Reviewer Made By Me.docx

Remedy of the party who lost the case before judgment become final and executory: 1. Motion for Recon 2. Motion for New Trial 3. Appeal Remedy of the party who lost the case after judgement become final and executory: (PAP-C) 1 2 3 4

Petition for Relief from judgment Petition to Annul judgment Petition for Certitiorari Collateral attack of judgment

Note: A judgment become final after 15 days from receipt of judgment

MOTION FOR RECON -one that is directed against the jusgment or a final order. Not interlocutory

3. Begin to run from Receipt of notice of the decision or final order appealed from. Notice to counsel on record but not to the parties. EFFECT OF FILING OF MOTION FOR RECON-Interups the filling of appeal GROUNDS TO FILE MOTION FOR RECON: (ded) 1. Damages awarded are excessive 2. Evidence is insufficient to justify the judgment 3. Decision or final order is contrary to law PRO FORMA- not compliant to the requirement of the rules. Will be treated as a motion intended for delay NOTES: It should be necessary to SPECIFY THE FINDINGS or the conclusion OF THE JUDGMENT which is insufficient to justify the final order- making reference to the evidence or contrary to law or legal provision INSTANCES WHEN A MOTION FOR RECON IS HELD TO BE PRO FORMA:

Do not apply to: 1. Small claim 2. Summary procedure 3. Petition for writ of amparo and habeas corpus Note: Applicable in Environmental case MOTION FOR RECON-WHEN TO FILE 1. Filed within the period for taking an appeal. NO MOTION TO FILE AN EXTENTION OF TIME TO FILE A MOTION FOR RECON 2. BY NOTICE OF APPEAL BY RECORD ON APPEAL w/in 15 days after w/in 30 day from notice to appeallant notice to appeallant of the judgment or of the judgment or final order appealed final order from Allowed only in special proceedings and in multiple or separate appeals

1. IF IT IS A SECOND MOTION 4 RECON 2. DOES NOT SPECIFY THE FINDINGS OR THE CONCLUSION OF JUDGMENT THAT ID NOT SUPPORTED BY EVIDENCE/CONTRARY TO LAW 3. FAILED TO SUBSTANTIATE THE ERRORS 4. MERY ALLEGED THAT THE DECISION IN QUESTION IS CONTRARY TO LAW 5. FAILED TO NOTICE THE ADVERSE PARTY ETR: WHEN THE CIRCUMSTANCES SHOW THAT IT IS NOT INTENDED FOR DELAY AND HIS MOTION REVEALS A BONA FIDE EFFORT TO PRESENT ADDITIONAL MATTER OR TO REITERATE HIS ARGUMENT- the court should be slow to declare that the motion is a pro forma RESOLUTION OF MOTION4 RECON: 30days from the time it is submitted for reso. NEYPES RULE: FRESH PERIOD- After the motion for recon or new trial is denied the aggrieved party has a”fresh period of 15 days” from receipt of the order or

notice of the order denying or dismission the motion for recon or a motion for new trial. -

Applicable to Rule: 40, 42, 43, 45 Applicable to crim case Filing of motion for recon is not a waiver of right to appeal Neypes rule is applicable only when a motion for new trial and motion for recon is filed Not applicable to non judicial proceedings- Ex: judgment of HLURB, CBAA,LBAA,

ORDER OF DENIAL OF MOTION FOR RECON-NOT APPEALABLE

MOTION for NEW TRIAL Motion for New trial- 1. a remedy that seek to temper the severity of the judgment or 2. prevent the failure of justice.3 address to the sound discretion of the court cannot interfere unless a clear abuse thereof is shown. Motion for New Trial is prohibited in: 1. Small claims cases 2. Summary procedure Note: Allowed in Environmental Case WHEN TO FILE MOTION FOR NEW TRIAL

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Order of denial, denying the motion is not appealable the fresh period do not apply to order denying the motion but to appeal the judgment itself

REMEDY WHEN MOTION FOR RECON IS DENIED APPEAL -DENIED MOTION FOR RECON IS NOT APPEALABLE REMEDY: APPEAL FROM JUDGMENT OR FINAL ORDER ITSELF -

PETITION for certitorary cannot be used to assail the validity of order denying the motion (AM no 07-7-12)

