Record Vs Notice of Appeal
Record Vs Notice of Appeal
Record Vs Notice of Appeal
Supreme Court
Manila
FIRST DIVISION
SPOUSES ELBE LEBIN and
ERLINDA LEBIN,
Petitioners,
- versus VILMA S. MIRASOL, and
REGIONAL TRIAL COURT
OF ILOILO, BRANCH XXVII,
Respondents.
September 7, 2011
x-----------------------------------------------------------------------------------------x
DECISION
BERSAMIN, J.:
The perfection of an appeal in the manner and within the period laid down by law is
mandatory and jurisdictional.
The Case
In Special Proceedings No. 1307 involving the settlement of the estate of the late L.J.
Hodges, the Regional Trial Court (RTC), Branch 27, in Iloilo City, issued an order dated
May 3, 1995 (ruling that a property of the estate sold to the petitioners be divided in two
equal portions between the petitioners and the respondent).
[1]
[2]
affirmed the order dated May 3, 1995. The petitioners filed a notice of appeal and, later
on, a record on appeal, but the respondents moved to dismiss their appeal on June 15, 2000
on the ground of tardiness of the record on appeal. The RTC granted the motion to dismiss
on February 1, 2002. On March 13, 2002, the petitioners moved for reconsideration of the
[3]
[4]
dismissal, but the RTC denied the motion for reconsideration on May 21, 2004. Thus,
on June 23, 2004, the petitioners directly appealed to the Court, assailing the orders of
[6]
[5]
stating to the RTC that petitioner Erlinda Lebin was the actual
[7]
occupant of Lot 18. The RTC commissioned one Atty. Tabares to conduct an ocular
inspection of Lot 18 to ascertain if Erlinda Lebin was really the occupant. In his report,
Atty. Tabares confirmed that Erlinda Lebin was the only occupant of Lot 18.
[8]
Accordingly,
on August 28, 1985, the RTC granted the administrators motion for approval of the offer.
[9]
In the meanwhile, respondent Vilma S. Mirasol (Mirasol) also offered to purchase the
lot containing an area of 188 square meters where her house stood. The lot was initially
identified as Lot No. 4, Block 7 of 971 (Lot 4), but a later survey revealed that her house
[10]
[11]
On December 17, 1987, pending resolution of the petition for relief, the petitioners
paid the last installment for Lot 18, and moved for the execution of the deed of sale.
Apparently, the motion was not acted upon by the RTC.
At last, on May 3, 1995, the RTC resolved the petition for relief, viz:
WHEREFORE, the Court, under the auspices of equity and justice tempered with
humanitarian reasons, hereby declare each of the offeror-claimants after complying with their
respective obligation with the estate, should there be any, to be the owner where their
respective houses stand, and therefore, DIRECTS and ENJOINS for the following matters to
be undertaken:
For the Administrator of the L.J. Hodges Estate:
1) To assist both offeror-claimants in effecting a Relocation Survey Plan and cause the
equal partition of the subject lot herein between the said offeror-claimant;
[12]
2) To execute the corresponding deed of sale over the aforecited subject lot in favor of
the herein offeror-claimants --- Erlinda Lebin and Vilma S. Mirasol purposely to expedite the
issuance of respective title; and --3) To exact payment from either or both offeror-claimants should there be any
deficiency, and/or to refund payment should there be any excess payment from either or both
offeror-claimants.
[13]
SO ORDERED.
[14]
On May 23, 1995, the petitioners moved for reconsideration and/or new trial.
On March
2, 1998, the RTC denied the motion for reconsideration and/or new trial of the petitioners.
[15]
Thus, on March 27, 1998, the petitioners filed a notice of appeal in the RTC.
[17]
[16]
[19]
The RTC granted the motion to dismiss the appeal on February 1, 2002.
[21]
[20]
[22]
Hence, the petitioners appealed via petition for review on certiorari filed on June 23, 2004,
to seek the review and reversal of the orders of the RTC dated February 1, 2002 and May
21, 2004.
