REMEDIAL LAW REVIEWER-PRIMER. Exhaustion of administrative remedies Appeal by petition for review under Rule 43 requires that petitioner has exhausted all administrative remedies and that a final order or decision has been rendered by the administrative body in the exercise of its quasi-judicial functions, Ifthere is no exhaustion or administrative remedies, appeal by petition for review may not be the appropriate remedy but a special civil action under Rule 65. Distinction between ordinary appeal and petition for review Ordinary appeal is a matter of right. Petition for review is discretionary. a. Failure to comply strictly with its requirements shall be sufficient ground for dismissal — Rule 42, Sec. 3; Rule 48, Sec. 7 b. The fact that petitioner has complied with all its requirements is no assurance that the petition will be given due course, as CA will still have to be convinced that court or agency concerned has committed prima facie an error of fact or law that will Warrant reversal or modification of the appealed decision before it may given due course — Rule 42, See: 6; Rule 43, Sec, 10 3 a 8) Petition for review on certiorari PETITIONFOR RARI RE ERTIO UNDER RULES 'VIEWONC! 1, How appeal taken and time f° filing — Verified petition within 16 ibe from notice of decision, final °IIL. Civil Procedure 253 resolution or denial of MNT or MR (Secs, 1 and 2). On motion duly filed and served, with payment of full amount of docket and other lawful fees and deposit for costs before expiration of reglementary period — extension of 30 days only for justifiable reasons. Docket and other lawful fees, deposit for costs (See. 3). Proof of service on lower court and adverse party (Id.). Only questions of law may be raised (Sec. 1) a. Question of law — when there is doubt or difference of opinion as to what the law is on a certain state of facts and which do not call for an examination of the probative value of the evidence presented by the parties. Exc, Petitions for review of decisions of RTC, Court of Appeals and Sandiganbayan in petitions for writs of amparo or habeas data, and of the Court of Appeals in petitions for writ of kalikasan, may raise questions of fact. Dismissal or denial of petition (Sec. 5) Dismissal — failure of petitioner to comply with requirements of Sec. 4 regarding payment of docket and other lawful fees deposit for costs proof of service of petitionREMEDIAL LAW REVIEWER-PRIMER. contents of and documents which should accompany petition shall be sufficient ground for dismissal thereof Denial - on its own initiative or motu proprio, SC may deny petition on ground that appeal patently without merit prosecuted manifestly for delay questions raised too unsubstantial to require consideration When petition given due course (Sec. 6) When court a guo — 1. has decided a question of substance not therefore determined by SC, or has decided it in a way probably not in accord with law or with applicable decisions of SC 2. has sofar departed from accepted and usual course of judicial proceedings, or so far sanctioned such departure by the lower court, as to call for the Power of supervision. SC may review matters not specifically raised. _ Once accepted by SC, throws entire case open to review. Distinguished from certiorari 85 * Special civil action As mode of appeal appellate or superior court bee Jurisdiction over subject MAN, 4nd persons of the parties and °P only review errors of judgmen® Uuestions or errors of law dec! committed by lower courtIIL. Civil Procedure 256 appeal or continuation of the case either from CA, SB or CTA, or RTC parties are the same, appellant being the petitioner and appellee, the respondent appellate court renders its own decision affirming, reversing or modifying judgment or order appealed from As special civil action — superior court can only review errors of jurisdiction, i.e, acts of respondent done without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction — original or independent action, where inferior court, board or officer is made respondent, together with person or persons interested in sustaining the proceedings in the inferior court — court cannot reverse inferior court’s decision and render a contrary one, but can only annul or modify act complained of and all proceedings flowing therefrom Petition for review under Rule 45 and special civil action under Rule 65 mutually exclusive __ These remedies are mutually exclu- sive and not alternative or successive. Where the first is available, the second cannot be resorted to. Special civil action under Rule 65 may not be allowed as a substitute for failure to file petition under Rule 45 inzag vs. CA, 291 SCRA 304 [1998]).REMEDIAL LAW REVIEWER-PRIMER However, in the interest of justice, SC may consider petition for certiorari under Rule 65 as a petition for review under Rule 45, provided latter is filed within the required period (Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305 [2000]). Petition for review under Rule 45 may be treated as a petition for certiorari under Rule 65, in the interest of substantial justice. Dismissal of appeal purely on technical grounds is frowned upon where the policy of the courts is to encourage hearing