APPEA

L
 What is an appeal?

A civil law procedure whose office is to

remove the entire cause and subjects
the transcript to a scrutiny of fact and
law and is in substance a new trial.
 When can an appeal be taken?

An appeal may be taken from the

judgment or final order that completely
disposes of the case, or of a particular
matter therein when declared by the
rules to be appealable.
 When can an appeal be taken?

Fresh Period Rule

To allow a fresh period rule of fifteen (15)

days within which to file the notice of
appeal in the regional Trial Court,
counted from receipt of the order
dismissing a motion for new trial or
motion for reconsideration.
 Nature of appeal

It is not a natural right and is not part of

due process. It is merely a statutory
privilege, and may be exercised only in
accordance with the law.
 Nature of appeal

Duty of the appellant

The party who seeks to avail of the same

must comply with the requirements of
the rules.
 Nature of appeal

Effect of failure to comply with the rules

on appeal

1. The right to appeal is lost.

2. Will render the judgement final and

executory beyond the power of the
Supreme Courts review
 Residual Jurisdiction of the court

It means that prior to the transmittal of the original record to

the appellate court, the trial court retains jurisdiction:

1. To issue order for the preservation of the rights of the

parties which do not involve any matter litigated by appeal

2. To approve compromise prior transmittal of records

3. To permit appeal by indigent

4. To order execution pending appeal

5. To allow withdrawal of the appeal.

 Purpose

To obtain reversal or modification of the

judgement on the merits.
 Modes of Appeal

1. Ordinary appeal under Rule 40-41

a. By filing a notice of appeal

b. By filing a notice of appeal and record on

appeal, in those instances where records on
appeal is required

2. Petition for review under Rule 42-43

3. Petition for review on Certiorari under Rule 45

 Appeal fee

The requirement of an appeal fee is not

a mere technicality of law or procedure
but an essential requirement without
which the decision appealed from would
become final and executory as if no
appeal was filed at all.
 Negligence of counsel

It is settled that clients are bound by the

mistakes, negligence and omission of
their counsel.
 Negligence of counsel

When excusable

When it is caused by failure to receive notice of the action of

the trial, by a genuine and excusable mistake or
miscalculation, by reliance upon assurances given by those
upon whom the party had a right to depend, as the adverse
party or counsel retained in the case, or a competent
adviser, that it would not be necessary for him to take an
active part on the case, or that the suit would not be
prosecuted, by relying on another person to attend to the
case for him, when such other person promised to do so, or
was chargeable with the duty or by a well-founded belief that
the case would not be reached for trial as it was in fact
reached, or by other circumstances not involving fault of the
moving party.
 Negligence of counsel

Remedy in case of failure to appeal due

to mistake or excusable negligence

1. Petition for relief under Rule 38 of the

Rules of Court.

2. A party is not entitled to relief under

Sec. 2, Rule 38 of the Rules of Court
 Purpose of limiting the period to appeal

The purpose in limiting the period of

appeal is to forestall or avoid an
unreasonable delay in the administration
of justice and to, put an end to
controversies.
 Cases which may be subject of Appeal

An appeal may be taken from the

judgment or final order that completely
disposes of the case, or of a particular
matter therein when declared by the
Rules to be appealable
 Cases which may be subject of Appeal

NO appeal is allowed under the following:

1. An order denying a motion for new trial or reconsideration

2. An order denying a petition for relief or other similar motion seeking relief from
judgment

3. An interlocutory order

4. An order disallowing or dismissing an appeal

5. An order denying a motion to set aside judgment by consent, confession or

compromise on the ground vitiating consent

6. An order of execution

7. A judgement or final order for or against one or more several parties or in

separate claims

8. An order dismissing an action without prejudice

 Parties cannot change his theory of the case on appeal

The general rule is that appeals can only

raise questions of law or fact that:

1. were raised in the court

2. within the issues framed by the

parties therein
 Issues not raised before the lower court cannot be raised for the first time
on appeal

