1997 Rules on Civil Procedure Rule 42 – Petition for Review

2001 Edition <draft copy. pls. check for errors> From the RTC to the CA

Rule 42
PETITION FOR REVIEW
FROM THE REGIONAL TRIAL COURTS
TO THE COURT OF APPEALS

Q: What are the modes of appeal from RTC to the CA?

A: It’s either ORDINARY APPEAL (Rule 41) or PETITION FOR REVIEW (Rule 42).

Rule 41 refers to an ordinary appeal from the RTC to the CA – yung notice of appeal. Here, the RTC
rendered a decision pursuant to its ORIGINAL JURISDICTION.

‘Eto namang Rule 42 (Petition for review) is the mode of appeal from the RTC to the CA in cases
decided by the RTC pursuant to its APPELLATE JURISDICTION. So, the case here actually originated
in the MTC, then it was appealed to the RTC under Rule 40. And now, from the RTC, you want to go to
the CA. Hence, the mode of appeal is not (Rule 41) Notice of Appeal but RULE 42 – Petition for Review.

For the first time, there is now a rule governing petitions for review from the RTC to the CA. Prior
to July 1, 1997, there was none. Although there were guidelines then – in jurisprudence, decided cases
and SC circulars.

Section 1. How appeal taken; time for filing. A party desiring to appeal
from a decision of the Regional Trial Court rendered in the exercise of its
appellate jurisdiction may file a verified petition for review with the Court
of Appeals, paying at the same time to the clerk of said court the
corresponding docket and other lawful fees, depositing the amount of P500.00
for costs, and furnishing the Regional Trial Court and the adverse party with a
copy of the petition. The petition shall be filed and served within fifteen
(15) days from notice of the decision sought to be reviewed or of the denial of
petitioner’s motion for new trial or reconsideration filed in due time after
judgment. Upon proper motion and the payment of the full amount of the docket
and other lawful fees and the deposit for costs 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)

Under Section 1, a petition for review under Rule 42 must be VERIFIED.

Q: Where will you file your petition for review?

A: You file it directly with the CA. Do not file it with the trial court.

In Rule 41, where the appeal is deemed perfected by simply filing a notice of appeal, you file your
notice of appeal with the RTC. Do not file it with the CA. But in Rule 42, where the appeal is by petition
for review, you file your petition directly with the CA. Do not file it with the RTC.

Not only that. Of course, you have to pay the docket and lawful fees plus P500 for costs. And you
must furnish the RTC and the adverse party with a copy of the petition. That is a new requirement.

Q: What is the period to file a petition for review ?

A: The period to file a petition for review is 15 days from receipt of the RTC judgment or from the
order denying the motion for reconsideration.

Q: What is the difference in period to file between Rule 41 and Rule 42 ?

A: In Rule 41, if your motion for reconsideration is denied, you can still appeal within the
remaining balance of the 15-day period. In Rule 42, the 15-day period starts all over again because the
law says “or of the denial.” So, another fresh 15 days. This because it is more difficult to prepare a
petition for review. This is more time-consuming than a simple notice of appeal. We’ll go to examples:

Lakas Atenista 86
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 42 – Petition for Review
2001 Edition <draft copy. pls. check for errors> From the RTC to the CA

PROBLEM: Let’s go back to RULE 41: You receive a copy of the RTC decision on March 31. You file
your motion for reconsideration on April 10 – the 10th day. After two weeks, you received order of the
court denying the MFR.
Q: How many more days are left for you to file a notice of appeal?
A: Six (6) days. Ang binilang mo, 1-9 days lang. The 10th day is interrupted na. That’s true.

PROBLEM: We will go to the same problem (applying Rule 42): The case was decided by the MTC,
appealed to the RTC. And then in the RTC, you lost again. You receive a copy of the decision on March
31. On April 10, you file a motion for reconsideration. And then on April 20, you receive the order
denying the MFR.
Q: How many days more are left for you to file your petition for review?
A: Kung sabihin mo 6 days from April 20 or April 26, that’s FALSE! The answer is 15 days all over
again. Look at the law: “The petition shall be filed and served within fifteen (15) days from notice of the decision
sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration.” Meaning, you
count another 15 days from the denial. Umpisa na naman!

So the filing a motion for new trial or reconsideration in Rule 42 does not only interrupt the running
of the period but it commences to run all over again. Unlike in Rule 41, in ordinary appeal, where the
filing of the motion for reconsideration or new trial merely interrupts the running of the period to
appeal. And it commences to run again from the time you are notified that your motion is denied. See
the difference?

Actually, if you are not serious in your study of appeal, you will not see these distinctions. You will
just assume that the principles under Rule 41 and Rule 42 are the same.

Q: Under Section 1, is the 15-day period to file petition for review extendible?
A: Under Rule 41, the 15-day period to file notice of appeal is not extendible – no exceptions. But in
Rule 42, the 15-day period to file petition for review is EXTENDIBLE according to the last sentence of
Section 1, provided you pay your docket and other lawful fees, the CA will grant additional 15 days
within which to file a petition for review.