FX when motion for recon is granted- judgment CAN be amended and such will supersede the old judgment Partial Recon- when court find less than or not all of the issues of the parties SECOND MOTION RULE- no second motion for recon is allowed (sec 5 rule 37) -

Only for persuasive reason and after express leave shall have been obtained

MOTION FOR RECON IN APPEALED CASES- WITHIN 90 DAYS FROKM THE TIME IT IS SUBMITTED FOR RESOLUTION

1. Filed within the period for taking an appeal. NO MOTION TO FILE AN EXTENTION OF TIME TO FILE A MOTION FOR RECON 2. BY NOTICE OF APPEAL BY RECORD ON APPEAL w/in 15 days after w/in 30 day from notice to appeallant notice to appeallant of the judgment or of the judgment or final order appealed final order from Allowed only in special proceedings and in multiple or separate appeals

EFFECT OF FILING A MOTION ON THE PERIOD TO APPEAL- Interups the filling of appeal GROUNDS FOR NEW TRIAL: REQUIREMENTS 1. FAMEN which ordinary prudence could not have guarded against and by reason of which , such party has impaired his right; (should be supported by affidavit of merits) 2. A.) Newly-discovered evidence which could not, with reasonable evidence have discovered and produced at the trial and B.) and if presented would alter the result ( 1. Affidavit of the witness by whom such evidence is expected to be given and 2. By duly authenticated document which are proposed to be evidence

NON-COMPLIANCE WITH THE ABOVEMENTIONED REQUIREMENTS:

REMEDY: APPEAL FROM JUDGMENT OR FINAL ORDER ITSELF

1. would produce the motion to a mere pro forma motion 2. shall not toll the running of reglementary period of appeal

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AFFIDAVIT OF MERIT The moving party must show that he has a meritorious defense in his Affidavit of Merit. 1.

That is substanstial and good defense must be prove. 2. Mere allegation that he a meritorious defense and good cause are mere conclusion and do not provide the court with any basis to determine whether the case is meritorious 3. The Affidavit must states facts not just conclusion NEWLY-DISCOVERED EVIDENCE- REQUISITE (ARMA) 1. Discovered After presentation of evidence 2. Such evidence could not have been discover even with exercise of reasonable diligence 3. When such evidence is material, not merely cumulative, corroborative or impeaching 4. If admitted would alter the judgment

Gross negligence of the counsel not a ground for New Trial- such as: 1. 3 times extention to file answer 2. Non appearance during pre trial 3. Failure to file petitioner pre trial brief Reso for Motion for NEW trial- should be resolve within 30 days from the time it is submitted for resolution FRESH PERIOD/NEYPES RULE APPLICABLE ALSO IN MOTION FOR NEW TRIAL REMEDY WHEN MOTION FOR RECON IS DENIED APPEAL -DENIED MOTION FOR RECON IS NOT APPEALABLE

PETITION for certitorary cannot be used to assail the validity of order denying the motion (AM no 07-7-12)

FX when motion for New Trial is granted1.

judgment shall be vacated and the action shall stand for trial de novo 2. The evidence presentet at the former for New Trial shall be used at the New trial without retaking the same if such is material and competent Partial NEW trial when court find less than or not all of the issues of the parties. The court will grant New trial on such controversy without affecting the judgment on the rest and enter judgment to the restor stay the enforcement of old judgment until after the new trial SECOND MOTION RULE-

no second motion for recon is allowed (sec 5 rule 37) shall include all grounds that is available – failure to include is a deemed waiver of such right. o ETR: when such ground for new trial was not existing at the time the filing of the first motion was made, second motion is allowed. But such should be filed within the period allowed but excluding the time when the first motion has been pending

NEW TRIAL IN APPEALED CASES1. When to file- at any time after appeal from the lower court has been perfected and b4 the CA loses jurisdiction over the case a party may file a motion on the ground of newly-discovered evidence 2. The motion shall be resolved within 90 days fromm the date it is submitted for resolution

