Graciela May R.

Pelagio JD-302
Appellate Practice and Brief Making

Fiscal Venancio Padilla

MIDTERMS EXAM

1. Distinguished Final and Interlocutory Order

If the order or resolution, however, merely resolves incidental matters and leaves something
more to be done to resolve the merits of the case, the order is interlocutory and the aggrieved
partys remedy is a petition for certiorari under Rule 65. Jurisprudence pointedly holds that:
As distinguished from a final order which disposes of the subject matter in its entirety or
terminates a particular proceeding or action, leaving nothing else to be done but to enforce by
execution what has been determined by the court, an interlocutory order does not dispose of a
case completely, but leaves something more to be adjudicated upon. The term final judgment or
order signifies a judgment or an order which disposes of the case as to all the parties, reserving
no further questions or directions for future determination.
On the other hand, a court order is merely interlocutory in character if it leaves substantial
proceedings yet to be had in connection with the controversy. It does not end the task of the court
in adjudicating the parties contentions and determining their rights and liabilities as against each
other. In this sense, it is basically provisional in its application

2. What orders are appealable?

Rule 41, Section 1. Subject of appeal. An appeal may be taken from a judgment or final order
that completely disposes of the case, or of a particular matter therein when declared by these
Rules to be appealable.
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.
In all the above instances where the judgment or final order is not appealable, the aggrieved
party may file an appropriate special civil action under Rule 6

Graciela May R. Pelagio JD-302

3. Outline the steps/procedure in perfecting an appeal

a) Decision in an ejectment case from MeTC
Under the Rules of Court, the immediate enforcement of a writ of ejectment execution is
carried out by giving defendant notice of such writ, and making a demand that defendant comply
therewith within a reasonable period, normally from three (3) to five (5) days, and it is only after
such period that the sheriff enforces the writ by bodily removal of the defendant and his personal
belongings.
1

b) Decision in a civil case entered by RTC

Rule 41, Section 9. Perfection of appeal; effect thereof. A party's appeal by notice of appeal is
deemed perfected as to him upon the filing of the notice of appeal in due time.
A party's appeal by record on appeal is deemed perfected as to him with respect to the subject
matter thereof upon the approval of the record on appeal filed in due time.
In appeals by notice of appeal, the 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.
In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof
upon the approval of the records on appeal filed in due time and the expiration of the appeal of
the other parties.
In either case, prior to the transmittal of the original record or the record on appeal, the court may
issue orders for the protection and preservation of the 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 2 of Rule 39, and allow withdrawal of the
appeal. (9a)

c) Judgment rendered by Regional Director of DENR

2

DENR Administrative Order No. 87, Series of 1990 provides that

SECTION 1. Perfection of Appeals.

(a) Unless otherwise provided by law or executive order, appeals from the
decisions/orders of the DENR Regional Offices shall be perfected within fifteen (15)
days after receipt of a copy of the decision/order complained of by the party adversely
affected, by filing with the Regional Office which adjudicated the case a notice of appeal,
serving copies thereof upon the prevailing party and the Office of the Secretary, and
paying the required fees.

