Rule 50-Dismissal of Appeal

Rule 50 Dismissal of Appeal

1997 Rules on Civil Procedure 2001 Edition

Rule 50

DISMISSAL OF APPEAL Grounds for dismissal of appeal in the CA. Take note that under Section 1, an appeal may be dismissed by the CA on its own (motu propio) or upon motion of the appellee. And there are nine (9) grounds for dismissal of appeal under Section 1: Section 1. Grounds for dismissal of appeal. An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; (c) Failure of the appellant to pay the docket and other lawful fees as provided in section 5 of Rule 40 and section 4 of Rule 41; (d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44; (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; (f) Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44; (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; (h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and (i) The fact that the order or judgment appealed from is not appealable. (1a; En Banc Resolution, Feb. 17, 1998)

First Ground: (a) FAILURE OF THE RECORD ON APPEAL TO SHOW ON ITS FACE THAT THE APPEAL WAS TAKEN WITHIN THE PERIOD FIXED BY THESE RULES; So this only applies in cases where a record on appeal is required. Failure to show on its face that the appeal was perfected on time – meaning, the appeal might have been perfected on time but by reading the record on appeals, you will not see it. Normally, that happens when the party did not state the exact date when he received the decision. He may just state the date of the decision without stating the date of receipt. With that, the court will presume that you received it on the date of the decision. It might be beyond the period to appeal. So on its face, there is no showing whether the appeal was within the 30 day period or not. The first ground is called the MATERIAL DATA RULE – that the record on appeal must show on its face that the appeal was taken on time. In the 1973 case of BERKENKOTTER VS. CA, this ground was supposed to be abolished already where the SC said that from now on, We will no longer follow the material data rule. Meaning this is abandoned. So, I wonder bakit binalik ito sa 1997 Rules because since 1973, the SC has already refused to apply this ground. So when they drafted the Rules, dapat tinanggal na yon. Bakit nandito na naman? They might have forgotten that it has been abandoned by jurisprudence, unless the intention is to return it. Second Ground: (b) FAILURE TO FILE THE NOTICE OF APPEAL OR THE RECORD ON APPEAL WITHIN THE PERIOD PRESCRIBED BY THESE RULES; Take note that under paragraph [a], the appeal was filed on time but the record on appeal does not show that it was filed on time.

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Rule 50 Dismissal of Appeal

But here in paragraph [b], the appeal is really out of time. Take note that you can raise this ground in the trial court. The trial court is also authorized to dismiss an appeal on this ground (Rule 41, Section 13). But assuming that you failed to raise it in the trial court, you can raise it in the CA. Q: Are you under estoppel for not raising it earlier in the RTC? Meaning, why did you not bring it out earlier, bakit hinintay pa sa CA? A: There is no estoppel here because actually this is a jurisdictional challenge. When the notice of appeal is filed out of time or beyond 15 days, actually the judgment of the RTC has already become final and executory. So you are now challenging the jurisdiction of the CA. Meaning, you are trying to say that the CA has no jurisdiction to review on appeal a judgment of the RTC which has already been final and executory. Q: Does the CA have the power to review and reverse an RTC judgment which is already final and executory? A: No more. The judgment which is already final cannot be changed by the CA. Meaning, the CA has no jurisdiction to entertain the appeal in that case. So in effect, it is a jurisdictional challenge which can be raised even in the CA even if not raised earlier in the RTC. Third Ground: (c) FAILURE OF THE APPELLANT TO PAY THE DOCKET AND OTHER LAWFUL FEES AS PROVIDED IN SECTION 5 OF RULE 40 AND SECTION 4 OF RULE 41; Section 5 of Rule 40 is about filing of docket fees if you appeal from the MTC to the RTC. Section 4 of Rule 41 refers to filing of docket fees when the appeal is from RTC to CA. Q: When do you pay the docket fee ? A: Within the 15-day period, you already pay it in the RTC clerk of court. Unlike before you pay it with the CA later. That is why as I said, failure to pay the docket fee in the RTC is a ground for dismissal of the appeal because of this. Q: But how about failure to pay the appeal fee in the MTC prior to transmittal to the RTC? Is it a ground for dismissal by the CA? A: To my mind NO because why will the CA dismiss it when the appeal is in the RTC? Bakit ang CA mag-dismiss, wala man ang kaso sa kanila? The CA has nothing to do with the appeal. It is supposed to be in the RTC, bakit ang CA ang mag-dismiss? In other words, there is something wrong with this amendment. (referring to “Section 5 of Rule 40”) But if the appeal is from the RTC to the CA, you must you must pay the docket fees because it is a specific ground for dismissal for the dismissal under Rule 50. Fourth Ground: (d) UNAUTHORIZED ALTERATIONS, OMISSIONS OR ADDITIONS IN THE APPROVED RECORD ON APPEAL AS PROVIDED IN SECTION 4 OF RULE 44; That’s only when there is a record on appeal. When the record on appeal is approved, you have to reproduce it and you are not allowed to make any alteration, revision or addition. Firth Ground: (e) FAILURE OF THE APPELLANT TO SERVE AND FILE THE REQUIRED NUMBER OF COPIES OF HIS BRIEF OR MEMORANDUM WITHIN THE TIME PROVIDED BY THESE RULES; Failure of the appellant to serve and file the required number of copies of his brief. So, failure to file the appellant’s brief is a ground for dismissal of the appeal.