3. The procedure in new trial is the same as granted in RTC. The CA may adopt its own rules 4. Does not apply to the SC

APPEALS Gen-principle on appeal 1. Appeal- not a consti. Right but mere statutory privilege meaning available only 1. when granted or 2. as provided by statutes o Not only mandatory but jurisdictional o Failure to conform with the requirements would render the judgment Final and Executory. But subject to the liberal construction of court o Payment the FULL docket fee is mandatory for the perfection of the appeal- not mere technicality but jurisdictional, but subject to liberal construction enunciated 2. Petition on certiorari barred the petition on review based on rule 45 3. Decision of the SC will form part of law of the land 4. Findings of the RTC in the credibility of witness shall be respected. It shall nit be disturbed in the absence of any showing that the have overlooked, misunderstood or misapplied facts 5. GR- a party who has not appealed canoot get affirmative relief however court can set aside rule for equity JUDGMENT OR ORDER THAT ARE APPEALABLE 1. An appeal may be taken from the judgment or final oder that finally disposes the case. Interlocutory order is not appealable 2. When the order or final judgment does not COMPLETELY dispose the case is not appealable (E.g. several and separate judgment) JUDGMENT OR ORDERS THAT ARE NOT APPEALABLE: (RID-SEA-D) A. An order denying petition for relief B. Interlocutory order

C. Order dismissing appeal D. Order denying to set aside judgment by consent, confession on the ground of fraud, mistake, negligence or any other ground vitiating consent E. Order of execution F. Final judgment against one or more several parties or in a separate claims, counterclaim while the main case is pending G. An order dismissing the action without prejudice EXAMPLEESS: 1. An interloc utory order- When a motion to dismiss based on improper venue is denied. If the motion is granted an order of dismissal is an order without prejudice to the refilling of the case. 2. Dismissal for violation of non-forum shopping requirements. Not appealable. Without prejudice. NOTE: an order dismissing an action without prejudice Is not appealable (RULE 41 sec 1) 3. Denial of petition from judgment remedyPetition for certitorari only based on Rule 65 and not a petition under rule 45 4. RTC dismiss the case for repeatedly failure of the plaintiff to appear in the pre-trial. Rule 65 is not a remedy but Rule 41 since the RTC did not state that the dismissal is without prejudiceit is deemed to be with prejudice. A dismissal with prejudice is deemed appealable 5. Dismiss the case for lack of juris, prescription, prior judgment9( res judicata)-Remedy is rule 65 6. Order dismissing a case for failure to prose cute is a final order. Such is a judgment on the merits REMEDY IN CASE THE JUDGMENT OR ORDER IS NOT APPEALABLEE- Appropriate civil action under Rule 65 Remedy against order of execution:ETR 1. sec 1 Rule 41 provides that no appeal may taken from an order of execution and the proper remedy is Rule 65

2. ETR: 1. when an order of execution is improvidently issued 2. Writ is defective in substance 3. Writ of execu. Is issued at the wrong party (Remedy: Prohibition, mandamus,certiorari ISSUES THAT MAY NIT BE RAISED ON APPEAL 1. Issue not raised before the lower court should not be raised for the first time on the appeal. It should not be considered by a reviewing court. 2. E,g a.) original theory nullity of mortgage- a party can no longer raised new theory . If the new theory is allowed the adverse party has no opportunity to rebut the adverse claim (b) objection with non-compliance with forum shopping can no longer be raised on appeal.

c. Not assigned error on appeal but CONSIDERATION OF WHICH IS NECESSARY in arriving at a just decision 3. CA has authority and discretion to review matters not otherwisw assigned as errors on appeal but the CONSIDERATION OF WHICH IS NECESSARY in arriving at a just decision. HARMLESS ERROR- Error committed by the trial court but do not affect the sucstanstial right of the party. o Do not require the automatic reversal of the trial court. o Example: even if the evidence is improperly admitted by court a quo, the error will be disregarded on appeal if the impact of the evidence is slight and insignificant

Role of the appellee- confined only in refutting the assigned error interposed by the appellant. He merely a defensive stance. ERRORS TO BE CONSIDERED BY THE APPELATE COURT 1. The appellate court shall not consider no error unless stated in the assignment of errors 2. ETR: JJPRP 1. Affects jurisdiction over subject matter 2. Affects the validity of the judgment appealed from 3. Error which affects the validity of the proceedings 4. Error closely related to or dependent on an assigned error or properly argued in the brief 5. Plain an clerical error JURiSdiCTiON a. Gounds not assigned as error but affection jurisction ocer the subject matter b. Plain and clerical error

Appeals in Crim case- throws the whole case open for review. Has the duty to correct error found in the judgment whether it is found in the assignment of errors or not PAYMENT OF DOCKET FEE; LIBERAL CONSTRUCTION 1. 2. 3. 4. 5.

