TITLE DOCTRINE
XIII. BILL OF PARTICULARS (RULE 12, SEC. 1 TO 6)
1. Guy vs. Guy 189486 5
September 2012 Failure to specifically allege the
ARIBON fraudulent acts in intra-corporate
controversies is indicative of a
harassment or nuisance suit and
maybe dismissed motu proprio.
FACTS / ISSUE / HELD
FACTS:
Gilbert Guy is the son of spouses Francisco and Simny (one of
the petitioners). He owned practically 80% of the 650,000
subscribed capital stock of GoodGold Realty and Development
Corporation. In 1999, Francisco instructed to redistribute
GoodGold’s shareholdings evenly among his children while
maintaining a proportionate share for himself and his wife,
Simny. 5 years after the distribution of shares of stock, Gilbert
filed with the RTC of Manila, a complaint for the “Declaration
of Nullity of Transfer of Shares in GoodGold” against
petitioners. However, Gilbert withdrew the complaint but filed
another complaint in the RTC of Mandaluyong captioned as
“Intra-Corporate Controversy: For the Declaration of Nullity of
Fraudulent Transfers of Shares of Stock Certificates,
Falsified General Information Sheets….. and damages
with Application for the Issuance of a Writ of Preliminary and
Mandatory Injunction” against the same. He alleged that he
never signed any document which would justify and support
the transfer of his shares to his siblings and that he has in no
way, disposed, alienated, assigned or sold any or part of his
shares in GoodGold. The RTC dismissed the case. CA ruled
that the complaint should be heard on the merits. CA ruled in
favor of Gilbert Guy. Hence, the consolidated petitions.
Issue:
W/N respondent’s case be given due course
Held:
No. The Court finds that the charges of fraud which Gilbert
accuses his siblings are not supported by the required factual
allegations. In ordinary cases, the failure to allege the

2. Salita vs. Magtolis A complaint only needs to state the
106429 13 June 1994 "ultimate facts constituting the
SOMEROS plaintiff's cause or causes of action."
Ultimate facts has been defined as
"those facts which the expected
evidence will support."
We sustain the view of respondent CA
that the Bill of Particulars filed by
private respondent is sufficient to state
a cause of action, and to require more
details from private respondent would
be to ask for information on
evidentiary matters.
fraudulent act does not constitute a ground for dismissal
because such defect can be cured by a bill of particulars.
However, it does not apply to intra-corporate controversies.
The case of Reyes v. RTC, states that in order to bring an
intra-corporate controversy suit fall within the special
commercial court’s jurisdiction, it must show sufficient nexus
showing that the corporation’s nature, structure or powers
were used to facilitate the fraudulent device or scheme. In the
case at bar, no corporate power or officer was alleged to have
facilitated the transfer of Gilbert’s share. How the petitioners
perpetrated the fraud, if ever they did, is an indispensable
allegation which Gilbert must have alleged with particularity
in his complaint, but which he failed to. Instead of particularly
describing the fraudulent acts that he complained of, he just
made a sweeping denial of the existence of stock certificates by
claiming that such were not necessary, GoodGold being a mere
family corporation. Hence, the petitions were granted.
FACTS: Spouses Erwin Espinosa and Joselita Salita
separated. Subsequently, Erwin sued for annulment on the
ground of Joselita's psychological incapacity.
The petition for annulment was filed before the RTC of Quezon
City. Therein it is alleged that "sometime in 1987, petitioner
came to realize that respondent was psychologically
incapacitated to comply with the essential marital obligations
of their marriage, which incapacity existed at the time of the
marriage although the same became manifest only thereafter."
Dissatisfied, Joselita moved for a bill of particulars (BOP)
which the trial court granted. Subsequently, in his BOP, Edwin
specified that —
. . . at the time of their marriage, respondent
(Joselita Salita) was psychologically
incapacitated to comply with the essential
marital obligations of their marriage in that
 she was unable to understand and accept
the demands made by his profession — that
of a newly qualified Doctor of Medicine —
upon petitioner's time and efforts so that
she frequently complained of his lack of
attention to her even to her mother, whose
intervention caused petitioner to lose his
job.
Still Joselita was not contended with BOP. She argued that the
"assertion (in the BOP) is a statement of legal conclusion made
by petitioner's counsel and not an averment of 'ultimate facts,'
as required by the Rules of Court, from which such a
conclusion may properly be inferred . . ."
RTC: trial court uphold the sufficiency of the BOP and
directing Joselita to file her responsive pleading.
CA: Joselita was not convicted. She filed a petition for
certiorari and her petition were referred to the CA for
resolution but was denied.
Petitioner insists that the allegations in the BOP constitute a
legal conclusion, not an averment of facts, and fail to point out
the specific essential marital obligations shal allegedly was not
able to perform, and thus render the BOP insufficient if not
irrelevant to her husband's cause of action.
Private respondent on the other hand believes that his
allegations in the BOP constitute the ultimate facts that
"conclusions of law and evidentiary matters need not be stated
in the complaint. The details of probative matter or particulars
of evidence, statements of law, inferences and arguments need
not be stated."
ISSUE: whether the BOP is of sufficient definiteness or
particularly as to enable herein petitioner to properly prepare
her responsive pleading or for trial.
HELD: YES, A complaint only needs to state the "ultimate
facts constituting the plaintiff's cause or causes of action."
Ultimate facts has been defined as "those facts which the

3. Baritua vs. Mercader Motion for a bill of particulars; already
136048 23 January 2001 moot and academic where parties had
TAN already filed their answer to amended
complaint prior to filing thereof.
Section 1, Rule 12 of the Rules of Court
provides:
"SECTION 1. When applied for;
purpose. — Before responding to a
pleading, a party may move for a more
definite statement or for a bill of
particulars of any matter which is not
averred with sufficient definiteness or
particularity to enable him properly to
prepare his responsive pleading. If the
pleading is a reply, the motion must be
filed within ten (10) days from service
thereof. Such motion shall point out
expected evidence will support." to require more details
from private respondent would be to ask for information on
evidentiary matters.
On the basis of the allegations, it is evident that petitioner can
already prepare her responsive pleading or for trial. Private
respondent has already alleged that "she (petitioner) was
unable to understand and accept the demands made by his
profession . . . upon his time and efforts . . ." Certainly, she can
respond to this. To demand for more details would indeed be
asking for information on evidentiary facts — facts necessary
to prove essential or ultimate facts. For sure, the additional
facts called for by petitioner regarding her particular acts or
omissions would be evidentiary, and to obtain evidentiary
matters is not the functions of a motion for bill of particulars.
FACTS: Dominador Mercader, a businessman engaged in the
buy and sell of dry goods in Laoang, Northern Samar, boarded
petitioners' Bus No. 142 with Plate No. 484 EU in Pasay City
on March 16, 1983 for Brgy. Rawis, Laoang, Northern Samar.
However, Dominador Mercader was not able to reach his
destination because the bus fell into a river while traversing
the Bugko Bailey Bridge.
Although Dominador survived the fall, he later died of
asphyxia secondary to drowning. Respondents, heirs of
deceased Dominador Mercader, filed a complaint against
herein petitioners.
RTC: RTC of Laoang, Northern Samar, after due trial,
rendered a decision in favor of respondents and against
petitioners, ordering the latter to pay compensatory, actual,
moral and exemplary damages, loss of earnings of the late
Dominador Mercader, and attorney's fees.
CA: On appeal, the Court of Appeals affirmed all the monetary
the defects complained of, the damages granted by the trial court with modification reducing
paragraphs wherein they are the amount of the deceased's lost earnings. In its decision, the
contained, and the details desired." appellate court held that petitioners failed to rebut the
presumption that in the event a passenger died or was injured,
the carrier had acted negligently. It added that petitioners
presented no sufficient proof that they had exercised
extraordinary diligence.

Hence, petitioners filed this Petition for Review questioning

the jurisdiction of the trial court. Invoking the Manchester
ruling, petitioners contended, among others, that the trial
court did not acquire jurisdiction over the subject matter
because petitioner failed to pay the correct amounts of docket
and other lawful fees.

ISSUE: Whether the CA disregarded petitioners' procedural

rights.

HELD:

Motion for a Bill of Particulars

Petitioners argue that the Court of Appeals erred when it

passed sub silencio on the trial court's failure to rule frontally
on their plea for a bill of particulars.

We are not impressed. It must be noted that petitioners'

counsel manifested in open court his desire to file a motion for
a bill of particulars. The RTC gave him ten days from March
12, 1985 within which to do so. He, however, filed the
aforesaid motion only on April 2, 1985 or eleven days past the
deadline set by the trial court. Moreover, such motion was
already moot and academic because, prior to its filing,
petitioners had already filed their answer and several other
pleadings to the amended Complaint. Section 1, Rule 12 of the

4. Estardante vs. People The OSG claimed that a bill of
156851-55 18 February particulars is not allowed by AO No. 7
2008 (Rules of Procedure in the Office of the
TANADA Ombudsman), and that, therefore, the
Ombudsman cannot be bound by the
Bill of Particulars submitted by private
complainants. The Court agrees with
the OSG.
Rules of Court provides:
"SECTION 1. When applied for; purpose. — Before responding
to a pleading, a party may move for a more definite statement
or for a bill of particulars of any matter which is not averred
with sufficient definiteness or particularity to enable him
properly to prepare his responsive pleading. If the pleading is
a reply, the motion must be filed within ten (10) days from
service thereof. Such motion shall point out the defects
complained of, the paragraphs wherein they are contained,
and the details desired." (emphasis supplied)
Facts:
Petitioner was the school principal of the Ramon Torres
National High School (RTNHS) in Bago City, Negros
Occidental. Sometime in 1998, a group of concerned RTNHS
teachers (private complainants) sent a letter to the Schools
Division of Bago City attaching a list of 15 irregularities
allegedly committed by the petitioner, which the private
complainants requested to be investigated. Two complaints
were eventually filed by private complainants against
petitioner with the Office of the Ombudsman-Visayas. The
Ombudsman-Visayas forwarded the complaint to the Office of
the City Prosecutor. The City Prosecutor served the petitioner
with a subpoena requiring her to submit her counter-affidavit.
Instead of filing a counter-affidavit, petitioner filed before the
City Prosecutor a Motion for Bill of Particulars, alleging that
there were no specific criminal charges that were stated in the
subpoenas, insisting that she cannot prepare for her
counter-affidavit unless the criminal charges and the laws she
violated are specified. Additionally, she also filed a Motion for
Extension of Time to File Counter-Affidavit. The City
Prosecutor issued an Order attaching private complainants’
Bill of Particulars, which states that she is charged for violation
of Sections 68 and 69 of PD 1445. Thereafter, petitioner filed
her counter-affidavit limiting herself only to the charges
specified in the Bill of Particulars. The City Prosecutor then
referred the case back to the Ombudsman-Visayas who found
sufficient grounds to hold petitioner liable for five counts of
violation of Section 3 (e) of RA No. 3019 (Anti-Graft and
Corrupt Practices Act, and filed before the RTC the
corresponding Informations. Petitioner filed for a Motion for
Reinvestigation before the RTC alleging, among others, that
she cannot be charged under RA No. 3019 and PD No. 1445.
The RTC denied the motion. She filed an MR over the RTC’s
denial of her Motion for Reinvestigation, claiming that when
the five Informations for the violation of Section 3 (e) of RA
No. 3019 were filed by the Ombudsman-Visayas, her right to
due process was violated, and that the Ombudsman-Visayas in
effect went beyond the Bill of Particulars filed by the private
respondents. The RTC denied the MR.

Issue:
Whether or not the five Informations for violation of RA No.
3019, which were not included in the Bill of Particulars, may
be filed against petitioner.

Held:
Petitioner insisted that the Ombudsman-Visayas should have
limited the charges filed against her to the crimes mentioned
in the Bill of Particulars, and that the filing of the Informations
charging her with crimes different from those specified in the
Bill of Particulars violated her right to due process. The OSG
countered this in claiming that a bill of particulars is not
allowed by AO No. 7 (Rules of Procedure in the Office of the
Ombudsman), and that, therefore, the Ombudsman cannot be
bound by the Bill of Particulars submitted by private
complainants. The Court agrees with the OSG. Clearly, the act
of the prosecutor in granting the petitioner’s Motion for Bill of
Particulars is an act contrary to the express mandate of AO No.
7. Petitioner argued that the granting of the Motion for Bill of
Particulars by the City Prosecutor should bind the
Ombudsman. The Court disagrees. Section 31 of R.A. No. 6770
or The Ombudsman Act of 1989 expressly provides that those

XIV. FILING AND SERVICE OF PLEADINGS, JUDGEMENTS AND OTHER PAPERS (RULE 13, SEC. 1 TO 19)
5. Bracero vs. Arcelo Notice sent directly to client is not
212496 18 March 2015 notice in law. Nevertheless, this rule
UBAY admits of exceptions.
In Santiago, this court considered the
filing of a motion for :consideration as
actual notice of the assailed Decision:
The petitioners also maintain that they
should have first been furnished with a
copy of the final decision before a writ
designated or deputized to assist the Ombudsman shall be
under his supervision and control. Indubitably, when the City
Prosecutor is deputized by the Office of the Ombudsman, he
comes under the "supervision and control" of the Ombudsman
which means that he is subject to the power of the
Ombudsman to direct, review, approve, reverse or modify the
prosecutor's decision. In the present case, petitioner has no
valid basis for insisting that the Ombudsman-Visayas must be
bound by the erroneous act of the City Prosecutor in granting
petitioner's Motion for Bill of Particulars. Laws and
jurisprudence grant the Office of the Ombudsman the
authority to reverse or nullify the acts of the prosecutor
pursuant to its power of control and supervision over
deputized prosecutors. Hence, it was within the prerogative of
the Ombudsman-Visayas not to consider the Bill of Particulars
submitted by the private complainants. The SC, however,
opines that the filing of Informations for violation of RA No.
3019 against petitioner violated her right to due process. The
SC did not find, after a thorough examination of the records,
that she was served with subpoenas and other documents
apprising her of her violations. While there is no rule that the
initial complaint filed against an accused with the prosecutor's
office should specifically state the particular law under which
he is being charged, it is a basic elementary rule that the
complaint should specifically allege the criminal acts
complained of, so as to enable the accused to prepare his
answer or counter-affidavit accurately and intelligently.
Facts: The Complaint stated that Monisit owned the 48, 632
sqm land. During Monisit’s lifetime, 5,000 square meters of
the land was mortgage to Rudolfo Arcelo’s grandmother,
Damiana Mendoza. Mendoza’s death was followed by her
son’s death, and Rudolfo Arcelo inherited the right over the
mortgaged portion of the property. Sometime in 1982, Nestor
Bracero claiming to be Arcelo’s tenant, cultivated this 5,000
sqm mortgaged portion of the property. Sometime in 1993,
Monisit sued Bracero for the recovery of the property he
of execution could be validly enforced
against them. Formal service of the
judgment is indeed necessary as a rule
but not, as it happens, in the case at
bar. The reason is that the petitioners
had filed a motion for reconsideration
of the decision of Judge Guadiz, which
would indicate that they were then
already informed of such decision. The
petitioners cannot now invoke due
process on the basis of a feigned
ignorance as the lack of formal notice
cannot prevail against the fact of actual
notice.
cultivated for his failure to share the products. Bracero
countered that the land he cultivated belonged to Arcelo. Both
complaint and counterclaim were dismissed.
Petitioner’s counsel raises that the RTC’s Clerk of Court
departed from usual procedure by sending a copy of the
Decision directly to petitioner. He explains that his client is a
poor farmer who lives in the remote mountain barangay of
Lubo with no telephone connection, and these circumstances
made it easy to defeat his client’s right to appeal. Lastly, he
argues that even if he received a copy of the motion for
execution, “to require undersigned counsel to verify the
existence of the decision with the RTC is to unfairly burden the
undersigned counsel and to unduly exonerate the clerck of
court who was remiss in his duty in sending a copy of the
Decision to the undersigned counsel. “He explains that the
court in Danao is 30 kilometers away from his office in
Mandaue.
Respondent heirs contend that petitioner’s counsel did not
categorically say that he was not informed by his client of the
decision on the date of receipt on May 4, 2009”. Respondnet
heirs quote Santiago v. Guadiz, in that “petitioners cannot
invoke due process on the basis of feigned ignorance as lack of
formal notice cannot prevail against the fact of actual notice.
Issue: Whether or not receipt of petitioner's counsel of a copy
of the motion for execution amounts to effective official notice
of the Regional Trial Court Decision
Held: Yes. Rule 13, Section 2 of the Rules of Court states in
part that “if any party has appeared by counsel, service upon
him shall be made upon his counsel or one of them, unless
service upon the party himself is ordered by the court."
Notice sent directly to client is not notice in law. Nevertheless,
this rule admits of exceptions.
Petitioner's counsel was furnished a copy of the motion for
execution on September 11, 2009. As discussed by the Court of
Appeals, this motion categorically states that the trial court
rendered its Decision on April 16, 2009, yet petitioner's
counsel filed no opposition. At that time, he did not file any
motion asserting that he was not furnished a copy of the
Decision. It was only on January 8, 2010 when his client
informed him of the Writ of Execution did petitioner's counsel
file an Urgent Motion to Vacate the Writ of Execution on the
ground that he did not receive a copy of the Regional Trial
Court Decision.

Jurisprudence reiterates that "litigants who are represented by

counsel should not expect that all they need to do is sit back,
relax and await the outcome of their cases." This court has
held that "equity aids the vigilant, not those who slumber on
their rights," and a party should "periodically keep in touch
with his counsel, check with the court, and inquire about the
status of the case."

The explanation of petitioner's counsel that his client only

finished Grade 6 and lives in a remote mountain barangay fails
to convince. Petitioner immediately informed his counsel
about the Notice to Vacate on Execution on the same day he
was served a copy. This contradicts counsel's explanation
implying difficulty in communicating with his client. This even
raises the possibility that his client did immediately inform
him about the Regional Trial Court Decision upon receiving a
copy.

Equally unconvincing and disappointing is the submission of

petitioner's counsel that even if he received a copy of the
motion for execution, "to require undersigned counsel to
verify the existence of the decision with the Regional Trial
Court is to unfairly burden the undersigned counsel and to
unduly exonerate the clerk of court who was remiss in his duty
in sending a copy of the Decision to the undersigned counsel,"
and that the court in Danao is 30 kilometers away from his
office in Mandaue. Counsels have the duty to serve their clients
with competence and diligence. The distance from counsel's
office to the court should not be used as an excuse by counsel
from keeping himself updated with the status of the cases he is
handling.
 This court has held that "relief will not be granted to a party
who seeks avoidance from the effects of the judgment when
the loss of the remedy at law was due to his own negligence."
Petitioner, through his counsel, did not file an answer to the
Complaint. After the trial court declared petitioner in default
for failure to file an answer, his counsel did not file an
opposition to or motion to lift the Order declaring him in
default. After petitioner's counsel was furnished a copy of the
motion for execution, he did not immediately file an
opposition to the motion or raise the ground that he was not
furnished a copy of the Decision.

Petitioner Nestor Bracero, through his counsel Atty. Danilo

Pilapil, had several opportunities to argue his position before
the courts but failed to take them. Petitioner should now be
considered in estoppel from assailing the Regional Trial Court
Order dated February 11, 2010 denying petitioner's Urgent
Motion to Vacate the Writ of Execution, affirmed by the Court
of Appeals. Also, "to frustrate the winning party's right
through dilatory schemes is to frustrate all the efforts, time
and expenditure of the courts, which thereby increases the
costs of litigation."

6. UP vs. Dizon 171182 23 Doctrine of immutability of a final Stern Builders submitted three progress billings
August 2012 judgment has not been absolute, and corresponding to the work accomplished, but the UP paid only
YUMUL has admitted several exceptions, two of the billings prompting Stern Builders to sue the UP and
among them: (a) the correction of its co-respondent officials to collect the unpaid billing and to
clerical errors; (b) the so-called nunc recover various damages.
pro tunc entries that cause no
prejudice to any party; (c) void On November 28, 2001, the RTC rendered its decision
judgments; and (d) whenever ordering UP to pay Stern Builders. Then on January 16, 2002,
circumstances transpire after the UP filed its motion for reconsideration. The RTC denied the
finality of the decision that render its motion. The denial of the said motion was served upon Atty.
execution unjust and inequitable. Nolasco of the UPLB Legal Office on May 17, 2002. Notably,
Atty. Nolasco was not the counsel of record of the UP but the
UP entered into a General OLS in Diliman, Quezon City.
Construction Agreement with
respondent Stern Builders for the UP filed a notice of appeal on June 3, 2002. However, the RTC
construction of the extension building denied due course to the notice of appeal for having been filed
and the renovation of the College of out of time.
Arts and Sciences Building in the
campus of the University of the Aggrieved, UP elevated the matter to the CA. The CA sustained
Philippines in Los Baños (UPLB). the RTC. Hence, this petition.

ISSUE/S:
WON UP’s appeal dated June 3, 2002 was filed out of time.

HELD:
NO. The period of appeal did not start without effective service
of decision upon counsel of record. Firstly, the service of the
denial of the motion for reconsideration upon Atty. Nolasco of
the UPLB Legal Office was invalid and ineffectual because he
was admittedly not the counsel of record of the UP. The rule is
that it is on the counsel and not the client that the service
should be made.

Verily, the service of the denial of the motion for

reconsideration could only be validly made upon the OLS in
Diliman, and no other. The fact that Atty. Nolasco was in the
employ of the UP at the UPLB Legal Office did not render the
service upon him effective. It is settled that where a party has
appeared by counsel, service must be made upon such counsel.

This is clear enough from Section 2, second paragraph, of

Rule 13, Rules of Court, which explicitly states that: "If any
party has appeared by counsel, service upon him shall be
made upon his counsel or one of them, unless service upon the
party himself is ordered by the court. Where one counsel
appears for several parties, he shall only be entitled to one
copy of any paper served upon him by the opposite side." As
such, the period to appeal resumed only on June 1, 2002, the
date following the service on May 31, 2002 upon the OLS in
Diliman of the copy of the decision of the RTC, not from the
date when the UP was notified.

WHEREFORE, the Court GRANTS the petition for review

on certiorari; REVERSES and SETS ASIDE the decision of
the Court of Appeals under review.
7. Heirs of Numeriano vs. The Petition lacks merit. The Notice of
Miranda 179638 8 July Appeal was belatedly filed. It is basic
2013 and elementary that a Notice of Appeal
ZAPANTA should be filed "within fifteen (15) days
from notice of the judgment or final
order appealed from." Under Section
3, Rule 13 of the Rules of Court,
pleadings may be filed in court either
personally or by registered mail. In the
first case, the date of filing is the date
of receipt. In the second case, the date
of mailing is the date of receipt.
Facts:
Heirs of Numeriano Miranda, Sr., filed before the RTC a
Complaint for Annulment of Titles and Specific Performance
against the heirs of Pedro Miranda, namely: Pacita and Oscar
Miranda; the heir of Tranquilino Miranda, Rogelio Miranda;
and the spouses respondent Pablo Miranda and Aida Lorenzo.
After trial, the RTC, Branch 256, rendered a Decision
upholding and sustaining the ff:
o Validity of TCT Nos. 186011, 186012, and 186013;
o Ordered Pablo Miranda to indemnify all other heirs of
NUMERIANO MIRANDA the amount equivalent to 12/13 fair
market value of the co-owned residential house, erected on the
lot 826-A-3 covered by TCT No. 186013 corresponding to their
shares, and for the said heirs to divide among themselves the
aforesaid amount;
o Proclaim that ROGELIO MIRANDA is not the
biological son or child by nature of TRANQUILINO
MIRANDA, and therefore is not entitled to inherit from the
latter;
o Declare CORNELIO MIRANDA, NUMERIANO
MIRANDA, JR., etc. as the lawful legal heirs of the deceased
TRANQUILINO MIRANDA and ordering them to partition
among themselves Lot 826-A-1 covered by TCT No. 186011
registered in the name of TRANQUILINO MIRANDA,
containing an area of 213 square meters
o Order all the abovenamed heirs to commission the
survey of Lot 826-A-1 or to authorize in writing, one of them
to commission such survey, in order to avoid a chaotic
situation similar to the case at bar. Should they not agree as to
what particular portion shall belong to one another, they may
agree that it be allotted to one or two or several of them, who
shall indemnify the others at a price agreed upon by all of
them. Should they not agree as to whom shall the property be
allotted, to sell the property to a third person at a price agreed
upon by a majority of all of them, and to partition the proceeds
of the sale in accordance with No. 5 above.
Petitioners did not file any appeal hence the Decision became
final and executory.
RTC issued a Writ of Execution, which was not implemented.

Respondent filed an Ex-parte Motion praying that the RTC

issue a "Break-Open and Demolition Order" in order to
compel the petitioners to vacate his property. But since more
than five years have elapsed from the time the Writ of
Execution should have been enforced, the RTC denied the
Motion in its Order.

This prompted respondent to file with the RTC a Petition for

Revival of Judgment. Petitioners opposed the revival of
judgment assailing, among others, the jurisdiction of the RTC
to take cognizance of the Petition for Revival of Judgment.
RTC= Petition GRANTED. Decision is REVIVED. Hence, a
notice of appeal via LBC was filed. But this was opposed for
having been final and executory. Thus, RTC subsequently
denied the notice of appeal for lack of merit.
CA=Denied the Petition for Mandamus on the ground that the
Notice of Appeal was filed out of time. MR= Denied.

Issue: W/N THE APPEAL WAS PERFECTED ON TIME and

W/N THE LATE (ONE DAY) FILING WAS JUSTIFIED

Held:
Petitioners assert that an action to revive judgment is
appealable, and that their appeal was perfected on time. They
insist that the Notice of Appeal, which they filed on the 15th
day via LBC, was seasonably filed since the law does not
require a specific mode of service for filing a notice of appeal.
Besides, even if their appeal was belatedly filed, it should still
be given due course in the interest of justice considering that
their counsel had to brave the storm and the floods caused by
typhoon "Florita" just to file their Notice of Appeal on time.
Petitioners further contend that their appeal is meritorious

The Petition lacks merit. The Notice of Appeal was belatedly

filed. It is basic and elementary that a Notice of Appeal should
be filed "within fifteen (15) days from notice of the judgment

8. Villalongha, et al. vs. Section 2, Rule 13 of the Rules of Court
Court of Appeals, et al. provides that "if any party has
227222 20 August 2019 appeared by counsel, service upon him
ABAD shall be made upon his counsel or one
of them, unless service upon the party
himself is ordered by the court." Thus,
or final order appealed from." Under Section 3, Rule 13 of the
Rules of Court, pleadings may be filed in court either
personally or by registered mail. In the first case, the date of
filing is the date of receipt. In the second case, the date of
mailing is the date of receipt.
In this case, however, the counsel for petitioners filed the
Notice of Appeal via a private courier, a mode of filing not
provided in the Rules. Though not prohibited by the Rules, we
cannot consider the filing of petitioners’ Notice of Appeal via
LBC timely filed. It is established jurisprudence that "the date
of delivery of pleadings to a private letter-forwarding agency is
not to be considered as the date of filing thereof in court;"
instead, "the date of actual receipt by the court x x x is deemed
the date of filing of that pleading."42 Records show that the
Notice of Appeal was mailed on the 15th day and was received
by the court on the 16th day or one day beyond the
reglementary period. Thus, the CA correctly ruled that the
Notice of Appeal was filed out of time.
Neither can petitioners use typhoon "Florita" as an excuse for
the belated filing of the Notice of Appeal because work in
government offices in Metro Manila was not suspended on
July 13, 2006, the day petitioners’ Notice of Appeal was mailed
via LBC. And even if we, in the interest of justice, give due
course to the appeal despite its late filing, the result would still
be the same. The appeal would still be denied for lack of merit.
The Decision dated August 30, 1999 is already final and
executory.
SC= Petition is DENIED. Decision and Resolution of CA are
AFFIRMED.
FACTS: A complaint for annulment of sale, damages, and
attorney's fees filed by siblings Virgilio, Luzviminda,
Virgincita, Deogracias Villalongha (Deogracias), and
Alejandro Villalongha (Alejandro; collectively, plaintiffs
Villalongha) against their mother, Felipa Vda. de Villalongha
(Felipa), and their siblings Aurora Villalongha-Cabarrubias
even if a party represented by counsel
has been actually notified, said notice
is not considered notice in law. "The
reason is simple — the parties,
generally, have no formal education or
knowledge of the rules of procedure,
specifically, the mechanics of an appeal
or availment of legal remedies; thus,
they may also be unaware of the rights
and duties of a litigant relative to the
receipt of a decision. It is best for the
courts to deal only with one person in
the interest of orderly procedure —
either the lawyer retained by the party
or the party him/herself if [he/she]
does not intend to hire a lawyer.
(Aurora), Josefina Villalongha-Daleon (Josefina), and
Ramonito Villalongha (Ramonito; respondents Villalongha),
together with Bolton Bridge Homeowners' Association,
Incorporated (BBHAI), and the Register of Deeds for the City
of Davao before the RTC of Davao.
Plaintiffs Villalongha claimed that:
(a) they are co-owners of the properties that used to be
conjugal properties of Felipa and her late husband, Mauricio
Villalongha (Mauricio), who passed away in 1978;
(b) in a Deed of Extra-Judicial Settlement of Estate with Deed
of Donation, Felipa waived her rights over her shares in the
said lands
(c) despite having lost all rights and interests on the said
lands, Felipa subsequently sold to BBHAI the lands upon the
malicious instigation of respondent Aurora, resulting in the
issuance of TCTs in the name of BBHAI, which is now
threatening to eject the plaintiffs from the subject lands.
Respondents Villalongha denied the conjugal nature of the
subject lands and their participation in the execution of the
extrajudicial settlement. They averred that: (a) Felipa is the
sole owner of the subject lands; (b) Felipa signed the
extrajudicial settlement on the representation of Luzviminda
that the said document will only show the boundaries and
monuments of the properties involved, without any intention
to donate her properties to her children; and (c) the signatures
of Aurora and Josefina appearing thereon were forged, and
they did not sign any acceptance of the alleged donation.
On the other hand, BBHAI claimed to be an innocent
purchaser in good faith and for value.
RTC - (a) dismissed the complaint on the ground that
plaintiffs Villalongha failed to establish their claim by a
preponderance of evidence; (b) declared the extrajudicial
settlement null and void; and (c) adjudged Felipa as the sole
owner of the subject lands.
CA - affirmed with modification the RTC ruling, thereby (a)
adjudging Felipa as the exclusive and sole owner of the subject
lands; (b) declaring her sale to BBHAI as valid and binding;
(c) ordering Felipa to deliver possession of the subject lands to
BBHAI; and (d) ordering plaintiffs Villalongha to pay
litigation expenses and attorney's fees.