Issues
1. Whether or not the RTC erred in dismissing the petitioners appeal for their
failure to timely file a record on appeal; and
2. Whether or not the RTC committed reversible error in adjudging that Lot 18
be sold to both the petitioners and Mirasol in equal portions.
Ruling
In early 1990, the Supreme Court issued its resolution in Murillo v. Consul
clarify and fortify a judicial policy against misdirected or erroneous appeals, stating:
At present then, except in criminal cases where the penalty imposed is life imprisonment
or reclusion perpetua, there is no way by which judgments of regional trial courts may be
appealed to the Supreme Court except by petition for review on certiorari in accordance with
Rule 45 of the Rules of Court, in relation to Section 17 of the Judiciary Act of 1948 as
amended. The proposition is clearly stated in the Interim Rules: Appeals to the Supreme Court
shall be taken by petition for certiorari which shall be governed by Rule 45 of the Rules of
Court.
On the other hand, it is not possible to take an appeal by certiorari to the Court of
Appeals. Appeals to that Court from the Regional Trial Courts are perfected in two (2) ways,
both of which are entirely distinct from an appeal by certiorari to the Supreme Court. They
are:
a) by ordinary appeal, or appeal by writ of error - where judgment was rendered
in a civil or criminal action by the RTC in the exercise of original jurisdiction; and
b) by petition for review - where judgment was rendered by the RTC in the
exercise of appellate jurisdiction.
The petition for review must be filed with the Court of Appeals within 15 days from
notice of the judgment, and as already stated, shall point out the error of fact or law that will
warrant a reversal or modification of the decision or judgment sought to be reviewed. An
ordinary appeal is taken by merely filing a notice of appeal within 15 days from notice of the
judgment, except in special proceedings or cases where multiple appeals are allowed in which
to
An offshoot of Murillo v. Consul is the inclusion in the 1997 revision of the rules of
civil procedure, effective July 1, 1997, of a provision that forthrightly delineated the modes
of appealing an adverse judgment or final order. The provision is Section 2 of Rule 41, viz:
Section 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. (n) (emphasis supplied)
The changes and clarifications recognize that appeal is neither a natural nor a
constitutional right, but merely statutory, and the implication of its statutory character is that
the party who intends to appeal must always comply with the procedures and rules
governing appeals, or else the right of appeal may be lost or squandered.
As the foregoing rules further indicate, a judgment or final order in special
proceedings is appealed by record on appeal. A judgment or final order determining and
terminating a particular part is usually appealable, because it completely disposes of a
[26]
particular matter in the proceeding, unless otherwise declared by the Rules of Court.
The
ostensible reason for requiring a record on appeal instead of only a notice of appeal is the
multi-part nature of nearly all special proceedings, with each part susceptible of being
finally determined and terminated independently of the other parts. An appeal by notice of
appeal is a mode that envisions the elevation of the original records to the appellate court as
to thereby obstruct the trial court in its further proceedings regarding the other parts of the
case. In contrast, the record on appeal enables the trial court to continue with the rest of the
case because the original records remain with the trial court even as it affords to the
appellate court the full opportunity to review and decide the appealed matter.
Section 1, Rule 109 of the Rules of Court underscores the multi-part nature of special
proceedings by enumerating the particular judgments and final orders already subject of
appeal by any interested party despite other parts of the proceedings being still untried or
unresolved, to wit:
Section 1. Orders or judgments from which appeals may be taken. - An interested person
may appeal in special proceedings from an order or judgment rendered by a Court of First
Instance or a Juvenile and Domestic Relations Court, where such order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the distributive share of
the estate to which such person is entitled;
(c) Allows or disallows, in whole or in part, any claim against the estate of a deceased
person, or any claim presented on behalf of the estate in offset to a claim against it;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased
person, or the administration of a trustee or guardian, a final determination in the lower court
of the rights of the party appealing, except that no appeal shall be allowed from the
appointment of a special administrator; and
(f) Is the final order or judgment rendered in the case, and affects the substantial rights of
the person appealing, unless it be an order granting or denying a motion for a new trial or for
reconsideration.
