XLVI.
RULE 41: APPEAL FROM THE RTCs remedies, she having bypassed the Office of the DENR Secretary and the Office of
G.R. No. 183616 June 29, 2010
JULIETA PANOLINO, petitioner,
vs.
JOSEPHINE L. TAJALA, respondent.
Facts:
The DENR Regional Executive Director Jim O. Sampulna (RD Sampulna), denied
for lack merit the application of Julieta Panolino (petitioner), which was opposed
by herein respondent Josephine L. Tajala, for a free patent over a parcel of land
located in Sultan Kudarat, and directed petitioner to vacate the contested
property and remove at her expense whatever improvements she may have
introduced thereon.
Petitioner received a copy of the decision on June 27, 2007, of which she filed a
motion for reconsideration on July 11, 2007. Her motion was denied on
September 6, 2007, copy of which she received on September 12, 2007.
On September 19, 2007, petitioner filed a Notice of Appeal before the Office of
RD Sampulna, stating that she was appealing the decision and order to the Office
of the DENR Secretary. By Order of October 16, 2007, RD Sampulna denied the
notice of appeal, holding that it was filed beyond the reglementary period. The
RD explained that petitioner should have filed her appeal on September 13,
2007 as she had only one day left of the 15-day reglementary period for the
purpose, pursuant to DENR Administrative Order No. 87, Series of 1990 which
provides that 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 his
appeal during the remainder of the period for appeal, reckoned from receipt of t
he resolution of denial.The administrative order also provides that “The Rules of
Court shall apply when not inconsistent with the provisions hereof.”
Invoking the rule enunciated by this Court in the 2005 case of Neypes, et al. v.
Court of Appeals, et al., petitioner argued in her motion for reconsideration of RD
Sampulnas October 16, 2007 Order that she still had a fresh period of fifteen days
from her receipt on September 12, 2007 of copy of the Order denying her motion
for reconsideration. However, her motion was denied.
Petitioner elevated the matter via certiorari before the CA which, by Resolution,
dismissed it on the ground that petitioner failed to exhaust administrative
the President before resorting to judicial action.
Petitioner moved for reconsideration, arguing that her petition for
certiorari raised a purely legal issue. The appellate court, holding that the issue
raised is clearly a question of fact, denied petitioners motion. Hence, the present
petition for review on certiorari.
Issue: Whether the fresh period rule laid down in Neypes applies to petitioner’s
case
Ruling: NO.
The issue raised by petitioner before the appellate court is one of law because it
can be resolved by merely determining what the law is under the
undisputed facts. The appellate court’s ruling that such issue raises a question
of fact which entails an examination of the probative value of the evidence
presented by the parties is thus erroneous.
As reflected in the decision in Neypes, the fresh period rule shall apply
to Rule 40 (appeals from the Municipal Trial Courts to the Regional Trial
Courts); Rule 41 (appeals from the Regional Trial Courts to the Court of Appeals
or Supreme Court); Rule 42 (appeals from the Regional Trial Courts to the Court
of Appeals); Rule 43 (appeals from quasi-judicial agencies to the Court of
Appeals); and Rule 45 (appeals by certiorari to the Supreme Court). Obviously,
these Rules cover judicial proceedings under the 1997 Rules of Civil Procedure.
Petitioners present case is administrative in nature involving an appeal from
the decision or order of the DENR regional office to the DENR Secretary. Such
appeal is indeed governed by Section 1 of Administrative Order No. 87, Series of
1990. As earlier quoted, Section 1 clearly provides that if the motion for
reconsideration is denied, the movant shall perfect his appeal during the
remainder of the period of appeal, reckoned from receipt of the resolution of
denial; whereas if the decision is reversed, the adverse party has a fresh 15-day
period to perfect his appeal.
Rule 41, Section 3 of the Rules of Court, as clarified in Neypes, being inconsistent
with Section 1 of Administrative Order No. 87, Series of 1990, it may not apply
to the case of petitioner whose motion for reconsideration was denied.
WHEREFORE, the assailed issuances of the Court of Appeals
are AFFIRMED, not on the ground advanced therein but on the ground reflected
in the foregoing discussion. No costs.