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Rule 50 Dismissal of Appeal

Q: Now, suppose it is the appellee who did not file any brief, what will happen ? A: You do not dismiss the appeal but the case will be submitted for decision without appellee’s brief. The CA will make a resolution that the case was submitted without the appellee’s brief. Q: Does it mean to say that talo na ‘yung appellee? A: NO. There are many cases I’ve seen where the appellee did not file any brief – Talo man gihapon ang appellant because anyway the appellant’s brief has no merit. But normally in cases na delikado, you better file an appellee’s brief. You owe that to your client. Just imagine, lahat ng arguments dun hindi sagutin. That’s very dangerous! Sixth Ground: (f) ABSENCE OF SPECIFIC ASSIGNMENT OF ERRORS IN THE APPELLANT’S BRIEF, OR OF PAGE REFERENCES TO THE RECORD AS REQUIRED IN SECTION 13, PARAGRAPHS (A), (C), (D) AND (F) OF RULE 44; Well, you may file an appellant’s brief, eh wala namang page references, wala namang assignment of errors. My God! What kind of brief is that! (YC Bikini Briefs?) Very sloppy! You file a brief without telling the CA kung anong mali and then you expect the CA to look for the errors. My golly! Do not expect the CA to do that. Meron dapat citations – e.g. “See Exhibit ‘A’”, “See transcript…” Merong reference ba! like kung anong page yan. Now if you file a brief without footnotes, without citing the law, without citing the transcript, without citing the exhibit, that would be dismissed. That’s what happened in the 1995 case of DEL ROSARIO vs. COURT OF APPEALS 241 SCRA 553 [1995] FACTS: The CA dismissed the case simply because the appellant’s brief was sloppily written – no reference to exhibit, no reference to page, no reference to anything. It was dismissed! The appellant went to the SC pleading liberality. HELD: “Petitioner’s plea for liberality in applying these rules in preparing Appellant’s Brief does not deserve any sympathy. Long ingrained in our jurisprudence is the rule that the right to appeal is a statutory right and a party who seeks to avail of the right must faithfully comply with the rules. Deviations from the rules cannot be tolerated. The rationale for this strict attitude is not difficult to appreciate. These rules are designed to facilitate the orderly disposition of appealed cases. In an age where courts are bedeviled by clogged dockets, these rules need to be followed by appellants with greater fidelity. Their observance cannot be left to the whims and caprices of appellants.” Seventh Ground: (g) FAILURE OF THE APPELLANT TO TAKE THE NECESSARY STEPS FOR THE CORRECTION OR COMPLETION OF THE RECORD WITHIN THE TIME LIMITED BY THE COURT IN ITS ORDER; Sometimes yung record mo kulang-kulang ba. And the party may be directed to work for the completion. If you fail to complete the record, your appeal will be dismissed. Please connect this with two previous provisions talking about completion of the record in an appealed case. I’m referring to Rule 41, Section 10 and Rule 44, Sections 5 to 6 because these provisions talk also of completion of record. (please refer to your codals) Rule 41, Sec. 10. Duty of clerk of court of the lower court upon perfection of appeal. Within thirty (30) days after perfection of all the appeals in

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Rule 50 Dismissal of Appeal

accordance with the preceding section, it shall be the duty of the clerk of court of the lower court: (a) To verify the correctness of the original record or the record on appeal, as the case may be, and to make a certification of its correctness; (b) To verify the completeness of the records that will be transmitted to the appellate court; (c) If found to be incomplete, to take such measures as may be required to complete the records, availing of the authority that he or the court may exercise for this purpose; and (d) To transmit the records to the appellate court. If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or transcripts not included in the records being transmitted to the appellate court, the reasons for their non-transmittal, and the steps taken or that could be taken to have them available. The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the appellate court. Rule 44, 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. Rule 44, 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.