The petitioners appeal comes under item (e) of Section 1, supra, due to the final order
of May 3, 1995 issued in the settlement of the estate of L.J. Hodges being a final
determination in the lower court of the rights of the party appealing. In order to elevate a
part of the records sufficient for appellate review without the RTC being deprived of the
original records, the remedy was to file a record on appeal to be approved by the RTC.
The elimination of the record on appeal under Batas Pambansa Blg. 129 made
feasible the shortening of the period of appeal from the original 30 days to only 15 days
[27]
final order the full amount of the appellate court docket and other lawful fees.
A
violation of these requirements for the timely perfection of an appeal by record on appeal,
[30]
or the non-payment of the full amount of the appellate court docket and other lawful
[31]
Did the petitioners comply with the requirements for perfecting their appeal?
The petitioners received the assailed May 3, 1995 order of the RTC on May 15, 1995.
They filed a motion for reconsideration and/or new trial on May 24, 1995. On March 23,
1998, they were served with the order dated March 2, 1998 (denying their motion for
reconsideration and/or new trial). Although they filed a notice of appeal on March 27, 1998,
they submitted the record on appeal only on May 5, 1998. Undoubtedly, they filed the
record on appeal 43 days from March 23, 1998, the date they received the denial of their
motion for reconsideration and/or new trial. They should have filed the record on appeal
within 30 days from their notice of the judgment. Their appeal was not perfected, therefore,
because their filing of the record on appeal happened beyond the end of their period for the
perfection of their appeal.
The petitioners filing of the motion for reconsideration vis--vis the order of May 3,
1995 interrupted the running of the period of 30 days; hence, their period to appeal started
to run from May 15, 1995, the date they received the order of May 3, 1995. They filed their
motion for reconsideration on May 24, 1995. By then, nine days out of their 30-day period
to appeal already elapsed. They received a copy of the order dated March 2, 1998 on March
23, 1998. Thus, the period to appeal resumed from March 23, 1998 and ended 21 days later,
or on April 13, 1998. Yet, they filed their record on appeal only on May 5, 1998, or 22 days
beyond the end of their reglementary period. Although, by that time, the 1997 Rules on Civil
Procedure had meanwhile taken effect (July 1, 1997), their period of appeal remained 30
days. It is stressed that under the 1997 revisions, the timely filing of the motion for
reconsideration interrupted the running of the period of appeal, pursuant to Section 3, Rule
41 of the 1997 Rules on Civil Procedure, viz:
Section 3. Period of ordinary appeal. The appeal shall be taken within fifteen (15) days
from notice of the judgment or final order appealed from. Where a record on appeal is
required, the appellant shall file a notice of appeal and a record on appeal within thirty (30)
days from notice of the judgment or final order.
The period of appeal shall be interrupted by a timely motion for new trial or
reconsideration. No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed. (n) (emphasis supplied)
Section 13, Rule 41 of the Rules of Court empowers the RTC as the trial court, motu
proprio or on motion, to dismiss the appeal for having been taken out of time or for non[32]
payment of the docket and other lawful fees within the reglementary period.
reason, the RTC rightly granted Mirasols motion to dismiss the record on appeal.
For that
Nonetheless, the petitioners propose to be excused from the requirement of filing a record
on appeal, arguing that (t)o require a (r)ecord on (a)ppeal here is to reproduce the more than
eighteen (18) volumes of records here which is quite impossible to do and that most of these
[33]
[34]
only the records of the trial court which the appellate court would be asked to pass upon.
