Rule 42-Pttion 4 Rvw RTC-CA

Rule 42 – Petition for Review From the RTC to the CA

1997 Rules on Civil Procedure 2001 Edition

Rule 42

PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS Q: What are the modes of appeal from RTC to the CA? A: It’s either ORDINARY APPEAL (Rule 41) or PETITION FOR REVIEW (Rule 42). Rule 41 refers to an ordinary appeal from the RTC to the CA – yung notice of appeal. Here, the RTC rendered a decision pursuant to its ORIGINAL JURISDICTION. ‘Eto namang Rule 42 (Petition for review) is the mode of appeal from the RTC to the CA in cases decided by the RTC pursuant to its APPELLATE JURISDICTION. So, the case here actually originated in the MTC, then it was appealed to the RTC under Rule 40. And now, from the RTC, you want to go to the CA. Hence, the mode of appeal is not (Rule 41) Notice of Appeal but RULE 42 – Petition for Review. For the first time, there is now a rule governing petitions for review from the RTC to the CA. Prior to July 1, 1997, there was none. Although there were guidelines then – in jurisprudence, decided cases and SC circulars. Section 1. How appeal taken; time for filing. A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. (n)

Under Section 1, a petition for review under Rule 42 must be VERIFIED. Q: Where will you file your petition for review? A: You file it directly with the CA. Do not file it with the trial court. In Rule 41, where the appeal is deemed perfected by simply filing a notice of appeal, you file your notice of appeal with the RTC. Do not file it with the CA. But in Rule 42, where the appeal is by petition for review, you file your petition directly with the CA. Do not file it with the RTC. Not only that. Of course, you have to pay the docket and lawful fees plus P500 for costs. And you must furnish the RTC and the adverse party with a copy of the petition. That is a new requirement. Q: What is the period to file a petition for review? A: The period to file a petition for review is 15 days from receipt of the RTC judgment or from the order denying the motion for reconsideration. Q: What is the difference in period to file between Rule 41 and Rule 42 ? A: In Rule 41, if your motion for reconsideration is denied, you can still appeal within the remaining balance of the 15-day period. In Rule 42, the 15-day period starts all over again because the law says “or of the denial.” So, another fresh 15 days. This because it is

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1997 Rules on Civil Procedure 2001 Edition

Rule 42 – Petition for Review From the RTC to the CA

more difficult to prepare a petition for review. This is more time-consuming than a simple notice of appeal. We’ll go to examples: PROBLEM: Let’s go back to RULE 41: You receive a copy of the RTC decision on March 31. You file your motion for reconsideration on April 10 – the 10th day. After two weeks, you received order of the court denying the MFR. Q: How many more days are left for you to file a notice of appeal? A: Six (6) days. Ang binilang mo, 1-9 days lang. The 10th day is interrupted na. That’s true. PROBLEM: We will go to the same problem (applying Rule 42): The case was decided by the MTC, appealed to the RTC. And then in the RTC, you lost again. You receive a copy of the decision on March 31. On April 10, you file a motion for reconsideration. And then on April 20, you receive the order denying the MFR. Q: How many days more are left for you to file your petition for review? A: Kung sabihin mo 6 days from April 20 or April 26, that’s FALSE! The answer is 15 days all over again. Look at the law: “The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration.” Meaning, you count another 15 days from the denial. Umpisa na naman! So the filing a motion for new trial or reconsideration in Rule 42 does not only interrupt the running of the period but it commences to run all over again. Unlike in Rule 41, in ordinary appeal, where the filing of the motion for reconsideration or new trial merely interrupts the running of the period to appeal. And it commences to run again from the time you are notified that your motion is denied. See the difference? Actually, if you are not serious in your study of appeal, you will not see these distinctions. You will just assume that the principles under Rule 41 and Rule 42 are the same. Q: Under Section 1, is the 15-day period to file petition for review extendible? A: Under Rule 41, the 15-day period to file notice of appeal is not extendible – no exceptions. But in Rule 42, the 15-day period to file petition for review is EXTENDIBLE according to the last sentence of Section 1, provided you pay your docket and other lawful fees, the CA will grant additional 15 days within which to file a petition for review. Q: Where will you file your motion for extension of time to file petition for review? A: You file your motion for extension to the CA. The CA itself will grant the extension. Q: How many more days can the CA grant? A: The CA may grant another 15 days and no further extension can be granted except for the most compelling reasons. So, original extension is 15 days, and a possible extension of 15 days = total 30 days. These are technical points. And how many appealed cases have been dismissed simply because these finer provisions were not been observed by lawyers? I would say 60% of all appeals are dismissed. Even in Davao, majority of petitions are dismissed because nakulangan ng piso sa docket fee, karami. I presume throughout the country, the pattern is the same because the rules on appeal are very technical and very strict. That’s why there are lawyers in Manila, even in Davao, who do not want to handle appealed cases. They only handle cases in the trial court. Pag-akyat na, nasa CA na, petition for certiorari, pasa na sa iba. But there are also who have mastered the rules on appeal. For the purpose of specialization, trial phase and appeal phase. For purposes of the bar, you have to know all the fields in laws. Once you pass the bar, diyan na kayo mag-isip kung ano ang pipiliin ninyo—civil, criminal, labor, etc. But for purposes of the bar, you cannot say dito lang ako mag-aral sa Labor, wag na sa Civil Law. Pwede ba yan? You cannot do that. Kaya nga sabi nila, the people who know more about the law are those who have just taken the bar.