A copy of the March 22, 2013 Decision was sent to

plaintiffs Villalongha's counsel, Atty. Advincula, Jr.,
with registered letter, and was received by a certain Ariel
Hernandez on May 8, 2013. 25 However, in a manifestation 26
dated March 11, 2014, Atty. Advincula, Jr. informed the CA
that: (a) he did not receive said notice; and (b) Ariel
Hernandez is not his staff or employee, and not personally
known to him or to his associate, Atty. Victorio S. Advincula,
Sr.

Atty. Advincula, Jr. also filed a Motion to Withdraw as

Counsel for plaintiffs Villalongha.

Virgilio received a copy of the said resolution on July 15, 2015,

and filed a notice of receipt, requesting for time to engage the
services of a new counsel. On August 17, 2015, he also
received notice of BBHAI's Motion for Issuance of Entry of
Judgment 33 in the case. Thereafter, Atty. Abejaron filed a
formal entry of appearance as counsel for herein petitioners
only, and opposed BBHAI's motion on the ground of
prematurity, averring that there was no proper notice
of the March 22, 2013 Decision on their former
counsel, Atty. Advincula, Jr.
Respondents Villalongha countered that petitioners already
had knowledge of the said Decision, yet petitioners failed to do
anything to verify if Atty. Advincula, Jr. received notice of said
Decision and/or protect their remedial rights, if any.

CA - held that the March 22, 2013 Decision had become final
and executory in the absence of any motion for
reconsideration or further appeal. The said Decision was thus
entered in the Book of Entries of Judgments.
Petitioners filed a Manifestation/Compliance with Motion to
Recall Entry of Judgment.
Respondents Villalongha and BBHAI moved for the issuance
of a writ of execution before the RTC; hence, this petition with
prayer for issuance of a (TRO) enjoining, among others, the
Presiding Judge of the RTC from hearing and/or giving due
course to the said motions;

ISSUE:
Whether or not the CA committed grave abuse of discretion in
directing an entry of judgment in the case, and denying
petitioners' motion to recall the same, despite their claim of
lack of proper service of the March 22, 2013 Decision.

HELD:
Yes. Section 2, Rule 13 of the Rules of Court provides that "if
any party has appeared by counsel, service upon him shall be
made upon his counsel or one of them, unless service upon the
party himself is ordered by the court." Thus, even if a party
represented by counsel has been actually notified, said notice
is not considered notice in law. "The reason is simple — the
parties, generally, have no formal education or knowledge of
the rules of procedure, specifically, the mechanics of an appeal
or availment of legal remedies; thus, they may also be unaware
of the rights and duties of a litigant relative to the receipt of a
decision. It is best for the courts to deal only with one person
in the interest of orderly procedure — either the lawyer
retained by the party or the party him/herself if [he/she] does
not intend to hire a lawyer. (also see SEC. 13 Rule 13)

In the case at bar, the registry return card pertaining to Atty.

Advincula, Jr.'s copy of the notice was not returned to the CA.
However, the CA concluded that the notice was received by
Atty. Advincula, Jr. on the basis of the reply to tracer of
William H. Olmoguez, Postmaster of Davao City, that a certain
Ariel Hernandez received the notice on May 8, 2013. 50 But in
his request manifestation, Atty. Advincula, Jr. denied having
received such notice and knowing Ariel Hernandez, which was
not refuted by respondents.

It must be stressed that the mail matter must be received by

the addressee or his duly authorized representative since
service on a person who was not a clerk, employee or one in
charge of the attorney's office, is invalid. "[S]ervice of the
court's order upon any person other than the counsel
of record is not legally effective and binding upon the
party, nor may it start the corresponding
reglementary period for the subsequent procedural
steps that may be taken by the attorney." Since Ariel
Hernandez was not an employee and, thus, not authorized to
receive court notices in behalf of Atty. Advincula, Jr., his
alleged receipt of the notice of the March 22, 2013 Decision on
May 8, 2013 is without any effect in law, and cannot start the
running of the period within which to file a motion for
reconsideration or appeal.

Notably, Atty. Advincula, Jr. likewise withdrew as counsel for

petitioners with the conformity of Virgilio, which was
approved by the CA.

Having been informed that the withdrawing counsel has not

been duly served with notice of the March 22, 2013 Decision,
and considering further that no new counsel has entered any
appearance in behalf of plaintiffs Villalongha, the CA should
have ensured that the latter were duly served notice thereof,
but it did not. While it originally sent a copy of the said
Decision to them under registered letter on April 12, 2013, the
same was unserved, and thus, returned to sender.
Nonetheless, it bears to reiterate that such earlier notice is not
considered notice in law since plaintiffs Villalongha were then
represented by counsel.

The Court finds that plaintiffs Villalongha have not been duly
served with notice of the March 22, 2013 Decision; hence, the
period within which they may file a motion for reconsideration
has not commenced to run. Thus, the Entry of Judgment made
in the case on the ground that the said Decision had become
final and executory on May 24, 2013 or after the lapse of the
fifteen (15)-day period from the invalid receipt by Ariel
Hernandez was therefore premature and inefficacious, and
should be recalled and lifted. An entry of judgment merely
records the fact that a judgment, order or resolution has
become final and executory; but it is not the operative act that

9. Aguilar vs. Benlot, et al.
232806 21 January 2019 In adjudging the plausibility of an
ARIBON explanation as to why personal service
has not been effected, a court shall
likewise consider the importance of the
subject matter of the case or the issues
involved therein, and the [prima facie]
merit of the pleading sought to be
expunged for violation of Section 11,
Rule 13 of the Rules of Court
makes such judgment, order or resolution final and executory.
In the case at bar, the Entry of Judgment did not make the
March 22, 2013 Decision final and executory considering that,
notice of said Decision has not yet been served on plaintiffs
Villalongha/petitioners.
FACTS: Elvira J. Benlot and Samuel L. Cuico (herein
respondents) filed a Complaint before the Ombudsman
against Arias (petitioner’s sister), Oralde, and Mancao the for
violation of Republic Act No. 6713. The respondents were
convinced that they resigned from their respective positions to
pave the way for petitioner’s succession as punong barangay,
leading to the violation of the three-term limit. On February
2015, the Ombudsman dismissed the administrative
complaint when the petitioner was re-elected as Punong
Barangay and Arias and Oraldee re-elected as Barangay
Kagawads. They cite the applicability of the Aguinaldo
Doctrine, also known as the doctrine of condonation.
However, in September 2015, the Ombudsman reconsidered
its Decision, finding that the said doctrine can no longer be
applied to Petitioner and Arias. Thus, they were decided to
have committed grave misconduct.
Petitioner moved for reconsideration. Ombudsman denied. CA
dismissed due to the lack of explanation as to why the petition
was neither personally filed before the CA nor personally
served to the parties. Petitioner filed for an MR before the CA.
He explained that his failure to personally file and serve the
petition was due to an honest mistake. CA did not find the
reasons advanced by the petitioner compelling. Hence, this
petition.
Issue:
W/N the CA erred in dismissing the petition and in failing to
 decide the case on its merit.

Held:

No. The Court finds that while the CA had good reason to find
petitioner’s belated explanation unsatisfactory, the present
case merits the relaxation of the rules. It must be clarified that
under Section 11, Rule 13 of the 1997 ROC, personal service
and filing is the general rule, and resort to other modes of
service and filing is the exception. Henceforth, whenever
personal service or filing is practicable, it is mandatory. If
personal service or filing is not practicable, resort to other
modes may be had, but must be accompanied by a written
explanation as to why personal service or filing was not
practicable to begin with.

In determining the plausibility of an explanation, a court shall

likewise consider the importance of the subject matter of the
case or the issues involve therein, and the prima facie merit of
the pleading sought to be expunged for violation of Section 11,
Rule 13. The Court rules that while the CA could not be faulted
for not finding merit in the petitioner’s belated explanation,
having judicial notice of the proximity of the counsel’s offices
to the CA, to the ombudsman, and with each other, the CA
should have also considered the prima facie merit of the
petitioner’s case. The Court ruled that while petitioner is guilty
of Grave Misconduct, an analysis of the questions of law
warrant that he benefit from the doctrine of condonation
prevailing at that time. Hence, petition granted.

10. Marinduque Mining and Under Section 11, Rule 13 of the Rules FACTS: NAPOCOR filed a complaint for expropriation
Industrial Corp. vs. of Civil Procedure, personal service against the petitioners for the construction of a Transmission
NAPOCOR 161219 6 and filing is the general rule, and Line Project. NAPCOR filed a motion for reconsideration on
October 2008 resort to other modes of service and the RTC’s decision, but was denied. A supplemental decision
BRIONES filing, the exception. was issued fixing the fair market value of an area of the
Henceforth, whenever personal service property involved. A notice of appeal was filed with the CA.
or filing is practicable, in light of the Petitioners filed a “motion to strike out or declare as not filed
 circumstances of time, place and
person, personal service or filing is
mandatory.
Only when personal service or filing is
not practicable may resort to other
modes be had, which must then be
accompanied by a written explanation
as to why personal service or filing was
not practicable to begin with
11. Quelnan vs. VHF Under Rule 13, Section 10 of the 1997
Philippines 138500 16 Rules of Civil Procedure provides for
September 2005 the completeness of service, which
CASTRO personal service is complete upon
actual delivery. Service by ordinary
mail is complete upon the expiration of
ten days after mailing unless the Court
otherwise provides. Service by
registered mail is complete upon actual
the notice of appeal, to declare the supplemental decision as
final and executory; and to issue the corresponding writ of
execution thereon.” Petitioners argued that NAPOCOR
violated Sec. 11 Rule 13 of the Rules of Court because
NAPOCOR filed and served the notice of appeal by registered
mail. According to petitioners, NAPOCOR had all the vehicles
and manpower to personally serve and file the notice of
appeal.
NAPOCOR argues that the Rules allow the resort to other
modes of service and filing as long as the pleading was
accompanied by a written explanation why service or filing
was not done personally. NAPOCOR maintains that is
complied with the RUles because the notice of appeal
contained an explanation why NAPOCOR resorted to service
and filing by registered mail - due to lack of manpower to
effect personal service.
ISSUE: Whether or not NAPOCOR failed to comply with Sec.
11 Rule 13 of the Rules of Court
HELD: NAPOCOR complied. NAPOCOR’s notice of appeal
sufficiently explained why the notice of appeal was served and
filed by registered mail - due to lack of manpower to effect
personal service. This explanation is acceptable for it
satisfactorily shows why personal service was not practicable.
Moreover, the Court of Appeals correctly considered the
importance of the issue involved in the case. Therefore, the
Court of Appeals didn’t err when it ruled that the trial court
acted with grave abuse of discretion in the issuance of its
Orders.
FACTS:
An ejectment suit, filed by the respondent against the
petitioner, involves a condominium unit at Legaspi Towers
300 in Manila. Respondent leased to the petitioner. The
Metropolitan Trial Court (MeTC) of Manila, on its finding that
"summons together with a copy of the complaint was served to
the petitioner thru his wife on 25th day of August 1992 by
substituted service". The petitioner "failed to file his answer
within the reglementary period" the decision dated 23rd day of
receipt by the addressee or after five
(5) days from the date he received the
postmaster's first notice, whichever
date is earlier. It means the period to
appeal or to file the necessary pleading
begins to run after five days from the
postmaster's first notice. The party is
deemed to have received and to have
been notified of the judgment at that
point. The burden is on the petitioner
to show that the postmaster's notice
never reached him and that he did not
acquire knowledge of the judgment.
Sadly, the petitioner failed to discharge
his burden. The postmaster's
certification belies the petitioner's
denial of receipt of the notice that the
petitioner did not claim the mail
despite the three notices to him. In this
case, the postmaster's certification is
the best evidence to prove that the first
notice was sent and delivered to the
addressee.
November 1992, rendering the judgment for the respondent to
vacate the premises, restore the possession and rental
payment.
PROCEDURAL HISTORY:
Copy of the decision mentioned above was served on the
petitioner by registered mail. However, the same was returned
unclaimed on the petitioner's failure to claim the same despite
the postmaster's three successive notices on 25 November
1992, 7 December 1992, and 11 December 1992.
The petitioner has taken no appeal. The MeTC decision
became final and executory. A writ of execution, a notice of
levy, and a notice to vacate served on petitioner's wife, who
acknowledged receipt.
Petitioner filed with the Regional Trial Court (RTC) at Manila
a Petition for Relief from Judgment with Prayer for
Preliminary Injunction and/or temporary restraining order,
thereunder alleging that he was never served with a summons
and was utterly unaware of the proceedings in the ejectment
suit. The RTC granted the petitioner's petition for relief and
set aside the MeTC decision. Respondent sought
reconsideration of the RTC decision, but its motion was
denied.
From there, the respondent directly went to this Court on a
petition for review. This Court remanded it to the Court of
Appeals (CA). The CA granted the petition, set aside the RTC's
decision, and reinstated the MeTC decision. Petitioner moved
for a reconsideration but denied.
ISSUES:
1) WON if a party fails to claim his copy of the adverse
decision which sent through registered mail, when is he
deemed to have knowledge of the said decision
2) WON will the presumption of completeness of service of a
registered mail matter under Rule 13, Section 10 of the 1997
Rules of Civil Procedure apply with the 60 days for filing a
petition for relief from judgment under Rule 38, Section 3 of
the Rules

RULING:
1) The records show that the summons' service upon the
petitioner's wife effected by Section 7 of Rule 14 of the 1997
Rules of Civil Procedure. This law provides for substituted
service of summons.

With the reality that the postmaster first notified the

petitioner on 25 November 1992, it follows that service of a
copy of the MeTC decision deemed complete and adequate five
days from there or on 30 November 1992. Necessarily, the 60
days for filing a petition for relief must be reckoned from such
date (30 November 1992) as this was the day when the
petitioner's actual receipt is presumed. The petitioner was
deemed to know the MeTC decision on 30 November 1992.
The 60-day period for filing a petition for relief thus expired
on 29 January 1993. Unfortunately, it was only on 24 May
1993, or 175 days after the petitioner deemed to have learned
of the judgment, that he filed his petition for relief with the
RTC. Indubitably, the petition was filed way beyond the 60
days provided by law.

The Court has invariably held that the doctrine of finality of

judgments is grounded on fundamental considerations of
public policy and sound practice that at the risk of occasional
error, courts' judgments must become final at some definite
date fixed by law. The Court views with disfavor the
unjustified delay in the enforcement of the final orders and
decision in this case. Once a judgment becomes final and
executory, the prevailing party should not be denied the fruits
of his victory by some subterfuge devised by the losing party.

Moreover, the records are bereft of showing why the petitioner

failed to claim his copy of the MeTC decision. Indeed, the
petitioner has not explained why he could not obtain a copy of
said decision despite the postmaster's three notices sent to
him. The failure to claim a registered mail matter that the
 postmaster had duly given notice is not excusable neglect that
would warrant the reopening of a decided case.

2) YES. Under Rule 13, Section 10 of the 1997 Rules of Civil

Procedure provides for the completeness of service, which
personal service is complete upon actual delivery. Service by
ordinary mail is complete upon the expiration of ten days after
mailing unless the Court otherwise provides. Service by
registered mail is complete upon actual receipt by the
addressee or after five (5) days from the date he received the
postmaster's first notice, whichever date is earlier. 

It means that the period to appeal or to file the necessary

pleading begins to run after five days from the postmaster's
first notice. The party is deemed to have received and to have
been notified of the judgment at that point. The burden is on
the petitioner to show that the postmaster's notice never
reached him and that he did not acquire knowledge of the
judgment. Sadly, the petitioner failed to discharge his burden.
The postmaster's certification belies the petitioner's denial of
receipt of the notice that the petitioner did not claim the mail
despite the three notices to him. In this case, the postmaster's
certification is the best evidence to prove that the first notice
was sent and delivered to the addressee.

Verily, relief will not be granted to a party who seeks to be

relieved from the effects of a judgment when the loss of the
remedy at law was due to his negligence or a mistaken mode of
procedure; otherwise, petitions for relief will be tantamount to
reviving the right of appeal which has already been lost. It is a
well-known maxim that "equity aids the vigilant, not those
who slumber on their rights."

XV. SUMMONS (RULE 14, SEC. 1 TO 23)

- AM NO. 11-3-6-SC, NEW RULE ON SERVICE OF SUMMONS ON FOREIGN JURIDICAL ENTITIES
12. Express Padala (Italia), In this jurisdiction, the general rule
S.P.A. vs. Ocampo is that summons must be served
202505 6 September personally on the defendant under
2017 Section 6, Rule 14 of the Rules of
DE GALA Court. However, for justifiable
reasons, other modes of serving
summons may resort. When the
defendant cannot be served
personally within a reasonable time
after efforts to locate him have failed,
the rules allow summons to be served
by substituted service. Substituted
service is effected by leaving copies of
the summons at the defendant's
residence with some person of
suitable age and discretion then
residing therein, or by leaving the
copies at the defendant's office or
regular place of business with some
competent person in charge.
Thus, where the defendant neither
resides nor holds office in the address
stated in the summons, substituted
service cannot be resorted.
FACTS:
BDO Remittance, a corporation with a principal office in
Italy, hired respondent Ocampo as a remittance processor.
Later, dismissed for misappropriating the sum of
€24,035.60 by falsifying invoices of money payments
relating to customers' money transfer orders.
Accordingly, BDO Remittance filed a criminal complaint
against Ocampo for the same acts before the Court of Turin,
Italy. Ocampo pleaded guilty to the offense charged. On 13
April 2005, the Honorable Court of Turin convicted and
sentenced her to suffer imprisonment of six months and a
penalty of €300.00. However, it granted her the benefit of
suspending the sentence's enforcement on account of her
guilty plea.
On 22 September 2008, BDO Remittance filed a petition to
recognize foreign judgment with the RTC of Mandaluyong
City. BDO Remittance prayed for recognizing the Court of
Turin Decision and the cancellation or restriction of
Ocampo's Philippine passport by the Department of Foreign
Affairs (DFA). 
On 21 November 2008, the sheriff attempted to personally
serve Ocampo's summons at her local address alleged in the
petition located in San Bernardo Village, Darasa, Tanauan,
Batangas. However, since the address was incomplete, the
sheriff sought barangay officials, who pointed him to the
house belonging to Ocampo's father, Nicasio Ocampo. Victor
P. Macahia, uncle of Ocampo and present occupant, informed
the sheriff that Ocampo and her family were already in Italy.
He was only a caretaker of the house. The sheriff then
proceeded to serve the summons upon Macahia.  After
Ocampo failed to file an answer, BDO Remittance filed a
motion to declare Ocampo in default. The RTC granted the
motion and allowed BDO Remittance to present evidence ex
parte. 
PROCEDURAL HISTORY:
On 14 September 2009, the RTC rendered a Decision in
favor of BDO Remittance. It recognized as valid and binding
in the Philippines the Court of Turin Decision. It ordered
the DFA to cancel or restrict Ocampo's Philippine passport
and not renew until she has served her sentence. 

On 11 February 2010, Ocampo's mother, Laureana Macahia,

received a copy of the RTC Decision and forwarded it to
Ocampo.  Not having been represented by counsel a quo,
the period of appeal lapsed.

The CA set aside the RTC Decision and revoked the order to
cancel or restrict Ocampo's Philippine passport. The CA
held that since Ocampo's whereabouts were unknown,
summons should have served by Section 14, Rule 14 of
the Rules of Civil Procedure. The sheriff, however,
erroneously effected the substituted service of summons
under Section 7 of Rule 14.

After the CA denied its motion for reconsideration, BDO

Remittance filed the present petition for review. However,
they denied it.

ISSUE:
WON the service of summons was validly effected upon
respondent, who lives in Italy, through substituted service

RULING:
No. In this jurisdiction, the general rule is that summons
must be served personally on the defendant under Section
6, Rule 14 of the Rules of Court. However, for justifiable
reasons, other modes of serving summons may resort.
When the defendant cannot be served personally within a
reasonable time after efforts to locate him have failed, the
rules allow summons to be served by substituted service.
Substituted service is effected by leaving copies of the
summons at the defendant's residence with some person of
suitable age and discretion then residing therein, or by
leaving the copies at the defendant's office or regular place
of business with some competent person in charge.

13. Cathay Metal Corp. vs. The enumeration in Section 11 of Rule
Laguna West 14 is exclusive.
Multi-Purpose
Cooperative 172204 10 This provision of the rule does not limit
July 2014 service to the officers' places of
ESPIRITU residence or offices. If summons may
not be served upon these persons
personally at their residences or offices,
summons may be served upon any of
the officers wherever they may be
found.
Thus, where the defendant neither resides nor holds office
in the address stated in the summons, substituted service
cannot be resorted. As we explained in Keister v. Navarro: 
The terms "dwelling house" or "residence" are generally
held to refer to the time of service. Hence it is not sufficient
"to leave the copy at the defendant's former dwelling house,
residence, or place of abode, as the case may be, after his
removal from that place." They refer to the place where the
person named in the summons is living at the time when
the service is made, even though he may be temporarily out
of the country at the time. Similarly, the terms "office" or
"regular place of business" refers to the defendant's
business's office or place at the time of service.
The summons' service is a vital and indispensable
ingredient of a defendant's constitutional right to due
process. As a rule, if a defendant has not been validly
summoned, the court acquires no jurisdiction over his
person, and a judgment rendered against him is void. 
Hence, in the instant case, not being a resident of the
address where the summons was served, the substituted
service of the summons is ineffective
Facts: Respondent Laguna West Multi-Purpose Cooperative
allegedly entered into a joint venture agreement with
farmer-beneficiaries through Certificates of Land Ownership
Award (CLOA) in Silang, Cavite. While respondent was
negotiating with the farmer-beneficiaries, petitioner Cathay
Metal Corporation entered into Irrevocable Exclusive Right to
Buy (IERB) contracts with the same farmer-beneficiaries.
Under the IERB, the farmer-beneficiaries committed
themselves to sell to petitioner their agricultural properties
upon conversion to industrial or commercial properties or
upon expiration of the period of prohibition from transferring
title to the properties.
In 1996, respondent caused the annotation of its adverse
claim on the farmer-beneficiaries' certificates of title. In 1999,
petitioner and the farmer-beneficiaries executed contracts of
sale of the properties. Transfer certificates of title were also
issued in the name of petitioner in the same year.
Respondent's Vice-President, Orlando dela Peña, sent two
letters dated to petitioner, informing it of respondent's claim
to the properties. Petitioner did not respond. In 2000,
petitioner filed a consolidated petition for cancellation of
adverse claims on its transfer certificates of title with the
Regional Trial Court of Tagaytay City. It served a copy of the
petition by registered mail to respondent's alleged official
address at "Barangay Mayapa, Calamba, Laguna." The
petition was returned to sender because respondent could not
be found at that address. Petitioner allegedly attempted to
serve the petition upon respondent personally. However, this
service failed for the same reason.
Upon petitioner's motion, the RTC issued an order declaring
petitioner's substituted service, apparently by registered mail
to have been effected.
Upon learning that a case involving its adverse claim was
pending, respondent, through dela Peña, filed a manifestation
and motion, alleging that respondent never received a copy of
the summons and the petition. It moved for the service of the
summons and for a copy of the petition to be sent to sent to
No. 160, Narra Avenue, Looc, Calamba, Laguna. Instead of
furnishing respondent with a copy of the petition, petitioner
filed a motion for reconsideration arguing that the case was
already submitted for decision after all of petitioner's
evidence had been admitted, and a memorandum had been
filed. Therefore, it was too late for respondent to ask the court
that it be furnished with a copy of the petition.
In 2003, the RTC granted petitioner's motion for
reconsideration. It ruled that service should be made to the
address indicated in its Cooperative Development Authority
Certificate of Registration.
On March 21, 2003, the RTC issued a decision granting
petitioner's petition for cancellation of annotations.
Respondent appealed to the CA that the trial court erred in
applying the rule on substituted service, thus, it did not
validly acquire jurisdiction over the appellant.
The CA ruled that there was no valid service of summons
upon respondent in accordance with Rule 14, Section 11 of the
Revised Rules of Civil Procedure. Hence, the "court acquired
no jurisdiction to pronounce a judgment in the case."

Issue: Whether respondent was properly served with

summons or notices of the hearing

Ruling: NO. On matters relating to procedures in court, it

shall be the Rules of Procedure that will govern. Proper court
procedures shall be determined by the Rules as promulgated
by this court.

Service of notices and summons on interested parties in a

civil, criminal, or special proceeding is court procedure.
Section 11, Rule 14 of the Rules of Court provides the rule on
service of summons upon a juridical entity. It provides that
summons may be served upon a juridical entity only through
its officers.

Sec. 11. Service upon domestic private

juridical entity. — When the defendant is a
corporation, partnership or association
organized under the laws of the Philippines
with a juridical personality, service may be
made on the president, managing partner,
general manager, corporate secretary,
treasurer, or in-house counsel.
Service of summons upon persons other than those officers
enumerated in Section 11 is invalid. Even substantial
compliance is not sufficient service of summons. This
provision of the rule does not limit service to the officers'
places of residence or offices. If summons may not be served
upon these persons personally at their residences or offices,

14. Spouses Manuel vs. Ong Rule 14, Section 6 of the 1997 Rules of
205249 15 October 2014 Civil Procedure provides:
LEE SEC. 6. Service in person on defendant.
— Whenever practicable, the summons
shall be served by handing a copy
thereof to the defendant in person, or,
if he refuses to receive and sign for it,
by tendering it to him
Tendering summons is itself a means of
personal service as it is contained in
Rule 14, Section 6. Personal service, as
provided by Rule 14, Section 6, is
distinguished from its alternative —
summons may be served upon any of the officers wherever
they may be found.
Hence, petitioner cannot use respondent's failure to amend its
Articles of Incorporation to reflect its new address as an
excuse from sending or attempting to send to respondent
copies of the petition and the summons. The Rules of Court
provides that notices should be sent to the enumerated
officers. Petitioner failed to do this. No notice was ever sent to
any of the enumerated officers.
Petitioner insists that it should not be made to inquire further
as to the whereabouts of respondent after the attempt to serve
the summons by registered mail to respondent's address as
allegedly indicated in its Articles of Incorporation. The Rules
do not provide that it needs to do so. However, it provides for
service by publication. Service by publication is available
when the whereabouts of the defendant is unknown. (Section
14, Rule 14 ROC)
In this case, petitioner served summons upon respondent by
registered mail and, allegedly, by personal service at the office
address indicated in respondent's Certificate of Registration.
Summons was not served upon respondent's officers.
Facts: Respondent Ramon Ong (Ong) filed with the Regional
Trial Court, La Trinidad, Benguet, a complaint for accion
reivindicatoria. Ong charged the Spouses Manuel with having
constructed improvements — through force, intimidation,
strategy, threats, and stealth — on a property he supposedly
owned. Ong filed an "amended complaint." A summons was
issued directed to the Spouses Manuel. Ong filed with the
Regional Trial Court a motion to declare the Spouses Manuel
in default. Per the sheriff's return on summons, Sheriff
Joselito Sales, along with Ong's counsel, Atty. Christopher
Donaal, and a certain Federico Laureano, attempted to
personally serve summons on the Spouses Manuel at their
address in Lower Bacong, Loacan, Itogon, Benguet. The
substituted service — as provided by
Rule 14, Section 7:
SEC. 7. Substituted service. — If, for
justifiable causes, the defendant cannot
be served within a reasonable time as
provided in the preceding section,
service may be effected (a) by leaving
copies of the summons at the
defendant's residence with some
person of suitable age and discretion
then residing therein, or (b) by leaving
the copies at defendant's office or
regular place of business with some
competent person in charge thereof.
The Spouses Manuel cannot capitalize
on the supposed variance of address.
Personal service of summons has
nothing to do with the location where
summons is served. A defendant's
address is inconsequential. Rule 14,
Section 6 of the 1997 Rules of Civil
Procedure is clear in what it requires:
personally handing the summons to the
defendant (albeit tender is sufficient
should the defendant refuse to receive
and sign). What is determinative of the
validity of personal service is, therefore,
the person of the defendant, not the
locus of service.
Spouses Manuel, however, requested that service be made at
another time considering that petitioner Sandra Manuel's
mother was then critically ill. The sheriff's return further
indicates that another attempt at personal service was made.
After Sheriff Joselito Sales had personally explained to
petitioner Sandra Manuel the content of the summons and
the complaint, the latter refused to sign and receive the
summons and the complaint. Sheriff Joselito Sales was thus
prompted to merely tender the summons and complaint to
petitioner Sandra Manuel and to advise her to file their
answer within fifteen (15) days. As the Spouses Manuel failed
to file their answer within this period, Ong asked that they be
declared in default. The Regional Trial Court issued an order
granting Ong's motion to declare the Spouses Manuel in
default. Following this, Ong moved for the ex parte
presentation of evidence, which the Regional Trial Court
granted. The Spouses Manuel filed a motion to lift the order
of default. They alleged that it is the siblings of petitioner
Sandra Manuel who resided in Lower Bacong, Itogon,
Benguet, while they resided in Ambiong, La Trinidad,
Benguet. Thus, summons could not have been properly served
on them in the former address. They surmised that Ong and
his companions mistook petitioner Sandra Manuel's siblings
as the defendants. They further claimed that they only
subsequently received via registered mail copies of (1) a
compliance and manifestation filed by Ong and (2) the
Regional Trial Court's order scheduling the ex parte
presentation of evidence. Attached to the Spouses Manuel's
motion to lift order of default was their answer. The Regional
Trial Court denied the Spouses Manuel's motion to lift order
of default. It noted that, first, their motion was not sworn to,
as required by the 1997 Rules of Civil Procedure, and, second,
they did not show that their failure to timely file an answer
"was due to fraud, accident, mistake or excusable negligence."
Court of Appeals: Aggrieved, the Spouses Manuel filed a
petition for certiorari before the Court of Appeals. The
assailed decision of the Court of Appeals dismissed the
Spouses Manuel's Rule 65 petition for lack of merit and the
resolution of the Court of Appeals denied their motion for
reconsideration.

