CA is found in its so called Re%ised $nternal Rules of the Court of Appeals R$RCA!. &o it is 'est that you go o%er it. (or purposes of the )AR, hindi na #ailangan yan* There are so+e pro%isions #asi na wala sa Rules of Court. $ ha%e a copy of that eh, leather ,'ound* $t just so happen that we ha%e an alu+na who is the head of the Records -i%ision of the CA. Anyway, ta#e note that under the present rules when the RTC cler# trans+its the records to the CA, nandoon na ang doc#et fee. .ow, once original record is there, ne/t is you will recei%e a notice fro+ the cler# of court that all the records are there, all the docu+entary e%idence. And you are now gi%en 40 days to file an appellant1s 'rief under &ection 2 which has to 'e answered 'y the appellee under &ection 3. And the appellant is gi%en the option to file an appellant1s reply 'rief under &ection 4. As to the contents of the appellant1s 'rief and appellee1s 'rief, you ha%e &ections 15 and 14. !ect%o& '. Title of cases. I& all cases appealed to the Co"rt of Appeals "&der R"le #'( the t%tle of the case shall re)a%& as %t *as %& the co"rt of or%+%&( ,"t the party appeal%&+ the case shall ,e f"rther referred to as the appella&t a&d the ad-erse party as the appellee. .'a( R#/0 !ec. 1. Counsel and guardians. The co"&sel a&d +"ard%a&s ad l%te) of the part%es %& the co"rt of or%+%& shall ,e respect%-ely co&s%dered as the%r co"&sel a&d +"ard%a&s ad l%te) %& the Co"rt of Appeals. 2he& others appear or are appo%&ted( &ot%ce thereof shall ,e ser-ed %))ed%ately o& the ad-erse party a&d f%led *%th the co"rt. .1a( R#/0 !ec. 3. Order of transmittal of record. If the or%+%&al record or the record o& appeal %s &ot tra&s)%tted to the Co"rt of Appeals *%th%& th%rty .340 days after the perfect%o& of the appeal( e%ther party )ay f%le a )ot%o& *%th the tr%al co"rt( *%th &ot%ce to the other( for the tra&s)%ttal of s"ch record or record o& appeal. .3a( R#/0 !ec. #. Docketing of case. Upo& rece%-%&+ the or%+%&al record or the record o& appeal a&d the acco)pa&y%&+ doc")e&ts a&d e5h%,%ts tra&s)%tted ,y the lo*er co"rt( as *ell as the proof of pay)e&t of the docket a&d other la*f"l fees( the clerk of co"rt of the Co"rt of Appeals shall docket the case a&d &ot%fy the part%es thereof. 2%th%& te& .'40 days fro) rece%pt of sa%d &ot%ce( the appella&t( %& appeals ,y record o& appeal( shall f%le *%th the clerk of co"rt se-e& .60 clearly le+%,le cop%es of the appro-ed record o& appeal( to+ether *%th the proof of ser-%ce of t*o .10 cop%es thereof "po& the appellee. A&y "&a"thor%7ed alterat%o&( o)%ss%o& or add%t%o& %& the appro-ed record o& appeal shall ,e a +ro"&d for d%s)%ssal of the appeal. .&0 !ec. 8. Completion of record. 2here the record of the docketed case %s %&co)plete( the clerk of co"rt of the Co"rt of Appeals shall so %&for) sa%d co"rt a&d reco))e&d to %t )eas"res &ecessary to co)plete the record. It shall ,e the d"ty of sa%d co"rt to take appropr%ate act%o& to*ards the co)plet%o& of the record *%th%& the shortest poss%,le t%)e. .&0 !ec. /. Dispensing with complete record. 2here the co)plet%o& of the record co"ld &ot ,e acco)pl%shed *%th%& a s"ff%c%e&t per%od allotted for sa%d p"rpose d"e to %&s"pera,le or