1 Reformina v. Adriano 9 and City of Manila v. Court of Appeals

2 http://sc.judiciary.gov.ph/jurisprudence/2010/june2010/183616.htm

Graciela May R. Pelagio JD-302

(b)If a motion for reconsideration of the decision/order of the Regional Office is filed and
such motion for reconsideration is denied, the movant shall have the right
to perfect hisappeal during the remainder of the period for appeal, reckoned from receipt
of the resolution of denial. If the decision is reversed on reconsideration, the aggrieved
party shall have fifteen (15) days from receipt of the resolution of reversal within which
to perfect his appeal.
(c)
The Regional office shall, upon perfection of the appeal, transmit the records
of the case to the Office of the Secretary with each page numbered consecutively and
initialed by the custodian of the records.
SECTION 6. Applicability of the Rules of Court. The Rules of Court shall
apply when not inconsistent with the provisions hereof.
d) Decision rendered by arbiter of HLURB
Section 15 of Presidential Decree No. 957 provides that the decisions of the National Housing
Authority (NHA) shall become final and executory after the lapse of fifteen (15) days from the
date of receipt of the decision. Second, Section 2 of Presidential Decree No. 1344 states that
decisions of the National Housing Authority shall become final and executory after the lapse of
fifteen (15) days from the date of its receipt. The latter decree provides that the decisions of NHA
is appealable only to the Office of the President. Further, we note that the regulatory functions of
NHA relating to housing and land development has been transferred to Human Settlements
Regulatory Commission, now known as HLURB.8 Thus, said presidential issuances providing
for a reglementary period of appeal of fifteen days apply in this case. Accordingly, the period of
appeal of thirty (30) days set forth in Section 27 of HLURB 1994 Rules of Procedure no longer
holds true for being in conflict with the provisions of aforesaid presidential decrees. For it is
axiomatic that administrative rules derive their validity from the statute that they are intended to
implement. Any rule which is not consistent with statute itself is null and void.
3

e) Decision rendered by CTA

Rule 43, Section 4. Period of appeal. The appeal shall be taken within fifteen (15) days from
notice of the award, judgment, final order or resolution, or from the date of its last publication, if
publication is required by law for its effectivity, or of the denial of petitioner's motion for new
trial or reconsideration duly filed in accordance with the governing law of the court or agency a
quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the
payment of the full amount of the docket fee 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)
4. What judgments, decisions or orders are proper subjects of Petition for Certiorari
under Rule 65.

3 http://www.lawphil.net/judjuris/juri2000/aug2000/gr_126999_2000.html

Graciela May R. Pelagio JD-302

Certiorari is a writ issued by a superior court to an inferior court of record, or other
tribunal or officer, exercising a judicial function, requiring the certification and return to the
former of some proceeding then pending, or the record and proceedings in some cause already
terminated, in cases where the procedure is not according to the course of the common law. The
remedy is brought against a lower court, board, or officer rendering a judgment or order and
seeks the annulment or modification of the proceedings of such tribunal, board or officer, and the
granting of such incidental reliefs as law and justice may require It is available when the
following indispensable elements concur, to wit:
4

1.

That it is directed against a tribunal, board or officer exercising judicial

or quasi-judicial functions;

2.

That such tribunal, board or officer has acted without or in excess of

jurisdiction or with grave abuse of discretion; and

3.

That there is no appeal nor any plain, speedy and adequate remedy in the
ordinary course of law.

Certiorari being an extraordinary remedy, the party who seeks to avail of the same must
strictly observe the rules laid down by law. The extraordinary writ of certiorari may be availed
of only upon a showing, in the minimum, that the respondent tribunal or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion.

5. Distinguished Petition for Certiorari under Rule 65 as a mode of Appeal

from a Petition for review on Certiorari under Rule 45
A petition for review is a mode of appeal under Rule 65. A petition for review seeks to correct
errors of judgment committed by the court, tribunal, or officer. When a court, tribunal, or officer
has jurisdiction over the person and the subject matter of the dispute, the decision on all other
questions arising from the case is an exercise of that jurisdiction. Consequently, all errors
committed in the exercise of said jurisdiction are merely errors of judgment.
5

A special civil action for certiorari is an extraordinary process for the correction of errors of
jurisdiction stated under Rule 45. The extraordinary remedy of certiorari is proper if the tribunal,
board, or officer exercising judicial or quasi-judicial functions acted without or in grave abuse of
discretion amounting to lack or excess of jurisdiction and there is no appeal or any plain, speedy,
and adequate remedy in law

6. What is petition for Relief from judgment? When is it available and

within what period(s) will it is valid?
RULE 38, Section 1 states that Relief from Judgments, Orders, or Other Proceedings,.
Petition for relief from judgment, order, or other proceedings. When a judgment or final
order is entered, or any other proceeding is thereafter taken against a party in any court through
4 http://sc.judiciary.gov.ph/jurisprudence/2011/august2011/156358.htm
5 http://sc.judiciary.gov.ph/jurisprudence/2008/november2008/175006.htm

Graciela May R. Pelagio JD-302

fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in
the same case praying that the judgment, order or proceeding be set aside.