Issue: Whether the Spouses Manuel may be granted relief

from the RTC’s order of default

Held: No.
Jurisdiction over the persons of the Souses Manuel
Acquired
We hold that jurisdiction over the persons of both defendants
the Spouses Benedict and Sandra Manuel — was validly
acquired. This is so because personal service of summons, via
tender to petitioner Sandra Manuel, was made by Sheriff
Joselito Sales. Rule 14, Section 6 of the 1997 Rules of Civil
Procedure provides:
SEC. 6. Service in person on defendant. — Whenever
practicable, the summons shall be served by handing a copy
thereof to the defendant in person, or, if he refuses to receive
and sign for it, by tendering it to him
Tendering summons is itself a means of personal service as it
is contained in Rule 14, Section 6. Personal service, as
provided by Rule 14, Section 6, is distinguished from its
alternative — substituted service — as provided by Rule 14,
Section 7:
SEC. 7. Substituted service. — If, for justifiable causes, the
defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a)
by leaving copies of the summons at the defendant's residence
with some person of suitable age and discretion then residing
therein, or (b) by leaving the copies at defendant's office or
regular place of business with some competent person in
charge thereof.

In this case, the sheriff's return on summons indicated that

Sheriff Sales endeavored to personally hand the summons and
a copy of the complaint to the Spouses Manuel on two (2)
separate occasions. He relented from doing so on the first
occasion in deference to the medical condition of petitioner
Sandra Manuel's mother. On the second occasion, he was
constrained to tender the summons and copy of the complaint
as petitioner Sandra Manuel refused to accept them. The
Spouses Manuel did not deny the occurrence of the events
narrated in the sheriff's return but claimed that no valid
service of summons was made. They claimed that they did not
reside in Lower Bacong, Loacan, Itogon, Benguet, where the
service of summons was made. From this, they surmised that
the "Sandra Manuel" who was specifically identified in the
sheriff's return was someone other than petitioner Sandra
Manuel. The Spouses Manuel cannot capitalize on the
supposed variance of address. Personal service of summons
has nothing to do with the location where summons is served.
A defendant's address is inconsequential. Rule 14, Section 6 of
the 1997 Rules of Civil Procedure is clear in what it requires:
personally handing the summons to the defendant (albeit
tender is sufficient should the defendant refuse to receive and
sign). What is determinative of the validity of personal service
is, therefore, the person of the defendant, not the locus of
service.
The Spouses Manuel are not entitled to relief from
the order of default.
As valid service of summons was made on them, it was
incumbent upon the Spouses Manuel, pursuant to Rule 11,
Section 1 of the 1997 Rules of Civil Procedure, to file their

15. People’s General As a general rule, personal service is
Insurance Corporation the preferred mode of service of
vs. Guansing 204759 14 summons. Substituted service is the
November 2018 exception to this general rule. For the
LIMIN sheriff to avail of substituted service,
there must be a detailed enumeration
of the sheriff's actions showing that a
defendant cannot be served despite
diligent and reasonable efforts. These
details are contained in the sheriff's
return. Thus, the sheriff's return is
entitled to a presumption of regularity.
Courts may allow substituted service
based on what the sheriff's return
contains.
Failure to serve summons means that
the court did not acquire jurisdiction
over the person of the defendant.
Absent proper service of summons, the
court cannot acquire jurisdiction over
the defendant unless there is voluntary
appearance. The filing of an answer
and other subsequent pleadings is
tantamount to voluntary appearance.
answer within fifteen (15) days from March 16, 2011. Having
failed to do so, they were rightly declared to be in default.
Facts:
Lizaso, Guansing's employee, was driving Guansing's truck
when he hit the rear portion of Yokohama's Isuzu Crosswind.
The strong impact caused the Isuzu Crosswind to hit other
vehicles, rendering it beyond repair. Yokohama's Isuzu
Crosswind was insured with People's General Insurance
Corporation. Yokohama filed a total loss claim under her
insurance policy. Thus, People's General Insurance
Corporation claimed to have been subrogated to all the rights
and interests of Yokohama against Guansing, seeking from
Guansing reimbursement of the total amount paid to
Yokohama less the salvage value. Despite repeated demands,
Guansing failed to reimburse the amount claimed. Thus,
People's General Insurance Corporation filed a Complaint for
a sum of money and damages against Guansing and Lizaso.
The sheriff served the summons on Guansing's brother,
Reynaldo Guansing. The sheriff's return did not explain why
summons was served on his brother instead of Guansing.
Guansing filed a Motion to Dismiss the complaint for lack of
jurisdiction over his person. He alleged that he did not
personally receive the summons. People's General Insurance
Corporation argued that summons was properly served since
substituted service was an alternative mode of service. The
RTC denied to Motion to Dismiss. Guansing reiterated that
the RTC had no jurisdiction over his person in both his
Answer then the Pre-Trial Brief. The RTC ruled against
Guansing. Guansing reiterated that the RTC had no
jurisdiction over his person in his Motion for Reconsideration
then on his Appeal to the CA. The CA ruled in Guansing's
favor and held that the RTC did not acquire jurisdiction over
him because summons was improperly served on his brother.
Moreover, the sheriff did not provide an explanation on why
the summons was not personally served upon him. It further
remanded the case to the RTC.
Issue:

1. Whether or not the RTC acquired jurisdiction over the

person of respondent Edgardo Guansing through service of
summons; and

2. Whether or not respondent Edgardo Guansing, in filing his

Answer and other subsequent pleadings, voluntarily
submitted himself to the jurisdiction of the court.

Ruling:

1. No. In the service of summons, personal service is the

preferred mode. As a rule, summons must be served
personally on a defendant. Sheriffs, in doing substituted
service, must strictly comply with the prescribed
requirements and circumstances authorized by the rules.
Manotoc v. CA laid down the rules on personal service of
summons: "For substituted service of summons to be
available, there must be several attempts by the sheriff to
personally serve the summons within a reasonable period of
one month which eventually resulted in failure to prove
impossibility of prompt service. "Several attempts" mean at
least 3 tries, preferably on at least two different dates. In
addition, the sheriff must cite why such efforts were
unsuccessful." In this case, the basis for resorting to
substituted service on respondent Guansing's brother is not
provided for in the Sheriff's Return. Although Rule 131,
Section 3 (m) of the Rules of Court provides that there is a
disputable presumption that "official duty has been regularly
performed," in this case, presumption of regularity does not
apply. To enjoy the presumption of regularity, a sheriff's
return must contain: (1) detailed circumstances surrounding
the sheriff's attempt to serve the summons on the defendant;
and (2) the specifics showing impossibility of service within a
reasonable time. In this case, the sheriff should have
established the impossibility of prompt personal service
before he resorted to substituted service. Impossibility of
prompt personal service is established by a sheriff's failure to
personally serve the summons within a period of 1 month.

16. Nation Petroleum Gas, Summons is a writ by which the
Inc. vs. RCBC 183370 17 defendant is notified of the action
August 2015 brought against him or her. Its purpose
NAKAGAWA is two-fold: to acquire jurisdiction over
the person of the defendant and to
notify the defendant that an action has
been commenced so that he may be
given an opportunity to be heard on the
claim against him. "[C]ompliance with
the rules regarding the service of
summons is as much an issue of due
Within this period, he or she must have had at least 3
attempts, on 2 different dates, to personally serve the
summons. Moreover, he or she must cite in the sheriff's
return why these attempts are unsuccessful.
2. Yes. Rapid City Realty Development Corporation v. Villa
laid down the rules on voluntary appearance as follows: “(1)
Special appearance operates as an exception to the general
rule on voluntary appearance; (2) Accordingly, objections to
the jurisdiction of the court over the person of the defendant
must be explicitly made, i.e., set forth in an unequivocal
manner; and (3) Failure to do so constitutes voluntary
submission to the jurisdiction of the court, especially in
instances where a pleading or motion seeking affirmative
relief is filed and submitted to the court for resolution.”
Respondent Guansing filed his: (1) Answer; (2) Pre-trial Brief;
(3) Urgent Ex-parte Motion for Postponement; (4) Motion for
Reconsideration; and (5) Notice of Appeal. By filing numerous
pleadings, he has confirmed that notice has been effected, and
that he has been adequately notified of the proceedings for
him to sufficiently defend his interests. Respondent Guansing,
who actively participated in the proceedings, cannot impugn
the court's jurisdiction. A long line of cases has established
that the filing of an answer, among other pleadings, is
considered voluntary appearance and vests the court with
jurisdiction over the person.
FACTS: Respondent filed against petitioner a Complaint for
civil damages arising from estafa in relation to violations of
the Trust Receipts Law. After an ex parte hearing was
conducted, respondent’s prayer for a writ of preliminary
attachment was granted and the corresponding writ was
issued. Thereafter, Sheriff Leodel N. Roxas served upon
petitioners a copy of the summons, complaint, application for
attachment, respondent’s affidavit and bond, and the order
and writ of attachment.
process as of jurisdiction. The essence
of due process is to be found in the
reasonable opportunity to be heard and
submit any evidence one may have in
support of his defense. It is elementary
that before a person can be deprived of
his property, he should first be
informed of the claim against him and
the theory on which such claim is
premised.
Petitioners filed through counsel a Special Appearance with
Motion to Dismiss on November 15, 2006. They asserted that
the trial court did not acquire jurisdiction over the
corporation since the summons was improperly served upon
Claudia Abante (Abante), who is a mere liaison officer and not
one of the corporate officers specifically enumerated in
Section 11, Rule 14 of the Rules. the RTC denied petitioners’
motion to dismiss and ruled that there was valid service of
summons. CA affirmed RTC decision.
ISSUE: WON THE TRIAL COURT ACQUIRED
JURISDICTION OVER THE PERSON OF THE DEFENDANT
CORPORATION BY SERVICE OF SUMMONS UPON ITS
MERE EMPLOYEE.
RULING: YES. Service of summons on Domestic Corporation,
partnership or other juridical entity is governed by Section 11,
Rule 14 of the Rules, which states:
SECTION 11. Service upon domestic private juridical entity.
– When the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a
juridical personality, service may be made on the president,
managing partner, general manager, corporate secretary,
treasurer, or in-house counsel.
In this case, Abante proceeded to receive the summons and
accompanying documents only after receiving instructions to
do so from Melinda Ang, an individual petitioner herein and
the petitioner corporation’s corporate secretary. It is clear,
therefore, that Abante, in so receiving the summons, did so in
representation of Ang who, as corporate secretary, is one of
the officers competent under the Rules of Court to receive
summons on behalf of a private juridical person. Thus, while
it may be true that there was no direct, physical handing of
the summons to Ang, the latter could at least be charged with
having constructively received the same, which in Our view,

17.
18. Orion Security Corp. vs. Courts acquire jurisdiction over
Kaifam Enterprises Inc. the plaintiffs upon the filing of
163287 27 April 2007 the complaint. On the other hand,
NATO jurisdiction over the defendants
in a civil case is acquired either
through the service of summons
upon them or through their
voluntary appearance in court
and their submission to its
authority.
As a rule, summons should be
personally served on the
defendant. It is only when
summons cannot be served
personally within a reasonable
period of time that substituted
service may be resorted to. In
case of substituted service, there
should be a report indicating that
the person who received the
summons in the defendant’s
behalf was one with whom the
defendant had a relation of
confidence ensuring that the
latter would actually receive the
summons. A party who makes a
special appearance in court
challenging the jurisdiction of
said court based on the ground of
invalid service of summons is not
deemed to have submitted
himself to the jurisdiction of the
court.
amounts to a valid service of summons.
Facts:
Petitioner Orion Security Corporation is a domestic private
corporation engaged in the business of providing security
services. One of its clients is respondent Kalfam Enterprises,
Inc. Respondent was not able to pay petitioner for services
rendered. Petitioner thus filed a complaint against respondent
for collection of sum of money. The sheriff tried to serve the
summons and a copy of the complaint on the secretary of
respondent’s manager. However, respondent’s
representatives allegedly refused to acknowledge their receipt.
The summons and the copy of the complaint were left at
respondent’s office. When respondent failed to file an Answer,
petitioner filed a motion to declare respondent in default.
The trial court, however, denied the motion on the ground
that there was no proper service of summons on respondent.
Petitioner then filed a motion for alias summons, which the
trial court granted. The process server again left the summons
and a copy of the complaint at respondents office through
respondents security guard, who allegedly refused to
acknowledge their receipt. Again, respondent failed to file an
Answer. On motion of petitioner, respondent was declared in
default. Thereafter, petitioner was allowed to adduce
evidence ex parte.
Respondent filed a motion for reconsideration of the
resolution declaring it in default. Respondent alleged the trial
court did not acquire jurisdiction over its person due to
invalid service of summons. The trial court denied the motion
for reconsideration. On appeal, the Court of Appeals held that
summons was not validly served on respondent. Petitioner’s
motion for reconsideration of the Court of Appeals decision
was denied. Hence, the instant petition.

Issue: WON there was proper service of summons

Held:

Petitioner contends that the Court of Appeals completely

brushed aside respondents voluntary appearance in the
proceedings of the trial court. According to petitioner, the
trial court acquired jurisdiction over respondent due to the
latters voluntary appearance in the proceedings before the
said court. Petitioner insists substituted service of summons
on respondents security guard is substantial compliance with
the rule on service of summons, in view of the exceptional
circumstances in the present case.

Respondent, however, counters that the special appearance of

its counsel does not constitute voluntary appearance.
Respondent maintains that its filing of an opposition to
petitioners motion to declare respondent in default and other
subsequent pleadings questioning the trial court’s jurisdiction
over it does not amount to voluntary appearance.

We find the petition without merit.

Courts acquire jurisdiction over the plaintiffs upon the filing

of the complaint. On the other hand, jurisdiction over the
defendants in a civil case is acquired either through the
service of summons upon them or through their voluntary
appearance in court and their submission to its authority.

In this case, records show that respondents president,

managing partner, general manager, corporate secretary,
treasurer, or in-house counsel never received the summons
against respondent, either in person or by substituted service.

Note that in case of substituted service, there should be a


19. Robinsons vs. Millares DOCTRINE:
163584 12 December Summons is a writ by which the
2006 defendant is notified of the action
PEREZ brought against him or her. In a civil
action, service of summons is the
means by which the court acquires
jurisdiction over the person of the
defendant. Any judgment without such
service, in the absence of a valid waiver,
is null and void. Where the action is in
personam and the defendant is in the
Philippines, the service of summons
may be made through personal or
substituted service in the manner
provided for in Sections 6 and 7, Rule
report indicating that the person who received the summons
in the defendant's behalf was one with whom the defendant
had a relation of confidence ensuring that the latter would
actually receive the summons. Here, petitioner failed to show
that the security guard who received the summons in
respondents behalf shared such relation of confidence that
respondent would surely receive the summons. Hence, we are
unable to accept petitioners contention that service on the
security guard constituted substantial compliance with the
requirements of substituted service.
Neither did the trial court acquire jurisdiction over
respondent by the latter’s voluntary appearance in court
proceedings. Note that a party who makes a special
appearance in court challenging the jurisdiction of said court
based on the ground of invalid service of summons is not
deemed to have submitted himself to the jurisdiction of the
court. In this case, records show that respondent, in its special
appearance, precisely questioned the jurisdiction of the trial
court on the ground of invalid service of summons. Thus, it
cannot be deemed to have submitted to said courts authority.
FACTS:
Celita Miralles, respondent, filed with the said court a
complaint for sum of money against Remelita Robinson,
petitioner.
Summons was served on petitioner at her given address.
However, per return of service of Sheriff Maximo Potente
dated March 5, 2001, petitioner no longer resides at such
address.
On July 20, 2001, the trial court issued an alias summons to
be served at No. 19 Baguio St., Alabang Hills, Muntinlupa
City, petitioner’s new address.
Again, the summons could not be served on petitioner.
Eventually, respondent filed a motion to declare petitioner in
14 of the 1997 Rules of Procedure.
Personal service is generally preferred
over substituted service, the latter
mode of service being a method
extraordinary in character.
For substituted service to be justified,
the following circumstances must be
clearly established:
(a) personal service of summons within
a reasonable time was impossible;
(b) efforts were exerted to locate the
party; and
(c) the summons was served upon a
person of sufficient age and discretion
residing at the party’s residence or
upon a competent person in charge of
the party’s office or place of business.
Failure to do so would invalidate all
subsequent proceedings on
jurisdictional grounds.
default for her failure to file an answer seasonably despite
service of summons.
Trial court granted respondent’s motion declaring petitioner
in default and allowing respondent to present her evidence ex
parte.
A copy of the Order was sent to petitioner by registered mail
at her new address.
Upon respondent’s motion, the trial court, on September 8,
2003, issued a writ of execution.
On September 26, 2003, petitioner filed with the trial court a
petition for relief from the judgment by default. She claimed
that summons was improperly served upon her, thus, the trial
court never acquired jurisdiction over her and that all its
proceedings are void.
Trial court issued a Resolution denying the petition for relief.
Petitioner filed a motion for reconsideration, but it was
denied by the trial court.
ISSUE:
Whether the trial court correctly ruled that a substituted
service of summons upon petitioner has been validly effected.
HELD:
YES. We agree with the trial court that summons has been
properly served upon petitioner and that it has acquired
jurisdiction over her.
Petitioner contends that the service of summons upon the
subdivision security guard is not in compliance with Section 7,
Rule 14 since he is not related to her or staying at her
residence. Moreover, he is not duly authorized to receive
summons for the residents of the village. Hence, the
substituted service of summons is not valid and that the trial
court never acquired jurisdiction over her person.
We have ruled that the statutory requirements of substituted
service must be followed strictly, faithfully, and fully and any
substituted service other than that authorized by the Rules is
considered ineffective. However, we frown upon an overly
strict application of the Rules. It is the spirit, rather than the
letter of the procedural rules, that governs.

In his Return, Sheriff Potente declared that he was refused

entry by the security guard in Alabang Hills twice. The latter
informed him that petitioner prohibits him from allowing
anybody to proceed to her residence whenever she is out.
Obviously, it was impossible for the sheriff to effect personal
or substituted service of summons upon petitioner. We note
that she failed to controvert the sheriff’s declaration. Nor did
she deny having received the summons through the security
guard.

Considering her strict instruction to the security guard, she

must bear its consequences.

Summons is a writ by which the defendant is notified of the

action brought against him or her. In a civil action, service of
summons is the means by which the court acquires
jurisdiction over the person of the defendant. Any judgment
without such service, in the absence of a valid waiver, is null
and void. Where the action is in personam and the defendant
is in the Philippines, the service of summons may be made
through personal or substituted service in the manner
provided for in Sections 6 and 7, Rule 14 of the 1997 Rules of
Procedure, as amended, thus:

SEC. 6. Service in person on defendant. – Whenever

practicable, the summons shall be served by handing a copy
thereof to the defendant in person, or if he refuses to receive
and sign for it, by tendering it to him.

SEC. 7. Substituted service. – If, for justifiable causes, the

defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a)
by leaving copies of the summons at the defendant’s residence

20. Green Star Express, Inc.
The rules on service of summons upon a
vs. Nissin-Universal
domestic private juridical entity must
Robina Corp. 181517 6
be strictly complied with. Otherwise,
July 2015
the court cannot be said to have
PURIFICACION
acquired jurisdiction over the person of
the defendant.
Section 11. Service upon domestic
private juridical entity. — When the
defendant is a corporation, partnership
or association organized under the laws
of the Philippines with a juridical
personality, service may be made on the
president, managing partner,
with some person of suitable age and discretion then residing
therein; or (b) by leaving the copies at the defendant’s office
or regular place of business with some competent person in
charge thereof.
Under our procedural rules, personal service is generally
preferred over substituted service, the latter mode of service
being a method extraordinary in character.
For substituted service to be justified, the following
circumstances must be clearly established: (a) personal
service of summons within a reasonable time was impossible;
(b) efforts were exerted to locate the party; and (c) the
summons was served upon a person of sufficient age and
discretion residing at the party’s residence or upon a
competent person in charge of the party’s office or place of
business. Failure to do so would invalidate all subsequent
proceedings on jurisdictional grounds.9
WHEREFORE, we DENY the petition and we AFFIRM the
assailed Orders of the RTC, Branch 274, Parañaque City, in
Civil Case No. 00-0372. Costs against petitioner.
SO ORDERED.
Facts:
A Mitsubishi L-300 van which Universal Robina Corporation
(URC) owned figured in a vehicular accident with petitioner
Green Star Express, Inc.'s (Green Star) passenger bus,
resulting in the death of the van's driver. Thus, the bus driver,
petitioner Fruto Sayson, Jr., was charged with the crime of
reckless imprudence resulting in homicide.
Thereafter, Green Star sent a demand letter to respondent
Nissin-Universal Robina Corporation (NURC) for the repair
of its passenger bus. NURC denied any liability therefor and
argued that the criminal case shall determine the ultimate
liabilities of the parties. Thereafter, the criminal case was
dismissed without prejudice, due to insufficiency of evidence.
Sayson and Green Star then filed a complaint for damages
general manager, corporate against NURC before the RTC. Francis Tinio, one of
secretary, treasurer, or in-house NURC's employees, was the one who received the
counsel. summons. NURC filed a Motion to Dismiss claiming lack of
jurisdiction due to improper service.

RTC - denied NURC’s motion to dismiss

- ruled that there was substantial compliance because
there was actual receipt of the summons by NURC.

CA - granted NURC’s Petition for Certiorari

- reversed RTC ruling stating that the complaint for
damages filed by Sayson and Green Star against
NURC is dismissed for lack of jurisdiction

Issue:
Whether or not the summons was properly served on NURC,
vesting the trial court with jurisdiction. - NO.

Held:
It is a well-established rule that the rules on service of
summons upon a domestic private juridical entity must be
strictly complied with. Otherwise, the court cannot be said to
have acquired jurisdiction over the person of the defendant.
NURC maintains that the RTC did not acquire
jurisdiction over it as the summons was received by its cost
accountant, Francis Tinio. It argues that under Section 11,
Rule 14 of the 1997 Rules of Court, which provides the rule on
service of summons upon a juridical entity, in cases where the
defendant is a domestic corporation like NURC, summons
may be served only through its officers. Thus:
Section 11. Service upon domestic private juridical
entity. — When the defendant is a corporation,
partnership or association organized under the laws of
the Philippines with a juridical personality, service
may be made on the president, managing
partner, general manager, corporate
secretary, treasurer, or in-house counsel.
Here, Tinio, a member of NURC's accounting staff,
 received the summons on January 22, 2004. Green Star claims
that it was received upon instruction of Junadette Avedillo, the
general manager of the corporation. Such fact, however, does
not appear in the Sheriff's Return. The Return did not even
state whether Avedillo was present at the time the summons
was received by Tinio, the supposed assistant manager. Green
Star further avers that the sheriff tendered the summons, but
Avedillo simply refused to sign and receive the same. She then
allegedly instructed Tinio to just receive it in her behalf.
However, Green Star never presented said sheriff as witness
during the hearing of NURC's motion to dismiss to attest to
said claim. And while the sheriff executed an affidavit which
appears to support such allegation, the same was likewise not
presented as evidence. It was only when the case was already
before the CA that said affidavit first surfaced. Since the
service of summons was made on a cost accountant,
which is not one of the designated persons under
Section 11 of Rule 14, the trial court did not validly
acquire jurisdiction over NURC, although the
corporation may have actually received the summons. To rule
otherwise will be an outright circumvention of the rules,
aggravating further the delay in the administration of justice.
|

21. Santos vs. PNOC It should be noted that the present rule FACTS: Respondent PNOC filed a complaint for a sum of
Exploration Corp. expressly states that the service of money against petitioner Santos, Jr. in the RTC of Pasig.
170943 23 September summons via publication in a Personal service of summons to Santos failed because he
2008 newspaper of general circulation, when could not be located in his last known address despite earnest
SABIO the defendant’s whereabouts is efforts to do so. Subsequently, on PNOC’s motion, the trial
unknown, applies to any action, court allowed service of summons by publication.
whether it be in rem or in personam.
PNOC caused the publication of the summons in Remate, a
With regard to the affidavit of service, newspaper of general circulation. Thereafter, PNOC
under Sec. 19, Rule 14 of the ROC, the submitted the affidavit of publication of the advertising
rules do not require that the affidavit of manager of Remate and an affidavit of service of PNOC’s
complementary service be executed by employee to the effect that he sent a copy of the summons by
the clerk of court. registered mail to Santos’ last known address.

When Santos failed to file his answer within the prescribed

 period, PNOC moved that the case be set for the reception of
its evidence ex parte. After such, Santos filed an Omnibus
Motion for Reconsideration and to Admit Attached Answer.
He sought reconsideration, alleging that the affidavit of
service submitted by PNOC failed to comply with Sec. 19, Rule
14 of the ROC as it was not executed by the clerk of court.

The RTC denied Santos’ motion for reconsideration, On

appeal, the CA also dismissed Santos’ petition and motion for
reconsideration.

ISSUE: Whether or not the service of summons was properly

complied with by PNOC.

HELD: YES. Sec. 14, Rule 14 of the ROC provides that “in any
action where the defendant xxx whenever his whereabouts are
unknown and cannot be ascertained by diligent inquiry,
service may, by leave of court, be effected upon him by
publication in a newspaper of general circulation.”

Since Santos could not be personally served with summons

despite diligent efforts to locate him, PNOC sought and was
granted leave of court to effect service of summons upon him
by publication in a newspaper of general circulation. Thus,
Santos was properly served with summons by publication.

It should be noted that the present rule expressly states that

the service of summons via publication in a newspaper of
general circulation, when the defendant’s whereabouts is
unknown, applies to any action, whether it be in rem or in
personam. With regard to the affidavit of service, under Sec.
19, Rule 14 of the ROC, the rules do not require that the
affidavit of complementary service be executed by the clerk of
court.