G.R. No. 174373 October 15, 2007
EMELINDA V. ABEDES, petitioner, vs.
HON. COURT OF APPEALS, RELIA QUIZON ARCIGA and SHERIFF RONBERTO
B. VALINO, respondent.
Petition: Special civil action for certiorari under Rule 65 of the Rules of Court
Facts:
Respondent Relia Quizon Arciga filed an action before the RTC of Pasig City
against Wilfredo P. Abedes (Wilfredo), husband of herein petitioner, seeking
support for her daughter, Dannielle Ann Arciga (Danielle Ann). A Decision was
therein rendered, declaring Wilfredo the natural father of Danielle Ann. Wilfredo
was similarly ordered by the RTC to support Danielle Ann.
Since no appeal was interposed by the parties, the judgment became final and
executory. Unfortunately, the Sheriffs Return showed that no personal property
of Wilfredo could be levied upon to satisfy the judgment. The Writ of Execution
was returned unsatisfied. Later, a property covered by TCT No. 292139 was
discovered to be allegedly registered in the name of Wilfredo. Thus, the Sheriff
caused the registration of a Notice of Levy on Execution on TCT No. 292139, with
the Office of the Registry of Deeds. Upon notice of the same, petitioner filed a
Notice of Third Party Claim with the RTC of Pasig. Petitioner alleged that the
property covered by TCT No. 292139 belongs exclusively to her. Therefore, it
may not be utilized to satisfy the judgment rendered against her husband
Wilfredo.
Notwithstanding the adverse claim, a Notice of Sheriffs Sale was made
announcing the sale to the public and to the highest bidder of all the rights, claims,
and shares of Wilfredo in the property covered by TCT No. 292139. Aggrieved,
petitioner filed a Complaint for Injunction with Prayer for Writ of Preliminary
Injunction and Temporary Restraining Order and Damages before the RTC of
Tarlac City
After due hearing, the RTC of Tarlac City issued a TRO. Meanwhile, respondents
filed an Urgent Motion to Dismiss the Complaint of petitioner. However, the RTC
of Tarlac City dismissed the motion for want of merit.
In their Answer, respondents Relia Quizon Arciga and Sheriff Ronberto B. Valino
principally contended that the property subject of the levy is presumed conjugal
property; and as such, liable for the judgment against Wilfredo.
In view of this development, petitioner filed a Motion for Summary Judgment. The
RTC of Tarlac City issued the assailed Order ruling that the property covered by
TCT No. 292139 is petitioner’s paraphernal property. As her exclusive property,
it may not be made liable for the obligations of Wilfredo. Hence, the RTC enjoined
respondent Sheriff from conducting the public sale of the property covered by
TCT No.
Respondents Motion for Reconsideration of the foregoing order was denied by
the RTC, prompting respondents to file an appeal with the Court of Appeals.
The Court of Appeals issued a Decision, reversing and setting aside the appealed
Order and Resolution of the RTC of Tarlac City.
In its ruling, the Court of Appeals said that the Family Code provisions on conjugal
partnerships govern the property relations between petitioner and Wilfredo,
notwithstanding the fact that their marriage was celebrated prior to the
effectivity of the Family Code. Following the foregoing line of ratiocination, the
Court of Appeals held that the property covered by TCT No. 292139 may be levied
upon in execution for the support of Danielle Ann. Petitioner filed a Motion for
Reconsideration. The CA denied the motion. Hence, the Petition before us filed
under Rule 65 of the Rules of Court.
Issue: Whether the petitioner used the appropriate mode of appeal
Ruling: No.
A petition for certiorari under Rule 65 is proper if a tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction and there is no appeal, or any plain, speedy and adequate remedy in
the ordinary course of law. However, the proper remedy of petitioner from the
assailed Decision and Resolution of the Court of Appeals is an ordinary appeal to
this Court via a petition for review under Rule 45 and not a petition for certiorari
under Rule 65.
Parenthetically, it must be emphasized that under Rule 56, Sec. 5(f) of the Rules
of Court, which governs the procedure in the Supreme Court, a wrong or
inappropriate mode of appeal, as in this case, merits an outright
dismissal. Patently, the petition must fail.
