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1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>

Rule 44
Ordinary Appealed Cases

PROCEDURE IN THE COURT OF APPEALS

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?
Take note that the procedure in the CA is not only found in the Rules of Court. The Internal
Rules of the CA is found in its so called Revised Internal Rules of the Court of Appeals (RIRCA).
So it is best that you go over it. For purposes of the BAR, hindi na kailangan yan! There are
some provisions kasi na wala sa Rules of Court. I have a copy of that eh, leather-bound! It just
so happen that we have an alumna who is the head of the Records Division of the CA.
Anyway, take note that under the present rules when the RTC clerk transmits the records
to the CA, nandoon na ang docket fee. Now, once original record is there, next is you will
receive a notice from the clerk of court that all the records are there, all the documentary
evidence. And you are now given 45 days to file an appellants brief under Section 7 which
has to be answered by the appellee under Section 8. And the appellant is given the option to
file an appellants reply brief under Section 9. As to the contents of the appellants brief and
appellees brief, you have Sections 13 and 14.
Section 1. Title of cases. In all cases appealed to the Court of Appeals under
Rule 41, the title of the case shall remain as it was in the court of origin, but
the party appealing the case shall be further referred to as the appellant and the
adverse party as the appellee. (1a, R46)
Sec. 2. Counsel and guardians. The counsel and guardians ad litem of the parties
in the court of origin shall be respectively considered as their counsel and
guardians ad litem in the Court of Appeals. When others appear or are appointed,
notice thereof shall be served immediately on the adverse party and filed with the
court. (2a, R46)
Sec. 3. Order of transmittal of record. If the original record or the record on
appeal is not transmitted to the Court of Appeals within thirty (30) days after the
perfection of the appeal, either party may file a motion with the trial court, with
notice to the other, for the transmittal of such record or record on appeal. (3a,
R46)
Sec. 4. Docketing of case. Upon receiving the original record or the record on
appeal and the accompanying documents and exhibits transmitted by the lower court,
as well as the proof of payment of the docket and other lawful fees, the clerk of
court of the Court of Appeals shall docket the case and notify the parties thereof.
Within ten (10) days from receipt of said notice, the appellant, in appeals by
record on appeal, shall file with the clerk of court seven (7) clearly legible
copies of the approved record on appeal, together with the proof of service of two
(2) copies thereof upon the appellee.
Any unauthorized alteration, omission or addition in the approved record on
appeal shall be a ground for dismissal of the appeal. (n)
Sec. 5. Completion of record. Where the record of the docketed case is
incomplete, the clerk of court of the Court of Appeals shall so inform said court
and recommend to it measures necessary to complete the record. It shall be the duty
of said court to take appropriate action towards the completion of the record
within the shortest possible time. (n)
Sec. 6. Dispensing with complete record. Where the completion of the record
could not be accomplished within a sufficient period allotted for said purpose due

Lakas Atenista
Ateneo de Davao University College of Law

94

1997 Rules on Civil Procedure


2001 Edition <draft copy. pls. check for errors>

Rule 44
Ordinary Appealed Cases

to insuperable or extremely difficult causes, the court, on


motion of any of the parties, may declare that the record
transcripts and exhibits so far available are sufficient
raised in the appeal, and shall issue an order explaining
declaration. (n)

its own motion or on


and its accompanying
to decide the issues
the reasons for such

Sec. 7. Appellants brief. 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, seven (7)
copies of his legibly typewritten, mimeographed or printed brief, with proof of
service of two (2) copies thereof upon the appellee. (10a, R46)
Sec. 8. Appellees brief. Within forty-five (45) days from receipt of the
appellants brief, the appellee shall file with the court seven (7) copies of his
legibly typewritten, mimeographed or printed brief, with proof of service of two
(2) copies thereof upon the appellant. (11a, R46)
Sec. 9. Appellants reply brief. Within twenty (20) days from receipt of the
appellees brief, the appellant may file a reply brief answering points in the
appellees brief not covered in his main brief. (12, R46)
Sec. 10. Time for filing memoranda in special cases. In certiorari, prohibition,
mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of
briefs, their respective memoranda within a non-extendible period of thirty (30)
days from receipt of the notice issued by the clerk that all the evidence, oral and
documentary, is already attached to the record. (13a, R46)
The failure of the appellant to file his memorandum within the period therefor
may be a ground for dismissal of the appeal. (n)
Sec. 11. Several appellants or appellees or several counsel for each party.
Where there are several appellants or appellees, each counsel representing one or
more but not all of them shall be served with only one copy of the briefs. When
several counsel represent one appellant or appellee, copies of the brief may be
served upon any of them. (14a, R46)
Sec. 12. Extension of time for filing briefs. Extension of time for the filing
of briefs will not be allowed, except for good and sufficient cause, and only if
the motion for extension is filed before the expiration of the time sought to be
extended. (15, R46)
Sec. 13. Contents of appellants brief. The appellants brief shall contain, in
the order herein indicated, the following:
(a) A subject index of the matter in the brief with a digest of the arguments
and page references, and a table of cases alphabetically arranged, textbooks and
statutes cited with references to the pages where they are cited;
(b) An assignment of errors intended to be urged, which errors shall be
separately, distinctly and concisely stated without repetition and numbered
consecutively;
(c) Under the heading "Statement of the Case," a clear and concise statement 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 matters necessary to
an understanding of the nature of the controversy, with page references to the
record;
(d) Under the heading "Statement of Facts," a clear and concise statement in a
narrative form of the facts admitted by both parties and of those in controversy,
together with the substance of the proof relating thereto in sufficient detail to
make it clearly intelligible, with page references to the record;
(e) A clear and concise statement of the issues of fact or law to be submitted
to the court for its judgment;
(f) Under the heading "Argument," the appellants arguments on each assignment
of error with page references to the record. The authorities relied upon shall be
cited by the page of the report at which the case begins and the page of the report
on which the citation is found;
(g) Under the heading "Relief," a specification of the order or judgment which
the appellant seeks; and
(h) In cases not brought up by record on appeal, the appellants brief shall
contain, as an appendix, a copy of the judgment or final order appealed from. (16a,
R46)