22. Montefalcon vs. Vasquez For Residents Temporarily Outside of

165016 17 June 2008 the Philippines, Sec 16, Rule 14 FACTS: Petitioner filed a complaint for acknowledgment and
ARIBON provides that service, may, by leave of support against respondent Ronnie Vasquez before the RTC
court be also effected outside of the of Naga City. Respondent in this case was an overseas seafarer
Philippines. It should be noted that it by profession. Sheriff tried to serve the summons and
uses the words "may" and "also," thus,it
is not mandatory. Other methods of
service of summons allowed under the
Rules may also be availed of
complaint on respondent in Camarines Sur. As Vasquez was
in Manila, Vasquez’s mother returned the documents to the
clerk of court who informed the court of the non-service of
summons. Petitioners filed a motion to declare Vasquez in
default. Court denied for lack of proper service of summons.
In 2000, upon petitioner’s motion, the court issued an alias
summons in Metro Manila. The first failed, the second was
served again to Vasquez’s caretaker, Raquel Bejer, who is of
sound discretion. This was reflected in second sheriff’s return.
Despite substituted service of summons, the trial court
declared Vasquez in default. In 2001, the court granted
petitioner’s prayers and ordered Vasquez to give support to
his illegitimate son. In the same year, Vasquez filed a notice of
appeal. The appeal was granted by the court. Vasquez argued
that the trial court erred in trying and deciding the case as it
never acquired jurisdiction over his person. Appellate court
ruled that the summons was defective as there was no
explanation of impossibility of personal serve and an attempt
to effect personal service. Petitioners filed an MR. Appellate
court denied. Hence, this petition.
ISSUE: W/N respondent was validly served with summons
HELD: Yes. The Court agrees that the substituted service was
valid. As an overseas seafarer, Vasquez was a Filipino resident
temporarily out of the country. Hence, service of summons on
him is governed by Rule 14, Section 16 of the Rules of Court,
which states that service upon a person who ordinarily resides
in the Philippines but who is temporarily out of it, may, by
leave of court, be also effected out of the Philippines. Since the
said provision uses the words “may” and “also,” it is not
mandatory. Other methods of service of summons allowed
under the Rules may also be availed of by the serving officer
on the defendant. Furthermore, substituted service of
summons was justified because the impossibility of prompt
personal service was shown by the facts that the sheriff not
only attempted to personally serve the summons in a barrio in
Camarines Sur, it also ascertained the whereabouts of
Vasquez when the first service failed. Finding out that he was
residing in Manila, a Taguig City-based sheriff was

23. Perkin Elmer Singapore When the case instituted is an action in
Pte Ltd. vs. Dakila rem or quasi in rem, Philippine courts
Trading Corp. 172242 14 already have jurisdiction to hear and
August 2007 decide the case because, in actions in
SOMEROS rem and quasi in rem, jurisdiction over
the person of the defendant is not a
prerequisite to confer jurisdiction on
the court, provided that the court
acquires jurisdiction over the res.
Thus, in such instance, extraterritorial
service of summons can be made upon
the defendant.
The said extraterritorial service of
summons is not for the purpose of
vesting the court with jurisdiction, but
for complying with the requirements of
fair play or due process, so that the
defendant will be informed of the
pendency of the action against him and
the possibility that property in the
Philippines belonging to him or in
which he has an interest may be
subjected to a judgment in favor of the
plaintiff, and he can thereby take steps
to protect his interest if he is so
minded.
On the other hand, when the defendant
or respondent does not reside and is
not found in the Philippines, and the
action involved is in personam,
Philippine courts cannot try any case
against him because of the
commissioned to serve the summons in his residence in
Taguig. There was no undue haste in effecting substituted
service. Thus, respondent was validly served with summons.
FACTS: Petitioner is a foreign corporation duly organized
and existing under the laws of Singapore and engaged in the
business of manufacturing, producing, selling or distributing
various laboratory/analytical instruments but not considered
"doing business" in the Philippines. Herein respondent
Dakila Trading Corporation is a Filipino corporation and
engaged in the business of selling and leasing out laboratory
instrumentation and process control instrumentation, and
trading of laboratory chemicals and supplies.
Respondent entered into a Distribution Agreement on 1 June
1990 with Perkin-Elmer Instruments Asia Pte Ltd.
(PEIA), By virtue of the said agreement, PEIA appointed the
respondent as the sole distributor with right of purchase and
sell of its products in the Philippines. PEIA, on the other
hand, shall give respondent a commission for the sale of its
products in the Philippines.
Under the Distribution Agreement, respondent shall order the
products of PEIA, either from PEIA itself or from
Perkin-Elmer Instruments (Philippines) Corporation
(PEIP), an affiliate of PEIA. PEIP is a corporation duly
organized and existing under Philippine laws, and involved in
the business of wholesale trading of all kinds of scientific,
biotechnological, and analytical instruments and appliances.
PEIA allegedly owned 99% of the shares of PEIP.
On 2 August 1997, however, PEIA unilaterally terminated the
Distribution Agreement.
Civil Case No. MC99-605.
respondent filed before the RTC of Mandaluyong City, Branch
212, a Complaint for Collection of Sum of Money and
Damages with Prayer for Issuance of a Writ of Attachment
impossibility of acquiring jurisdiction
over his person unless he voluntarily
appears in court
against PEIA and PEIP.
RTC denied respondent's prayer then the respondent moved
for reconsideration but it was denied.
Respondent then filed Ex-Parte Motions for Issuance of
Summons and for Leave of Court to Deputize Respondent's
General Manager, Richard A. Tee, to Serve Summons Outside
of the Philippines, which the RTC granted.
Thus, an Alias Summons, was issued by the RTC to PEIA. But
the said Alias Summons was served and received by
Perkinelmer Asia, a Singaporean based sole
proprietorship, owned by the petitioner and, allegedly, a
separate and distinct entity from PEIA.
PEIP moved to dismiss the Complaint filed by respondent on
the ground that it states no cause of action. Perkinelmer Asia,
informed respondent and RTC, of the wrongful service of
summons upon Perkinelmer Asia.
respondent filed an Ex-Parte Motion to Admit Amended
Complaint, to which it claimed that PEIA had become a sole
proprietorship owned by the petitioner, and subsequently
changed its name to Perkinelmer Asia. Hence, in its Amended
Complaint respondent sought to change the name of PEIA to
that of the petitioner.
RTC admitted the Amended Complaint. Respondent then
filed another Motion for the Issuance of Summons and for
Leave of Court to Deputize Respondent's General Manager,
Richard A. Tee, to Serve Summons Outside the Philippines.
RTC deputized respondent's General Manager to serve
summons on petitioner in Singapore.
RTC denied the Motion to Dismiss filed by PEIP, compelling
the latter to file its Answer to the Amended Complaint.
Petitioner subsequently filed with the RTC a Special
Appearance and Motion to Dismiss respondent's Amended
Complaint.
RTC: denied petitioner's Motion to Dismiss.
Petitioner moved for the reconsideration but it was denied.
petitioner filed a Petition for Certiorari under Rule 65 of the
1997 Revised Rules of Civil Procedure with application for
TRO and/or preliminary injunction before the CA alleging
that the RTC committed grave abuse of discretion amounting
to lack or excess of jurisdiction in refusing to dismiss the
Amended Complaint.
CA: never issued any temporary restraining order or writ of
injunction. It affirmed the RTC Orders.
ISSUE: WON there is a proper service of summons and
acquisition of jurisdiction by the RTC over the person of the
petitioner.
HELD: NO, this Court finds that the petitioner did not
submit itself voluntarily to the authority of the court a quo;
and in the absence of valid service of summons, the RTC
utterly failed to acquire jurisdiction over the person of the
petitioner.
The proper service of summons differs depending on the
nature of the civil case instituted by the plaintiff or petitioner:
whether it is in personam, in rem, or quasi in rem. Actions in
personam, are those actions brought against a person on the
basis of his personal liability; actions in rem are actions
against the thing itself instead of against the person; and
actions are quasi in rem, where an individual is named as
defendant and the purpose of the proceeding is to subject his
or her interest in a property to the obligation or loan
burdening the property.
Under Section 15, Rule 14 of the 1997 Revised Rules of Civil
Procedure, there are only four instances wherein a defendant
who is a non-resident and is not found in the country may be
served with summons by extraterritorial service, to wit:
(1) when the action affects the personal status of the plaintiff;
(2) when the action relates to, or the subject of which is
property, within the Philippines, in which the defendant
claims a lien or an interest, actual or contingent;
(3) when the relief demanded in such action consists, wholly
or in part, in excluding the defendant from any interest in
property located in the Philippines; and
(4) when the defendant non-resident's property has been
attached within the Philippines.
In these instances, service of summons may be effected by:
(a) personal service out of the country, with leave of court;
(b) publication, also with leave of court; or
(c) any other manner the court may deem sufficient.
Undoubtedly, extraterritorial service of summons applies only
where the action is in rem or quasi in rem, but not if an action
is in personam.
In the case at bar, this Court sustains the contention of the
petitioner that there can never be a valid extraterritorial
service of summons upon it, because the case before the court
a quo involving collection of a sum of money and damages is,
indeed, an action in personam, as it deals with the personal
liability of the petitioner to the respondent by reason of the
alleged unilateral termination by the former of the
Distribution Agreement. Even the CA, in its Decision upheld
the nature of the instant case as an action in personam.
Thus, being an action in personam, personal service of
summons within the Philippines is necessary in order for the
RTC to validly acquire jurisdiction over the person of the
petitioner, and this is not possible in the present case because
the petitioner is a non-resident and is not found within the
Philippines.
It is worthy to note that what is required under the aforesaid
provision of the Revised Rules of Civil Procedure is not a mere
allegation of the existence of personal property belonging to

24. NM Rothschild & Sons
vs. Lepanto Consolidated Undoubtedly, extraterritorial
Mining Company 175799 service of summons applies only
28 November 2011 where the action is in rem or
TAN quasi in rem, but not if an action
is in personam.
the non-resident defendant within the Philippines but, more
precisely, that the non-resident defendant's personal property
located within the Philippines must have been actually
attached.
Evidently, petitioner's alleged personal property within the
Philippines, in the form of shares of stock in PEIP, had not
been attached; hence, Civil Case No. MC99-605, for collection
of sum of money and damages, remains an action in
personam. As a result, the extraterritorial service of summons
was not validly effected by the RTC against the petitioner, and
the RTC thus failed to acquire jurisdiction over the person of
the petitioner. The RTC is therefore bereft of any authority to
act upon the Complaint filed before it by the respondent
insofar as the petitioner is concerned.
Moreover, even though the petitioner raised other grounds in
its Motion to Dismiss aside from lack of jurisdiction over its
person, the same is not tantamount to its voluntary
appearance or submission to the authority of the court a quo.
Most telling is Section 20, Rule 14 of the Rules of Court, which
expressly provides:
SEC. 20. Voluntary appearance. — The
defendant's voluntary appearance in the
action shall be equivalent to service of
summons. The inclusion in a motion to
dismiss of other grounds aside from lack of
jurisdiction over the person of the
defendant shall not be deemed a voluntary
appearance. (Emphasis supplied.)
FACTS:
Respondent Lepanto Consolidated Mining Company led with
the Regional Trial Court (RTC) of Makati City a Complaint
against petitioner NM Rothschild & Sons (Australia) Limited
praying for a judgment declaring the loan and hedging
contracts between the parties void for being contrary to
When the case instituted is an
action in rem or quasi in rem,
Philippine courts already have
jurisdiction to hear and decide
the case because, in actions in
rem and quasi in rem,
jurisdiction over the person of the
defendant is not a prerequisite to
confer jurisdiction on the court,
provided that the court acquires
jurisdiction over the res. Thus, in
such instance, extraterritorial service of
summons can be made upon the
defendant. The said extraterritorial
service of summons is not for the
purpose of vesting the court with
jurisdiction, but for complying with the
requirements of fair play or due
process, so that the defendant will be
informed of the pendency of the action
against him and the possibility that
property in the Philippines belonging
to him or in which he has an interest
may be subjected to a judgment in
favor of the plaintiff, and he can
thereby take steps to protect his
interest if he is so minded. On the other
hand, when the defendant or
respondent does not reside and is
not found in the Philippines, and
the action involved is in
personam, Philippine courts
cannot try any case against him
because of the impossibility of
acquiring jurisdiction over his
person unless he voluntarily
appears in court.
Article 2018 of the Civil Code of the Philippines and for
damages. Upon respondent's (plaintiff's) motion, the trial
court authorized respondent's counsel to personally bring the
summons and Complaint to the Philippine Consulate General
in Sydney, Australia for the latter office to effect service of
summons on petitioner (defendant).
October 20, 2005, petitioner filed a Special Appearance with
Motion to Dismiss 5 praying for the dismissal of the
Complaint on the following grounds: (a) the court has not
acquired jurisdiction over the person of petitioner due to the
defective and improper service of summons; (b) the
Complaint failed to state a cause of action and respondent
does not have any against petitioner; (c) the action is barred
by estoppel; and (d) respondent did not come to court with
clean hands.
RTC: According to the trial court, there was a proper service
of summons through the Department of Foreign Affairs (DFA)
on account of the fact that the defendant has neither applied
for a license to do business in the Philippines, nor filed with
the Securities and Exchange Commission (SEC) a Written
Power of Attorney designating some person on whom
summons and other legal processes maybe served. The trial
court also held that the Complaint sufficiently stated a cause
of action.
CA: The Court of Appeals ruled that since the denial of a
Motion to Dismiss is an interlocutory order, it cannot be the
subject of a Petition for Certiorari, and may only be reviewed
in the ordinary course of law by an appeal from the judgment
after trial.
Petitioner insists that (a) an order denying a motion to
dismiss may be the proper subject of a petition for certiorari;
and (b) the trial court committed grave abuse of discretion in
not finding that it had not validly acquired jurisdiction over
petitioner and that the plaintiff had no cause of action.
ISSUE: Whether or not there was proper service of
summons.

HELD: No, the summons in this case was not properly

served.

When the defendant or respondent does not reside and is not

found in the Philippines, and the action involved is in
personam, Philippine courts cannot try any case against him
because of the impossibility of acquiring jurisdiction over his
person unless he voluntarily appears in court.

The service of summons to petitioner through the DFA by the

conveyance of the summons to the Philippine Consulate
General in Sydney, Australia was clearly made not through
the above-quoted Section 12, but pursuant to Section 15 of the
same rule which provides:

Sec. 15. Extraterritorial service. – When the defendant does

not reside and is not found in the Philippines, and the action
affects the personal status of the plaintiff or relates to, or the
subject of which is property within the Philippines, in which
the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly
or in part, in excluding the defendant from any interest
therein, or the property of the defendant has been attached
within the Philippines, service may, by leave of court, be
effected out of the Philippines by personal service as under
section 6; or by publication in a newspaper of general
circulation in such places and for such time as the court may
order, in which case a copy of the summons and order of the
court shall be sent by registered mail to the last known
address of the defendant, or in any other manner the court
may deem sufficient. Any order granting such leave shall
specify a reasonable time, which shall not be less than sixty
(60) days after notice, within which the defendant must
answer.

25. De Pedro vs. Romasan The sheriff's return must contain a
Development narration of the circumstances showing
Corporation 194751 26 efforts to personally serve summons to
November 2014 the defendants or respondents and the
TANADA impossibility of personal service of
summons. A sheriff's return enjoys the
presumption of regularity in its
issuance if it contains (1) the details of
the circumstances surrounding the
sheriff's attempt to serve the summons
Undoubtedly, extraterritorial service of summons
applies only where the action is in rem or quasi in
rem, but not if an action is in personam.
When the case instituted is an action in rem or quasi
in rem, Philippine courts already have jurisdiction to
hear and decide the case because, in actions in rem
and quasi in rem, jurisdiction over the person of the
defendant is not a prerequisite to confer jurisdiction
on the court, provided that the court acquires
jurisdiction over the res. Thus, in such instance,
extraterritorial service of summons can be made upon the
defendant. The said extraterritorial service of summons is not
for the purpose of vesting the court with jurisdiction, but for
complying with the requirements of fair play or due process,
so that the defendant will be informed of the pendency of the
action against him and the possibility that property in the
Philippines belonging to him or in which he has an interest
may be subjected to a judgment in favor of the plaintiff, and
he can thereby take steps to protect his interest if he is so
minded. On the other hand, when the defendant or
respondent does not reside and is not found in the
Philippines, and the action involved is in personam,
Philippine courts cannot try any case against him
because of the impossibility of acquiring jurisdiction
over his person unless he voluntarily appears in
court.
Facts:
The case originated from separate complaints filed by
respondent Romasan Development Corporation (Romasan)
before the Antipolo City RTC for nullification of free patent
and original certificates of title, filed against several
defendants, one of which was petitioner Aurora De Pedro (De
Pedro). Respondent alleged in its complaints that it was the
owner and possessor of a parcel of land in Antipolo City. It
narrated that its representative, Mr. Rodrigo Ko, discovered
that De Pedro put up fences on a portion of the subject
personally upon the defendants or
respondents; and (2) the particulars
showing the impossibility of serving the
summons within reasonable time. It
does not enjoy the presumption of
regularity if the return was merely pro
forma. Failure to state the facts and
circumstances that rendered service of
summons impossible renders service of
summons and the return ineffective. In
that case, no substituted service or
service by publication can be valid.
property. Mr. Ko confronted De Pedro on this, but she was
able to show title and documents evidencing her ownership.
Upon checking with the CENRO-DENR, it was later
discovered that the DENR issued free patents covering
portion of respondent’s property to several recipients
(including De Pedro). Based on these free patents, the
Register of Deeds issued titles covering portions of
respondent’s property. Respondent further alleged that the
government could not legally issue the free patents since at
the time of their issuance, the land was already released for
disposition to private individuals. Attempts to personally
serve summons on De Pedro failed. Respondent then filed a
motion to serve summons and the complaint by publication.
The RTC granted the motion; hence, the summons and the
complaint were published in People’s Balita on its April 24,
May 1, and May 8, 1998 issues. Respondent moved to declare
all defendants, including De Pedro, in default for failure to file
their answers, and to be allowed to present evidence ex parte.
The RTC granted the motions. In its decision on Jan. 7, 2000,
the RTC declared the titles and free patents issued to all
defendants (including De Pedro) as a nullity. The RTC noted
that the title and free patent issued to De Pedro were void,
since the property was already “segregated from the mass of
public domain” that can be disposed by the government. De
Pedro filed before the RTC a motion for new trial alleging that
her counsel received notice of the Jan. 7, 2000 decision only
on March 16, 2000. She argued that because of improper and
defective service of summons, the RTC did not acquire
jurisdiction over her. Citing the officer's return, De Pedro
pointed out that summons was not personally served upon
her "for the reason that according to the messenger of Post
Office of Pasig there is no person in the said given address.”
She also alleged that the case should have been dismissed on
the ground of litis pendentia. The RTC denied De Pedro’s
motion for new trial. It ruled that summons were validly
served upon De Pedro through publication, in accordance
with the Rules of Court, and that the period to file the motion
for new trial has already lapsed. De Pedro filed a petition for
certiorari before the CA, which dismissed the petition and
affirmed the denial of her motion for new trial. The CA held
that De Pedro belatedly filed her motion for new trial and that
she failed to allege any ground that would justify the grant of a
new trial. She then elevated the case to the SC, but was also
denied for her failure to pay the Special Allowance for the
Judiciary and sheriff’s fees. De Pedro then filed before the SC
a petition for annulment of the Jan. 7, 2000 judgment on the
grounds of lack of jurisdiction, litis pendentia, and for having
been dispossessed of her property without due process. The
CA denied De Pedro’s petition for annulment of judgment,
ruling that since she already availed of the remedy of new
trial, and raised the case before the CA via petition for
certiorari, she can no longer file a petition for annulment of
judgment.
Issue:
Whether or not summons was properly served upon De
Pedro.
Held: No.
De Pedro argued that the complaint was an action in personal,
which required personal service of summons upon her for the
court to acquire jurisdiction over her person. Jurisdiction over
the parties is required regardless of the type of action –
whether it is in personam, in rem, or quasi in rem. Courts
need not acquire jurisdiction over parties on this basis in in
rem and quasi in rem actions. Actions in rem or quasi in rem
are not directed against the person based on his or her
personal liability. However, to satisfy the requirements of due
process, jurisdiction over the parties in in rem and quasi in
rem actions is required. Violation of due process rights is a
jurisdictional defect. An action for annulment of certificate of
title is quasi in rem. Regardless of the nature of the action,
proper service of summons is imperative. Personal service of
summons is the preferred mode of service of summons. If the
defendant or respondent refuses to receive the summons, it
shall be tendered to him or her. Other modes of serving
summons may be done when justified. Service of summons
through other modes will not be effective without showing
serious attempts to serve summons through personal service.
Thus, the rules allow summons to be served by substituted
service only for justifiable causes and if the defendant or
respondent cannot be served within reasonable time.
Substituted service is effected "(a) by leaving copies of the
summons at the defendant's residence with some person of
suitable age and discretion then residing therein, or (b) by
leaving the copies at defendant's office or regular place of
business with some competent person in charge thereof."
Service of summons by publication in a newspaper of general
circulation is allowed when the defendant or respondent is
designated as an unknown owner or if his or her whereabouts
are "unknown and cannot be ascertained by diligent inquiry."
It may only be effected after unsuccessful attempts to serve
the summons personally, and after diligent inquiry as to the
defendant's or respondent's whereabouts. A look into the
content of the sheriff's return will determine if the
circumstances warranted the deviation from the rule
preferring personal service of summons over other modes of
service. The sheriff's return must contain a narration of the
circumstances showing efforts to personally serve summons
to the defendants or respondents and the impossibility of
personal service of summons. A sheriff's return enjoys the
presumption of regularity in its issuance if it contains (1) the
details of the circumstances surrounding the sheriff's attempt
to serve the summons personally upon the defendants or
respondents; and (2) the particulars showing the impossibility
of serving the summons within reasonable time. It does not
enjoy the presumption of regularity if the return was merely
pro forma. Failure to state the facts and circumstances that
rendered service of summons impossible renders service of
summons and the return ineffective. In that case, no
substituted service or service by publication can be valid. This
return shows no detail of the sheriff's efforts to serve the
summons personally upon petitioner. The summons was
unserved only because the post office messenger stated that
there was no "Aurora N. De Pedro" in the service address. The
return did not show that the sheriff attempted to locate
petitioner's whereabouts. Moreover, it cannot be concluded
based on the return that personal service was rendered
impossible under the circumstances or that service could no
longer be made within reasonable time. The lack of any
demonstration of effort on the part of the sheriff to serve the
summons personally upon petitioner is a deviation from this

26. Reicon vs. Diamond
204796 4 February 2015 The underlying rationale behind this
UBAY rule is that a certiorari proceeding is, by
nature, an original and independent
action, and, therefore not considered as
part of the trial that had resulted in the
rendition of the judgment or order
complained of. Hence, at the
preliminary point of serving the
certiorari petition, as in other initiatory
pleadings, it cannot be said that an
appearance for respondent has been
made by his counsel. Consequently, the
requirement under Section 2, Rule 13
of the Rules, which provides that if any
party has appeared by counsel, service
upon him shall be made upon his
counsel, should not apply.
Thus, the CA erred when it dismissed
Reicon's certiorari petition outright for
non-compliance with Section 3, Rule
46 of the Rules as well as the rule on
service upon a party through counsel
under Section 2, Rule 13 of the Rules.
The service of said pleading upon the
person of the respondent, and not upon
his counsel, is what the rule properly
requires, as in this case.
court's previous rulings that personal service is the preferred
mode of service, and that the sheriff must narrate in his or her
return the efforts made to effect personal service. Thus, the
sheriff's return in this case was defective. No substituted
service or service by publication will be allowed based on such
defective return.
Facts: Reicon is the owner of a parcel of land and the
one-storey building erected thereon located at the comer of
Aurora Boulevard and Araneta Avenue, Sta. Mesa, Quezon
City. Reicon and respondent Diamond Dragon Realty and
Management, Inc. entered into a Contract of Lease, whereby
Reicon leased the subject property to Diamond for a period of
twenty (20) years for a monthly rental of ₱75,000.00.
However, Diamond sublet portions of the subject property to
Jollibee Foods Corporation and Maybunga U.K. Enterprises.
Starting June 2006, Diamond failed to pay the monthly
rentals due and the checks it had issued were all dishonored.
Thus, Reicon demand payment of the accrued rentals and
terminated the Contract. Thereafter, it entered into separate
contracts with Jollibee and Maybunga over the portions of the
subject property.
Diamond filed a complaint for breach of contract with
damages against Reicon, Jollibee, Maybunga, Andrew, and a
certain Mary Palangdao, defendants herein before the
Regional Trial Court alleging that the Contract did not
provide for its unilateral termination by either of the parties.
It also alleged that the act of defendants in entering into
separate contracts, despite the existence of their Contract,
constitutes unlawful interference and prayed that the separate
contracts of lease entered with Jollibee and Maybunga, be
declared invalid and illegal.
Reicon filed a motion to dismiss the complaint on the
following grounds:
(a) lack of jurisdiction over its person;
(b) lack of legal capacity to sue as a juridical person on the
part of Diamond; and
( c) lack of cause of action.
Also, Jollibee filed a separate motion to dismiss.
The Regional Trial Court denied Reicon's and Jollibee's
motion to dismiss. Motion for reconsideration was also
denied.
On appeal, the Court of Appeals dismissed Reicon's certiorari
petition based on the following grounds:
(a) non-compliance with the requirements of proof of service
of the petition on Diamond pursuant to Section 3, Rule 46 of
the Rules, and
(b) non-compliance with the rule on service upon a party
through counsel under Section 2, Rule 13 of the Rules.
Reicon’s motion for reconsideration was also denied.
Hence, the petition.
Issue: Whether or not Reicon's certiorari petition before the
CA was properly served upon the person of Diamond.

Held: Yes. Reicon's certiorari petition before the CA was

properly served upon the person of Diamond.
Sections 3 and 4, Rule 46 of the Rules, which covers cases
originally Filed before the CA, provide as follows:
SEC. 3. Contents and filing of petition; effect of
non-compliance with requirements. - The petition shall
contain the full names and actual addresses of all the
petitioners and respondents, a concise statement of the
matters involved, the factual background of the case, and the
grounds relied upon for the relief prayed for.
The failure of the petitioner to comply with any of the
foregoing requirements shall be sufficient ground for the
dismissal of the petition.
SEC. 4. Jurisdiction over the person of respondent, how
acquired. - The court shall acquire jurisdiction over the
person of the respondent by the service on him of its order or
resolution indicating its initial action on the petition or by his
voluntary submission to such jurisdiction.
In this case, the Court notes that Diamond declared the
aforesaid address as its business address in its complaint
before the RTC, and that there is dearth of evidence to show
that it had since changed its address or had moved out.
Hence, Reicon cannot be faulted for adopting the said address
in serving a copy of its certiorari petition to Diamond in light
of the requirement under Sections 3 and 4, Rule 46 of the
Rules as above-cited, which merely entails service of the
petition upon the respondent itself, not upon his counsel.
Certiorari proceeding is, by nature, an original and
independent action, and, therefore not considered as part of
the trial that had resulted in the rendition of the judgment or
order complained of. Hence, at the preliminary point of
serving the certiorari petition, as in other initiatory pleadings,
it cannot be said that an appearance for respondent has been
made by his counsel. Consequently, the requirement under
Section 2, Rule 13 of the Rules, which provides that if any
party has appeared by counsel, service upon him shall be
made upon his counsel, should not apply.
In ordinary civil cases, a conditional appearance to object to a
trial court's jurisdiction over the person of the defendant may
be made when said party specifically objects to the service of
summons, which is an issuance directed by the court, not the
complainant. If the defendant, however, enters a special
appearance but grounds the same on the service of the
complainant's initiatory pleading to him, then that would not
be considered as an objection to the court's jurisdiction over
his person. It must be underscored that the service of the
initiatory pleading has nothing to do with how courts acquire
jurisdiction over the person of the defendant in an ordinary
civil action. Rather, it is the propriety of the trial court's
service of summons - same as the CA's service of its resolution
indicating its initial action on the certiorari petition - which
remains material to the matter of the court's acquisition

27. Rapid Realty and Jurisdiction over the defendant in a
Development Corp. vs. civil case is acquired either by the
Villa 184197 11 February coercive power of legal processes
2010 exerted over his person, or his
YUMUL voluntary appearance in court. As a
general proposition, one who seeks an
affirmative relief is deemed to have
submitted to the jurisdiction of the
court. It is by reason of this rule that we
have had occasion to declare that the
filing of motions to admit answer, for
additional time to file answer, for
reconsideration of a default judgment,
and to lift order of default with motion
for reconsideration, is considered
voluntary submission to the court’s
jurisdiction.
This, however, is tempered by the
concept of conditional appearance,
such that a party who makes a special
appearance to challenge, among others,
the court’s jurisdiction over his person
cannot be considered to have submitted
to its authority.
jurisdiction over the defendant's/respondents' person.
Rapid City Realty and Development Corporation (petitioner)
filed a complaint for declaration of nullity of subdivision
plans, mandamus, and damages against several defendants
including Spouses Orlando and Lourdes Villa (respondents).
After one failed attempt at personal service of summons,
Zapanta , court process server, resorted to substituted service
by serving summons upon respondents’ househelp who did
not acknowledge receipt thereof and refused to divulge their
names.
Despite substituted service, respondents failed to file their
Answer, prompting petitioner to file a "Motion to Declare
Defendants[-herein respondents] in Default" which the trial
court granted.
More than eight months thereafter, respondents filed a
Motion to Lift Order of Default. Alleging they had only
received the pertinent papers recently and denied the
existence of the househelp who refused to sign and
acknowledge receipt of the summons. In any event, they
contended that assuming that the allegation were true, the
helpers had no authority to receive the documents.
Trial court set aside the Order of Default but respondents still
failed to file their answer within the time required. They were
once again declared in default so respondents filed an
Omnibus Motion for reconsideration of the second order
declaring them in default and to vacate proceedings, this time
claiming that the trial court did not acquire jurisdiction over
their persons due to invalid service of summons.
ISSUE/S:
WON there was an invalid service of summons.
HELD:

28. PCIB vs. Spouses Wilson Preliminarily, jurisdiction over the
Dy Hong Pi, et. al 171137 defendant in a civil case is acquired
5 June 2009 either by the coercive power of legal
ZAPANTA processes exerted over his person, or
his voluntary appearance in court. As a
general proposition, one who seeks an
affirmative relief is deemed to have
submitted to the jurisdiction of the
court.
NO. It is settled that if there is no valid service of summons,
the court can still acquire jurisdiction over the person of the
defendant by virtue of the latter’s voluntary appearance. Thus
Section 20 of Rule 14 of the Rules of Court provides:
Sec. 20. Voluntary appearance. – The defendant’s voluntary
appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the person shall
not be deemed a voluntary appearance.
Respondents did not, in said motion, allege that their filing
thereof was a special appearance for the purpose only to
question the jurisdiction over their persons. Clearly, they had
acquiesced to the jurisdiction of the court.
WHEREFORE, the petition is GRANTED. The assailed
Court of Appeals Decision is REVERSED and SET ASIDE.
FACTS:
Sps. Amadeo are indebted to petitioner PCIB, as sureties for
Streamline Cotton Dev. Corp. The promissory notes became
due and demandable, but Sps. Amadeo failed to pay their
outstanding obligations despite repeated demands, their
obligation is at P10, 671,726.61.
Petitioner subsequently discovered that Sps. Amadeo sold 3
or nearly all of their real properties to respondents, Sps. Dy
and Sps. Chuyaco, and immediately transferred the titles
covering the parcels of land in favor of the latter. The
consideration for these sales was grossly insufficient or
inadequate.
Believing that the transfers were done in fraud of creditors,
petitioner filed an action for rescission and damages, for the
annulment of the Deeds of Absolute Sale and cancel the TCTs
issued in the name of Sps. Dy and Sps. Chuyaco, and, issue
new ones under the name of Sps. Amadeo.
Upon service of summons on the Sps. Amadeo, the latter filed
a Motion to Dismiss on the ground that the Complaint
violated the explicit terms of SC Circular No. 04-94, as the
Verification was executed by petitioner’s legal counsel.

Petitioner filed an Ex Parte Motion for Leave to Serve

Summons by Publication on Sps. Dy and Chuyaco. However,
this was denied in on the ground that summons by
publication cannot be availed of in an action in
personam.Petitioner opposed and argued that it had already
filed a motion for the service of summons by publication, but
the trial court had yet to act on it. This Motion was submitted
for resolution.

The motion for inhibition was adopted by their counsel,

Clarissa Castro, through a Motion to Adopt Motion for
Inhibition and Manifestation, which was filed and noted by
the trial court in an Order. However, the RTC (a) denied the
motion for inhibition for lack of merit, (b) ruled that Sps. Dy
and Chuyaco have voluntarily submitted themselves to the
jurisdiction of the trial court, and (c) gave them 15 days from
receipt of the Order within which to file their respective
answers.
Unsatisfied, respondent Sps. Dy and Chuyaco filed a Petition
for Certiorari under Rule 65 before the CA, alleging that the
public respondent committed grave abuse of discretion when
he considered the Motion to Inhibit (without submitting to
the jurisdiction of the Honorable Court) which they had filed
to question his impartiality and competence due to the delay
in resolving the Motion to Dismiss based on lack of
jurisdiction, as voluntary appearance, and wherein he
required the respondents to file their Answer within the
required period. The CA granted the petition in this wise:
The old provision under Section 23, Rule 14 of the Revised
Rules of Court provided that: Section 23. What is equivalent
to service. The defendants voluntary appearance in the action
shall be equivalent to service.

Under Section 20, Rule 14 of the 1997 Rules of Civil

Procedure, the provision now reads as follows: Sec. 20.
Voluntary Appearance. The defendant's voluntary appearance
in the action shall be equivalent to service of summons. The
inclusion in a motion to dismiss of other grounds aside from
lack of jurisdiction over the person of the defendant shall not
be deemed a voluntary appearance.

Petitioner’s motion for reconsideration was denied by the

appellate court. Hence this appeal.

ISSUES: W/N there has been voluntary appearance on the

part of respondent Spouses Dy and Chuyaco as to confer the
trial court with jurisdiction over their persons.