Q: Where will you file your motion for extension of time to file petition for review?
A: You file your motion for extension to the CA. The CA itself will grant the extension.

Q: How many more days can the CA grant?

A: The CA may grant another 15 days and no further extension can be granted except for the most
compelling reasons. So, original extension is 15 days, and a possible extension of 15 days = total 30
days.

These are technical points. And how many appealed cases have been dismissed simply because
these finer provisions were not been observed by lawyers? I would say 60% of all appeals are
dismissed. Even in Davao, majority of petitions are dismissed because nakulangan ng piso sa docket
fee, karami. I presume throughout the country, the pattern is the same because the rules on appeal are
very technical and very strict. That’s why there are lawyers in Manila, even in Davao, who do not want
to handle appealed cases. They only handle cases in the trial court. Pag-akyat na, nasa CA na, petition
for certiorari, pasa na sa iba.

But there are also who have mastered the rules on appeal. For the purpose of specialization, trial
phase and appeal phase. For purposes of the bar, you have to know all the fields in laws. Once you
pass the bar, diyan na kayo mag-isip kung ano ang pipiliin ninyo—civil, criminal, labor, etc. But for
purposes of the bar, you cannot say dito lang ako mag-aral sa Labor, wag na sa Civil Law. Pwede ba
yan? You cannot do that. Kaya nga sabi nila, the people who know more about the law are those who
have just taken the bar.

Lakas Atenista 87
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 42 – Petition for Review
2001 Edition <draft copy. pls. check for errors> From the RTC to the CA

Sec. 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 (a) state the full names of the parties to the
case, without impleading the lower courts or judges thereof either as
petitioners or respondents; (b) indicate the specific material dates showing
that it was filed on time; (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 Regional Trial Court, and the reasons or
arguments relied upon for the allowance of the appeal; (d) be accompanied by
clearly legible duplicate originals or true copies of the judgments or final
orders of both lower courts, certified correct by the clerk of court of the
Regional Trial Court, the requisite number of plain copies thereof and of the
pleadings and other material portions of the record as would support the
allegations of the petition.
The petitioner shall also submit together with the petition a certification
under oath that he has not theretofore commenced any other action involving the
same issues in the Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter
learn that a similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or different divisions thereof, or any
other tribunal or agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days therefrom. (n)

Take note of Section 2. Do not implead the lower court or the judge because nasanay na tayo na pati
‘yung judge naging defendant or respondent na. We only do that in Certiorari under Rule 65 in Special
Civil Actions, but not on appeal. This is the influence of Justice Feria because he has penned many cases
which has included the judge as defendant or respondent. So, he said that in the case of MWSS vs. CA
[Aug. 25, 1986], hence we can see his influence, siningit talaga niya iyan sa kaso na yon.

Now, as to the form [last paragraph], there has to be a Certification of Non-Forum Shopping, failure
to comply with such would mean the dismissal of the case.

ORTIZ vs. COURT OF APPEALS

299 SCRA 708 [1998]

FACTS: The certification was not signed by the Ortizes but by their lawyer who has
personal knowledge of the fact and contended that it should be accepted as substantial
compliance with the rules.

HELD: The certification was not proper. Strict observance of the rule is required. In this
case, no explanation was given.
“Regrettably, We find that substantial compliance will not suffice in a matter involving
strict compliance. The attestation contained in the certification on non-forum shopping
requires personal knowledge by the party who executed the same. To merit the Court’s
consideration, Ortizes here must show reasonable cause for failure to personally sign the
certification. The Ortizes must convince the court that the outright dismissal of the petition
would defeat the administration of justice. However, the Ortizes did not give any
explanation to warrant their exemption from the strict application of the rule. Utter
disregard of the rules cannot justly be rationalized by harking on the policy of liberal
construction.”

Q: Under paragraph [c], what issues can you raise in the petition for review?
A: Errors of fact, errors of law, or both – mixed errors of fact or law.

Somebody asked this QUESTION: hindi ba kapag error of law dapat sa SC yan? Hindi na dadaan sa
CA? How do you reconcile this with the Constitution? Actually, when the law says decisions of the RTC
appealable directly to the SC, it was decided pursuant to its original jurisdiction. But if it is decided
pursuant to its appellate jurisdiction, the appeal should be to the CA even on pure questions of law
without prejudice of going to the SC later on.

Lakas Atenista 88
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 42 – Petition for Review
2001 Edition <draft copy. pls. check for errors> From the RTC to the CA

Sec. 3. Effect of failure to comply with requirements. The failure of the

petitioner to comply with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, the deposit for costs, proof of
service of the petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the dismissal thereof.

Section 3. If you fail to comply with the requirements, tapos ang petition mo, dismiss!