BOTH MANDATORY AND JURISDICTIONAL NON COMPLIANCE IS FATAL TO AN APPEAL MUST BE PAID THRU CLERK OF COURT IT IS A MODE OF PERFECTION OF APPEAL NON-PAYMENT IS A GROUND FOR DISMISSAL LIBERAL CONSTRUCTION; 1. Discretionary Dismissal not automatic dismissal 2. In accordance with justice and fair play and with great deal of circumspection considering all attendant circumstances

RECORD ON APPEAL; NOTICE OF APPEAL

REC ON APPEAL Applicable in special proceeding and cases of multiple or several appeal when the rule of law so requires Multiple case is allowed- a party may appeal only on a particular incident in the case and not all the matter involved in the same class Record on appeal is necessary for the court to have record on the proceeding to resolved separate and distinct issue Example: complaint for expropriation. 2 stage of expropriation: 1st stage; plaintiff right to take the property. 2nd stage: defendants right to just compensation

NOTICE OF APPEAL Made by filing notice of appeal with court which rendered the judgment or final order and serving a copy thereof to the adverse party

This ground is subject to the sound discretion of the court Grounds in the dismissal of the appeal in the SC motu propio by the CA or on motion: 1. Failure to appear within the reglementary period 2. Lack of merit of the petition 3. Failure to pay the docket fee and othe lawful fee 4. Failure to comply eith the requirement regarding the proof of service and content of and the document 5. Failure to comply with any circular directive order of the SC without justifiable cause 6. Error in the choice or mode of appeal 7. The fact that the case is not appealable WITHDRAWAL OF THE APPEAL MATTER OF RIGHT MATTER OF DISCRETION Before the appellee filed Once the appelle’s brief appellee’s brief has been filed Rule 40- Appeal from the MTC to RTC

DISMISSAL OF AN APPEALGrounds for dismissal by CA1. Not filed within the reglementary period 2. Failure to pay docket fee and othe lawful fee 3. Unanthorized omission or addition in the approved record on appeal 4. Failure to serve the memorandum wiyhin the time prescribed 5. Absences of the assignment of error 6. Failure to step in the correction and completion of the record 7. Failure to appear in the preliminary conference 8. The fact that the order is not appealable

When to appeal- 15 days after notice to the appellant of the final order or judgment. How to appeal; contents of notice to appeal 1. Filing of notice of appeal or record of appeal to the court that rendered the judgment 2. Serving a copy to the adverse party NOTICE OF APPEAL CONTAINSA. Parties to the appeal B. The judgment or the final order or a part thereof appeal C. State the material dates stating the timeliness of the appeal

3. Payment of the full docket fee and other lawful fee within the time frame to appeal to the clerk of court. Proof of payment thereof shall be submitted to the appellate court and together with the original record or the record on appeal 4. Within 15 day from the perfection of the appeal, the CC of the court a quo shall transmit the record or the record of appeal, together with the transcript and exhibits, which shall certify as complete to the proper RTC

Perfection of the appeal 1. Deemed perfected as to the appellant upon filing of notice of the appeal in due time. As to the record on the appeal is deemed perfected as to him with respect to the subject matter thereof UPON APPROVAL of the record on appeal in due time 2. NOTICE ON APPEAL- Does not require the approval of the court, the court should just transfer the orig record to the appellate court DUTY OF THE CLERK OF COURT of THE RTC- Upon receipt of the record, he/she should notify the party of such facts SUBMISSION OF MEMORANDUM

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Upon receipt of notice he shall submit a memorandum within 15 days thereof. Copyfurnished the appellee.\ Failure to file memorandum is a GROUND FOR DISMISSAL. It shall briefly state the error of the court a quo. Appellee if he so desire file his memorandum within 15 days from the receipt of the appellant’s memorandum

WHEN CASE IS DEEMED SUBMITTED FOR DECISION JUDGMENT- Upon filling of the appelle of his memorandum or upon the expiration of time to do so. BASIS FOR THE DECISION; OF THE ENTIRE RECORD OF THE PROCEEDING

