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 appellant’s 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 appellant’s reply brief under Section 9. As to the contents of the appellant’s brief and appellee’s 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 to insuperable or extremely
difficult causes, the court, on its own motion or on motion of any
of the parties, may declare that the record and its accompanying
transcripts and exhibits so far available are sufficient to decide
the issues raised in the appeal, and shall issue an order
explaining the reasons for such declaration. (n)

Sec. 7. Appellant’s 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. Appellee’s brief. Within forty-five (45) days from

receipt of the appellant’s 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. Appellant’s reply brief. Within twenty (20) days from

receipt of the appellee’s brief, the appellant may file a reply
brief answering points in the appellee’s 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 appellant’s brief. The appellant’s 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 appellant’s 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
appellant’s brief shall contain, as an appendix, a copy of the
judgment or final order appealed from. (16a, R46)

Sec. 14. Contents of appellee’s brief. The appellee’s 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 appellant’s
brief, or under the heading "Counter-Statement of Facts," he shall
point out such insufficiencies or inaccuracies as he believes
exist in the appellant’s statement of facts with references to the
pages of the record in support thereof, but without repetition of
matters in the appellant’s 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 – Appellant’s and appellee’s 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 General’s 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 General’s 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 90-day period ended on November 1,
1991. On November 4, 1991, or 3 days after the 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 appellant’s 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?

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. Peñaflorida, 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. (Oquiñena vs. Canda, 87
Phiil. 120; Gorospe vs. Peñaflorida, 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 appellee’s 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-

1997 Rules on Civil Procedure Rule 44

2001 Edition <draft copy. pls. check for Ordinary Appealed Cases
errors>

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Lakas Atenista
Ateneo de Davao University College of Law