HELD:

Preliminarily, jurisdiction over the defendant in a civil case is

acquired either by the coercive power of legal processes
exerted over his person, or his voluntary appearance in court.
As a general proposition, one who seeks an affirmative relief
is deemed to have submitted to the jurisdiction of the court. It
is by reason of this rule that we have had occasion to declare
that the filing of motions to admit answer, for additional time
to file answer, for reconsideration of a default judgment, and
to lift order of default with motion for reconsideration, is
considered voluntary submission to the courts jurisdiction.
This, however, is tempered by the concept of conditional
appearance, such that a party who makes a special appearance
to challenge, among others, the courts jurisdiction over his
person cannot be considered to have submitted to its
authority.

It is readily apparent that respondents have acquiesced to the

jurisdiction of the trial court, when they filed their Motion to
Dismiss for Failure to Prosecute. Significantly, the motion did
not categorically and expressly raise the jurisdiction of the
court over their persons as an issue. It merely (a) reminded
the court of its purportedly conflicting Orders in respect of
summons by publication, (b) alleged that because petitioner
has not lifted a finger to pursue this case against
movants-defendants, the case may be dismissed for failure to
prosecute, and (c) prayed additionally for the deletion of the

XVI. MOTIONS (RULE 15, SEC. 1 TO 13)
29. Sarmiento vs. Zaratan The notice requirement in a motion is
167471 5 February 2007 mandatory. As a rule, a motion
ABAD without a Notice of Hearing is
considered pro forma and does not
affect the reglementary period for the
appeal or the filing of the requisite
pleading.
As a general rule, notice of motion is
required where a party has a right to
resist the relief sought by the motion
and principles of natural justice
Notice of Lis Pendens indicated at the back of the transfer
certificates of title covering the subject properties. We note,
that the motion failed to qualify the capacity in which
respondents were appearing and seeking recourse.
Doubts on the issue of voluntary appearance dissipate when
the respondents motion for inhibition is considered. This
motion seeks a sole relief: inhibition of Judge Inoturan from
further hearing the case. Evidently, by seeking affirmative
relief other than dismissal of the case, respondents
manifested their voluntary submission to the courts
jurisdiction. It is well-settled that the active participation of a
party in the proceedings is tantamount to an invocation of the
courts jurisdiction and a willingness to abide by the resolution
of the case, and will bar said party from later on impugning
the courts jurisdiction.
To be sure, the convenient caveat in the title of the motion for
inhibition does not detract from this conclusion. It would
suffice to say that the allegations in a pleading or motion are
determinative of its nature; the designation or caption thereof
is not controlling. Furthermore, no amount of caveat can
change the fact that respondents tellingly signed the motion
to inhibit in their own behalf and not through counsel, let
alone through a counsel making a special appearance.
FACTS:
Petitioner Gliceria Sarmiento filed an ejectment case against
respondent Emerita Zaratan, in the MeTC of QC. The MeTC
rendered a decision in favor of petitioner.
Respondent filed her notice of appeal. Thereafter, the case was
raffled to the RTC of QC.
In the Notice of Appealed Case, the RTC directed respondent
to submit her memorandum in accordance with the provisions
of Section 7 (b) of Rule 40 of the Rules of Court and petitioner
demand that his right be not affected
without an opportunity to be heard.
The three-day notice required by law is
intended not for the benefit of the
movant but to avoid surprises upon
the adverse party and to give the latter
time to study and meet the arguments
of the motion. Principles of natural
justice demand that the right of a party
should not be affected without giving it
an opportunity to be heard.
Further, it has been held that a
"motion for extension of time . . . is not
a litigated motion where notice to the
adverse party is necessary to afford the
latter an opportunity to resist the
application, but an ex parte motion
made to the court in behalf of one or
the other of the parties to the action, in
the absence and usually without the
knowledge of the other party or
parties." It has been said that "ex parte
motions are frequently permissible in
procedural matters, and also in
situations and under circumstances of
emergency; and an exception to a rule
requiring notice is sometimes made
where notice or the resulting delay
might tend to defeat the objective of
the motion.
to file a reply memorandum within 15 days from receipt.
Respondent's counsel having received the notice on 19 May
2003, he had until 3 June 2003 within which to file the
requisite memorandum. But on 3 June 2003, he filed a Motion
for Extension of Time of five days due to his failure to finish
the draft of the said Memorandum. He cited as reasons for the
delay of filing his illness for one week, lack of staff to do the
work due to storm and flood compounded by the grounding of
the computers because the wirings got wet. But the motion
remained unacted.
On June 9 2003, respondent filed her Memorandum.
RTC - dismissed the appeal as the defendant-appellant filed
the required Memorandum only on June 9, 2003 or six (6)
days beyond the expiration of the aforesaid fifteen day period.
Petitioner filed a Motion for Immediate Execution, while
respondent moved for the Reconsideration. Both motions
were denied by the RTC.
RTC reconsidered its previous Order by granting petitioner's
motion for Immediate Execution, but denied respondent's
Motion for Clarification.
CA - respondent filed a Petition for Certiorari in the CA, which
was granted. CA nullified and set aside the 19 June 2003 and
31 July 2003 Orders of the RTC and ordered the reinstatement
of respondent's appeal. Consequently, respondent's appeal
memorandum was admitted and the case remanded to the
RTC for further proceedings.
Petitioner filed a motion for reconsideration but was denied
for lack of merit.
ISSUE:
Whether the lack of notice of hearing in the Motion for
Extension of Time to file Memorandum on Appeal is fatal,
such that the filing of the motion is a worthless piece of paper
HELD:
It is not disputed that respondent perfected her appeal on 4
April 2003 with the filing of her Notice of Appeal and payment
of the required docket fees. However, before the expiration of
time to file the Memorandum, she filed a Motion for Extension
of Time seeking an additional period of five days within which
to file her Memorandum, which motion lacked the Notice of
Hearing required by Section 4, Rule 15 of the 1997 Rules of
Court which provides:

- SEC. 4. Hearing of Motion. — Except for motions

which the court may act upon without prejudicing the
rights of the adverse party, every written motion shall
be set for hearing by the applicant.

Every written motion required to be heard and the notice of

the hearing thereof shall be served in such a manner as to
ensure its receipt by the other party at least three (3) days
before the date of hearing, unless the court for good cause sets
the hearing on shorter notice.

The notice requirement in a motion is mandatory. As

a rule, a motion without a Notice of Hearing is
considered pro forma and does not affect the
reglementary period for the appeal or the filing of the
requisite pleading.

As a general rule, notice of motion is required where a party

has a right to resist the relief sought by the motion and
principles of natural justice demand that his right be not
affected without an opportunity to be heard. 20 The three-day
notice required by law is intended not for the benefit of the
movant but to avoid surprises upon the adverse party and to
give the latter time to study and meet the arguments of the
motion. Principles of natural justice demand that the right of a
party should not be affected without giving it an opportunity to
be heard.

Considering the circumstances of the present case, we believe

that procedural due process was substantially complied

30. Vette Industrial vs. When the purpose of Notice and
Cheng 170232-170301 5 Hearing has been served, the three-day
December 2006 notice under Rule 15, Sec 3 shall
ARIBON deviate from the literal application of
the rule.
with.
The suspension of the Rules is warranted in this case. The
motion in question does not affect the substantive rights of
petitioner as it merely seeks to extend the period to file
Memorandum. The required extension was due to
respondent's counsel's illness, lack of staff to do the work due
to storm and flood, compounded by the grounding of the
computers. There is no claim likewise that said motion was
interposed to delay the appeal. As it appears, respondent
sought extension prior to the expiration of the time to do so
and the memorandum was subsequently filed within the
requested extended period.
Further, it has been held that a "motion for extension of
time . . . is not a litigated motion where notice to the
adverse party is necessary to afford the latter an
opportunity to resist the application, but an ex parte
motion made to the court in behalf of one or the other
of the parties to the action, in the absence and usually
without the knowledge of the other party or parties."
It has been said that "ex parte motions are frequently
permissible in procedural matters, and also in situations and
under circumstances of emergency; and an exception to a rule
requiring notice is sometimes made where notice or the
resulting delay might tend to defeat the objective of the
motion.
Facts:
A complaint for specific performance and damages was filed
against Vette Industrial Sales Co., Inc. Sui (Respondent)
alleged that on October 2001, he executed a Deed of
Assignment, where he transferred his 40,000 shares in the
company in favor of petitioners-assignees. To implement the
Deed of Assignment, the company acknowledged in a MOA,
that it owed him 6.8 million pesos plus insurance proceeds. 48
 postdated checks were issued but after the 11th check, the rest
were dishonored by the bank. In an answer with compulsory
counterclaim, petitioners alleged that the MOA was
unenforceable. Sui filed a motion to set pre-trial. Petitioners
received the motion but did not attend because there was no
notice from the court setting the pre-trial date. On the
rescheduled date for pre-trial, Sui and counsel failed to appear.
The trial court ordered the dismissal of the case. Respondent’s
Attorney filed a manifestation and motion for consideration of
the order of dismissal. Petitioners asserted that the MR be
denied because, among others, that sui did not comply with
the 3 day notice rule under Rule 15, sec 4, considering that the
manifestation and MR was received only one day prior to the
date of hearing of the motion for resolution, and thus the same
must be treated as a mere scrap of paper. Trial court ruled in
favor of Sui. CA held that the dismissal of the case was proper
but without prejudice to filing a new action. Hence, these
consolidated petitions

Issue:
W/N CA erred in not considering respondent’s manifestation
and motion for reconsideration.
Held:
Yes. The Court is not persuaded with the argument imposed by
the petitioner that since respondent violated the three-day
notice rule, its motion is a mere scrap of paper. Rather, the
Court finds that the purpose of notice and hearing has been
served in this case. When the trial court received Sui’s
Manifestation and Motion for Reconsideration, it did not
immediately resolve the motion. Instead, it allowed petitioners
to file their comment and also leave to file a rejoinder if Sui
files a reply. These circumstances justify a departure from the
literal application of the rule because petitioners were given
the opportunity to study and answer the arguments in the
motion.

31. Boiser vs. Aguirre A.M. A motion without notice of hearing is FACTS: Complainant Alfredo Boiser was the plaintiff in an
RTJ-04-1886 16 May pro forma, a mere scrap of paper. It ejectment case filed before the Municipal Trial Court of
2005 presents no question which the court Himamaylan City, Negros Occidental. On July 11 2003, the
 BRIONES could decide. The court has no reason
to consider it and the clerk has no
right to receive it.
The rationale behind the rule is plain:
unless the movant sets the time and
place of hearing, the court will be
unable to determine whether the
adverse party agrees or objects to the
motion, and if he objects, to hear him
on his objection, since the rules
themselves do not fix any period
within which he may file his reply or
opposition.
32. De los Reyes vs. The subject motion is a non-litigious
Ramnani 169135 18 June motion. While, as a general rule, all
2010 written motions should be set for
CASTRO hearing under Section 4 Rule 15 of the
Rules of Court, excepted from this rule
are non-litigious motions or motions
which may be acted upon by the court
without prejudicing the rights of the
adverse party.
Respondent is entitled to the issuance
of the final certificate of sale as a
matter of right and petitioner is
powerless to oppose the same. The
subject motion falls under the class of
non-litigious motions.
Municipal Trial Court rendered a decision in favor of the
complainant.
Defendant-appellant Salvador Julleza filed a motion to release
bond on the ground that the MTC of Hinigaran, Negros
Occidental, in its decision dated July 11, 2003, has already
resolved the writ of preliminary injunction without the
mentioning the applicant’s liability. Respondent Judge granted
the motion.
ISSUE: Whether or not the Judge acted with grave abuse of
discretion.
HELD: Yes, respondent judge acted with grave abuse of
discretion. The Rules of Court requires that every motion must
be set for hearing by the movant, except those motions which
the court may act upon without prejudicing the rights of the
adverse party. It appears that the Motion to Release Bond was
defective as it didn’t have a proper notice of hearing. The date
and time of the hearing were not specified. Neither
complainant nor his counsel furnished a copy thereof. These
were never controverted by the respondent judge. A motion
without notice of hearing is pro forma, a mere scrap of paper.
FACTS:
On October 11, 1977, the trial court rendered a
Decision in Civil Case No. 24858 in favor of respondent
Josephine Anne B. Ramnani. Thereafter, a writ of execution
was issued by the trial court. On June 6, 1978, then Branch
Sheriff Pedro T. Alarcon conducted a public bidding and
auction sale over the property covered by Transfer Certificate
of Title (TCT) No. 480537 (subject property) during which
respondent was the highest bidder. Consequently, a certificate
of sale was executed in her favor on even date. On November
17, 1978, a writ of possession was issued by the trial court. On
March 8, 1990, the certificate of sale was annotated at the back
of TCT No. 480537. Thereafter, the taxes due on the sale of the
subject property were paid on September 26, 2001.
PROCEDURAL HISTORY:
On February 17, 2004, respondent filed a motion
(subject motion) for the issuance of an order directing the
sheriff to execute the final certificate of sale in her favor.
Petitioner opposed on the twin grounds that the subject
motion was not accompanied by a notice of hearing and that
the trial court’s October 11, 1977 Decision can no longer be
executed as it is barred by prescription. The trial court ruled
that the prescription for the issuance of a writ of execution is
not applicable in this case. Petitioner did not exercise his right
to redeem the subject property within one year from said
registration. Thus, what remains to be done is the issuance of
the final certificate of sale which was, however, not promptly
accomplished at that time due to the demise of the trial court’s
sheriff. The issuance of the final certificate of sale is a
ministerial duty of the sheriff in order to complete the already
enforced judgment. CA denied the petition.

ISSUE:
1. Whether the subject motion was defective for lack
of a notice of hearing?
2. Whether respondent is barred by prescription,
laches or estoppel

RULING:
1. NO. Motion was valid. The subject motion is a
non-litigious motion. While, as a general rule, all
written motions should be set for hearing under
Section 4 Rule 15 of the Rules of Court, excepted
from this rule are non-litigious motions or
motions which may be acted upon by the court
without prejudicing the rights of the adverse party.
Respondent is entitled to the issuance of the final
certificate of sale as a matter of right and
petitioner is powerless to oppose the same. The

33. Preysler vs. Manila The three-day notice rule is not
Southcoast Dev. Corp. absolute. A liberal construction of the
171872 28 June 2010 procedural rules is proper where the
DE GALA lapse in the literal observance of a rule
of procedure has not prejudiced the
adverse party and has not deprived the
court of its authority. Indeed, Section
6, Rule 1 of the Rules of Court provides
that the Rules should be liberally
construed in order to promote their
objective of securing a just, speedy and
inexpensive disposition of every action
and proceeding. Rules of procedure
are tools designed to facilitate... the
attainment of justice, and courts must
avoid their strict and rigid application
which would result in technicalities
that tend to frustrate rather than
promote substantial justice.
subject motion falls under the class of
non-litigious motions.
2. No. Respondent is entitled to the issuance of the
final certificate of sale as a matter of right. It is,
likewise, not disputed that petitioner failed to
redeem the subject property within one year from
the annotation of the certificate of sale on TCT No.
480537. The expiration of the one-year
redemption period foreclosed petitioner’s right to
redeem the subject property and the sale thereby
became absolute. The issuance thereafter of a final
certificate of sale is a mere formality and
confirmation of the title that is already vested in
respondent. Thus, the trial court properly granted
the motion for issuance of the final certificate of
sale.
FACTS:
Preysler filed with the Municipal Trial Court (MTC) of
Batangas a complaint for forcible entry against Manila
Southcoast Development Corporation. The subject matter of
the complaint is a parcel of land with an area of 21,922 square
meters located in Sitio Kutad, Barangay Papaya, Nasugbu,
Batangas. The disputed land, covered by Transfer Certificate of
Title (TCT) No. TF-1217 in the name of Preysler, is also within
the property covered by TCT No. T-72097 in the name of
respondent company. TCT No. T-72097 covers three
contiguous parcels of land with an aggregate area of
86,507,778 square meters.
MTC: Ruled in favor of Preysler and ordered respondent
company to vacate the disputed land covered by TCT No.
TF-1217 and to return the possession.
RTC: Reversed the MTC decision and dismissed the complaint
Preysler received the RTC Decision on 9 February 2004 and
thereafter filed a Motion for Reconsideration, which was set
for hearing on 26 February 2004. Preysler sent a copy of the
Motion for Reconsideration to respondent company’s counsel
by registered mail on 23 February 2004. During the 26
February 2004 scheduled hearing of the motion, the RTC
judge reset the hearing to 2 April 2004 because the courts
calendar could not accommodate the hearing of the motion. It
was only on 3 March 2004, or 6 days after the scheduled
hearing on 26 February 2004, that respondents counsel
received a copy of petitioners Motion for Reconsideration. The
rescheduled hearing on 2 April 2004 was again reset on 7 May
2004 because the RTC judge was on official leave. The 7 May
2004 hearing was further reset to 6 August 2004.
After the hearing, respondent company filed its
Motion to Dismiss dated 9 August 2004, claiming that
non-compliance with the three-day notice rule did not toll the
running of the period of appeal, which rendered the decision
final.
RTC: On October 4, 2004, denied the Motion for
Reconsideration for failure to appeal within the 15 days
reglementary period and declaring the 22 January 2004
Decision as final and executory. Motion for Reconsideration
was fatally flawed for failure to observe the three-day notice
rule. Preysler filed an Omnibus Motion for Reconsideration of
the Order dated 4 October 2004.
RTC: In its Order dated 22 February 2005, dismissed the
Omnibus Motion.
A petition for certiorari was then filed with the Court of
Appeals, alleging that the RTC committed grave abuse of
discretion in dismissing the Motion for Reconsideration and
Omnibus Motion for alleged failure to observe the three-day
notice rule.
CA: Dismissed the petition.
The three-day notice rule under Sections 4, 5, and 6 of Rule 15
of the Rules of Court is mandatory and non-compliance
therewith is fatal and renders the motion pro forma. As found
by the RTC, Preysler’s Motion for Reconsideration dated 12
February 2004 was received by respondent only on 3 March
2004, or six days after the scheduled hearing on 26 February
2004. All violations of Sections 4, 5, and 6 of Rule 15 are
deemed fatal. Thus, this petition.

ISSUE:
Whether or not the three-day notice rule is absolute

RULING:
The three-day notice rule is not absolute. A liberal
construction of the procedural rules is proper where the lapse
in the literal observance of a rule of procedure has not
prejudiced the adverse party and has not deprived the court of
its authority. Indeed, Section 6, Rule 1 of the Rules of Court
provides that the Rules should be liberally construed in order
to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding. Rules
of procedure are tools designed to facilitate... the attainment of
justice, and courts must avoid their strict and rigid application
which would result in technicalities that tend to frustrate
rather than promote substantial justice.

In Somera Vda. De Navarro v. Navarro, the Court held

that there was substantial compliance of the rule on notice of
motions even if the first notice was irregular because no
prejudice was caused the adverse party since the motion was
not... considered and resolved until after several
postponements of which the parties were duly notified.
Likewise, in Jehan Shipping Corporation v. National Food
Authority, the Court held that despite the lack of notice of
hearing in a Motion for Reconsideration, there was substantial
compliance with the requirements of due process where the
adverse party actually had the opportunity to be heard and had
filed pleadings in opposition to the motion. This Court has
indeed held time and again, that under Sections 4 and 5 of
Rule 15 of the Rules of Court, mandatory is the requirement in
a motion, which is rendered defective by failure to comply with
the requirement. As a rule, a motion without a notice of
hearing is considered pro forma and does not affect the
reglementary period for the appeal or the filing of the requisite
pleading. As an integral component of the procedural due
process, the three-day notice required by the Rules is not
intended for the benefit of the movant. Rather, the
requirement is for the purpose of avoiding surprises that may
be sprung upon the adverse party, who must be given time to
study and meet the arguments in the motion before a
resolution of the court. Principles of natural justice demand
that the right of a party should not be affected without giving it
an opportunity to be heard.
The test is the presence of opportunity to be heard, as well as
to have time to study the motion and meaningfully oppose or
controvert the grounds upon which it is based. x x x

In this case, the Court of Appeals ruled that petitioner

failed to comply with the three-day notice rule. However, the
Court of Appeals overlooked the fact that although respondent
received petitioner's Motion for Reconsideration six days after
the scheduled hearing on 26
February 2004, the said hearing was reset three (3) times with
due notice to the parties. Thus, it was only on 6 August 2004,
or more than five months after respondent received a copy of
petitioner's Motion for Reconsideration, that the motion was
heard by the RTC. Clearly, respondent had more than
sufficient time to oppose petitioner's Motion for
Reconsideration. In fact, respondent did oppose the motion
when it filed its Motion to Dismiss dated 9 August 2004. In
view of the circumstances of this case, we find that there was
substantial compliance with procedural due process. Instead of
dismissing petitioner's Motion for Reconsideration based
merely on the alleged procedural lapses, the RTC should have
resolved the motion based on the merits. The RTC likewise
erred in dismissing petitioner's Omnibus Motion for allegedly
failing to comply with the three-day notice requirement. It
held that the service of the notice of hearing was one day short

34. PNB vs. Deang
It is a basic rule of remedial law that a
Marketing Corp. 177931
motion for extension of time to file a
8 December 2008
ESPIRITU pleading must be filed before the
expiration of the period sought to be
extended.
The court’s discretion to grant a
motion for extension is conditioned
upon such motion’s timeliness, the
of the prescribed minimum three day notice. Petitioner's
Omnibus Motion which was set to be heard on 12 November
2004 was received by respondent on 9 November 2004. We
disagree. Section 4 of Rule 15 provides that "[e]very written
motion required to be heard and the notice of the hearing
thereof shall be served in such a manner as to ensure its
receipt by the other party at least three (3) days before the date
of the hearing, unless the court for good cause sets the hearing
on shorter notice." Thus, the date of the hearing should be at
least three days after receipt of the notice of hearing by the
other parties. In this case, the petitioner's Omnibus Motion
was set for hearing on 12 November 2004. Thus, to comply
with the notice requirement, respondent should have received
the notice of the hearing at least three days before 12
November 2004, which is 9 November 2004. Clearly,
respondent's receipt on 9 November 2004 (Tuesday) of the
notice of hearing of the Omnibus Motion which was set to be
heard on 12 November 2004 (Friday), was within the required
minimum three-days' notice. The ordinary motion day is
Friday. Hence, the notice should be served by Tuesday at the
latest, in order that the requirement of the three days may be
complied with. If notice be given by ordinary mail, it should be
actually received by Tuesday, or if not claimed from the post
office, the date of the first notice of the postmaster should be at
least five (5) days before Tuesday. WHEREFORE, we GRANT
the petition.
Facts: Respondents Deang Marketing Corporation and
Berlita Deang (DMC) filed before the RTC of Angeles a
Complaint against petitioner Philippine National Bank
(PNB) for reformation of contract and specific performance,
claiming that a dacion en pago arrangement in the
Consolidation and Restructuring Agreement forged by them
transformed DMC’s outstanding loan obligations into a
7-year term loan of P36.4 million. Summons was served on
petitioner on April 20, 2006.
On May 15, 2006, DMC filed a Motion to Declare petitioner
in Default, which they set for hearing on May 24, 2006.
passing of which renders the court
powerless to entertain or grant it.
Since the motion for extension was
filed after the lapse of the prescribed
period, there was no more period to
extend.
Thereafter, the trial court received PNB’s Motion for
Extension of Time [30 days up to June 11, 2006] to File
Answer dated May 5, 2006.
The following day, May 16, 2006 or eight days prior to the
slated hearing of DMC's Motion to Declare PNB in Default in
which the trial court denied such motion but granted PNB's
Motion for Extension of Time to File Answer. To the trial
court's Order DMC filed a Motion for Reconsideration. In
the meantime, PNB filed its Answer to the Complaint on
May 25, 2006. The trial court, by Order of August 9, 2006,
denied DMC’s Motion for Reconsideration of its May 16,
2006 Order denying their Motion to Declare PNB in default
and granting the latter's Motion for Extension.
DMC subsequently assailed the trial court's Orders of May
16, 2006 and August 9, 2006 via certiorari to the Court of
Appeals which annulled the trial court's orders and
remanded the same.
Issue: Whether or not the CA erred in declaring PNB in
default
Ruling: NO. Petitioner had, following the reglementary
15-day period after service of summons (unless a different
period is fixed by the court), until May 5, 2006 within which
to file an Answer or appropriate pleading. It filed the Motion
for Extension, however, via a private courier on May 14,
2006, which was received by the trial court on May 15, 2006
or ten days late.
Petitioner was not candid enough to aver in the Motion for
Extension that the period had lapsed, as it still toyed with
the idea that it could get away with it. The allegations therein
were crafted as if the said motion was timely filed. Notably,
the May 16, 2006 Order expressed no inkling that the
motion was filed out of time. The trial court either was
deceived by or it casually disregarded the apparent falsity
foisted by petitioner. Lest this Court be similarly deceived, it
is imperative to carefully examine the facts.

RULE 16 - MOTION TO DISMISS [PROVISION DELETED - RELEVANT CASES TRANSFERRED TO RULE 8]
XVII. DISMISSAL OF ACTIONS [RULE 17, SEC. 1 TO 4)
35. O.B. Jovenir Section 1, Rule 17 of the 1964 Rules of
Construction Civil Procedure stated:
Development Corp. vs.
Macamir Realty and
Dismissal by the plaintiff — An action
Court of Appeals 135803
26 March 2006 may be dismissed by the plaintiff
LEE without order of court by filing a notice
of dismissal at any time before service
of the answer or of a motion for
summary judgment. Unless otherwise
stated in the notice, the dismissal is
without prejudice, except that a notice
operates as an adjudication upon the
merits when filed by a plaintiff who has
once dismissed in a competent court an
action based on or including the same
In requesting for a 30-day extension or until June 11, 2006
to file an answer, petitioner apparently reckoned the date
from which the extension would start on May 12, 2006,
which was not the last day of the 15-day period sought to be
extended, it being May 5, 2006. By computation, petitioner
sought more than 30 days, contrary to the period of
extension it purportedly requested. The counting of the
period was erroneous, even if one uses the material dates
alleged by petitioner. Petitioner clearly disregarded
elementary rules and jurisprudence on the matter.
In the present case, no satisfactory reason was adduced to
justify the tardiness of the Answer and no compelling reason
was given to justify its admission. The intention to delay was
rather obvious. The Court thus finds petitioner's negligence
inexcusable, as the circumstances behind and the reasons for
the delay are detestable.
Facts: A complaint was filed before the Regional Trial Court
(RTC) of Makati City, with private respondents Macamir
Realty and Development Corp. (Macamir Realty) and spouses
Rosauro and Gloria Miranda as plaintiffs, and petitioners O.B.
Jovenir Construction and Development Corp. (Jovenir
Construction), Oscar B. Jovenir, and Gregorio Liongson being
among the defendants. The complaint, sought the annulment
of certain agreements between private respondents and
petitioners, as well as damages. It was alleged that Jovenir
Construction was contracted to complete the construction of
private respondents condominium project. Private
respondents subsequently sought the termination of their
agreements with petitioners after it was discovered that
Jovenir Construction had misrepresented itself as a legitimate
contractor. Respondents likewise prayed for the issuance of a
claim. A class suit shall not be
dismissed or compromised without the
approval of the court.
It is quite clear that under Section 1,
Rule 17 of the old Rules, the dismissal
contemplated therein could be
accomplished by the plaintiff through
mere notice of dismissal, and not
through motion subject to approval by
the Court. Dismissal is ipso facto upon
notice, and without prejudice unless
otherwise stated in the notice. It is due
to these considerations that the
petition should be denied.
As noted at the onset, the 1997 Rules of
Civil Procedure now requires that upon
the filing of such notice, the court issue
an order confirming the dismissal. The
new requirement is intended to qualify
the right of a party to dismiss the
action before the adverse party files an
answer or asks for summary judgment.
writ of preliminary injunction. A hearing on the prayer
appears to have been conducted.It was also alleged in the
complaint that Gloria Miranda was the principal stockholder
and President of Macamir Realty while her husband Rosauro
was the owner of the real properties on which the
condominium project was being constructed. It was also
alleged in the complaint that Gloria Miranda was the principal
stockholder and President of Macamir Realty while her
husband Rosauro was the owner of the real properties on
which the condominium project was being constructed. 10
days after the filing of the complaint, private respondents filed
a Motion to Withdraw Complaint, alleging that during the
initial hearing on the prayer for preliminary injunction,
counsel for plaintiffs "discovered a supposed technical defect
in the complaint . . . that . . . may be a ground for the dismissal
of this case." Thus, private respondents prayed that the
plaintiffs be allowed to withdraw the complaint without
prejudice. Petitioners filed an opposition to the Motion to
Withdraw Complaint, wherein they adopted Madeja's
arguments as to the lack of authority on the part of the spouses
Miranda to sue on behalf of Macamir Realty.
However, just one day earlier, private respondents filed
another complaint against the same defendants save for
Madeja, and seeking the same reliefs as the first complaint.
This time, a Board Resolution authorizing the spouses
Miranda to file the Complaint on behalf of Macamir Realty was
attached to the complaint. This second complaint was also
filed with the Makati RTC. The Verification and Certification
[of] Non-Forum Shopping in the second complaint was
accomplished by Rosauro Miranda. 11 days after the filing of
the Motion to Withdraw Complaint and seven days after the
filing of the second Complaint, the Makati RTC, granted the
Motion to Withdraw Complaint. The RTC noted in its Order
that "an action may be dismissed by the plaintiffs even without
Order of the Court by filing a notice of dismissal at anytime
before the service of the answer under Rule 17, Section 1 of the
Rules of Court," and accordingly considered the complaint
withdrawn without prejudice.
The battle then shifted to the case which had been raffled to
the Makati RTC. The petitioners filed a Motion to Dismiss the
second complaint on the ground of forum-shopping. They
pointed out that at the time of the filing of the second
complaint, the first complaint was still pending. The Makati
RTC denied the Motion to Dismiss, observing that at the time
the Motion to Withdraw Complaint was filed, none of the
defendants had filed any answer or any responsive pleading.
Thus, it was then within respondents' right to cause the
dismissal of the complaint without having to await action of
the court on their motion.
Court of Appeals: This Order was affirmed by the Court of
Appeals Special Sixth Division in its Decision after petitioners
had assailed the RTC's order via a special civil action for
certiorari filed with the appellate court. Hence, the present
petition
Issue: Whether the RTC erred in the denial of the motion to
dismiss
Held: No. The denial of the motion to dismiss is wholly in
accord with the Rules of Civil Procedure. Section 1, Rule 17 of
the 1964 Rules of Civil Procedure stated:

Dismissal by the plaintiff — An action may be dismissed by the

plaintiff without order of court by filing a notice of dismissal at
any time before service of the answer or of a motion for
summary judgment. Unless otherwise stated in the notice, the
dismissal is without prejudice, except that a notice operates as
an adjudication upon the merits when filed by a plaintiff who
has once dismissed in a competent court an action based on or
including the same claim. A class suit shall not be dismissed or
compromised without the approval of the court.