94

1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 44 Ordinary Appealed Cases

e5tre)ely d%ff%c"lt ca"ses( the co"rt( o& %ts o*& )ot%o& or o& )ot%o& of a&y of the part%es( )ay declare that the record a&d %ts acco)pa&y%&+ tra&scr%pts a&d e5h%,%ts so far a-a%la,le are s"ff%c%e&t to dec%de the %ss"es ra%sed %& the appeal( a&d shall %ss"e a& order e5pla%&%&+ the reaso&s for s"ch declarat%o&. .&0 !ec. 6. Appellants brief. It shall ,e the d"ty of the appella&t to f%le *%th the co"rt( *%th%& forty9f%-e .#80 days fro) rece%pt of the &ot%ce of the clerk that all the e-%de&ce( oral a&d doc")e&tary( are attached to the record( se-e& .60 cop%es of h%s le+%,ly type*r%tte&( )%)eo+raphed or pr%&ted ,r%ef( *%th proof of ser-%ce of t*o .10 cop%es thereof "po& the appellee. .'4a( R#/0 !ec. :. Appellees brief. 2%th%& forty9f%-e .#80 days fro) rece%pt of the appella&t;s ,r%ef( the appellee shall f%le *%th the co"rt se-e& .60 cop%es of h%s le+%,ly type*r%tte&( )%)eo+raphed or pr%&ted ,r%ef( *%th proof of ser-%ce of t*o .10 cop%es thereof "po& the appella&t. .''a( R#/0 !ec. <. Appellants reply brief. 2%th%& t*e&ty .140 days fro) rece%pt of the appellee;s ,r%ef( the appella&t )ay f%le a reply ,r%ef a&s*er%&+ po%&ts %& the appellee;s ,r%ef &ot co-ered %& h%s )a%& ,r%ef. .'1( R#/0 !ec. '4. Time for filing memoranda in special cases. I& cert%orar%( proh%,%t%o&( )a&da)"s( ="o *arra&to a&d ha,eas corp"s cases( the part%es shall f%le( %& l%e" of ,r%efs( the%r respect%-e )e)ora&da *%th%& a &o&9e5te&d%,le per%od of th%rty .340 days fro) rece%pt of the &ot%ce %ss"ed ,y the clerk that all the e-%de&ce( oral a&d doc")e&tary( %s already attached to the record. .'3a( R#/0 The fa%l"re of the appella&t to f%le h%s )e)ora&d") *%th%& the per%od therefor )ay ,e a +ro"&d for d%s)%ssal of the appeal. .&0 !ec. ''. Several appellants or appellees or several counsel for each party. 2here there are se-eral appella&ts or appellees( each co"&sel represe&t%&+ o&e or )ore ,"t &ot all of the) shall ,e ser-ed *%th o&ly o&e copy of the ,r%efs. 2he& se-eral co"&sel represe&t o&e appella&t or appellee( cop%es of the ,r%ef )ay ,e ser-ed "po& a&y of the). .'#a( R#/0 !ec. '1. !tension of time for filing briefs. E5te&s%o& of t%)e for the f%l%&+ of ,r%efs *%ll &ot ,e allo*ed( e5cept for +ood a&d s"ff%c%e&t ca"se( a&d o&ly %f the )ot%o& for e5te&s%o& %s f%led ,efore the e5p%rat%o& of the t%)e so"+ht to ,e e5te&ded. .'8( R#/0 !ec. '3. Contents of appellants brief. The appella&t;s ,r%ef shall co&ta%&( %& the order here%& %&d%cated( the follo*%&+> .a0 A s",?ect %&de5 of the )atter %& the ,r%ef *%th a d%+est of the ar+")e&ts a&d pa+e refere&ces( a&d a ta,le of cases alpha,et%cally arra&+ed( te5t,ooks a&d stat"tes c%ted *%th refere&ces to the pa+es *here they are c%ted@ .,0 A& ass%+&)e&t of errors %&te&ded to ,e "r+ed( *h%ch errors shall ,e separately( d%st%&ctly a&d co&c%sely stated *%tho"t repet%t%o& a&d &"),ered co&sec"t%-ely@ .c0 U&der the head%&+ A!tate)e&t of the Case(A a clear a&d co&c%se state)e&t of the &at"re of the act%o&( a s"))ary of the proceed%&+s( the appealed r"l%&+s a&d orders of the co"rt( the &at"re of the ?"d+)e&t a&d a&y other )atters &ecessary to a& "&dersta&d%&+ of the &at"re of the co&tro-ersy( *%th pa+e refere&ces to the record@ .d0 U&der the head%&+ A!tate)e&t of Facts(A a clear a&d co&c%se state)e&t %& a &arrat%-e for) of the facts ad)%tted ,y ,oth part%es a&d of those %& co&tro-ersy( to+ether *%th the s",sta&ce of the proof relat%&+ thereto %& s"ff%c%e&t deta%l to )ake %t clearly %&tell%+%,le( *%th pa+e refere&ces to the record@ .e0 A clear a&d co&c%se state)e&t of the %ss"es of fact or la* to ,e s",)%tted to the co"rt for %ts ?"d+)e&t@ .f0 U&der the head%&+ AAr+")e&t(A the appella&t;s ar+")e&ts o& each ass%+&)e&t of error *%th pa+e refere&ces to the record. The a"thor%t%es rel%ed "po& shall ,e c%ted ,y the