of appeals on the merits. The rules of procedure ought not to applied in a very rigid technical sense, as they are used only to help, not override, substantial justice. The strict application of procedural technicalities should not hinder the speedy disposition of the case on the merits (Ramiscal vs. Sandiganbayan, 446 SCRA 166 [2004]). Petition for review can be considered asa petition for certiorarh in the interest of justice. — Petitioner came to know of the judgment by default after it was promulgated by the trial is ea while appeal was still available. In fa . she filed a motion for reconsideratio™ which was denied. What she should he done was to file an ordinary appe® Lae the Court of Appeals. Instead, she ee directly to this Court via a petition |, review on certiorari, However: an interest of justice, we consider the i petition, pro hac vice, a pet! a that certiorari under Rule 65, it appea™ine of the trial court committed grave * 1 discretion in rendering the jud8Ill. Civil Procedure 257 default (Tan vs. Dumarpa, 438 SCRA 659 [2004)). Petitioner cannot file an “alternative” petition, i.e., delegating to the Supreme Court the task of determining under which rule the petition should fall — petition for review on certiorari under Rule 45 or certiorari under Rule 65. In this case, appeal was not only available but also a speedy and adequate remedy. Petitioner should have filed a petition for review. Under Rule 56, Sec. 5 (f), a wrong or inappropriate mode of appeal, as in this case, merits an outright dismissal (Chua us. Santos, 440 SCRA 365 [2004]). Petition for review on certiorari is the proper remedy to assail the Court of Appeals’ decision denying a petition for certiorari. Since petitioner filed instead a petition for relief from judgment, the CA decision became final. After the CA denied his petition for relief from judgment, petitioner filed a petition for review with the Supreme Court seeking a reversal and setting aside of both CA decisions. Futile because of the finality of the earlier decision and the fact that a petition for certiorari, not a petition for review, is the correct remedy against a denial of a petition for relief from judgment (Sec. 1[b], Rule 41) (Azucena us. Foreign Manpower Services, Inc., 441 SCRA 346 (2004). Motion for reconsideration not a sine qua non for filing of a petition for review under Rule 45. — We do not agree with the contention of respondent that a motion for reconsideration ought to have been filed before the filing of theV. Special Civil Action: 18 (Rules 62-71) 373 a temporary restraining order or a writ of preliminary injunction has been issued from further proceeding in Injunction; when and w Certiorari as a Mode of Appeal (Rule 45) Called petition for review on certiorari, is a mode of appeal, which is but a continuation of the appellate process over the original case. Seeks to judgments or final orders Raises only questions of law Filed withs mont ain 15 days from order 2 Sudgment or final W le a boa ait of Petitioner's em trig) Teconsideration or | review final “ppealed from, or of against the public respondent the case, Certiorari distinguished from Appeal by Certiorari; Prohibition and Mandamus distinguished from here to file petition Certiorari as a Special Civil Action (Rule 65) A special civil action that is an original action and not a mode of appeal, and not a part of the appellate process put an independent action. May be directed against an interlocutory order of the court or where no appeal or plain or speedy remedy available in the ordinary course of law Raises questions of juris- diction because a tribunal, board or officer exercising judicial or quasi-judicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amount- ing to lack of. jurisdiction Filed not later than 60 days from notice of judgment, order or resolution sought to be assailed and in case a motion for reconsideration or new trial is timely fled, such motion id the 60 day required or not, period is counted from notice motion of denial of saidREMEDIAL LAW REVIEWER-PRIMER Extension of 30 days may | Extension no longer allowed be granted for justifiable reasons Motion for reconsideration is a condition precedent, subject to exceptions Does not require a prior motion for reconsideration Stays the judgment appealed from Does not stay the judgment or order subject of the petition unless enjoined or restrained Parties are the original par- ties with the appealing party as the petitioner and the ad- verse party as the respon- dent without impleading the lower court or judge The tribunal, board, officer exercising judicial or quasi- judicial functions is implead- ed as respondent Filed only with the Supreme May be filed with the Court Supreme Court, Court of Appeals, Sandiganbayan, or Regional Trial Court Court may dismiss the peti- tion outright on the ground that the same is patently without merit, or prosecuted manifestly for delay, or that the questions raised are too unsubstantial to require com sideration SC may deny the petition motu propio on the ground that the appeal is without merit, or prosecuted mani- festly for delay, or that the questions raised therein are too unsubstantial to require consideration