Indubitably, the provision ordained the dismissal of the

complaint by the plaintiff as a matter of right at any time
before service of the answer. The plaintiff was accorded the
right to dismiss the complaint without the necessity of alleging
in the notice of dismissal any ground nor of making any
reservation. It is quite clear that under Section 1, Rule 17 of
the old Rules, the dismissal contemplated therein could be
accomplished by the plaintiff through mere notice of dismissal,
and not through motion subject to approval by the Court.
Dismissal is ipso facto upon notice, and without prejudice
unless otherwise stated in the notice. It is due to these
considerations that the petition should be denied.
Evidently, respondents had the right to dismiss their
complaint by mere notice since petitioners had not yet served
their answer on respondents. The Motion to Withdraw
Complaint makes clear respondents' "desire to withdraw the
complaint without prejudice." That respondents resorted to a
motion to effect what they could have instead by mere notice
may be indicative of a certain degree of ignorance of
procedural rules on the part of respondents' counsel. Yet such
"error," if it could be called as such, should hardly be of fatal
consequence. Petitioners posit that the "remedy" of filing a
notice of dismissal is not exclusive, respondents having the
"option" of securing the court's approval to the dismissal. On
the contrary, the trial court has no discretion or option to deny
the motion, since dismissal by the plaintiff under Section 1,
Rule 17 is guaranteed as a matter of right to the plaintiffs. Even
if the motion cites the most ridiculous of grounds for
dismissal, the trial court has no choice but to consider the
complaint as dismissed, since the plaintiff may opt for such
dismissal as a matter of right, regardless of ground.

36. Ching vs. Cheng 175507 Rule 17 of the Rules of Civil Procedure
8 October 2014 governs dismissals of actions at the
LIMIN instance of the plaintiff. Hence, the
"two-dismissal rule" under Rule 17,
Section 1 of the Rules of Civil
Procedure will not apply if the prior
dismissal was done at the instance of
the defendant.
Thus, the complaint could be properly considered as having
been dismissed or withdrawn. Accordingly, when respondents
filed their new complaint relating to the same cause of action,
the old complaint was no longer pending. The certification
against forum-shopping attached to the new complaint
correctly asseverated that the old complaint "was withdrawn.
As noted at the onset, the 1997 Rules of Civil Procedure now
requires that upon the filing of such notice, the court issue an
order confirming the dismissal. The new requirement is
intended to qualify the right of a party to dismiss the action
before the adverse party files an answer or asks for summary
judgment. Still, there is no cause to apply the 1997 Rules
retroactively to this case. A plaintiff's right to cause the
dismissal of his complaint under the old rules was unqualified.
Procedural rules may not be given retroactive effect if vested
rights would be disturbed, or if their application would not be
feasible or would work injustice. Since respondents possessed
an unqualified right to cause the dismissal of their complaint
without need of confirmation by the trial court, as enunciated
in the 1964 Rules, they did not err in asserting that their first
complaint was withdrawn on the day of the filing of their
motion to withdraw, and the lower courts were correct in
agreeing with respondents on this point.
Facts:
Antonio Ching owned several businesses and properties,
among which was Po Wing Properties. While he was
unmarried, he had children from two women. Ramon Ching
alleged that he was the only child of Antonio Ching with his
common-law wife, Lucina Santos. Joseph Cheng and Jaime
Cheng, on the other hand, claim to be Antonio Ching's
illegitimate children with his housemaid, Mercedes Igne. One
day, Antonio Ching was murdered. Ramon Ching allegedly
induced Mercedes Igne and her children, Joseph Cheng and
Jaime Cheng (the Chengs), to sign an agreement and waiver to
Antonio Ching's estate in consideration of PhP22.5 million.
Mercedes Igne's children alleged that Ramon Ching never paid
them. Ramon Ching allegedly executed an affidavit of
settlement of estate, naming himself as the sole heir and
adjudicating upon himself the entirety of Antonio Ching's
estate. The Chengs eventually filed a complaint for declaration
of nullity of titles against Ramon Ching before the RTC,
impleading Po Wing Properties thereafter. Po Wing Properties
filed a motion to dismiss on the ground of lack of jurisdiction
of the subject matter. The RTC granted the Motion. Upon
motion of the Chengs' counsel, the Chengs and Lucina Santos
were given 15 days to file the appropriate pleading. They did
not do so. Later on, the Chengs and Lucina Santos filed a
complaint for "Annulment of Agreement, Waiver,
Extra-Judicial Settlement of Estate and the Certificates of Title
Issued by Virtue of Said Documents with Prayer for TRO and
Writ of Preliminary Injunction" against Ramon Ching and Po
Wing Properties. However, Chengs and Lucina Santos filed a
motion to dismiss their complaint in the second case, praying
that it be dismissed without prejudice. RTC granted the
motion on the basis that the summons had not yet been served
on Ramon Ching and Po Wing Properties, and they had not yet
filed any responsive pleading. The dismissal of the second case
was made without prejudice. Ramon Ching and Po Wing
Properties filed a motion for reconsideration, arguing that the
dismissal should have been with prejudice under the
"two-dismissal rule" of Rule 17, Section 1 of the Rules of Civil
Procedure, in view of the previous dismissal of the first case.
During the pendency of the motion for reconsideration, the
Chengs and Lucina Santos filed a complaint for
"Disinheritance and Declaration of Nullity of Agreement and
Waiver, Affidavit of Extrajudicial Agreement, Deed of Absolute
Sale, and Transfer Certificates of Title with Prayer for TRO and
Writ of Preliminary Injunction" against Ramon Ching and Po
Wing Properties. The RTC denied the motion for
reconsideration by Ramon Ching and Po Wing Properties. The
CA upheld the denial, ruling that Ramon Ching and Po Wing
Properties' reliance on the "two-dismissal rule" was misplaced
since the rule involves two motions for dismissals filed by the
plaintiff only. In this case, it found that the dismissal of the
first case was upon the motion of the defendants, while the
dismissal of the second case was at the instance of the
plaintiffs.

Issue:
Whether the trial court's dismissal of the second case operated
as a bar to the filing of a third case, as per the "two-dismissal
rule."

Ruling:
No. As a general rule, dismissals under Section 1 of Rule 17 are
without prejudice except when it is the second time that the
plaintiff caused its dismissal. The purpose of the
"two-dismissal rule" is "to avoid vexatious litigation." In this
case, the first action was filed as an ordinary civil action. It was
later amended to include not only new defendants but new
causes of action that should have been adjudicated in a special
proceeding. A motion to dismiss was inevitably filed by the
defendants on the ground of lack of jurisdiction. The trial
court granted the motion. When it allowed Atty. Mirardo
Arroyo Obias a period of 15 days to file an appropriate
pleading, it was merely acquiescing to a request made by the
plaintiff's counsel that had no bearing on the dismissal of the
case. It does not constitute a dismissal based on an
adjudication upon the merits, in accordance with Rule 17,
Section 3, i.e., a dismissal through the default of the plaintiff.
This provision does not contemplate a situation where the
dismissal was due to lack of jurisdiction. The dismissal of the
first case was done at the instance of the defendant under Rule
16. Also, petitioners do not deny that the second dismissal was
requested by respondents before the service of any responsive
pleadings. Accordingly, the dismissal at this instance is a
matter of right that is not subject to the trial court's discretion.
For this reason, the trial court dismissed the case, without
prejudice. When respondents filed the third case on
substantially the same claim, there was already one prior
dismissal at the instance of the plaintiffs and one prior
dismissal at the instance of the defendants. Even assuming for
the sake of argument that the failure of Atty. Mirardo Arroyo
Obias to file the appropriate pleading in the first case came
under the purview of Rule 17, Section 3 of the Rules of Civil

37. Cruz vs. Court of The doctrine of res judicata is a rule
Appeals 164797 13 which pervades every well-regulated
February 2006 system of jurisprudence and is founded
NAKAGAWA upon two grounds embodied in various
maxims of the common law, namely:
(1) public policy and necessity, which
makes it to the interest of the State that
there should be an end to litigation -
republicae ut sit litium, and (2) the
hardship on the individual that he
should be vexed twice for the same
cause - nemo debet bis vexari et eadem
causa. A contrary doctrine would
subject the public peace and quiet to
the will and neglect of individuals and
prefer the gratification of the litigious
Procedure, the dismissal in the second case is still considered
as one without prejudice due to the express statement from the
RTC.
However, while the dismissal of the second case was without
prejudice, respondents' act of filing the third case while
petitioners' motion for reconsideration was still pending
constituted forum shopping. The prudent thing that
respondents could have done was to wait until the final
disposition of the second case before filing the third case.
While it may be true that the trial court already dismissed the
second case when the third case was filed, it failed to take into
account that a motion for reconsideration was filed in the
second case and, thus, was still pending. Nonetheless, the
motion for reconsideration filed in the second case has since
been dismissed and is now the subject of a petition for
certiorari. The third case filed apparently contains the better
cause of action for the plaintiffs and is now being prosecuted
by a counsel they are more comfortable with. Substantial
justice will be better served if respondents do not fall victim to
the labyrinth in the procedures that their travails led them. It
is for this reason that we deny the petition.
FACTS: There are four (4) cases involved in this controversy.
The first case that was filed between the parties is Civil Case
No. 4365 for Unlawful Detainer litigated before the Municipal
Trial Court of Gapan, Nueva Ecija entitled "Josefina M. Cruz
and Ernestina M. Concepcion, plaintiffs, vs. Mariano `Boy'
Bunag, Rolando Bunag, Remedios Bunag, et al., Defendants."
This case was decided on 6 November 1998 by the Municipal
Trial Court in favor of herein petitioner Josefina M. Cruz and
Ernestina M. Concepcion.
The second case is Civil Case No. 1600 for Quieting of Title,
filed before the Regional Trial Court of Gapan, Nueva Ecija,
Branch 36 with "Carlos L. Bunag, Elias Bunag Natividad,
Mariano Bunag, Salud Bunag Clanaoc and Juliana Bunag
Arevalo, as Plaintiffs and Josefina M. Cruz and Ernestina M.
Concepcion as Heirs of Sps. Carlos Maniquis and Marina
Bunag, as Defendants." This case was dismissed for failure to
disposition on the part of suitors to the
preservation of the public tranquility
and happiness.
prosecute as evidenced by the Regional Trial Court Order
dated 10 March 2000.
The third case is Civil Case No. 2573-02 for Injunction, with
"Mariano `Boy' Bunag and Rolando Bunag as Petitioners
against Carlos Bunag, Elias Bunag Natividad, Mariano Bunag,
Salud Bunag Clanaoc and Juliana Bunag Arevalo as
Defendants." This case, which was filed before the Regional
Trial Court of Gapan City, Branch 35, was dismissed on
ground of res judicata. The 6 November 2002 Order, in effect,
ruled that there is a substantial identity of parties in this case
and in Civil Case No. 1600, a Petition for Quieting of Title.
The fourth case is the instant controversy for Annulment of
Title With Damages. Docketed as Civil Case No. 2583-02, it
was lodged by herein private respondents Mariano "Bo[y]"
Bunag and Rolando Bunag against herein petitioners Josefina
M. Cruz and Ernestina M. Concepcion before the sala of
Branch 35, Regional Trial Court of Gapan City.
ISSUE: Does res judicata apply in the case at bar?
HELD: YES. The principle of res judicata may not be evaded
by the mere expedient of including an additional party to the
first and second action. Only substantial identity is necessary
to warrant the application of res judicata. The addition or
elimination of some parties does not alter the situation. There
is substantial identity of parties when there is a community of
interest between a party in the first case and a party in the
second case albeit the latter was not impleaded in the first
case.
In the case at bar, it is apparent that from the face of the
complaint for Quieting of Title, private respondent Rolando
Bunag was not a party therein as his name does not appear in
the title. This, notwithstanding, his claim and that of the
plaintiffs therein, which included private respondent Mariano
Bunag, are the same - to be declared the true owners of the
parcel of land covered by Original Certificate of Title (OCT)
No. 22262 and Transfer Certificate of Title (TCT) No. 67161 of
the Registry of Deeds of Nueva Ecija. Private respondent
Rolando Bunag and the plaintiffs are all heirs of the alleged
owners of the parcel of land covered by OCT No. 22262.
Private respondent Rolando Bunag, though not a party
therein, shared an identity of interest from which flowed an
identity of relief sought, namely, to declare them the true
owners of the parcel of land covered by OCT No. 22262 and
TCT No. 67161. Such identity of interest is sufficient to make
them privy-in-law, thereby satisfying the requisite of
substantial identity of parties.

We likewise rule that there is identity of causes of action.

Hornbook is the rule that identity of causes of action does not
mean absolute identity. Otherwise, a party could easily escape
the operation of res judicata by changing the form of the
action or the relief sought. The test to determine whether the
causes of action are identical is to ascertain whether the same
evidence will sustain both actions, or whether there is an
identity in the facts essential to the maintenance of the two
actions. If the same facts or evidence would sustain both, the
two actions are considered the same, and a judgment in the
first case is a bar to the subsequent action.20 In Stilianopulos v.
The City of Legaspi,21 this Court had this to say:

The underlying objectives or reliefs sought in both the

quieting-of-title and the annulment-of-title cases are
essentially the same -- adjudication of the ownership of the
disputed lot and nullification of one of the two certificates of
title. Thus, it becomes readily apparent that the same evidence
or set of facts as those considered in the quieting-of-title case
would also be used in this Petition.

The difference in form and nature of the two actions is

immaterial and is not a reason to exempt petitioner from the
effects of res judicata. The philosophy behind this rule
prohibits the parties from litigating the same issue more than
once. When a right or fact has been judicially tried and
determined by a court of competent jurisdiction or an
opportunity for such trial has been given, the judgment of the

38. Quintos vs. Nicolas
210252 16 June 2014 We have held that res judicata
NATO applied because after the parties
executed a compromise
agreement that was duly
approved by the court, the
different portions of the owners
have already been ascertained.
court, as long as it remains unreversed, should be conclusive
upon the parties and those in privity with them. Verily, there
should be an end to litigation by the same parties and their
privies over a subject, once it is fully and fairly adjudicated.
We find no reason not to adhere to the doctrine of res judicata.
A case for Quieting of Title had been filed for the purpose of
determining the ownership of the subject land, but same was
dismissed because the plaintiffs therein failed to attend the
scheduled hearings for the presentation of their evidence. As
above discussed, the dismissal was an adjudication on the
merits. They had all the opportunity to present all the evidence
for their cause but they failed to do so. It is undeniable that
there was no denial of due process in this case.
Facts:
Petitioners Vilma Quintos... And respondents Pelagia Nicolas
are siblings
Their parents, Bienvenido and Escolastica Ibarra, were the
owners of the subject property parcel of land Tarlac. By 1999,
both Bienvenido and Escolastica had already passed away,
leaving to their ten (10) children ownership over the subject
property.
In 2002, respondent siblings brought an action for partition
against petitioners. The trial court dismissed the case for
failure of the party’s counsels, to appear despite due notice
respondent siblings instead resorted to executing a Deed of
Adjudication on September 21, 2004 to transfer the property
in favor of the ten (10) sibling’s respondent siblings sold their
7/10 undivided share over the property in favor of their
co-respondents the spouses Recto and Rosemarie Candelario.
TCT No. 390484 was partially canceled and TCT No. 434304
was issued in the name of the Candelarios, covering the 7/10
portion petitioners filed a complaint for Quieting of Title and
Damages against respondents. They also deny any
participation in the execution of the aforementioned Deed of
Adjudication dated September 21, 2004 and the Agreement of
Subdivision.

Petitioners' cause of action was already barred by estoppel

when sometime in 2006, one of petitioners offered to buy the
7/10 undivided share of the respondent siblings. They point
out that this is an admission on the part of petitioners that the
Property is not entirely theirs.

During pre-trial, respondents, or defendants a quo, admitted

having. Filed an action for partition dismissed petitioners'
complaint. Subsequent transfer of their interest in favor of
respondent spouses Candelario was then upheld by the trial
court hereby orders the partition of the subject lots between
the herein plaintiffs and the defendants-spouses Candelarios
Partition should no longer be allowed since it is already barred
by res Judicata, respondent siblings having already filed a case
for partition that was dismissed with finality, as admitted by
respondents themselves during pre-trial.

Appellate court upheld the finding that petitioners and

respondent spouses Candelario co-own the property, 30-70 in
favor of the respondent spouses.

COURT OF APPEALS ERRED WHEN IT ORDERED

PARTITION IN ACCORDANCE WITH THE SUBDIVISION
PLAN MENTIONED IN ITS DECISION, IN
CONTRAVENTION OF THE PROCEDURE ESTABLISHED IN
RULE 69 OF THE RULES OF CIVIL PROCEDURE.

Issues:

Whether or not the petitioners were able to prove ownership

over the property;

Whether or not the respondents' counterclaim for partition is

already barred by laches or res judicata; and

Whether or not the CA was correct in approving the

subdivision agreement as basis for the partition of the
property.

Ruling:

Petitioners, as aptly observed by the courts below, indeed,

failed to substantiate their claim.

Their alleged open, continuous, exclusive, and uninterrupted

possession of the subject property is belied by the fact, That
respondent siblings, in 2005, entered into a contract of lease
with the avico lending investor co. Over the subject lot without
any objection from the petitioners.

The general rule is that dismissal of a case for failure to

prosecute is to be regarded as an adjudication on the merits
and with prejudice to the filing of another action, and the only
exception is when the order Of dismissal expressly contains a
qualification that the dismissal is without prejudice.

However, Dismissal with prejudice under rule 17, sec. 3 of the

rules of court cannot defeat the right of a co-owner to ask for
partition at any time, provided that there is no actual
adjudication of ownership of shares yet.

We hold that art. 494, as cited, is an exception to rule 17, sec. 3

of the rules of court to the effect that even if the order of
dismissal for failure to prosecute is silent on whether or not it
is with prejudice. It shall be deemed to be without prejudice.

This is not to say, however, that the action for partition will
never be barred by res judicata. There can still be res judicata
in partition cases concerning the same parties and the same
subject matter once the respective shares of the co-owners
have been Determined with finality by a competent court with
jurisdiction or if the court determines that partition is
 improper for co-ownership does not or no longer exists.

We have held that res judicata applied because after the

parties executed a compromise agreement that was duly
approved by the court, the different portions of the owners
have already been ascertained.

We have held that res judicata applied because after the

parties executed a compromise agreement that was duly
approved by the court, the different portions of the owners
have already been ascertained with the case at bar wherein the
co-ownership, as determined by the trial court, is still
subsisting 30-70 in favor of respondent spouses candelario.
Consequently, there is no legal bar preventing herein
respondents from praying for the partition of the property
through counterclaim.

Art. 496, as earlier cited, provides that partition shall either be

by agreement of the parties or in accordance with the rules of
court.

Agreement of subdivision allegedly executed by respondent

spouses candelario and petitioners cannot serve as basis for
partition, for, as stated in the pre-trial order, herein
respondents admitted that the agreement was a falsity and
that petitioners never took part in preparing the same.

The "agreement" was crafted without any consultation

whatsoever or any attempt to arrive at mutually acceptable
terms with petitioners. It, therefore, lacked the essential
requisite of consent. Thus, to approve the agreement in spite
of this fact would be tantamount to allowing respondent
spouses to divide unilaterally the property among the
co-owners based on their own whims and caprices.

39. Eloisa Merchandising DOCTRINE: FACTS:

Inc. vs. Trebel Under Section 3, Rule 17 of the 1997 Assailed in this petition for review on certiorari under Rule 45
International Inc. Rules of Civil Procedure, as amended, are the Decision[1] dated March 30, 2010 and Resolution
192716 13 June 2012 the failure on the part of the plaintiff,
PEREZ without any justifiable cause, to comply
with any order of the court or the
Rules, or to prosecute his action for an
unreasonable length of time, may
result in the dismissal of the complaint
either motu proprio or on motion by
the defendant. The failure of a plaintiff
to prosecute the action without any
justifiable cause within a reasonable
period of time will give rise to the
presumption that he is no longer
interested to obtain from the court the
relief prayed for in his complaint;
hence, the court is authorized to order
the dismissal of the complaint on its
own motion or on motion of the
defendants. The presumption is not, by
any means, conclusive because the
plaintiff, on a motion for
reconsideration of the order of
dismissal, may allege and establish a
justifiable cause for such failure. The
burden to show that there are
compelling reasons that would make a
dismissal of the case unjustified is on
the petitioners.
Under Section 1, Rule 18 of the 1997
Rules of Civil Procedure, as amended,
it is the duty of the plaintiff, after the
last pleading has been served and filed,
to promptly move ex parte that the case
be set for pre-trial. On August 16,
2004, A.M. No. 03-1-09-SC (Re:
Proposed Rule on Guidelines to be
Observed by Trial Court Judges and
Clerks of Court in the Conduct of
Pre-Trial and Use of
Deposition-Discovery Measures) took
dated June 15, 2010 of the Court of Appeals (CA) in CA-G.R.
CV No. 89779. The CA affirmed the trial court’s dismissal of
petitioners’ complaint on the ground of failure to
prosecute.cralaw
Petitioner Eloisa Merchandising, Inc. (EMI) executed in favor
of respondent Banco de Oro Universal Bank (BDO) a real
estate mortgage (REM) over its properties located at No. 129
Neptune St., Bel-Air Village II, Makati City, Metro Manila.
The REM was further amended to secure the principal
obligation totalling Twenty-Nine Million Nine Hundred
Thousand Pesos (P29,900,000.00) drawn from the Credit
Line Agreement of EMI and Term Loan Agreement of Trebel
International, Inc. (Trebel). EMI likewise executed a
Continuing Suretyship in favor of BDO to secure the credit
accommodation extended by BDO to petitioner’s affiliate,
Trebel.
BDO initiated foreclosure proceedings by filing an application
for extrajudicial foreclosure before the Office of the Ex-Officio
Sheriff of the Regional Trial Court (RTC) of Makati City.
Accordingly, respondent Engracio M. Escasinas, Jr. issued a
notice setting the auction sale of the mortgaged property on
March 7, 2002.
On March 1, 2002, petitioners filed a Complaint for
“annulment of Real Estate Mortgage, Injunction & Damages
With Prayer for Issuance of a Writ of Preliminary Injunction
and/or Temporary Restraining Order,” in the RTC of Makati
City, Branch 59.
BDO filed a motion to dismiss on the ground of lack of cause of
action which can be determined from the facts alleged in the
complaint and considering all annexes, motions and evidence
on record.
On May 7, 2002, petitioners filed an amended complaint
which impleaded the Register of Deeds and alleged that the
mortgaged property was sold at a public auction on March 7,
2002.
effect, which provides that:
Within five (5) days from date of filing
of the reply, the plaintiff must
promptly move ex parte that the case
be set for pre-trial conference. If the
plaintiff fails to file said motion within
the given period, the Branch COC shall
issue a notice of pre-trial.
We note that when the above
guidelines took effect, the case was
already at the pre-trial stage and it was
the failure of petitioners to set the case
anew for pre-trial conference which
prompted the trial court to dismiss
their complaint.
On July 18, 2002, petitioners filed a “Motion for Leave to File
and to Admit Second Amended Complaint,” which averred
that the Register of Deeds of Makati City has consolidated the
titles over the foreclosed properties and issued new titles in the
name of BDO.
The trial court granted the motion to admit second amended
complaint and denying the motion to dismiss. BDO was
directed to file a responsive pleading.
BDO filed its Answer traversing the allegations of the
complaint. In the Notice of Pre-Trial the trial court set the
pre-trial conference on February 27, 2003. In compliance with
the trial court’s directive, the parties submitted their
respective pre-trial briefs.
On March 13, 2003, petitioners filed a “Motion to Admit
Supplemental Complaint” which further alleged that BDO’s
petition for issuance of a writ of possession was granted by the
RTC of Makati City, Branch 143. EMI reiterated that its rights
as surety-mortgagor were violated in the railroaded ex parte
proceedings implementing the writ of possession even as
EMI’s pending motion for reconsideration was still unresolved
by Branch 143.
The trial court denied the motion to admit supplemental
complaint on the ground that the matters raised in the
supplemental complaint were improper as they pertain to
issuances by another branch in a separate petition for writ of
possession.
At the scheduled pre-trial conference on June 26, 2003, on
motion of petitioners, they were allowed to present evidence ex
parte in view of the absence of BDO which was non-suited. In
its motion for reconsideration, BDO’s counsel cited
extraordinary and non-moving traffic as reason for his failure
to arrive on time for the pre-trial conference.
The trial court granted the said motion, reinstated the case and
set the case again for pre-trial conference on September 26,
2003, later moved to November 10, 2003, and finally
rescheduled to January 12, 2004 by agreement of the parties.

On July 16, 2003, petitioners filed a motion for

reconsideration of the order denying their motion to admit
supplemental complaint; BDO filed its opposition to the said
motion.

For failure of the petitioners to appear despite due notice at

the scheduled pre-trial conference on January 12, 2004, the
case was ordered dismissed. In their motion for
reconsideration, petitioners’ counsel claimed that his failure to
attend was due to his accidental falling on the stairs of his
house in the morning of January 12, 2004, due to which he
had to be attended by a “hilot”. In an Order dated May 7,
2004, the trial court reconsidered the dismissal and scheduled
anew the pre-trial conference on June 29, 2004, which date
was subsequently reset to August 3, 2004 for lack of proof of
service upon petitioners’ counsel.

Since petitioners again failed to appear on the re-scheduled

pre-trial conference on August 3, 2004, the trial court issued
the following Order:

When this case was called for pre-trial conference, only

counsel for the defendants appeared. There was no
appearance on the part of the plaintiffs, despite the fact that as
early as June 29, 2004, they were notified for today’s hearing.
The Court, however, is in receipt of a Motion to Reset filed by
counsel for the plaintiff, alleging among others, that he is to
appear at the MTC of San Jose, Batangas, which was set earlier
than the hearing of this case. The Court finds the ground not
meritorious because counsel of plaintiffs in open Court on
June 29, 2004 signed the notification for the hearing of this
case. Counsel could have objected to the chosen date if indeed
he was not available. Likewise, the records will show that on
January 12, 2004, this case was also dismissed for failure of
the plaintiffs to appear for pre-trial conference. This should
have served as a warning to herein plaintiffs.
In view hereof, upon motion of the herein defendants, the
above-entitled case is hereby ordered dismissed pursuant to
Section 5, Rule 18 of the Rules of Court.

Petitioners moved to reconsider the above order, their counsel

alleging that he had misplaced or lost his calendar book and
could not have ascertained the availability of his schedule.
Stressing that he had no intention to ignore the hearing as in
fact he filed a motion to reset the same six days prior to the
scheduled hearing, petitioners’ counsel pleaded for the kind
indulgence of the court.

The trial court granted petitioners’ motion for reconsideration

“in the interest of justice” and reinstating the case. The trial
court, however directed petitioners to be “more circumspect in
attending to this case.”

In its Order dated September 20, 2005, the trial court

dismissed the case for failure of petitioners to prosecute their
case. Citing the two previous dismissals on account of
petitioners’ non-appearance at the pre-trial conference, the
trial court said that “[f]rom the date of its second
reconsideration of the order of dismissal on December 29,
2004 until today, plaintiffs did not do anything to prosecute
the instant case.”

Petitioners filed a motion for reconsideration in which they

averred that:

1. After the reconsideration of the Order of dismissal on

December 29, 2004, the plaintiffs counsel, Atty. Anselmo A.
Marqueda, on several occasion, passed by the court and
diligently followed-up the hearing of this case. He was assured
by an officer of the court to just wait for the notice of hearing
that they will issue in the instant case.

2. While waiting for the notice of hearing from this court, the
respective counsels of the parties negotiated in earnest for an
amicable settlement of the case. During the last telephone
conversation with Atty. Roy P.R. Talao, the defendant’s bank
counsel, and the undersigned agree on some proposals for
settlement which are however subject to final confirmation of
their respective clients. The plaintiff believe that the parties
are very close to agree and enter into an amicable settlement of
this case.

3. Apart from the reliance of the undersigned counsel on the

statement of the court officer to just wait for the notice of
hearing, the undersigned counsel suffered a handicap in
making a personal follow-up of this case because of his
numerous travels and lengthy sojourn in the province due to
family conflict and death of a member of the family.

In its Order, the trial court denied petitioners’ motion for

reconsideration.

Aggrieved, petitioners appealed to the CA arguing that the trial

court erred in dismissing the case for failure to prosecute
considering that (1) the trial court has not yet resolved
petitioners’ motion for reconsideration of the order denying
their motion to admit supplemental complaint; (2) petitioners
are very much interested to prosecute this case to protect their
rights in the premises; (3) petitioners have valid and
meritorious causes of action; (4) petitioners may not be
deprived of their day in court by the negligence of their
counsel; and (5) non-suit or default judgment is not
encouraged as it violates due process.

The CA affirmed the trial court’s dismissal of the case. The CA

said that petitioners cannot justify their prolonged inaction by
belatedly raising as issue the pending motion for
reconsideration from the trial court’s denial of their motion to
admit the supplemental complaint, when all along they were
aware that the case was at the pre-trial stage as in fact the case
was twice dismissed for their failure to attend the pre-trial
conference. Under the circumstances stated, the CA held that
the trial court cannot be faulted for dismissing the case on the
ground of petitioners’ failure to prosecute their action.
The CA also denied the motion for reconsideration filed by the
petitioners.

Petitioners contend that the only reason for the trial court’s
dismissal of the case was the failure of their counsel to move to
set the case for pre-trial. However, Section 1, Rule 18 of the
1997 Rules of Civil Procedure, as amended, imposing upon the
plaintiff the duty to promptly move to set the case for pre-trial,
had been repealed and amended by A.M. No. 03-1-09-SC
which took effect on August 16, 2004. This amendment to the
rule on pre-trial now imposes on the clerk of court the duty to
issue a notice of pre-trial if the plaintiff fails to file a motion to
set the case for pre-trial conference.