Section 2, Rule 41 of the Rules of Court elaborates on the modes of appeal:
SEC. 2. Modes of appeal.
(a) Ordinary appeal. The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and serving
a copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In such
cases, the record on appeal shall be filed and served in like manner.
(b) Petition for review. The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its appellate
jurisdiction shall be by petition for review in accordance with Rule 42.
(c) Appeal by certiorari. In all cases where only questions of law are
raised or involved, the appeal shall be to the Supreme Court by petition
for review on certiorari in accordance with Rule 45.
The first mode of appeal, governed by Rule 41, is taken to the Court of Appeals on
questions of fact or mixed questions of fact and law. The second mode of appeal,
covered by Rule 42, is brought to the Court of Appeals on questions of fact, of law,
or mixed questions of fact and law. The third mode of appeal, provided for by
Rule 45, is elevated to the Supreme Court only on questions of law.
In the case at bar, respondents utilized the first mode of appeal. Respondents
filed a Notice of Appeal with the RTC of Tarlac City on 18 August 2004, giving
notice that they were appealing its Order and Resolution, dated 9 June
2004 and 3 August 2004, respectively, to the Court of Appeals. Indeed, Section
3 of Rule 41 of the Rules of Court states that an appeal to the Court of Appeals
shall be taken by filing a notice of appeal with the court which rendered the
judgment and serving a copy thereof upon the adverse party. The question now
arises whether respondents raised questions of fact or mixed questions of fact
and law before the Court of Appeals. A review of the records reveals that
respondents, in their appeal with the Court of Appeals, raised mixed questions of
fact and law.
WHEREFORE, the Petition is DISMISSED. Costs against petitioner.
[G.R. No. 137761. April 6, 2000]
GABRIEL LAZARO and the heirs of FLORENCIA PINEDA and EVA
VIERNES, petitioners, vs. COURT OF APPEALS and Spouses JOSE and ANITA
ALESNA, respondents.
Failure to pay docket and other lawful fees within the prescribed period is a
ground for the dismissal of an appeal. This rule cannot be suspended by the
mere invocation of "the interest of substantial justice." Procedural rules may be
relaxed only in exceptionally meritorious cases.
Petition: Before us is a Petition for Certiorari under Rule 65
Facts:
Before the RTC of Bayombong, Nueva Vizcaya, Spouses Jose and Anita Alesna,
private respondents herein, filed a civil action for annulment of title,
reconveyance and damages (with prayer for preliminary injunction) against
Petitioners Gabriel Lazaro and the heirs of Florencia Pineda and Eva Viernes.
After trial, the RTC rendered judgment in favor of the petitioners. Thereafter,
the private respondents filed a Notice of Appeal before the trial court.
The CA dismissed the appeal for failure of herein private respondents to pay the
required docket fees within the prescribed period. Thereafter, it issued its first
assailed Resolution granting their Motion for Reconsideration and reinstating
the appeal.
Subsequently, the petitioners also filed their own Motion for Reconsideration
assailing the said Resolution. As earlier stated, the CA denied their Motion.
Hence, this Petition.
Issue: Whether the failure to pay docket and other lawful fees within the
prescribed period is a ground for the dismissal of an appeal.
Ruling: Yes.
The Petition is meritorious.
The Rules of Court, as amended, specifically provides that appellate court
docket and other lawful fees should be paid within the period for taking an
appeal. Hence, Section 4 of Rule 41 reads:
"Section 4. Appellate court docket and other lawful fees. --
Within the period for taking an appeal,[9] the appellant shall
pay to the clerk of the court which rendered the judgment or
final order appealed from, the full amount of the appellate
court docket and other lawful fees. Proof of payment of said
fees shall be transmitted to the appellate court together with
the original record or the record on appeal."