Section 6, Rule 41 of the 1997 Rules of Civil Procedure, which meanwhile became
applicable to them, specified what the record on appeal should contain, thusly:
Section 6. Record on appeal; form and contents thereof. - The full names of all the
parties to the proceedings shall be stated in the caption of the record on appeal and it shall
include the judgment or final order from which the appeal is taken and, in chronological order,
copies of only such pleadings, petitions, motions and all interlocutory orders as are related to
the appealed judgment or final order for the proper understanding of the issue involved,
together with such data as will show that the appeal was perfected on time. If an issue of fact
is to be raised on appeal, the record on appeal shall include by reference all the evidence,
testimonial and documentary, taken upon the issue involved. The reference shall specify the
documentary evidence by the exhibit numbers or letters by which it was identified when
admitted or offered at the hearing, and the testimonial evidence by the names of the
corresponding witnesses. If the whole testimonial and documentary evidence in the case is to
be included, a statement to that effect will be sufficient without mentioning the names of the
witnesses or the numbers or letters of exhibits. Every record on appeal exceeding twenty (20)
pages must contain a subject index. (6a)
The right to appeal is a mere statutory privilege, and should be exercised only in the
[36]
[38]
[37]
or
such statutes or
[39]
In like manner, the perfection of an appeal within the period laid down by law is
mandatory and jurisdictional, because the failure to perfect the appeal within the time
prescribed by the Rules of Court causes the judgment or final order to become final as to
preclude the appellate court from acquiring the jurisdiction to review the judgment or final
[40]
order.
The failure of the petitioners and their counsel to file their record on appeal on
time rendered the orders of the RTC final and unappealable. Thereby, the appellate court
lost the jurisdiction to review the challenged orders, and the petitioners were precluded from
assailing the orders.
II
RTC committed no reversible error in allocating
Lot 18 in equal portions to both petitioners and respondent
The non-perfection of the appeal by the petitioners notwithstanding, the Court declares that
the RTC did not err in allocating the parcel of land equally to the parties if only to serve and
enforce a standing policy in the settlement of the large estate of the late L.J. Hodges to
prefer actual occupants in the disposition of estate assets. The policy was entirely within the
power of the RTC to adopt and enforce as the probate court.
As stated in the administrators motion for approval of the offer, the approval of the offer to
purchase would be conditioned upon whether the petitioners were the only actual occupants.
The condition was designed to avoid the dislocation of actual occupants, and was the reason
why the RTC dispatched Atty. Tabares to determine who actually occupied the property
before approving the motion. It turned out that the report of Atty. Tabares about the
petitioners being the only occupants was mistaken, because the house of Mirasol, who had
meanwhile also offered to purchase the portion where her house stood, happened to be
within the same lot subject of the petitioners offer to purchase. The confusion arose from the
misdescription of Mirasols portion as Lot 4, instead of Lot 18.
[41]
Under Rule 89 of the Rules of Court, the RTC may authorize the sale, mortgage, or
encumbrance of assets of the estate. The approval of the sale in question, and the
modification of the disposition of property of the Estate of L.J. Hodges were made pursuant
to Section 4 of Rule 89, to wit:
Section 4. When court may authorize sale of estate as beneficial to interested persons;
Disposal of proceeds. - When it appears that the sale of the whole or a part of the real or
personal estate will be beneficial to the heirs, devisees, legatees, and other interested
persons, the court may, upon application of the executor or administrator and on written
notice to the heirs, devisees and legatees who are interested in the estate to be sold, authorize
the executor or administrator to sell the whole or a part of said estate, although not necessary
to pay debts, legacies, or expenses of administration; but such authority shall not be granted if
inconsistent with the provisions of a will. In case of such sale, the proceeds shall be assigned
to the persons entitled to the estate in the proper proportions. [emphasis supplied]
Without doubt, the disposal of estate property required judicial approval before it could be
[42]
executed.
Implicit in the requirement for judicial approval was that the probate court
could rescind or nullify the disposition of a property under administration that was effected
[43]
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
Chairperson
RENATO C. CORONA
Chief Justice
[1]
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
Id., p. 32.
[10]
Id., p. 36.
[11]
Id., pp. 32-35.
[12]
Id., pp. 37-38.
[13]
Id., pp. 12-13.
[14]
Id., pp. 14-16.
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
Id., p. 17.
Id., p. 18.
Id., p. 20.
Id., p. 19.