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1997 Rules on Civil Procedure 2001 Edition

Rule 42 – Petition for Review From the RTC to the CA

Sec. 2. Form and contents. The petition shall be filed in seven (7) legible copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the specific material dates showing that it was filed on time; (c) set forth concisely a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal; (d) be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition. The petitioner shall also submit together with the petition a certification under oath that he has not theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. (n)

Take note of Section 2. Do not implead the lower court or the judge because nasanay na tayo na pati ‘yung judge naging defendant or respondent na. We only do that in Certiorari under Rule 65 in Special Civil Actions, but not on appeal. This is the influence of Justice Feria because he has penned many cases which has included the judge as defendant or respondent. So, he said that in the case of MWSS vs. CA [Aug. 25, 1986], hence we can see his influence, siningit talaga niya iyan sa kaso na yon. Now, as to the form [last paragraph], there has to be a Certification of Non-Forum Shopping, failure to comply with such would mean the dismissal of the case. ORTIZ vs. COURT OF APPEALS 299 SCRA 708 [1998] FACTS: The certification was not signed by the Ortizes but by their lawyer who has personal knowledge of the fact and contended that it should be accepted as substantial compliance with the rules. HELD: The certification was not proper. Strict observance of the rule is required. In this case, no explanation was given. “Regrettably, We find that substantial compliance will not suffice in a matter involving strict compliance. The attestation contained in the certification on nonforum shopping requires personal knowledge by the party who executed the same. To merit the Court’s consideration, Ortizes here must show reasonable cause for failure to personally sign the certification. The Ortizes must convince the court that the outright dismissal of the petition would defeat the administration of justice. However, the Ortizes did not give any explanation to warrant their exemption from the strict application of the rule. Utter disregard of the rules cannot justly be rationalized by harking on the policy of liberal construction.” Q: Under paragraph [c], what issues can you raise in the petition for review? A: Errors of fact, errors of law, or both – mixed errors of fact or law. Somebody asked this QUESTION: hindi ba kapag error of law dapat sa SC yan? Hindi na dadaan sa CA? How do you reconcile this with the Constitution? Actually, when the law says decisions of the RTC appealable directly to the SC, it was decided pursuant to its original jurisdiction. But if it is decided pursuant to its appellate jurisdiction, the appeal should be to the CA even on pure questions of law without prejudice of going to the SC later on.

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1997 Rules on Civil Procedure 2001 Edition

Rule 42 – Petition for Review From the RTC to the CA

Sec. 3. Effect of failure to comply with requirements. The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof.

Section 3. If you fail to comply with the requirements, tapos ang petition mo, dismiss! Sec. 4. Action on the petition. The Court of Appeals may require the respondent to file a comment on the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (n) Sec. 5. Contents of comment. The comment of the respondent shall be filed in seven (7) legible copies, accompanied by certified true copies of such material portions of the record referred to therein together with other supporting papers and shall (a) state whether or not he accepts the statement of matters involved in the petition; (b) point out such insufficiencies or inaccuracies as he believes exist in petitioner’s statement of matters involved but without repetition; and (c) state the reasons why the petition should not be given due course. A copy thereof shall be served on the petitioner. (n) Sec. 6. Due course. If upon the filing of the comment or such other pleadings as the court may allow or require, or after the expiration of the period for the filing thereof without such comment or pleading having been submitted, the Court of Appeals finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition. (n)