Petitioners point out that the case was not yet ripe for pre-trial
because of the unresolved pending motion for reconsideration
of the trial court’s denial of the motion to admit supplemental
complaint. In any event, petitioners assert that they are very
much interested to prosecute the case as they have presented
evidence in their application for the issuance of TRO and writ
of preliminary injunction, amended the complaint several
times, their representatives have always been attending as
notified by their lawyers, and their counsel was following up
the case but the Clerk of Court could not set the case for
pre-trial because of the pending motion. As to the prior
dismissals of the case, these should not be taken as badges of
failure to prosecute because these had been set aside on
meritorious grounds. The circumstances that respondent BDO
itself had been declared in default for failure to appear at the
pre-trial on June 26, 2003 and has asked repeatedly for
extensions of time from the court, the ongoing negotiations
with BDO for amicable settlement even at the appeal stage,
and petitioners’ meritorious causes of action, justify a liberal
application of the rules so that petitioners will be given their
day in court.

Respondent BDO, on the other hand, asserts that the failure of

petitioners to move for the setting of the case for pre-trial
conference, coupled with their repeated violations of the Rules
which prompted the trial court to dismiss their complaint
twice, are sufficient grounds for the trial court to finally
dismiss the complaint. A.M. No. 03-1-09-SC did not remove
plaintiff’s obligation to set the case for pre-trial. Petitioners’
claim that they relied on a supposed assurance by a court
personnel to set the case for pre-trial is doubtful, aside from
being contradictory to the admission of petitioners’ counsel
that he “suffered a handicap in making a personal follow-up of
this case because of [his] numerous travels and lengthy
sojourn in the province due to family conflict and death of a
member of the family.”

As to the alleged negotiations for an amicable settlement,

respondent admitted there were talks during court hearings
and telephone calls but these were casual and at best,
exploratory. No serious offer was made by petitioners, much
less concretized. At any rate, even if true, such talks is not a
ground to tarry and delay the prosecution of the case which
had been pending with the trial court for more than three
years and had not even left the pre-trial stage. If indeed
petitioners were sincere in their desire to settle, they should
have promptly moved for the setting of pre-trial so that the
case can be referred for mandatory mediation proceedings.

ISSUE:
Whether or not the CA err in dismissing the case.

HELD:
No. The petition has no merit.

Under Section 3, Rule 17 of the 1997 Rules of Civil Procedure,

as amended, the failure on the part of the plaintiff, without any
justifiable cause, to comply with any order of the court or the
Rules, or to prosecute his action for an unreasonable length of
time, may result in the dismissal of the complaint either motu
proprio or on motion by the defendant. The failure of a
plaintiff to prosecute the action without any justifiable cause
within a reasonable period of time will give rise to the
presumption that he is no longer interested to obtain from the
court the relief prayed for in his complaint; hence, the court is
authorized to order the dismissal of the complaint on its own
motion or on motion of the defendants. The presumption is
not, by any means, conclusive because the plaintiff, on a
motion for reconsideration of the order of dismissal, may
allege and establish a justifiable cause for such failure. The
burden to show that there are compelling reasons that would
make a dismissal of the case unjustified is on the petitioners.

Under Section 1, Rule 18 of the 1997 Rules of Civil Procedure,

as amended, it is the duty of the plaintiff, after the last
pleading has been served and filed, to promptly move ex parte
that the case be set for pre-trial. On August 16, 2004, A.M.
No. 03-1-09-SC (Re: Proposed Rule on Guidelines to be
Observed by Trial Court Judges and Clerks of Court in the
Conduct of Pre-Trial and Use of Deposition-Discovery
Measures) took effect, which provides that:

Within five (5) days from date of filing of the reply, the
plaintiff must promptly move ex parte that the case be set for
pre-trial conference. If the plaintiff fails to file said motion
within the given period, the Branch COC shall issue a notice of
pre-trial.

We note that when the above guidelines took effect, the case
was already at the pre-trial stage and it was the failure of
petitioners to set the case anew for pre-trial conference which
prompted the trial court to dismiss their complaint.

In Olave v. Mistas this Court said that even if the plaintiff fails
to promptly move for pre-trial without any justifiable cause for
such delay, the extreme sanction of dismissal of the complaint
might not be warranted if no substantial prejudice would be
caused to the defendant, and there are special and compelling
reasons which would make the strict application of the rule
clearly unjustified. In the more recent case of Espiritu v.
Lazaro, this Court affirmed the dismissal of a case for failure to
prosecute, the plaintiff having failed to take the initiative to set
the case for pre-trial for almost one year from their receipt of
the Answer. Although said case was decided prior to the
effectivity of A.M. No. 03-1-09-SC, the Court considered the
circumstances showing petitioners’ and their counsel’s lack of
interest and laxity in prosecuting their case.

In this case, while there was no substantial prejudice caused to

herein respondent, who has already consolidated the
ownership of petitioners’ properties, secured new titles in its
name and successfully implemented a writ of possession
issued by another branch, there was neither patent abuse in
the trial court’s dismissal of the complaint for the third time,
the earlier two dismissals having been precipitated by
petitioners’ non-appearance at the pre-trial conference.
Contrary to petitioners’ assertion, the trial court did not find
their offered excuses as meritorious or justifiable; the trial
court in the exercise of discretion simply reinstated the case
“in the interest of justice” but explicitly warned petitioners to
be more circumspect in attending to the case.

However, despite the trial court’s leniency and admonition,

petitioners continued to exhibit laxity and inattention in
attending to their case. Assuming domestic problems had
beset petitioners’ counsel in the interregnum, with greater
reason should he make proper coordination with the trial
court to ensure his availability on the date to be chosen by the
trial court for the long-delayed conduct of a pre-trial
conference. Petitioners themselves did nothing to get the case
moving for nine months and set the case anew for pre-trial
even as BDO was already seeking their judicial ejectment with
the implementation of the writ of possession issued by Branch
143. Such circumstance also belies their pretense that the
parties were then still negotiating for a settlement. We have
held that a party cannot blame his counsel when he himself
was guilty of neglect; and that the laws aid the vigilant, not
those who slumber on their rights. Vigilantibus sed non
dormientibus jura subveniunt.

We also agree with the CA that petitioners are belatedly raising

as issue the unresolved motion for reconsideration of the
denial of petitioners’ motion to admit supplemental complaint.
Petitioners did not even file a motion to resolve the said
pending incident which, in any event, could have been brought
 to the trial court’s attention had petitioners acted promptly to
have the case set anew for pre-trial conference soon after or
within a reasonable time from the reinstatement of the case on
December 29, 2004.

While under the present Rules, it is now the duty of the clerk
of court to set the case for pre-trial if the plaintiff fails to do so
within the prescribed period, this does not relieve the plaintiff
of his own duty to prosecute the case diligently. This case had
been at the pre-trial stage for more than two years and
petitioners have not shown special circumstances or
compelling reasons to convince us that the dismissal of their
complaint for failure to prosecute was unjustified.cralaw

WHEREFORE, the petition for review on certiorari is

DENIED. The Decision dated March 30, 2010 and Resolution
dated June 15, 2010 of the Court of Appeals in CA-G.R. CV No.
89779 are hereby AFFIRMED and UPHELD.

Costs against the petitioners.

SO ORDERED.

40. Martinez vs. Republic Facts:

The doctrinal rule concerning the
160895 30 October 2006
remedies of a party declared in default Petitioner Jose R. Martinez (Martinez) filed a petition
PURIFICACION
had evolved into a fairly comprehensive for the registration in his name of three (3) parcels of land
restatement as offered in Lina v. Court included in the Cortes, Surigao del Sur Cadastre. The lots,
of Appeals: individually identified as Lot No. 464-A, Lot No. 464-B, and
Lot No. 370, Cad No. 597, collectively comprised around 3,700
a. The defendant in default may,
square meters. Martinez alleged that he had purchased the lots
at any time after discovery
in 1952 from his uncle, whose predecessors-in-interest were
thereof and before judgment,
traceable up to the 1870s. It was claimed that Martinez had
file a motion, under oath, to set
remained in continuous possession of the lots; that the lots
aside the order of default on the
had remained unencumbered; and that they became private
ground that his failure to
property through prescription pursuant to Section 48(b) of
answer was due to fraud,
Commonwealth Act No. 141. Martinez further claimed that he
accident, mistake or excusable
had been constrained to initiate the proceedings because the
neglect, and that he has
Director of the Land Management Services had failed to do so
meritorious defenses; (Sec 3,
 Rule 18)
b. If the judgment has already
been rendered when the
defendant discovered the
default, but before the same has
become final and executory, he
may file a motion for new trial
under Section 1(a) of Rule 37;
c. If the defendant discovered the
default after the judgment has
become final and executory, he
may file a petition for relief
under Section 2 of Rule 38; and
d. He may also appeal from the
judgment rendered against him
as contrary to the evidence or
to the law, even if no petition to
set aside the order of default
has been presented by him.
(Sec. 2, Rule 41)
A defendant party declared in default
retains the right to appeal from the
judgment by default on the ground that
the plaintiff failed to prove the material
allegations of the complaint, or that the
decision is contrary to law, even
without need of the prior filing of a
motion to set aside the order of default.
despite the completion of the cadastral survey of Cortes,
Surigao del Sur.
The trial court set the case for hearing and directed
the publication of the corresponding Notice of Hearing in the
Official Gazette. The OSG, in behalf of the Republic of the
Philippines, opposed the petition on the grounds that
appellee's possession was not in accordance with Section
48(b) of Commonwealth Act No. 141; that his muniments of
title were insufficient to prove bona-fide acquisition and
possession of the subject parcels; and that the properties
formed part of the public domain and thus not susceptible to
private appropriation.
Despite the opposition filed by the OSG, the RTC
issued an order of general default, even against the Republic of
the Philippines, on 29 March 2000. This ensued when during
the hearing of even date, no party appeared before the Court
to oppose Martinez's petition.
The OSG filed a Notice of Appeal which was approved
by the RTC. However, after the records had been transmitted
to the Court of Appeals, the RTC received a letter from the
Land Registration Authority (LRA) stating that only Lot Nos.
464-A and 464-B were referred to in the Notice of Hearing
published in the Official Gazette; and that Lot No. 370, Cad
No. 597 had been deliberately omitted due to the lack of an
approved survey plan for that property. Accordingly, the LRA
manifested that this lot should not have been adjudicated to
Martinez for lack of jurisdiction. This letter was referred by the
RTC to the Court of Appeals for appropriate action.
The Court of Appeals promulgated the assailed
Decision, reversing the RTC and instead ordering the
dismissal of the petition for registration. In light of the
opposition filed by the OSG, the appellate court found the
evidence presented by Martinez as insufficient to support the
registration of the subject lots.
No motion for reconsideration appears to have been
filed with the Court of Appeals by Martinez, who instead
directly assailed its Decision before this Court through the
present petition.
Petitioner Martinez - OSG no longer had personality to
oppose the petition, or appeal its allowance by the RTC,
following the order of general default.
Respondent (RP/OSG) -
1. duly opposed Martinez's application for registration
before the RTC;
2. jurisprudence and the Rules of Court
acknowledge that a party in default is not
precluded from appealing the unfavorable
judgment;
3. RTC had no jurisdiction over Lot No. 370 since its
technical description was not published in the Official
Gazette; and
4. as found by the Court of Appeals the evidence
presented by Martinez is insufficient for registering
the lots in his name.

Issue:
Whether an order of general default issued by a trial court in a
land registration case bars the Republic of the Philippines,
through the Office of the Solicitor General, from interposing
an appeal from the trial court's subsequent decision in favor of
the applicant. - NO.

Held:
By 1997, the doctrinal rule concerning the remedies of
a party declared in default had evolved into a fairly
comprehensive restatement as offered in Lina v. Court of
Appeals:
a) The defendant in default may, at any time after
discovery thereof and before judgment, file a motion, under
oath, to set aside the order of default on the ground that his
failure to answer was due to fraud, accident, mistake or
excusable neglect, and that he has meritorious defenses; (Sec
3, Rule 18)
 b) If the judgment has already been rendered when
the defendant discovered the default, but before the same has
become final and executory, he may file a motion for new trial
under Section 1(a) of Rule 37;
c) If the defendant discovered the default after the
judgment has become final and executory, he may file a
petition for relief under Section 2 of Rule 38; and
d) He may also appeal from the judgment rendered
against him as contrary to the evidence or to the law, even if
no petition to set aside the order of default has been presented
by him. (Sec. 2, Rule 41)
|In Rural Bank of Sta. Catalina v. Land Bank of the
Philippines, the Court, through Justice Callejo, Sr., again
provided a comprehensive restatement of the remedies of the
defending party declared in default, which we adopt for
purposes of this decision:

It bears stressing that a defending party

declared in default loses his standing in
court and his right to adduce evidence and
to present his defense. He, however, has the
right to appeal from the judgment by
default and assail said judgment on the
ground, inter alia, that the amount of the
judgment is excessive or is different in kind
from that prayed for, or that the plaintiff
failed to prove the material allegations of
his complaint, or that the decision is
contrary to law. Such party declared in default is
proscribed from seeking a modification or reversal
of the assailed decision on the basis of the evidence
submitted by him in the Court of Appeals, for if it
were otherwise, he would thereby be allowed to
regain his right to adduce evidence, a right which
he lost in the trial court when he was declared in
default, and which he failed to have vacated. In this
case, the petitioner sought the modification of the
decision of the trial court based on the evidence

41. Ko vs. PNB 169131-32 28 In every action, the plaintiff is
January 2006 duty-bound to prosecute the same with
SABIO utmost diligence and with reasonable
dispatch to enable him to obtain the
relief prayed for, and at the same time,
minimize the clogging of the court
dockets.
submitted by it only in the Court of Appeals.
If it cannot be made any clearer, we hold that a
defendant party declared in default retains the right
to appeal from the judgment by default on the ground
that the plaintiff failed to prove the material
allegations of the complaint, or that the decision is
contrary to law, even without need of the prior filing
of a motion to set aside the order of default. We
reaffirm that the Lim Toco doctrine, denying such right to
appeal unless the order of default has been set aside, was no
longer controlling in this jurisdiction upon the effectivity of
the 1964 Rules of Court, and up to this day.
FACTS: Ko filed an action for annulment of mortgage in the
RTC of Laoag. During the course of the proceedings, Ko and
their counsel failed to attend a scheduled trial. Upon motion of
PNB, the complaint was dismissed.
Ko filed a motion for reconsideration claiming that they have
been continuously pursuing negotiations with PNB, PNB
countered that from the time the complaint was filed, a period
of three years had elapsed but Ko failed to prosecute their case.
The trial court denied the motion for reconsideration.
ISSUE: Whether or not the dismissal of the case due to Ko’s
failure to appear at the scheduled hearing is proper.
HELD: YES. Ko erred in filing a petition for review on
certiorari under Rule 45 of the ROC instead of filing an appeal
with the CA. Sec. 3, Rule 17 of the ROC provides “If, for no
justifiable cause, the plaintiff fails to appear on the date of the
presentation xxx the complaint may be dismissed upon the
motion of the defendant or upon the court’s own motion xxx
this dismissal shall have the effect of an adjudication upon the
merits, unless otherwise declared by the court.”
The dismissal was proper because in every action, the plaintiff

42. Laurel vs. Ardelon To constitute failure to prosecute, his
202967 5 August 2015 non-appearance must be equated with
ARIBON unwillingness to proceed with the trial
as when both plaintiff and counsel
made no appearance at all, or with the
assumption that plaintiff has already
lost interest in prosecuting his action
is duty-bound to prosecute the same with utmost diligence and
with reasonable dispatch to enable him to obtain the relief
prayed for, and at the same time, minimize the clogging of the
court dockets.
In the case at bar, three years have since lapsed from the filing
of the complaint. Ko’s failure to prosecute their case and
proceed with the trial during the span of three years leads to
no other conclusion than that Ko did not have any interest in
seeing their case terminated at the earliest possible time.
Facts:
Petitioner Alicia Y. Laurel filed a Complaint for recovery of
possession and ownership and/or quieting of title against
respondent Ferdinand M. Vardeleon concerning a
20,306-square meter island in Caticlan, Malay, Aklan.
Respondent denied the material allegations in the complaint,
claiming that he bought the island on April 9, 1973 from
Avelina Casimero, and that petitioner was guilty of laches in
filing her claim. The trial court denied respondent's motion to
correct the Pre-Trial Order. Respondent filed a motion for
reconsideration but the trial court did not act on the motion.
Petitioner's counsel moved to reset the scheduled September 7,
2005 hearing to October 12, 2005 or any available date.
Petitioner moved to reconsider, but the court failed to act on
the same. October 12, 2005 hearing, petitioner was present,
together with substitute counsel Atty. Roy Villa and her first
witness. Petitioner moved in open court to postpone trial on
the ground that there are pending motions that have to be
resolved, and that the substitute lawyer had yet to confer with
the witness, since her true counsel, Atty. De la Vega - who
originally interviewed the witness - was not present. This time,
the trial court, dismissed the case on the ground of failure to
prosecute on petitioner’s part, pursuant to Section 3, Rule 17.
Petitioner filed an MR. Trial court denied. CA denied.
 Issue:

W/N COURT OF APPEALS AND THE TRIAL COURT

COMMITTED SERIOUS ERROR AND GRAVE ABUSE OF
DISCRETION IN DISMISSING PETITIONER’S COMPLAINT
FOR FAILURE TO PROSECUTE.

Held:

Yes. To constitute failure to prosecute, his non-appearance

must be equated with unwillingness to proceed with the trial
as when both plaintiff and counsel made no appearance at all,
or with the assumption that plaintiff has already lost interest
in prosecuting his action.In the same way that should the
ground for dismissal be delay, this delay or failure to proceed
must be for an unreasonable length of time beyond the
reasonable allowance which by judicial leniency the litigant is
normally entitled. The Court declares that both courts erred in
dismissing the case. It cannot be said that the petitioner
refused to present her evidence. She was 81 years of age and
the record indicates that she attended the scheduled hearing of
October 12, 2005. It must also be noted that the delay or
failure contemplated under Rule 3, Sec 17 must be for an
unreasonable length of time. In petitioner’s case, the
continuance she sought was not for an unreasonable time. It
was within the period expected by and made known to the
defendant and the trial court during pre-trial. In fact, it was
only until the next scheduled setting on November 23, 2005,
which was just over one month away. This may not be
characterized as delay, as such scheduled hearing was
expected by respondent and could not have come as a surprise
to him.

XVIII. PRE-TRIAL (RULE 18, SEC. 1 TO 10)

43. LCK Industries Inc vs.
FACTS:
Planters Development
Bank 170606 23 The conduct of pre-trial in civil
Petitioner LCK is a domestic corporation duly organized and
November 2007 actions has been mandatory as
existing as such under Philippine laws. Respondent bank is a
SOMEROS early as 1 January 1964 upon the
banking institution duly authorized to engage in banking
effectivity of the Revised Rules of
business under Philippine laws.
Court. Pre-trial is a procedural
device intended to clarify and petitioner LCK obtained a loan from the respondent bank in
limit the basic issues between the the amount of P3M as evidenced by two promissory notes.
parties and to take the trial of
As a security for the loan obligation, petitioners-spouses
cases out of the realm of surprise
Chiko and Elizabeth Lim executed 2 Real Estate Mortgage
and maneuvering.
(REM) over a parcel of land (Quezon City property) and
(Baguio City property).
Pre-trial seeks to achieve the Subsequently, petitioner LCK incurred default in its payment.
following: Several and final demands were made by the respondent bank
to petitioner LCK who failed or refused to pay its obligation.
(a) The possibility of an
amicable settlement or of a Consequently, respondent bank extrajudicially foreclosure of
submission to alternative the Baguio City property which was sold at the public auction
modes of dispute resolution; for P2,625,000.00. Since the proceeds were not enough to
satisfy the entire loan obligation respondent bank further
(b) The simplification of the extrajudicially foreclosure of the Quezon City property. sold at
issues; a public auction for P2,231,416.67 Atty. Anigan as one who
signed the certificate. The respondent bank was the highest
(c) The necessity or
bidder on both occasions.
desirability of amendments to
the pleadings; Civil Case No. Q-98-33835.
(d) The possibility of Prior to the auction sale of the Quezon City property,
obtaining stipulations or petitioners, filed with the RTC of QC, an action for Annulment
admissions of facts and of of the Foreclosure of Mortgage and Auction Sale of the
documents to avoid Quezon City property with Restraining Order/Preliminary
unnecessary proof; Injunction and with Damages against respondent bank and
Atty. Anigan.
(e) The limitation of the
number of witnesses; the counsels for both petitioners and respondent bank failed
to appear in the scheduled hearing for the issuance of TRO,
(f) The advisability of a the RTC deemed the prayer for TRO abandoned.
preliminary reference of
Thereafter, the RTC conducted a pre-trial conference. In the
issues to a commissioner;
Pre-Trial Order dated 8 September 2000, the parties made
(g) The propriety of rendering
judgment on the pleadings, or
summary judgment, or of
dismissing the action should a
valid ground therefor be
found to exist;
(h) The advisability or
necessity of suspending the
proceedings; and
(i) Such other matters as may
aid in the prompt disposition
of the action.
admissions and stipulations. the RTC also defined the issues
as follows: (1) whether or not the petition was filed with the
Office of the Clerk of Court; (2) whether or not the
extrajudicial foreclosure of real estate mortgage by defendant
bank was made in accordance with the provisions of Act No.
3135; and (3) whether or not the parties are entitled to their
respective claims for attorney's fees and damages.
The parties were given 15 days from receipt of the Pre-Trial
Order to make amendments or corrections thereon.
the parties agreed to submit the case for the decision of the
RTC based on the stipulations and admissions made at the
pre-trial conference. On the same day, the RTC required the
parties to submit their respective memoranda.
In their Memorandum, petitioners, aside from reiterating
issues previously raised in their Complaint, further claimed
that there was an overpayment of the loan obligation by
P1,856,416.67.
respondent bank maintained that the complaint filed by
petitioners is devoid of merit. that petitioners' claim for
overpayment was not among the issues submitted for the
resolution of the RTC. For failure of petitioners to promptly
raise the alleged overpayment, the RTC is now barred from
adjudicating this issue.
RTC declared the foreclosure and the auction sale of the
Quezon City property legal and valid, but ordered respondent
bank to return the overpayment made by petitioners in the
amount of P1,856,416.67.
Motion for Reconsideration filed by the respondent bank was
denied by the RTC.
CA-G.R. CV No. 73944
CA granted the appeal of the respondent bank and partially
reversed the RTC Decision insofar as it ordered respondent
bank to pay the overpaid amount of P1,856,416.67 to
petitioners.
In deleting the award of overpayment, the appellate court
emphasized that the primary purpose of pre-trial is to make
certain that all issues necessary for the disposition of the case
are properly raised in order to prevent the element of
surprise. Since the alleged overpayment was only raised by
the petitioners long after the pre-trial conference, the court a
quo cannot dispose of such issue without depriving the
respondent bank of its right to due process.
The Motion for Reconsideration filed by petitioners was
denied by CA
Petitioners filed a Petition for Review on Certiorari,
ISSUE: whether or not the issue of overpayment was raised
by the parties and included in the pre-trial order.
HELD: YES, Needless to say, the fact of overpayment,
though not expressly included in the issues raised in the
Pre-Trial Order dated 8 September 2000, can be evidently
inferred from the stipulations and admissions made by the
parties therein. Even only upon plain reading of the said
Pre-Trial Order, it can be readily discerned that there was an
overpayment.
The purpose of entering into a stipulation of facts is to
expedite trial and to relieve the parties and the court as well of
the costs of proving facts which will not be disputed on trial
and the truth of which can be ascertained by reasonable
inquiry. Its main objective is to simplify, abbreviate and
expedite the trial, or totally dispense with it.
The parties themselves or their representative with written
authority from them are required to attend in order to arrive
at a possible amicable settlement, to submit to alternative
modes of dispute resolution, and to enter into stipulations or
admissions of facts and documents. All of the matters taken up
during the pre-trial, including the stipulation of facts and the
admissions made by the parties, are required to be recorded in
a pre-trial order.
Thus, Section 7, Rule 18 of the Revised Rules of Court
provides:
SEC. 7. Record of pre-trial. — The proceedings in the
pre-trial shall be recorded. Upon the termination
thereof, the court shall issue an order which shall recite
in detail the matters taken up in the conference, the
action taken thereon, the amendments allowed to the
pleadings, and the agreements or admissions made by
the parties as to any of the matters considered. Should
the action proceed to trial, the order shall explicitly
define and limit the issues to be tried. The contents of
the order shall control the subsequent course of the
action, unless modified before trial to prevent manifest
injustice.
Generally, to obviate the element of surprise, parties are
expected to disclose at the pre-trial conference all issues of law
and fact they intend to raise at the trial. However, in cases in
which the issue may involve privileged or impeaching matters,
or if the issues are impliedly included therein or may be
inferable therefrom by necessary implication to be integral
parts of the pre-trial order as much as those that are expressly
stipulated, the general rule will not apply.
Thus, in Velasco v. Apostol, this Court highlighted the
aforesaid exception and ruled in this wise:
A pre-trial order is not meant to be a detailed
catalogue of each and every issue that is to be or may
be taken up during the trial. Issues that are
impliedly included therein or may be
inferable therefrom by necessary implication
are as much integral parts of the pre-trial
order as those that are expressly stipulated.
The case at bar falls under this particular exception. Upon
scrupulous examination of the Pre-Trial Order dated 8
September 2000, it can be deduced that the parties stipulated
that the remaining sum of petitioner LCK's obligation as of 13
October 1997 was P2,962,500.00. In the same Pre-Trial
Order, the parties likewise stipulated that the Baguio City

44. Paranaque Kings Trial court has the discretion on
Enterprises vs. Santos whether to grant or deny a motion to
194638 2 July 2014 postpone and/or reschedule the
TAN pre-trial conference in accordance with
the circumstances obtaining in the case.
This must be so as it is the trial court
which... is able to witness firsthand the
events as they unfold during the trial of
a case. Postponements, while
permissible, must not be countenanced
except for clearly meritorious grounds
and in light of the attendant
circumstances
property was sold at the public auction for P2,625,000.00 and
the Quezon City property for P2,231,416.67. On both
occasions, respondent bank emerged as the highest bidder. By
applying simple mathematical operation, the mortgaged
properties were purchased by the respondent at the public
auctions for P4,856,416.67; thus, after deducting therefrom
the balance of petitioner LCK's obligation in the amount of
P2,962,500.00, an excess in the sum of P1,893,916.67
remains.
As the custodian of the proceeds from the foreclosure sale,
respondent bank has no legal right whatsoever to retain the
excess of the bid price in the sum of P1,893,916.67, and is
under clear obligation to return the same to petitioners.
FACTS:
Respondent Catalina L. Santos (Santos) entered into a
Contract of Lease with Frederick O. Chua (Chua) over eight (8)
parcels of land located in Parañaque City (leased premises),
specifically giving the latter the "first option... or priority to
buy" the same in case of sale.[10] Chua then caused the
construction of a 6-door commercial complex on the leased
premises but, by reason of business reverses, he was
constrained to assign his rights thereon to Lee Ching Bing
(Lee), who likewise assumed all obligations under the lease
contract with Santos. Lee, in turn, executed a Deed of
Assignment over the leased premises, including all
improvements thereon, in... favor of petitioner.
On March 19, 1991, petitioner filed a Complaint before the
RTC against Santos and respondent David A. Raymundo
(Raymundo) to whom Santos allegedly sold the leased
premises on September 21, 1988 for a consideration of
P5,000,000.00, without giving petitioner the opportunity to
exercise its priority to buy the same. Petitioner claimed that,
when it objected to the sale, Santos repurchased the subject
properties for the same price, and offered... them to petitioner
for P15,000,000.00. The latter made a counter-offer of
P5,000,000.00 but, before replying thereto, Santos sold the
subject properties again to Raymundo on May 15, 1989 for
P9,000,000.00. Petitioner argued that the sale was...
simulated and that there was collusion between Santos and
Raymundo (respondents).

Respondents respectively moved for the dismissal of the

Complaint on the main ground that it stated no cause of
action. Raymundo alleged that there were, in fact, previous
offers made to petitioner that the latter simply ignored.
Santos, on the other hand, maintained that petitioner had
already recognized and respected Raymundo's status as the
new owner-lessor of the subject properties due to its payment
of lease rentals to Raymundo, and, as such, is now estopped
from challenging

Raymundo's title

Eventually, the foregoing CA Decision was reversedon petition

for review before the Court in a Decision dated February 26,
1997, upon a finding that the Complaint "sufficiently alleges
an... actionable contractual breach" on the part of
respondents. The Court explained that the trial and appellate
courts based their decision on the allegation that Santos had
actually offered the subject properties for sale to petitioner
prior to the final... sale in favor of Raymundo, but that the
offer was rejected. However, the Court held that in order to
have full compliance with the contractual right granting
petitioner the first option to purchase, the sale of the subject
properties for the amount of P9,000,000.00, the price... for
which it was finally sold to Raymundo, should have likewise
been first offered to petitioner. Necessarily, the Court
remanded the case to the trial court for further proceedings.

Petitioner moved for the reconsideration of the said Order, as

well as the voluntary inhibition of the presiding judge for
alleged acts of "undue deference for and haste in granting all
the motions and wishes of [respondents] and his consistent
denial... of the motions of [petitioner]." The motion was,
however, denied by the RTC, in an Order dated June 11, 1998,
and the case was set for pre-trial on July 7, 1998.

On July 2, 1998, petitioner filed a Motion to Cancel Pre-Trial,

claiming that it was preparing a petition for certiorari and
prohibition which (a) was to be filed with the CA before the
scheduled pre-trial on July 7, 1998, and (b) was intended to
challenge the validity of the RTC's Orders dated May 18, 1998
and June 11, 1998 by raising alleged prejudicial questions that
must be resolved first before the pre-trial and trial on the
merits of the case could proceed

Incidentally, the petition for certiorari and prohibition that

was actually filed at 2:17in the afternoon of July 7, 1998,
(contrary to petitioner's assertion in its Motion to Cancel
Pre-Trial that it was to be filed before the July 7, 1998
pre-trial) was resolved by the CA in favor of petitioner in a
Decision dated December 6, 1999, where it was determined
that the Motion to Strike Out was denied prematurely. On the
other hand, the CA declared the petition for voluntary
inhibition moot and academic with the appointment of a
regular judge for Branch 57. Thus, the Motion to Strike Out
was ordered to be resolved by the regular judge.