Contrary to the submission of private respondents that the aforecited rule is
merely directory, the payment of the docket and other legal fees within the
prescribed period is both mandatory and jurisdictional. Section 1 (c), Rule 50 of
the Rules of Court provides: "Failure of the appellant to pay the docket and
other fees as provided in Section 4 of Rule 41" is a ground for the dismissal of
the appeal. Indeed, it has been held that failure of the appellant to conform with
the rules on appeal renders the judgment final and executory. Verily, the right to
appeal is a statutory right and one who seeks to avail of that right must comply
with the statute or the rule.[
In the present case, the private respondents failed to pay the required docket
fees within the reglementary period. In fact, the Court notes that they paid the
fees only after the CA had dismissed the appeal, or six months after the filing of
the Notice of Appeal. Clearly, existing jurisprudence and the Rules mandate that
the appeal should be dismissed.
We must stress that the bare invocation of "the interest of substantial justice" is
not a magic wand that will automatically compel this Court to suspend
procedural rules. Indeed, in no uncertain terms, the Court held that the said
rules may be relaxed only in "exceptionally meritorious cases." In this case, the
CA and the private respondents failed to show that this case is one such
exception.
WHEREFORE, the Petition is hereby GRANTED. The Court of Appeals' assailed
Resolutions, dated July 31, 1998 and December 28, 1998, are SET ASIDE. The
Decision of the Regional Trial Court of Bayombong, Nueva Vizcaya (Branch 27)
in Civil Case No.4058 is declared FINAL and EXECUTORY. No pronouncement as
to costs.
[G.R. No. 163604. May 6, 2005]
REPUBLIC OF THE PHILIPPINES, petitioner, vs. THE HON. COURT OF
APPEALS (Twentieth Division), HON. PRESIDING JUDGE FORTUNITO L.
MADRONA, RTC-BR. 35 and APOLINARIA MALINAO JOMOC, respondents.
Facts:
In the Matter of Declaration of Presumptive Death of Absentee Spouse Clemente
P. Jomoc, RTC, granted the petition and accordingly declared the absentee
spouse, who had left his petitioner-wife nine years earlier, presumptively dead.
The Republic, through the Office of the Solicitor General, sought to appeal the trial
courts order by filing a Notice of Appeal.
The trial court, noting that no record of appeal was filed and served as required
by and pursuant to Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure, the
present case being a special proceeding, disapproved the Notice of Appeal.
The Republic’s Motion for Reconsideration of the trial courts order of disapproval
having been denied, it filed a Petition for Certiorari before the CA, contending that
the declaration of presumptive death of a person under Article 41 of the Family
Code is not a special proceeding or a case of multiple or separate appeals
requiring a record on appeal.
The Court of Appeals denied the Republics petition on procedural and
substantive grounds stating that the petition is not sufficient in form. It failed to
attach to its petition a certified true copy of the assailed Order. However, despite
the procedural lapses, the Court resolves to delve deeper into the substantive
issue of the validity/nullity of the assailed order.
The principal issue in this case is whether a petition for declaration of the
presumptive death of a person is in the nature of a special proceeding. If it is,
the period to appeal is 30 days and the party appealing must, in addition to a
notice of appeal, file with the trial court a record on appeal to perfect its appeal.
Otherwise, if the petition is an ordinary action, the period to appeal is 15 days
from notice or decision or final order appealed from and the appeal is perfected
by filing a notice of appeal (Section 3, Rule 41, Rules of Court).
Issue: Whether a record on appeal shall be required in order to perfect an
appeal
Ruling: Yes.
This Court finds that the instant petition is in the nature of a special proceeding
and not an ordinary action. The instant petition, being in the nature of a special
proceeding, OSG should have filed, in addition to its Notice of Appeal, a record
on appeal in accordance with Section 19 of the Interim Rules and Guidelines to
Implement BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court.
Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked
by the trial court in disapproving petitioners Notice of Appeal, provides:
Sec. 2. Modes of appeal. -
(a) Ordinary appeal. - The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and serving
a copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple
or separate appeals where the law or these Rules so require. In
such cases, the record on appeal shall be filed and served in like
manner. (Emphasis and underscoring supplied)
Finally, on the alleged procedural flaw in petitioners petition before the appellate
court. Petitioners failure to attach to his petition before the appellate court a copy
of the trial courts order denying its motion for reconsideration of the disapproval
of its Notice of Appeal is not necessarily fatal, for the rules of procedure are not
to be applied in a technical sense. Given the issue raised before it by petitioner,
what the appellate court should have done was to direct petitioner to comply
with the rule.
WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is hereby
REVERSED and SET ASIDE. Let the case be REMANDED to it for appropriate
action in light of the foregoing discussion.
G.R. No. 93559 April 26, 1991
MAJOR ROMEO G. ELEPANTE, petitioner,
vs.
HONORABLE JOB B. MADAYAG, 1st Vice Executive Judge, Branch 145,
Makati, Metro Manila REGIONAL TRIAL COURT, and MAJ. GEN. RODOLFO
BIAZON, Commanding General, National Capital Region Defense
Command, respondents.
Petition: This is a petition for certiorari
Facts:
Major Romeo Elepante filed a petition for habeas corpus with this Court. The
Court resolved to issue a writ returnable to the Executive Judge of the RTC,
Makati, Metro Manila. Also this Court directed the latter to hear and decide the
case.
In the hearing, Romeo Elepante testified that he is a Major in the Philippine
Navy (Marines) and the Executive Officer of the Metropolitan Citizens Military
Training Command; that on April 15, 1990, a platoon of armed soldiers led by
Captain Doctor brought him to the NCR Defense Command where he was
detained; that there was no warrant for his arrest; that he was confined as
prisoner at Fort Bonifacio; that no formal charges have been filed against him.
The trial court rendered a decision dismissing for lack of merit the petition
for habeas corpus. The trial court opined that Major Elepante was arrested
because of his involvement in several coup attempts.
Major Elepante filed this petition for review on certiorari, alleging inter
alia, that there is no criminal complaint filed against him so that his continued
detention is a violation of the Constitution. The Office of the Solicitor General
filed its comment. In his comment the Solicitor General pointed out that counsel
for petitioner received on May 29, 1990, a copy of the trial court's decision
dated May 24, 1990, so that when he filed this petition on June 11, 1990, the
assailed decision had attained finality. Citing Rule 41, Section 18 of the Revised
Rules of Court, appeal in habeas corpus should be filed within forty-eight (48)
hours from notice of the judgment.
Issue: Whether petitioner’s appeal in habeas corpus was timely filed
Ruling: No.
Section 18 of Rule 41 of the Revised Rules of Court, explicitly provides, viz:
Sec. 18. Appeal in habeas corpus cases, how taken. — An appeal
in habeas corpus cases shall be perfected by filing with the clerk of the
court or the judge who rendered the judgment, within forty-eight (48)
hours from notice of such judgment, a statement that the person
making it appeals therefrom.
As interpreted in the case of Saulo v. Brig. Gen. Cruz (109 Phil. 379 [1960]),
which also involved a habeas corpuscase, this Court ruled that the requirement
under Section 18 of Rule 41 of the Old Rules of Court which provides that an
appeal in habeas corpus should be perfected within twenty-four (24) hours
(now forty-eight hours under Rule 41, Section 18 of the Revised Rules of Court),
is not only mandatory but jurisdictional. Hence, this Court has no other
alternative but to dismiss the appeal filed out of time.
In computing the forty-eight (48) hour period of appeal, this Court in Kabigting
v. Director of Prisons (6 SCRA 281 [1962]), ruled that the date on which the
decision was promulgated and/or served is not counted and the period starts to
run the following day unless the same by a Sunday or legal holiday in which
case the period of appeal is to be considered from the succeeding day. To
perfect an appeal, a notice of appeal is required to be filed with the Clerk of
Court or Judge who rendered the judgment (Rule 41, Section 18, Revised Rules
of Court).

In the case at bar, counsel for petitioner received on May 29, 1990 a copy of the
trial court's decision dated May 24, 1990 (Rollo, p. 8). Clearly when he filed the
instant petition on June 11, 1990, thirteen (13) days had lapsed, so it was filed
outside the forty-eight (48) hour reglementary period. This being so, the
decision sought to be reviewed is already final so that this Court following the
Saulo ruling, has no alternative but to dismiss the instant petition.

PREMISES CONSIDERED, (a) the petition is hereby DISMISSED for the decision
sought to be reviewed is already final and (b) General Rodolfo Biazon or his
successor is directed to take appropriate action.

SO ORDERED.