95

1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 44 Ordinary Appealed Cases

pa+e of the report at *h%ch the case ,e+%&s a&d the pa+e of the report o& *h%ch the c%tat%o& %s fo"&d@ .+0 U&der the head%&+ ARel%ef(A a spec%f%cat%o& of the order or ?"d+)e&t *h%ch the appella&t seeks@ a&d .h0 I& cases &ot ,ro"+ht "p ,y record o& appeal( the appella&t;s ,r%ef shall co&ta%&( as a& appe&d%5( a copy of the ?"d+)e&t or f%&al order appealed fro). .'/a( R#/0 !ec. '#. Contents of appellees brief. The appellee;s ,r%ef shall co&ta%&( %& the order here%& %&d%cated( the follo*%&+> .a0 A s",?ect %&de5 of the )atter %& the ,r%ef *%th a d%+est of the ar+")e&ts a&d pa+e refere&ces( a&d a ta,le of cases alpha,et%cally arra&+ed( te5t,ooks a&d stat"tes c%ted *%th refere&ces to the pa+es *here they are c%ted@ .,0 U&der the head%&+ A!tate)e&t of Facts(A the appellee shall state that he accepts the state)e&t of facts %& the appella&t;s ,r%ef( or "&der the head%&+ ACo"&ter9!tate)e&t of Facts(A he shall po%&t o"t s"ch %&s"ff%c%e&c%es or %&acc"rac%es as he ,el%e-es e5%st %& the appella&t;s state)e&t of facts *%th refere&ces to the pa+es of the record %& s"pport thereof( ,"t *%tho"t repet%t%o& of )atters %& the appella&t;s state)e&t of facts@ a&d .c0 U&der the head%&+ AAr+")e&t(A the appellee shall set forth h%s ar+")e&ts %& the case o& each ass%+&)e&t of error *%th pa+e refere&ces to the record. The a"thor%t%es rel%ed o& shall ,e c%ted ,y the pa+e of the report at *h%ch the case ,e+%&s a&d the pa+e of the report o& *h%ch the c%tat%o& %s fo"&d. .'6a( R#/0 This is li#e a thesis or writing a 'oo# 6 Appellant1s and appellee1s 'rief. 78 What is a 'rief" What is its purpose" A8 The word 9)R$:(; is deri%ed fro+ the <atin word 9)R:=$&; "A#D $%&TT' AD( and the (rench word 9)R:($:;, and literally +eans a short or condensed state+ent. $ts purpose is to present to the court in concise for+ the points and >uestions in contro%ersy, and 'y fair argu+ent on the facts and law of the case, to assist the court to arri%e at a just and fair conclusion. $t should 'e prepared as to +ini+i?e the la'or of the court in the e/a+ination of the record upon which the appeal is heard. :sti%a %s. Cawit, 04 Phil. @2A Casilan %s. Cha%e?, <, 12554, (e'. B3, 14@B! &o you su++ari?e the case, facts, issues, argu+ents, discussions, citations of laws. &o its li#e a de'ate no" Alright. The 'est 'rief writers $ noticed are those in the &olicitor Ceneral1s office. Dust i+agine, the &olicitor Ceneral defends all the cases of the go%ern+ent. When a cri+inal case is appealed 'y the accused to the CA or CA, auto+atically the &olicitor Ceneral ta#es o%er. $n the lower court, it is the fiscals Eno" &o, the &olicitor Ceneral defends the case he had ne%er tried. &o they just 'ased it on records. They condensed decisions #ahit na gaano ang #apal, reducing it to 10 pages or less. $ts really an a'ility to do it. The shorter the 'etter. People there in the &olicitor Ceneral1s office are really good writers and researchers 'ecause that is the law office of the Repu'lic of the Philippines. <ahat dyan +agagaling, isa lang ang hindi +arunong. &$.O" Ang &olicitor Ceneral ninyo* Fe is only a political appointee. (. Cha%e?" Or Cal%e?"! 78 $s the 40,day period to file 'rief e/tendi'le" A8 G:&, that is section 1B. The worst %iolator here is the &olicitor Ceneral 6 e/tension 5H days, Bnd e/tension 5H days* Canyan sila* &o+eti+es it ta#es the+ 13 +onths to prepare a 'rief. &a'agay, +ara+i din #asi silang tra'aho Eno" 78 When do you file the +otion for e/tension of ti+e to file 'rief" A8 The +otion for e/tension of ti+e is filed ):(OR: the e/piration of the ti+e sought to 'e e/tended. &ection 1B! )IT so+eti+es the &C can 'e li'eral a'out e/tension. One case is BO!CO2!C$ vs. COURT OF APPEA ! 134 !CRA /86