Id., pp. 20-22.
Id., pp. 24-25.
Id., pp. 26-27.
Id., pp. 28-29.
Entitled An Act Reorganizing the Judiciary, Appropriating Funds Therefor, and for other Purposes.
[24]
Undk. No. 9748, February 27, 1990; 183 SCRA xi, which became the basis for the guidelines set forth in Circular No. 2-90 issued
by the Supreme Court on March 9, 1990.
[25]
Id., pp. xv-xviii.
[26]
According to Section 1, first paragraph, Rule 41, Rules of Court: 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.
[27]
Section 3. Period of Ordinary Appeal. The appeal shall be taken within fifteen (15) days from notice of the judgment or final
order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within
thirty (30) days from the notice of the judgment or final order.
[28]
Section 2(a) and Section 3, Rule 41, Rules of Court.
[29]
Section 4, Rule 41, Rules of Court.
[30]
Section 13, Rule 41, and Section 1(a), Rule 50, Rules of Court.
[31]
Section 1(a) and (c), Rule 50, Rules of Court.
[32]
Section 13. Dismissal of appeal. Prior to the transmittal of the original record or the record on appeal to the appellate court, the
trial court may, motu proprio or on motion, dismiss the appeal for having been taken out of time or for non-payment of the docket and
other lawful fees within the reglementary period.
[33]
Id., p. 8.
[34]
Id.
[35]
Bersamin, Appeal and Review in the Philippines, Central Professional Books, Inc., 2nd Edition, p. 136; citing 3 Am Jur 215.
[36]
Borlongan v. Buenaventura, G.R. No. 167234, September 27, 2006, 483 SCRA 405, 411-412; Philippine Commercial
International Bank v. Court of Appeals, G.R. No. 106956, January 27, 1994, 229 SCRA 560.
[37]
Remulla v. Manlongat, G.R. No. 148189, November 11, 2004, 442 SCRA 226, 233; Yutingco v. Court of Appeals, G.R. No.
137264, August 1, 2002, 386 SCRA 85, 91; Tan Tiac Chiong v. Cosico, A.M. No. CA-02-33, July 21, 2002, 385 SCRA 509, 515;
Olacao v. NLRC, G.R. No. 81390, August 29, 1989, 177 SCRA 38, 49.
[38]
Equitable PCI Bank v. Ku, G.R. No. 142950, March 26, 2001, 355 SCRA 309, 316; De Guzman v. Sandiganbayan, G.R. No.
103276, April 11, 1996, 256 SCRA 171, 177; Orata v.Intermediate Appellate Court, G.R. No. 73471, May 8, 1990, 185 SCRA 148,
152.
[39]
Almeda v. Court of Appeals, G.R. No. 121013, July 16, 1998 292 SCRA 587, 593-595.
[40]
Ko v. Philippine National Bank, G. R. Nos. 169131-132, January 20, 2006, 479 SCRA 298; Air France Philippines v. Leachon,
G.R. No. 134113, October 12, 2005, 472 SCRA 439; Remulla v. Manlongat, G.R. No. 148189, November 11, 2004, 442 SCRA 226,
233; Philippine Commercial International Bank v. Court of Appeals, G.R. No. 127275, June 20, 2003, 404 SCRA 442, 448; Yao v.
Court of Appeals, G.R. No. 132426, October 24, 2000, 344 SCRA 202; Dayrit v. Philippine Bank of Communications, G.R. No.
140316, August 1, 2002, 386 SCRA 117, 125; Bishop of Tuguegarao v. Director of Lands, 34 Phil 623 (1916); Estate of Cordoba and
Zarate v. Alabado, 34 Phil. 920 (1916); Bermudez v. Director of Lands, 36 Phil. 774 (1917).
[41]
Id., p. 36.
[42]
Acebedo v Abesamis, G.R. No. 102380, January 18, 1993, 217 SCRA 186, 193.
[43]
Dillena v. Court of Appeals, G.R. No. L-77660, July 28, 1988, 163 SCRA 630, 637.