An issue which was neither averred in

the pleadings nor raised during trial in
the court cannot be raised for the first
time on appeal.
 Issues not raised before the lower court cannot be raised for the first time
on appeal

Exceptions

1. That the issues are closely related to one properly assigned

2. That the determination of an issue properly assigned is dependent

upon the one being raised for the first time

3. It is a settled rule that the issue of jurisdiction may be raised at any

time, even on appeal, provided that its application does not result in
a mockery of the tenets of fair play

4. In the interest of justice and within the sound discretion of the

appellate court, a party may change his legal theory on appeal only
when the factual bases thereof would not require presentation of
any further evidence by the adverse party in order to enable it to
properly meet the issue raised in the new theory
 Limitation on the power to review only to errors assigned and properly argued in the appeal brief or
Memorandum

Sec. 8, Rule 51 of the 1997 Rules of Civil Procedure

provides:

"Sec. 8. Questions that may be decided. No

error which does not affect the jurisdiction over the
subject matter or the validity of the judgment
appealed from or the proceedings therein will be
considered, unless stated in the assignment of
errors, or closely related to or dependent on an
assigned error and properly argued in the brief,
save as the court may pass upon plain errors and
clerical errors.
 Limitation on the power to review only to errors assigned and properly argued in the appeal brief or
Memorandum

Grounds where the Court can review issues not assigned.

1. Grounds not assigned as errors but affecting jurisdiction over the subject matter

2. Matters not assigned as errors on appeal but are evidently plain or clerical errors
within contemplation of law

3. Matters not assigned as errors on appeal but consideration of which is necessary

in arriving at a just decision and complete resolution of the case or to serve the
interests of justice or to avoid dispensing piece-meal justice

4. Matters not specifically assigned as errors on appeal but raised in the trial court
and are matters of record having some bearing on the issue submitted which the
parties failed to raise or which the lower court ignored

5. Matters not assigned as errors on appeal but closely related to an error assigned

6. Matters not assigned as errors on appeal but upon which the determination of a
question properly assigned, is dependent.
 Instances when remanding of the case cannot be made

As a rule, remand is avoided in the following instances:

1. When the ends of justice would not be subserved by

a remand

2. Where public interest demands an early disposition

of the case

3. Where the trial court had already received all the

evidence presented by both parties, and the
Supreme Court is in a position, based upon said
evidence, to decide the case on its merits
 Dismissal of an appeal

Grounds for the dismissal of an appeal by the Court of Appeals on its own motion or on that of the appellee

1. Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by
these Rules

2. Failure to file notice of appeal or record on appeal within the prescribed period by the Rules

3. Failure of the appellant to pay the docket and other lawful fees

4. Unauthorized alterations, omissions or additions in the approved record on appeal

5. 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

6. Absence of specific assignment of errors in the appellants brief, or of page references to the record as
required in Sec. 13, paragraphs (a), (c), (d) and (f) of Rule 44

7. 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

8. Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with order,
circulars, or directives of the court without justifiable cause

9. The fact that the order or judgment appealed from is not appealable
 Dismissal of an appeal

Grounds for the dismissal of an appeal in the Supreme Court motu proprio by the
Court or on motion

1. Failure to take the appeal within the reglementary period

2. Lack of merit in the petition

3. Failure to pay the requisite docket fee and other lawful fees or to make a deposit
for cost

4. Failure to comply with the requirements regarding proof of service and contents of
the documents which should accompany the petition

5. Failure to comply with any circular, directive or order of the Supreme Court
without justifiable cause

6. Error in the choice or mode of appeal

7. The fact that the case is not appealable to the Supreme Court
 Sanctions for frivolous appeals

Sec. 3, Rule 142 of the Rules of Court

States:

"Sec. 3. Costs when appeal frivolous.

Where an action or an appeal is found to
be frivolous, double or treble costs
may be imposed on the plaintiff or
appellant, which shall be paid by his
attorney, if so ordered by the court."
 END.

THANK YOU.