96

1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 44 Ordinary Appealed Cases

FACT!8 The CA here granted the appellant a period of 4H days counted fro+ August 5, 1441. &o after the 40 days plus 4H days pa fro+ August 5, 1441. &aid 4H,day period ended on .o%e+'er 1, 1441. On .o%e+'er 4, 1441, or 5 days after the e/tended period, instead of filing a 'rief, appellant filed another +otion for a BH,day e/tension. I!!UE D'8 Was the +otion for e/tension filed on ti+e 'ased on &ection 1B" HE D8 G:&. 9&aid ninety,day period would end on .o%e+'er 1, 1441. .o%e+'er 1 is a regular holiday. Then President A>uino declared .o%e+'er B, 1441 as a special holiday. The ne/t day, .o%e+'er 5, 1441 turned out to 'e a &unday. The ne/t 'usiness day was, therefore, .o%e+'er 4, 1441 , a Jonday.; 9The a'o%e+entioned +otion was, therefore, filed on ti+e, i.e., the +otion for the e/tension sought was filed 'efore the e/piration of the ti+e sought to 'e e/tended.; I!!UE D18 When do you co+pute the BH,day e/tension 'eing as#ed for" $s it on .o%e+'er 1, the e/piration of the period" Or on .o%e+'er 4, the day of the filing of the +otion" HE D8 9The appellant specifically +anifested that they will need another e/tension fro+ today .o%e+'er 4! within which to file appellant1s 'rief, and Etoday1 is .o%e+'er 4. &o, the period co++ences to run on .o%e+'er 4.; &o %ery li'eral no" Ta#e note of &ection 10 6 what >uestions +ay an appellant raise on appeal8 !ec. '8. )uestions that may be raised on appeal. 2hether or &ot the appella&t has f%led a )ot%o& for &e* tr%al %& the co"rt ,elo*( he )ay %&cl"de %& h%s ass%+&)e&t of errors a&y ="est%o& of la* or fact that has ,ee& ra%sed %& the co"rt ,elo* a&d *h%ch %s *%th%& the %ss"es fra)ed ,y the part%es. .':( R#/0 &o the appellant cannot raise 'efore the CA on appeal any >uestion of law or fact that has not 'een raised in the lower court and not within the issues fra+ed 'y the parties. Fe cannot, for the first ti+e on appeal, say so+ething which was not raised in the trial court. Another thing is, he cannot change his theory on appeal, either theory on the cause of action or theory on the defense. .ow, so+eti+es it is easy to detect whether there is change of theory. The only possi'le e/ception +ay'e is when you raise for the first ti+e on appeal so+ething which you ne%er raised as in lac# of jurisdiction unless estoppel will set in as in the case of T*+A, vs. S*$O#-'A#O.. $llustrating this point is the case of RIEERA vs. COURT OF APPEA ! '6/ !CRA '/< F'<:<G FACT!8 The spouses Jartine? sold their house and lot to Ri%era. <ater, they filed a co+plaint against Ri%era declaring the sale as null and %oid on the ground that the sale is a +ortgage. The court dis+issed the co+plaint. &o the ruling of the trial court