Lakas Atenista
Ateneo de Davao University College of Law

95

1997 Rules on Civil Procedure


2001 Edition <draft copy. pls. check for errors>

Rule 44
Ordinary Appealed Cases

Sec. 14. Contents of appellees brief. The appellees brief shall contain, in
the order herein indicated, the following:
(a) A subject index of the matter in the brief with a digest of the arguments
and page references, and a table of cases alphabetically arranged, textbooks and
statutes cited with references to the pages where they are cited;
(b) Under the heading "Statement of Facts," the appellee shall state that he
accepts the statement of facts in the appellants brief, or under the heading
"Counter-Statement of Facts," he shall point out such insufficiencies or
inaccuracies as he believes exist in the appellants statement of facts with
references to the pages of the record in support thereof, but without repetition of
matters in the appellants statement of facts; and
(c) Under the heading "Argument," the appellee shall set forth his arguments in
the case on each assignment of error with page references to the record. The
authorities relied on shall be cited by the page of the report at which the case
begins and the page of the report on which the citation is found. (17a, R46)

This is like a thesis or writing a book Appellants and appellees brief.


Q: What is a brief? What is its purpose?
A: The word BRIEF is derived from the Latin word BREVIS [AND BRUTTHEAD] and the
French word BREFIE, and literally means a short or condensed statement. Its purpose is to
present to the court in concise form the points and questions in controversy, and by fair
argument on the facts and law of the case, to assist the court to arrive at a just and fair
conclusion. It should be prepared as to minimize the labor of the court in the examination of
the record upon which the appeal is heard. (Estiva vs. Cawit, 59 Phil. 67; Casilan vs. Chavez,
L-17334, Feb. 28, 1962)
So you summarize the case, facts, issues, arguments, discussions, citations of laws. So its
like a debate no?
Alright. The best brief writers I noticed are those in the Solicitor Generals office. Just
imagine, the Solicitor General defends all the cases of the government. When a criminal case
is appealed by the accused to the CA or CA, automatically the Solicitor General takes over. In
the lower court, it is the fiscals no?
So, the Solicitor General defends the case he had never tried. So they just based it on
records. They condensed decisions kahit na gaano ang kapal, reducing it to 15 pages or less.
Its really an ability to do it. The shorter the better. People there in the Solicitor Generals office
are really good writers and researchers because that is the law office of the Republic of the
Philippines. Lahat dyan magagaling, isa lang ang hindi marunong. SINO? Ang Solicitor General
ninyo! He is only a political appointee. (F. Chavez? Or Galvez?)
Q: Is the 45-day period to file brief extendible?
A: YES, that is section 12. The worst violator here is the Solicitor General extension 30
days, 2nd extension 30 days! Ganyan sila! Sometimes it takes them 18 months to prepare a
brief. Sabagay, marami din kasi silang trabaho no?
Q: When do you file the motion for extension of time to file brief?
A: The motion for extension of time is filed BEFORE the expiration of the time sought to be
extended. (Section 12) BUT sometimes the SC can be liberal about extension. One case is
MOSKOWSKY vs. COURT OF APPEALS
230 SCRA 657
FACTS: The CA here granted the appellant a period of 90 days counted from
August 3, 1991. So after the 45 days plus 90 days pa from August 3, 1991. Said 90day period ended on November 1, 1991. On November 4, 1991, or 3 days after the