Sec. 4. Action on the petition. The Court of Appeals may require the
respondent to file a comment on the petition, not a motion to dismiss, within
ten (10) days from notice, or dismiss the petition if it finds the same to be
patently without merit, prosecuted manifestly for delay, or that the questions
raised therein are too unsubstantial to require consideration. (n)

Sec. 5. Contents of comment. The comment of the respondent shall be filed in

seven (7) legible copies, accompanied by certified true copies of such material
portions of the record referred to therein together with other supporting
papers and shall (a) state whether or not he accepts the statement of matters
involved in the petition; (b) point out such insufficiencies or inaccuracies as
he believes exist in petitioner’s statement of matters involved but without
repetition; and (c) state the reasons why the petition should not be given due
course. A copy thereof shall be served on the petitioner. (n)

Sec. 6. Due course. If upon the filing of the comment or such other
pleadings as the court may allow or require, or after the expiration of the
period for the filing thereof without such comment or pleading having been
submitted, the Court of Appeals finds prima facie that the lower court has
committed an error of fact or law that will warrant a reversal or modification
of the appealed decision, it may accordingly give due course to the petition.
(n)

Q: When you file a petition for review from the RTC to the CA, is the CA obliged to entertain the
petition?
A: No, this is discretionary under Section 6. The CA may or may not give due course to the petition
unlike in ordinary appeal. Yan ang kaibahan ng ordinary appeal and petition for review.

In ordinary appeal under Rule 41, when you file notice of appeal and you pay your docket fee, your
appeal is automatically entertained. At least it will be heard by the CA. But in Rule 42, it is not the
same. When you go there, whether your petition for review will be given due course or not even if you
have paid the docket fee. Normally, the CA will required you to comment and then chances are after
another month and after reading your petition and your comment, the CA will refuse to give due
course to your petition, “Your petition is hereby dismissed!” So, you must convince the CA na may merit
baah!

Q: What happens when the petition for review is given due course?
A: The parties will be required to submit their respective memoranda.

Take note that the RTC is also given the power to issue orders for the protection of the parties – the
same as in Section 8, paragraph [b].

Sec. 7. Elevation of record. Whenever the Court of Appeals deems it

necessary, it may order the clerk of court of the Regional Trial Court to
elevate the original record of the case including the oral and documentary
evidence within fifteen (15) days from notice. (n)

Q: Now, when is an appeal by petition for review deemed perfected?

A: Section 8 [a]. Similar to Rule 41. The same principle:

Sec. 8. Perfection of appeal; effect thereof. (a) Upon the timely filing of
a petition for review and the payment of the corresponding docket and other
lawful fees, the appeal is deemed perfected as to the petitioner.
The Regional Trial 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.
However, before the Court of Appeals gives due course to the petition, the
Regional Trial Court may issue orders for the protection and preservation of

Lakas Atenista 89
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 42 – Petition for Review
2001 Edition <draft copy. pls. check for errors> From the RTC to the CA

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 section 2 of Rule 39, and allow
withdrawal of the appeal. (9a, R41)
(b) Except in civil cases decided under the Rule on Summary Procedure, the
appeal shall stay the judgment or final order unless the Court of Appeals, the
law, or these Rules shall provide otherwise. (n)

Q: Does the RTC have the power to act despite the fact that the petition for review is already before
the CA? Suppose I lost in the MTC, and I also lost on appeal in the RTC. I file a petition for review.
What happens to the decision? Can the decision be enforced?
A: NO, it cannot be enforced yet because it is not yet final. We still have to wait for the appeal to be
dismissed or to be entertained and denied later. Under paragraph [b], the appeal shall stay the judgment or
final order UNLESS the CA, the law or these rules should provide otherwise.
Also, based on the opening clause of paragraph [b], except in civil cases provided in the Rules on
Summary Procedure, any part thereafter appealed to the CA will not stop the implementation of the RTC
decision.

Under Section 21 of the Summary Rules, when a case is started in the MTC under the Summary
Procedure, and appealed to the RTC and decided by the RTC, the decision becomes immediately
executory. Even if we file a petition for review, it is executory. The only way to stop the RTC from
enforcing that judgment is to get a TRO or a writ of preliminary injunction from the CA. That is the
rule.

I have a similar case now on that issue. The case originated from the MTC for ejectment. The
defendant lost, akyat ngayon sa RTC, affirmed. And then akyat na naman ang defendant sa CA on
petition for review (although right now, it has not yet been given due course) with a prayer for TRO.
But the CA said that there is no compelling reason to issue one. In the meantime, I filed a motion for
execution. The defendant opposed on the ground that a judgment cannot be executed daw because of a
pending petition for review. But this is under the Summary Rules – ejectment. This is an exception, so
that will not apply.

Sec. 9. Submission for decision. If the petition is given due course, the
Court of Appeals may set the case for oral argument or require the parties to
submit memoranda within a period of fifteen (15) days from notice. The case
shall be deemed submitted for decision upon the filing of the last pleading or
memorandum required by these Rules or by the court itself. (n)

-oOo-

Lakas Atenista 90
Ateneo de Davao University College of Law