was that the sale was %alid. )ut on the CA, Jartine? spouses prayed that they +ay'e allowed to redee+ the property. The CA re%ersed the trial court and allowed Jartine? spouses to redee+ the property. .ow, Ri%era appealed to the CA, contending that Jartine? change the theory of their case 'ecause in the original co+plaint the latter prayed for the annul+ent of the sale, and in the CA they prayed that they 'e allowed to redee+ the property. I!!UE8 Was there a change of theory of the Jartine? spouses" HE D8 There was .O CFA.C: of theory. There was no surprise against Ri%era or to the CA. The real purpose of the Jartine? spouses in as#ing for the nullity of the contract is to ena'le the+ to reco%er the property fro+ Ri%era. 9Prescinding fro+ those allegations and fro+ the prayer all clearly set out in the co+plaint, it is fair to conclude that the real purpose in as#ing for the nullity of the contract of sale is to ena'le the Jartine? spouses to reco%er or redee+ the property they deeded in fa%or of Ri%era. $t would 'e

97

1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 44 Ordinary Appealed Cases

a'surd to pray for the nullity of an agree+ent and stop there. There would 'e a %acuu+ and the law, li#e nature, a'hors a %acuu+.; 9$n the CA, they persisted in their clai+ to entitle+ent of the right to reco%er, redee+, or repurchase. This agree+ent can not 'e construed as change of theoryA it is persistence, plain and si+ple. $t does not lea%e any interstice in the entire theory of the case. Consistency in the position of the pri%ate respondents runs throughout the presentation of their clai+.; &o a#ala +o +ay change of theory, yun pala wala* Why are they annulling" To reco%er their property. $n other words there was no change of theory. 78 $s the appellee re>uired to +a#e assign+ent of errors" A8 The APP:<<:: is not re>uired to +a#e assign+ent of errors, e/cept when his purpose is to see# affir+ation of the judg+ent on other grounds or reasons not stated in the decision. &aen? %s. Jitchell, @H Phil. @4A Corospe %s. PeKaflorida, 1H1 Phil. 33@A -y %s. Luison, <,1@@04, .o%. 5H, 14@1! 78 $f the appellee see#s +odification of the judg+ent, is it enough for hi+ to +a#e assign+ent of errors" A8 $n such a case, the appellee +ust appealA an assign+ent of error is not enough. O>uiKena %s. Canda, 32 Phiil. 1BHA Corospe %s. PeKaflorida, supraA -y %s. Luison, supra! C:.:RA< RI<:8 $f you are the winning party, you +ay appeal the decision if you thin# you are entitled for +ore. &o, you +ust appeal. Gou cannot just state of errors in the appellee1s 'rief. :MC:PT$O.8 Gou +ay state assign+ent of errors to support the decision 6 to support, not to change, the decision. $f you want to change the decision, you appeal general rule!. ,oOo,

98