Eight Ground: (h) FAILURE OF THE APPELLANT TO APPEAR AT THE PRELIMINARY CONFERENCE UNDER RULE 48 OR TO COMPLY WITH ORDERS, CIRCULARS, OR DIRECTIVES OF THE COURT WITHOUT JUSTIFIABLE CAUSE; AND That’s a new ground – failure to appear on the preliminary conference; failure to comply with orders, circulars, directives of the court without justifiable cause. That is very broad. That’s a new one not found in the old law. Ninth Ground: (i) THE FACT THAT THE ORDER OR JUDGMENT APPEALED FROM IS NOT APPEALABLE. The fact that the judgment or order appealed from is not appealable. Interlocutory! Q: What are the judgments or orders which are not appealable? A: Your reference is Rule 41, Section 1: Rule 40, Section 1. Subject of appeal. x x x x x x NO APPEAL may be taken from: (a) An order denying a motion for new trial or reconsideration; (b) An order denying a petition for relief or any similar motion seeking relief from judgment; (c) An interlocutory order; (d) An order disallowing or dismissing an appeal; (e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (f) An order of execution; (g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (h) An order dismissing an action without prejudice. x x x x x x

So, if you appeal on any one of them, the other party can file a motion to dismiss on the ground that it is not appealable.

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Rule 50 Dismissal of Appeal

Now, there is one ground for dismissal under the old rule na nawala naman. Yun bang “failure to prosecute the appeal”, when the records are not elevated to the CA the appeal can be dismissed. Meaning, you have to follow up the clerk of court. Nawala yun eh. That ground seems to have been abandoned. I think the attitude there is let us not punish the appellant for the fault of the clerk of court. Q: Is a default judgment appealable? A: YES. It is appealable because it is a final judgment and not merely interlocutory. Although under the ‘64 Rules, there is a direct provision that a default judgment is appealable. Now, that provision has disappeared. But even if it is not mentioned now, default judgment is now covered by Rule 41 on final judgments. Sec. 2. Dismissal of improper appeal to the Court of Appeals. An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed. (n) An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. (3a)

Meaning, you must appeal to the right court and you must use the proper mode of appeal. This incorporates in the Rules the resolutions of the SC in the 1990 En Banc Resolution in MORILLO vs. CONSUL (not found in the SCRA) and also incorporates the provisions of Circular 2-90 dated March 9. 1990. Prior to this under the 1964 Rules, the rule is if there is wrong appeal like pure questions of law to the CA, the CA should not dismiss the appeal but elevate it to the SC. That rule has long been abandoned. It was abandoned in the case of MORILLO and in Circular 2-90. Now, it is here. Kung question of law you better appeal to the SC. If you appeal to the CA, the CA will dismiss it. MORILLO vs. CONSUL HELD: “There is no longer any justification for allowing transfers of erroneous appeals from one court to the other, much less for tolerating continued ignorance of the law on appeals.” Take note that this refers to appeal under Rule 41 from RTC. This does not apply when the appeal to the CA is from a quasi-judicial body. Appeal from a quasi-judicial body on a pure question of law should be to the CA, never to the SC. You compare this with Rule 42, Section 2: Rule 42, Section 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: x x x (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 RTC and the reasons or arguments relied upon for the allowance of the appeal. x x x

“Errors of fact or law, or both.” This refers to Petition for Review from the RTC to the CA. Q: What happens if an appeal is already taken to the CA? A: It shall be dismissed outright. Under the ’64 Rules, the CA will pass it on to the SC. But the liberal policy has now been changed. Aaron [Cruz] asked a question (during the 1998 Review Class) Dean’s ANSWER: Yes, there is a decided case. In the meantime, you also lost the right to correct the error. Lumampas na eh!. Kaya it would be dismissed. Hindi naman sinasabi 122 Lakas Atenista Ateneo de Davao University College of Law

Rule 50 Dismissal of Appeal

1997 Rules on Civil Procedure 2001 Edition

na the appellant will be directed to appeal properly. In other words, it will be dismissed. Meaning, that is the end. That is the penalty for erroneous appeal. Kaya nga according to MORILLO which became the basis of this, there is no longer any justification for allowing transfers of erroneous appeals from one court to the other, much less for tolerating continued ignorance of the law on appeals. Kaya nga before, very lenient pag mali under the 1964 Rules. But now in Section 2 of Rule 50, wala na – i-dismiss na. WITHDRAWAL OF APPEAL Sec. 3. Withdrawal of appeal. An appeal may be withdrawn as of right at any time before the filing of the appellee’s brief. Thereafter, the withdrawal may be allowed in the discretion of the court. (4a)

Q: Now, can you withdraw the appeal in the RTC level? A: YES, prior to the transmittal of the original record or the record on appeal, the court may allow withdrawal of the appeal. (Section 9, Rule 41) Q: Where will you file the motion to withdraw? A: In the RTC if the records are still in the RTC. If the records of appeal is already in the CA, you file the motion to the CA at anytime before the filing of the appellee’s brief you can withdraw it as a matter of right. When there is already an appellee’s brief, it can be allowed in the discretion of the Court (Section 3). That is similar to the Rule in Rule 17, Section 1: Rule 17, Section 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1a)

Q: Can you withdraw a complaint if you file a complaint in the lower court? A: YES, as a matter of right for as long as there is still no answer filed. But when the defendant has filed an answer, dismissal of the complaint is already discretionary upon the court. So it is the same!

-oOo-

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