Appeal from an order dismissing a case for lack of jurisdiction: 1. If MTC dismiss thee case for lack of jurisdiction. When RTC affirms such fact Rtc shall try the case as if it was orig. filed with it. 2. If for an instance mtc which has lack of jurisdiction tried the case, the RTC should not dismiss it but tried the case in accordance with the rules. It can admit amended pleading and additional evidence 3. Remember that when a case is dismiss without prejudice it is not appealable. However when an MTC pursuant to motion to dismiss or moto proprio for lack of jurisction is an dismissal without prejudice is an exception the preceeding paragraph or rule. It can be appeal RULE 41- APPEAL FROM RTC TO THE CA 3 MODES OF APPEAL FROM THE DECISION OF THE RTC: 1. Ordinary appeal or appeal by writ of errorjudgment rendered by the RTC exercising its orig. jurisdiction. For question of fact or law or mixed to the CA.( rule 41) 2. Petition for Review- when rtc rendered judgment exercising its appellate jurisdiction. For question of fact or law or mixed to the CA. (Rule 42) 3. Petition for Review on Certiorari- or appeal by certiorari. Decision rendered by the RTC is brought to the SC in the exercise if its orig. juris and only on question of law. (Rule 45)

Modes if appeal from the RTC to the CA 1. Ordinary appeal or appeal by writ of errorjudgment rendered by the RTC exercising its orig. jurisdiction 2. Petition for Review- when rtc rendered judgment exercising its appellate jurisdiction MODE OF APPEAL FROM RTC TO THE SC 1. Petition for Review on Certiorari- or appeal by certiorari. Decision rendered by the RTC is brought to the SC in the exercise if its orig. juris

and only on question of law. If it is for a mixed question of facts and law, Rule 45 is a wrong remedy. 2. Petition for review based on Rule 41 with question of law shall be dismissed. Application of Rule 41 on ordinary appeal EX: 1. action for specific performance should be appealed to the CA using RULE 41 2. An ejectment case was filed in mtc and was loss and was appeal to the RTC and was loss again. The right remedy is under RULE 42. WHEN TO APPEAL: Within 15 days from notice of the judgment or final order appealed from. Record on appeal within 30 days. -

In habeas corpus- within 48 hours from notice of the judgment or final order

HOW TO APPEAL 1. UNDER RULE 41- filing a notice with the court a quo and serving a copy thereof upon the adverse party Record on sppeal- required in special proceedings. Where both parties are appeallant, may file a joint record on appeal. 2. Payment of the full docket fee to the clerk of court 3. Deemed perfected as to the appellant upon filing of notice of the appeal in due time. As to the record on the appeal is deemed perfected as to him with respect to the subject matter thereof UPON APPROVAL of the record on appeal in due time 4. A. Within 30 days clerk of court verify the correctness and completeness of the records. If not complete take such measures to complete the record; B. Certify the correctness of the record; C. Transmit the same to the appellate court and furnish the parties a copy of letter or transmittal of the records to the appellate court 5. when the CA receive the record as well as the proof of the docket & othe lawful cause. CA will docket the case and notify the parties.

6. Within 45 days from the receipt of the notice of the clerk of court, appellants shall file a brief with proof of services upon the appellee Within 45 days from the receipt of the appellant’s brief , the appellee shall file his own brief witj proof of service to the appellant. Within 20 days from the receipt of the appellee’s brief, appellant may file a reply brief. Extention of the filing of the brief shall not be allowed ETR; for good and sufficient cause and if such motion for extention of time before the expiration of time In petition for certiorari, mandamus, quo warranto and habeas corpus, briefs are not filed. The parties shall filed their respective memoranda within an extendible period of 30 days from receipt of notice issued by the clerk that all the evidence attach to the record QUESTION THAT MAY BE RAISE ON APPEAL 1. No question of law raised id=f the remedy availed of was /Rule 41 otherwise it shall be dismiss 2. An appeal by notice of appeal instead of petition from review from the appellate judgment of the RTC shall be dismissed RESIDUAL JURISDICTION- Refers to the authority of the trial court to issue order for the protection and preservation of the right of the partied, which do not involve any matter litigated on the appeal, compromise, permit appeal of the indigent