Lakas Atenista
Ateneo de Davao University College of Law

96

1997 Rules on Civil Procedure


2001 Edition <draft copy. pls. check for errors>

Rule 44
Ordinary Appealed Cases

extended period, instead of filing a brief, appellant filed another motion for a 20-day
extension.
ISSUE #1: Was the motion for extension filed on time based on Section 12?
HELD: YES. Said ninety-day period would end on November 1, 1991. November
1 is a regular holiday. Then President Aquino declared November 2, 1991 as a
special holiday. The next day, November 3, 1991 turned out to be a Sunday. The
next business day was, therefore, November 4, 1991 - a Monday.
The abovementioned motion was, therefore, filed on time, i.e., the motion for
the extension sought was filed before the expiration of the time sought to be
extended.
ISSUE #2: When do you compute the 20-day extension being asked for? Is it on
November 1, the expiration of the period? Or on November 4, the day of the filing of
the motion?
HELD: The appellant specifically manifested that they will need another
extension from today (November 4) within which to file appellants brief, and today
is November 4. So, the period commences to run on November 4. So very liberal
no?
Take note of Section 15 what questions may an appellant raise on appeal:
Sec. 15. Questions that may be raised on appeal. Whether or not the appellant
has filed a motion for new trial in the court below, he 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. (18, R46)

So the appellant cannot raise before the CA on appeal any question of law or fact that has
not been raised in the lower court and not within the issues framed by the parties. He cannot,
for the first time on appeal, say something 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.
Now, sometimes it is easy to detect whether there is change of theory. The only possible
exception maybe is when you raise for the first time on appeal something which you never
raised as in lack of jurisdiction unless estoppel will set in as in the case of TIJAM vs.
SIBONGHANOY. Illustrating this point is the case of
RIVERA vs. COURT OF APPEALS
176 SCRA 169 [1989]
FACTS: The spouses Martinez sold their house and lot to Rivera. Later, they filed
a complaint against Rivera declaring the sale as null and void on the ground that the
sale is a mortgage. The court dismissed the complaint. So the ruling of the trial
court was that the sale was valid. But on the CA, Martinez spouses prayed that they
maybe allowed to redeem the property.
The CA reversed the trial court and allowed Martinez spouses to redeem the
property. Now, Rivera appealed to the CA, contending that Martinez change the
theory of their case because in the original complaint the latter prayed for the
annulment of the sale, and in the CA they prayed that they be allowed to redeem
the property.
ISSUE: Was there a change of theory of the Martinez spouses?

Lakas Atenista
Ateneo de Davao University College of Law

97

Rule 44
Ordinary Appealed Cases

1997 Rules on Civil Procedure


2001 Edition <draft copy. pls. check for errors>

HELD: There was NO CHANGE of theory. There was no surprise against Rivera or
to the CA. The real purpose of the Martinez spouses in asking for the nullity of the
contract is to enable them to recover the property from Rivera.
Prescinding from those allegations and from the prayer all clearly set out in the
complaint, it is fair to conclude that the real purpose in asking for the nullity of the
contract of sale is to enable the Martinez spouses to recover or redeem the property
they deeded in favor of Rivera. It would be absurd to pray for the nullity of an
agreement and stop there. There would be a vacuum and the law, like nature,
abhors a vacuum.
In the CA, they persisted in their claim to entitlement of the right to recover,
redeem, or repurchase. This agreement can not be construed as change of theory; it
is persistence, plain and simple. It does not leave any interstice in the entire theory
of the case. Consistency in the position of the private respondents runs throughout
the presentation of their claim.
So akala mo may change of theory, yun pala wala! Why are they annulling? To recover
their property. In other words there was no change of theory.
Q: Is the appellee required to make assignment of errors?
A: The APPELLEE is not required to make assignment of errors, except when his purpose is
to seek affirmation of the judgment on other grounds or reasons not stated in the decision.
(Saenz vs. Mitchell, 60 Phil. 69; Gorospe vs. Peaflorida, 101 Phil. 886; Dy vs. Kuison, L-16654,
Nov. 30, 1961)
Q: If the appellee seeks modification of the judgment, is it enough for him to make
assignment of errors?
A: In such a case, the appellee must appeal; an assignment of error is not enough.
(Oquiena vs. Canda, 87 Phiil. 120; Gorospe vs. Peaflorida, supra; Dy vs. Kuison, supra)
GENERAL RULE: If you are the winning party, you may appeal the decision if you think you
are entitled for more. So, you must appeal. You cannot just state of errors in the appellees
brief.
EXCEPTION: You may state assignment of errors to support the decision to support, not to
change, the decision. If you want to change the decision, you appeal (general rule).
-oOo-

Lakas Atenista
Ateneo de Davao University College of Law

98