Q: When you file a petition for review from the RTC to the CA, is the CA obliged to entertain the petition? A: No, this is discretionary under Section 6. The CA may or may not give due course to the petition unlike in ordinary appeal. Yan ang kaibahan ng ordinary appeal and petition for review. In ordinary appeal under Rule 41, when you file notice of appeal and you pay your docket fee, your appeal is automatically entertained. At least it will be heard by the CA. But in Rule 42, it is not the same. When you go there, whether your petition for review will be given due course or not even if you have paid the docket fee. Normally, the CA will required you to comment and then chances are after another month and after reading your petition and your comment, the CA will refuse to give due course to your petition, “Your petition is hereby dismissed!” So, you must convince the CA na may merit baah! Q: What happens when the petition for review is given due course? A: The parties will be required to submit their respective memoranda. Take note that the RTC is also given the power to issue orders for the protection of the parties – the same as in Section 8, paragraph [b]. Sec. 7. Elevation of record. Whenever the Court of Appeals deems it necessary, it may order the clerk of court of the Regional Trial Court to elevate the original record of the case including the oral and documentary evidence within fifteen (15) days from notice. (n)

Q: Now, when is an appeal by petition for review deemed perfected? A: Section 8 [a]. Similar to Rule 41. The same principle: Sec. 8. Perfection of appeal; effect thereof. (a) Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner. The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may issue orders for the protection and preservation of the

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Rule 42 – Petition for Review From the RTC to the CA

1997 Rules on Civil Procedure 2001 Edition

rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal. (9a, R41) (b) Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the judgment or final order unless the Court of Appeals, the law, or these Rules shall provide otherwise. (n)

Q: Does the RTC have the power to act despite the fact that the petition for review is already before the CA? Suppose I lost in the MTC, and I also lost on appeal in the RTC. I file a petition for review. What happens to the decision? Can the decision be enforced? A: NO, it cannot be enforced yet because it is not yet final. We still have to wait for the appeal to be dismissed or to be entertained and denied later. Under paragraph [b], the appeal shall stay the judgment or final order UNLESS the CA, the law or these rules should provide otherwise. Also, based on the opening clause of paragraph [b], except in civil cases provided in the Rules on Summary Procedure, any part thereafter appealed to the CA will not stop the implementation of the RTC decision. Under Section 21 of the Summary Rules, when a case is started in the MTC under the Summary Procedure, and appealed to the RTC and decided by the RTC, the decision becomes immediately executory. Even if we file a petition for review, it is executory. The only way to stop the RTC from enforcing that judgment is to get a TRO or a writ of preliminary injunction from the CA. That is the rule. I have a similar case now on that issue. The case originated from the MTC for ejectment. The defendant lost, akyat ngayon sa RTC, affirmed. And then akyat na naman ang defendant sa CA on petition for review (although right now, it has not yet been given due course) with a prayer for TRO. But the CA said that there is no compelling reason to issue one. In the meantime, I filed a motion for execution. The defendant opposed on the ground that a judgment cannot be executed daw because of a pending petition for review. But this is under the Summary Rules – ejectment. This is an exception, so that will not apply. Sec. 9. Submission for decision. If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the court itself. (n)

-oOopublished by LAKAS ATENISTA 1997 – 1998: FOURTH YEAR: Anna Vanessa Angeles • Glenda Buhion • Joseph Martin Castillo • Aaron Philip Cruz • Pearly Joan Jayagan • Anderson Lo • Yogie Martirizar • Frecelyn Mejia • Dorothy Montejo • Rowena Panales • Regina Sison • Ruby Teleron • Marilou Timbol • Maceste Uy • Perla Vicencio • Liberty Wong • Jude Zamora • Special Thanks to: Marissa Corrales and July Romena SECOND YEAR: Jonalyn Adiong • Emily Aliño • Karen Allones • Joseph Apao • Melody Penelope Batu • Gemma Betonio • Rocky Cabarroguis • Charina Cabrera • Marlon Cascuejo • Mike Castaños • Karen de Leon • Cherry Frondozo • Jude Fuentes • Maila Ilao • Ilai Llena • Rocky Malaki • Jenny Namoc • Ines Papaya • Jennifer Ramos • Paisal Tanjili LAKAS ATENISTA 2001–2002: REVISION COMMITTEE: Melissa Suarez • Jessamyn Agustin • Judee Uy • Janice Joanne Torres • Genie Salvania • Pches Fernandez • Riezl Locsin • Kenneth Lim • Charles Concon • Roy Acelar • Francis Ampig • Karen Cacabelos • Maying Dadula • Hannah Examen • Thea Guadalope • Myra Montecalvo • Paul Ongkingco • Michael Pito • Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos • Joshua Tan • Thaddeus Tuburan • John Vera Cruz • Mortmort

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