Subsequently, the petition for review on certiorari filed by

respondents before the Court to question the December 6,
1999 CA Decision was dismissed by the Court in a Decision
dated October 23, 2006.

Meanwhile, on July 7, 1998, the day of the pre-trial sought to

be cancelled, the RTC denied petitioner's Motion to Cancel
Pre-Trial in its First Order of even date. Accordingly, the RTC
directed the parties to proceed to pre-trial as... scheduled.

The trial court then required petitioner to start the pre-trial

with the statement of its cause. However, counsel for
petitioner, Atty. Nelson Santos, refused to do so saying he
would just furnish the court the following day with a copy of
the petition for certiorari and... prohibition filed with the
CA.[49] Consequently, upon motion of the opposing counsel,

45. Alarcon vs. CA 126802 The purpose of entering into a
28 January 2000 stipulation of facts or admissions of
TANADA facts is to expedite trial and to relieve
the parties and the court, as well, of the
costs of proving facts which will not be
disputed on trial and the truth of which
can be ascertained by reasonable
inquiry. The rules have made it
mandatory that a pre-trial should first
the RTC (a) declared petitioner non-suited, and (b) dismissed
the Complaint in its Second Order.
ISSUE: Whether or not the motion to cancel was properly
denied.
HELD: Yes, the motion to cancel was properly denied. At the
outset, it should be emphasized that the trial court has the
discretion on whether to grant or deny a motion to postpone
and/or reschedule the pre-trial conference in accordance with
the circumstances obtaining in the case. This must be so as it
is the trial court which... is able to witness firsthand the events
as they unfold during the trial of a case.
Hence, the cancellation of the pre-trial on the ground of the
impending filing of a petition for certiorari and prohibition, as
there was no proof at the time of the hearing that said petition
was in fact filed, was obviously a... dilatory tactic designed for
petitioner to control the proceedings of the court. More
importantly, even with the actual filing of the petition for...
certiorari at 2:17 in the afternoon of July 7, 1998, no
restraining order was issued by the CA enjoining the trial court
from proceeding with the pre-trial. The appellate court
correctly emphasized, in the... assailed Decision dated
September 22, 2010, that the mere elevation of an
interlocutory matter through a petition for certiorari does not
by itself merit a suspension of the proceedings before the trial
court, unless a temporary restraining order or a writ of...
preliminary injunction has been issued.
Facts:
Petitioner Roberto Alarcon filed a complaint for annulment of
a deed of sale with damages against Bienvenido Juani (private
respondent), Edgardo Sulit, and Virginia Baluyot. Petitioner
alleged that before he left for Brunei to work, he left with his
father, Tomas Alarcon, an SPA to administer, mortgage, or sell
his properties in Baliwag, Bulacan. Upon his return from
Brunei, he found out that by virtue of the SPA, a portion of his
land containing an area of 2500 square meters was sold to
be conducted before hearing any case.
The parties themselves are required to
attend or their representative with
written authority from them in order to
arrive at a possible amicable settlement,
to submit to alternative modes of
dispute resolution, and to enter into
stipulations or admissions of facts and
documents. All of the matters taken up
during the pre-trial, including the
stipulation of facts and the admissions
made by the parties are required to be
recorded in a pre-trial order.
Juani, Sulit, and Baluyot pursuant to a document of sale
allegedly executed by his father for a nominal consideration of
Php 5,000.00. The vendees were able to register the sale and
cancel the title of petitioner and to have new certificates of title
issued in their names. Petitioner prayed for the nullification of
the sale contending that, his father's signature on the Deed of
Sale was forged, there was no consideration of the sale, his
father had no more authority to sell the land since the special
power of attorney had already been earlier revoked, and that
the signature of the notary public who allegedly attested said
sale was falsified. In their answer, Juani and Baluyot averred
that Juani had been the tiller-occupant for almost 10 years of
the land with an area of 1000 square meters owned by
petitioner for almost 10 years. He alleged that he was lured by
Tomas Alarcon as the attorney-in-fact of his son to give up his
right as tiller of the land in exchange of ownership of a parcel
of land with an area of 2500 square meters. He then acceded
to Tomas Alarcon and bought the land. Out of 2500 square
meters, Juani sold 1000 square meters to Baluyot and 500
square meters to Sulit. Finally, Juani, Baluyot, and Sulit
alleged that Juani was never aware of the revocation of the
SPA granted to Tomas Alarcon. After all the issues were
joined, the trial court set the case for pre-trial conference.
During the pre-trial conference, the parties, represented by
their counsel, made some admissions of facts. On such basis,
the judge rendered a partial decision, declaring the sale void
ab initio and the TCTs issued in favor of Juani, Baluyot, and
Sulit as null and void. Thereafter, the trial court issued its
pre-trial order, closing and terminating the pre-trial.
Petitioner moved for the execution of the Partial Decision
since no MR or appeal was filed therefrom. At the same time,
for the purpose of ending litigation of the case, petitioner
offered to drop his claim for damages against the defendants if
they were also willing to waive their claims against him and
his father. Upon the opposition of defendant Baluyot, the trial
court denied petitioner's motion. The trial court then
dismissed the complaint as against Juani and the latter’s
counterclaim against petitioner. Petitioner’s motion for
execution was granted. Since there was no appeal, the Partial
Decision became final and executory. However, the judgment
could not be executed because the defendants allegedly
refused to surrender their respective Owner's Duplicate of
Transfer Certificates of Title issued to them by the Register of
Deeds. Private respondent Juani filed with the CA a petition
for the annulment of the Partial Judgment. The CA granted
the petition and set aside the Partial Decision, holding that it
was vitiated by extrinsic fraud since Juani, being unlettered,
was not apprised of the proceedings held in the trial court. The
CA directed that the case be remanded to the court of origin
for further proceedings.

Issue:
Whether or not the Partial Decision in the pre-trial conference
was valid.

Held: Yes.
The SC held that it cannot be argued that there was extrinsic
fraud since Juani was not deprived from having a trial.
Ordinary laymen may not be knowledgeable about the
intricacies of the law which is why lawyers are retained to
make the battle in court fair and square. The SC found no
extrinsic fraud in the proceedings, as opposed to the CA’s
finding, since the Partial Decision itself stated that: ". . . during
the pre-trial of the case conducted on June 3, 1986 and August
1, 1986, all the parties and their respective counsels appeared.
. . . ." Also, the transcript of the stenographic notes (TSN) of
the hearing conducted on June 3, 1986 would show that Juani,
together with defendant Baluyot, was represented by counsel,
Atty. Venancio Reyes. From the TSN, the admissions were
clearly made during the pre-trial conference and, therefore,
conclusive upon the parties making it. The purpose of entering
into a stipulation of facts or admissions of facts is to expedite
trial and to relieve the parties and the court, as well, of the
costs of proving facts which will not be disputed on trial and
the truth of which can be ascertained by reasonable inquiry.
The rules have made it mandatory that a pre-trial should first
be conducted before hearing any case. The parties themselves
are required to attend or their representative with written
authority from them in order to arrive at a possible amicable
settlement, to submit to alternative modes of dispute

46. Corpuz vs. Corpuz Section 5 of Rule 18 provides that the
175677 31 July 2009 dismissal of an action due to the
UBAY plaintiff’s failure to appear at the
pre-trial shall be with prejudice, unless
otherwise ordered by the court. In this
case, the trial court deemed the
plaintiffs-herein spouses as non-suited
and ordered the dismissal of their
Complaint. As the dismissal was a final
order, the proper remedy was to file an
ordinary appeal and not a petition for
certiorari. The spouses’ petition for
certiorari was thus properly dismissed
by the appellate court.
Procedural infirmities aside, this Court
took a considered look at the spouses’
excuse to justify their non-appearance
at the pre-trial but found nothing
exceptional to warrant a reversal of the
lower courts’ disposition thereof.
resolution, and to enter into stipulations or admissions of facts
and documents. All of the matters taken up during the
pre-trial, including the stipulation of facts and the admissions
made by the parties are required to be recorded in a pre-trial
order. On the basis of the clear admissions made by the parties
in the case, the Partial Decision was rendered. Juani cannot
now claim that he was denied his day in court when judgment
was rendered on the basis of their (Juani, Baluyot and Sulit)
counsels' admissions. Since it was patent that the deed of sale
was a forgery, no parcel of land was transferred to the vendees.
Thus, the TCTs which Juani, Baluyot and Sulit obtained
pursuant to said deed of sale were null and void. Respondent
court, therefore, committed a reversible error in giving due
course to the petition filed before it, the same not being based
on extrinsic fraud and, moreover, it was barred by
prescription.
Facts: Azucena Corpuz was a card holder of Citibank
Mastercard and VISA card. Each card had a credit limit of
₱40,000.00. In view of her then impending official business
trip to Europe, Azucena paid in full on December 7, 1998 her
monthly charges on both credit cards via checks and also
made advance check payments of ₱20,000.00 on December 8,
1998 for her VISA Card, and another ₱20,000.00 for her
Mastercard on December 14, 1998, to cover future
transactions.
While in Italy on December 9, 1998, Azucena dined at a
restaurant. To settle her bill of 46,000 liras, she presented her
VISA Card, but to her surprise and embarrassment, the
restaurant did not honor it. She then brought out her
Mastercard which the restaurant honored. On even date,
Azucena incurred a bill of 378,000 liras at a shop which she
intended to charge to her credit cards. This time, both her
VISA and Mastercard were not honored, drawing her to pay
the bill in cash.
Upon her return to the country, Azucena wrote Citibank on
January 13, 1999 informing it that her credit cards had not
been honored and demanding the refund of her overseas call
expenses amounting to 132,000 liras or ₱3,175.00 at the time.
Citibank did not respond to the letter, however, drawing
Azucena to write Citibank for the cancellation of the cards.

Citibank still sent billing statements to Azucena, however,

charging her interest charges and late payment penalties. Only
after Azucena’s counsel informed Citibank of imminent legal
remedies on her part did Citibank indulge Azucena with a
written explanation why her credit cards were not honored in
Italy.

Spouses Corpuz filed a complaint for damages against

Citibank at the RTC of Las Pinas City. Citibank files its Answer
with Compulsory Counterclaim. After an exchange of
pleadings ─ reply, rejoinder and sur-rejoinder ─ by the
parties, and the issues having been joined, the trial court set
the case for pre-trial conference on May 5, 2003 during which
the spouses and their counsel failed to appear, despite notice.
On Citibank’s counsel’s motion, the trial court, by Order of
even date, dismissed the spouses’ Complaint and directed
Citibank to present evidence on its Compulsory Counterclaim.

Spouses assailed the Trial Court order via petition for

Certiorari. And the Court of Appeals ruled against the spouses.

Issue: Whether or not the non-appearance of Spouses Cruz

and their counsel at the pre-trial is excusable

Held: No. Section 5 of Rule 18 provides that the dismissal of

an action due to the plaintiff’s failure to appear at the pre-trial
shall be with prejudice, unless otherwise ordered by the court.
In this case, the trial court deemed the plaintiffs-herein
spouses as non-suited and ordered the dismissal of their
Complaint. As the dismissal was a final order, the proper
remedy was to file an ordinary appeal and not a petition for
certiorari. The spouses’ petition for certiorari was thus

47. Paredes vs. Verano Absence of counsel for defendants at
164375 12 October 2006 pre-trial does not ipso facto authorize
YUMUL the judge to declare the defendant as in
default and order the presentation of
evidence ex parte. It bears stressing that
nothing in the Rules of Court sanctions
the presentation of evidence ex parte
upon instances when counsel for
properly dismissed by the appellate court.
Procedural infirmities aside, this Court took a considered look
at the spouses’ excuse to justify their non-appearance at the
pre-trial but found nothing exceptional to warrant a reversal
of the lower courts’ disposition thereof.
Counsel for the spouses admit having failed to inform his
clients of the scheduled pre-trial because he forgot to note the
same in his calendar and eventually forgot about it due to
"heavy workload." The spouses eventually admitted too having
received the notice of pre-trial. Azucena, who is a lawyer
herself, advanced the reason that she forgot about the
scheduled pre-trial owing to her then forthcoming retirement
at the Office of the Solicitor General to thus press her to
accomplish her assigned work including winding up all
administrative matters in the office prior to her leaving.
While Section 4 of Rule 18 of the Rules of Court allows as an
exception a valid cause for the non-appearance of a party at
the pre-trial, the instances cited by the spouses and their
counsel hardly constitute compelling exigencies or situations
which warrant occasional flexibility of litigation rules.
As the failure of the spouses to appear at the pre-trial
amounted to a failure to comply with the Rules or any order of
the court, the dismissal of their Complaint was essentially due
to their fault and the therein defendant Citibank could still
prosecute its Counterclaim in the same or in a separate action.
The protracted legal battle between the parties began with a
complaint for the establishment of a right of way. Alleging that
petitioners had blocked the passageway in violation of a
Compromise Agreement.
In their answer, petitioners denied having violated the
Compromise Agreement. They alleged that like them,
respondents were not actual residents of Barangay Tagnipa
defendant is absent during pre-trial.
The Rules do not countenance stringent
construction at the expense of justice
and equity.
where the "road right of way" was established. Subsequent to
the answer, petitioners filed a motion to dismiss on the ground
of lack of cause of action.
The trial court under Judge Kapili and CA denied the motion
to dismiss.
The pre-trial was rescheduled multiple times due to the
parties’ counsels not appearing. RTC acceded and reset the
pre-trial for 23 January 2004.
Shortly before the new pre-trial date, counsel for petitioners
filed a Manifestation of Willingness to Settle With Request for
Cancellation dated 5 January 2004.12 Apart from manifesting
his willingness to settle the complaint, petitioners' counsel
through the Manifestation suggested to the opposing counsel
that he be informed of the terms of the proposed settlement.
Correspondingly, petitioners' counsel requested the
cancellation of the 23 January 2004 hearing.
The hearing still pushed through and private respondents and
their counsel were present. So were petitioners Baybay and
Paderes, and co-defendant Alago, but not their counsel. RTC
allowed respondents to present their evidence ex parte, "for
failure of the defendants counsel to appear before the RTC”.
Petitioners filed a motion for reconsideration, but this was
denied by the RTC.
Petitioners filed a petition for certiorari with the Court of
Appeals, assailing the orders of the RTC. However, this was
denied outright.
ISSUE/S:
WON the absence of counsel for defendants at the pre-trial is a
ground to declare defendants in default and to authorize
plaintiffs to present evidence ex parte.
HELD:
NO. The order of the RTC allowing respondents to present
evidence ex parte was undoubtedly to the detriment of
petitioners. Since the RTC would only consider the evidence

48. Sps. Salvador vs. Sps. The failure of Spouses Salvador to
Rabaja 199990 4 attend pre-trial conference warrants the
February 2015 presentation of evidence ex parte by
ZAPANTA Spouses Rabaja. The Court reiterates
the rule that the failure to attend the
pre-trial conference does not result in
the default of an absent party. Under
the 1997 Rules of Civil Procedure, a
defendant is only declared in default if
he fails to file his Answer within the
reglementary period. On the other
hand, if a defendant fails to attend the
pre-trial conference, the plaintiff can
present his evidence ex parte.
presented by respondents, and not that of petitioners, the
order strikes at the heart of the case, disallowing as it does any
meaningful defense petitioners could have posed.
The Constitution guarantees that no person shall be deprived
of property without due process of law. One manner by which
due process is assured is through the faithful adherence to the
procedural rules that govern the behavior of the
party-litigants.
And under Section 5, Rule 18, the failure of the plaintiff or
defendant to appear during pre-trial authorizes the court to
either dismiss the complaint, if the plaintiff were absent; or to
allow the plaintiff to present evidence ex parte, if the
defendant were absent.
Simply put, nothing in the Rules of Court authorizes a trial
judge to allow the plaintiff to present evidence ex parte on
account of the absence during pre-trial of the counsel for
defendant.
WHEREFORE, the instant petition is hereby GRANTED
and the resolutions of the Court of Appeals affirming the
Orders of the Regional Trial Court are REVERSED.
FACTS:
Petitioners Spouses Salvador sold a parcel of land located in
Mandaluyong City to respondents Spouses Rabaja, through
Rosario Gonzales, the seller’s agent. From 1994-2002,
respondents have been renting the property from petitioners.
When they learned that petitioners were looking for a buyer,
respondents expressed desire to purchase the land and
petitioners introduced Gonzales to respondents as
administrator of the land. Petitioners even handed to Gonzales
the owner’s duplicate certificate of title on the property.
In 1998, respondents paid 48,000 pesos to Gonzales, who
then had an SPA executed by petitioner-Rolando, in the
presence of petitioner-Herminia. On the same day, the parties
executed a contract to sell, stipulating the amount of the
property at 5 million pesos. Respondents made several
payments amounting to 950,000 pesos to Gonzales pursuant
to the SPA provided earlier as evidenced by the check vouchers
signed by Gonzales and the improvised receipts signed by
Herminia. But in June 1999, petitioners complained that they
did not receive any payment from respondents, so
respondents suspended further payment of the purchase price;
and as a consequence, they received a notice to vacate the
subject property from Spouses Salvador for non-payment of
rentals.

An ejectment suit was filed by petitioners before the MeTC,

while a case for rescission of contract was filed by respondents
before the RTC. Petitioners won in the ejectment suit and were
able to garnish 593,400 pesos from respondents’ time deposits
representing payment for the back rentals, as ordered by the
trial court in the writ of execution.

RTC reversed MeTC and ruled that there was no lease

agreement between the parties. This prompted petitioners to
appeal the case before the CA, which reinstated MeTC’s ruling.
This CA decision became final and executory.
Meanwhile, RTC, in the rescission case, ordered the rescission
of the contract. Petitioners were only able to attend the first of
the many pre-trial conference, leading to the RTC’s issuance of
an order of default, allowing respondents to present evidence
ex-parte . The RTC ruled in respondents’ favor and held that
t-he contract was one of sale not a contract to sell, which can
appropriately be rescinded, being a contract with reciprocal
obligations. In its ruling in favor of respondents, it ordered the
return of the garnished amount and the 950,000 pesos which
represents the purchase price.

CA affirmed the RTC’s decision, modifying it on the part that

the latter held solidary liability of Gonzales and petitioners. CA
held that since Gonzales did not exceed his authority, he is not
solidarily liable with petitioners in the obligation to return the
purchase price.

ISSUES:
1.Whether or not default order must be lifted for existence of
reasonable grounds to justify non-attendance of petitioners.
2.Whether or not the receipts given by Gonzales, SPA, and
contract of sale are valid

RULING:
1.The failure of Spouses Salvador to attend pre-trial
conference warrants the presentation of evidence ex parte by
Spouses Rabaja. The Court reiterates the rule that the failure
to attend the pre-trial conference does not result in the default
of an absent party. Under the 1997 Rules of Civil Procedure, a
defendant is only declared in default if he fails to file his
Answer within the reglementary period. On the other hand, if
a defendant fails to attend the pre-trial conference, the
plaintiff can present his evidence ex parte. Justice Regalado, in
his book, clarified that while the order of default no longer
obtained when a party fails to appear at the pre-trial
conference, its effects were retained. There is no dispute that
Spouses Salvador and their counsel failed to attend the
pre-trial conference set on February 4, 2005 despite proper
notice. Spouses Salvador aver that their non-attendance was
due to the fault of their counsel as he forgot to update his
calendar. This excuse smacks of carelessness, and indifference
to the pre-trial stage. It simply cannot be considered as a
justifiable excuse by the Court.

2.On the SPA. According to Article 1990 of the New Civil Code,
insofar as third persons are concerned, an act is deemed to
have been performed within the scope of the agent's authority,
if such act is within the terms of the power of attorney, as
written. Respondents did not recklessly enter into a contract
to sell with Gonzales. There was a valid SPA so respondents
properly made payments to Gonzales, as agent of petitioners;
and it was as if they paid to the petitioners.

On Gonzales’ receipt of payment. It is of no moment, insofar

as respondents are concerned, whether or not the payments
were actually remitted to petitioners. Any internal matter,
arrangement, grievance or strife between the principal and the
agent is theirs alone and should not affect third persons.

49. Aguilar vs. The pre-trial cannot be taken for
Lightbringers Credit granted. It is not a mere technicality in
Cooperative 209605 12 court proceedings for it serves a vital
January 2015 objective: the simplification,
ABAD abbreviation and expedition of the trial,
if not indeed its dispensation.
AMENDED VER:
Instead of defendant being declared "as
in default" by reason of his
non-appearance, this section now spells
out that the procedure will be to allow
the ex parte presentation of plaintiff’s
evidence and the rendition of judgment
on the basis thereof. While actually the
procedure remains the same, the
purpose is one of semantical propriety
or terminological accuracy as there
were criticisms on the use of the word
"default" in the former provision since
that term is identified with the failure to
file a required answer, not appearance
in court.
If the absent party is the plaintiff, then
his case shall be dismissed. If it is the
defendant who fails to appear, then the
plaintiff is allowed to present his
evidence ex parte and the court shall
render judgment on the basis thereof
On the contract of sale. The Court agrees with the courts below
in finding that the contract entered into by the parties was
essentially a contract of sale which could be validly rescinded.
FACTS:
This case stemmed from the three (3) complaints for sum of
money separately filed by respondent Lightbringers Credit
Cooperative (respondent) on July 14, 2008 against petitioners
Aguilar and Calimbas, and one Perlita Tantiangco
(Tantiangco) which were consolidated before the First
Municipal Circuit Trial Court, Dinalupihan, Bataan (MCTC).
The complaints alleged that Tantiangco, Aguilar and Calimbas
were members of the cooperative who borrowed the following
funds:
1. In Civil Case No. 1428, Tantiangco
allegedly borrowed P206,315.71
2. In Civil Case No. 1429, petitioner
Calimbas allegedly borrowed
P202,800.18
3. In Civil Case No. 1430, petitioner Aguilar
allegedly borrowed P126,849.00
Tantiangco, Aguilar and Calimbas filed their respective
answers. They uniformly claimed that the discrepancy
between the principal amount of the loan evidenced by the
cash disbursement voucher and the net amount of loan
reflected in the PNB checks showed that they never borrowed
the amounts being collected. On the scheduled pre-trial
conference, only respondent and its counsel appeared. The
MCTC then issued the Ordeallowing respondent to present
evidence ex parte. Respondent later presented Fernando
Manalili (Manalili), its incumbent General Manager, as its
sole witness.

Aguilar and Calimbas insisted that they should have the right
to cross-examine the witness of respondent, notwithstanding
the fact that these cases were being heard ex parte. In the
interest of justice, the MCTC directed the counsels of the
parties to submit their respective position papers on the issue
of whether or not a party who had been declared “as in
default” might still participate in the trial of the case. Only
respondent, however, complied with the directive.

In its Order,9 dated April 27, 2011, the MCTC held that since
the proceedings were being heard ex parte, the petitioners
who had been declared “as in default” had no right to
participate therein and to cross-examine the witnesses.
Thereafter, respondent filed its formal offer of evidence.

MCTC: The MCTC dismissed the complaint against

Tantiangco because there was no showing that she received
the amount being claimed. Moreover, the PNB check was
made payable to “cash” and was encashed by a certain Violeta
Aguilar. There was, however, no evidence that she gave the
proceeds to Tantiangco. However, the MCTC found both
Calimbas and Aguilar liable to respondent for their respective
debts. The PNB checks issued to the petitioners proved the
existence of the loan transactions. Their receipts of the loan
were proven by their signatures appearing on the dorsal
portions of the checks as well as on the cash disbursement
vouchers.

RTC: Affirmed the MCTC decisions. It held that the PNB

checks were concrete evidence of the indebtedness of the
petitioners to respondent. The RTC relied on the findings of
the MCTC that the checks bore no endorsement to another
person or entity. The checks were issued in the name of the
petitioners and, thus, they had the right to encash the same
and appropriate the proceeds.
CA: Dismissed petition for review stating that the petition was
formally defective because the “verification and disclaimer of
forum shopping” and the “affidavit of service” had a defective
jurat for failure of the notary public to indicate his notarial
commission number and office address. Moreover, the entire
records of the case, inclusive of the oral and documents
evidence, were not attached to the petition in contravention of
Section 2, Rule 42 of the Rules of Court.

ISSUES: Whether or not the CA erred when it dismissed the

petition for review filed before it by the petitioners under the
Rule 42 of the rules of court.

HELD: The rule is that a court can only consider the evidence
presented by respondent in the MCTC because the petitioners
failed to attend the pre-trial conference on August 25, 2009
pursuant to Section 5, Rule 18 of the Rules of Court.33 The
Court, however, clarifies that failure to attend the pre-trial
does not result in the “default” of the defendant. Instead, the
failure of the defendant to attend shall be cause to allow the
plaintiff to present his evidence ex parte and the court to
render judgment on the basis thereof.

The case of Philippine American Life & General Insurance

Company v. Joseph Enario34 discussed the difference between
non-appearance of a defendant in a pre-trial conference and
the declaration of a defendant in default in the present Rules
of Civil Procedure. The decision states:c

Prior to the 1997 Revised Rules of Civil Procedure, the

phrase "as in default" was initially included in Rule 20 of the
old rules, and which read as follows:

Sec. 2. A party who fails to appear at a pre-trial conference

may be non-suited or considered as in default.

It was however amended in the 1997 Revised Rules of

Civil Procedure. Justice Regalado, in his book REMEDIAL
LAW COMPENDIUM, explained the rationale for the deletion
of the phrase "as in default" in the amended provision, to wit:

1. This is a substantial reproduction of Section 2 of the

former Rule 20 with the change that, instead of defendant
being declared "as in default" by reason of his
non-appearance, this section now spells out that the
procedure will be to allow the ex parte presentation of
plaintiff’s evidence and the rendition of judgment on the
basis thereof. While actually the procedure remains the
same, the purpose is one of semantical propriety or
terminological accuracy as there were criticisms on the use
of the word "default" in the former provision since that
term is identified with the failure to file a required answer,
not appearance in court.

If the absent party is the plaintiff, then his case shall be

dismissed. If it is the defendant who fails to appear, then the
plaintiff is allowed to present his evidence ex parte and the
court shall render judgment on the basis thereof. Thus, the
plaintiff is given the privilege to present his evidence without
objection from the defendant, the likelihood being that the
court will decide in favor of the plaintiff, the defendant having
forfeited the opportunity to rebut or present his own
evidence.35chanRoblesvirtualLawlibrary

The pre-trial cannot be taken for granted. It is not a mere

technicality in court proceedings for it serves a vital objective:
the simplification, abbreviation and expedition of the trial, if
not indeed its dispensation.36 More significantly, the pre-trial
has been institutionalized as the answer to the clarion call for
the speedy disposition of cases. Hailed as the most important
procedural innovation in Anglo-Saxon justice in the
nineteenth century, it paved the way for a less cluttered trial

50. Tolentino vs. Laurel
181368 22 February the failure of a party to appear at the
2012 pre-trial has adverse consequences. If
ARIBON the absent party is the plaintiff, then his
case shall be dismissed. If it is the
defendant who fails to appear, then the
plaintiff is allowed to present his
evidence ex parte and the court shall
render judgment on the basis thereof
and resolution of the case. It is, thus, mandatory for the trial
court to conduct pre-trial in civil cases in order to realize the
paramount objective of simplifying, abbreviating and
expediting trial.37chanRoblesvirtualLawlibrary
In the case at bench, the petitioners failed to attend the
pre-trial conference set on August 25, 2009. They did not even
give any excuse for their non-appearance, manifestly ignoring
the importance of the pre-trial stage. Thus, the MCTC properly
issued the August 25, 2009 Order,38 allowing respondent to
present evidence ex parte.
Facts: Respondents, in their complaint before the Regional
Trial Court, alleged that they are the registered owners of a
parcel of land covered by Transfer Certificate of Title (TCT)
No. T-4392 which they have developed into fishponds.
respondents informed petitioners, through Gustavo C.
Tolentino, Sr. (Gustavo) who was then representing them, that
the area they are occupying was inside the respondents'
property and, therefore, they should vacate and leave the
same. Respondents filed a suit against petitioners to recover
the property and demand payment for unearned income,
damages and attorneys fees. Petitioners averred that since the
subject property is owned by the Republic, and they are
occupying the same by virtue of a Fishpond Licensing
Agreement, their stay was lawful. Petitioners were declared in
default for failure to appear at the pre-trial conference.
Despite several resetting of pre-trial conference of which
petitioner was notified, petitioners still failed to appear. Trial
court issued an Order allowing respondents to present their
evidence ex parte, instead of declaring petitioners in default.
RTC ruled in favor of respondents. Petitioner elevated the case
to the CA claiming that they have been denied of due process.
CA denied. Petitioner filed an MR, but likewise denied. Hence,
this petition

51. Saguid vs. CA 150611 10 Under Section 6, Rule 18 of the Rules of
June 2003 Civil Procedure, the failure of the
BRIONES defendant to file a pre-trial brief shall
have the same effect as failure to appear
at the pre-trial, i.e The plaintiff may
present his evidence ex parte and the
court shall render judgment on the
basis thereof.
The remedy of the defendant is to file a
motion for reconsideration showing
that his failure to file a pre-trial brief
was due to fraud, accident, mistake or
excusable neglect.
ISSUE: W/N the petitioners were denied their day in court
HELD: No. In the case at bar, the trial court gave petitioners
every chance to air their side and even reconsidered its first
order declaring petitioners in default. Petitioners were given
more than ample opportunity to be heard through counsel.
When the petitioners were first declared in default on August
27, 1996, the pre-trial conference was set and reset for several
times, which prompted the trial court to allow the respondents
to present their evidence ex parte. Thereafter, the judgment
was rendered. The Court explained that such allowance was in
accordance with Rule 18 of the 1997 Rules of Civil Procedure
and with due regard to the constitutional guarantee of due
process. A perusal of Sections 4 and 5 of Rule 13 of the ROC,
the failure of a party to appear at a pre-trial has adverse
consequences. If the absent party is the plaintiff, then the case
shall be dismissed. If it is the defendant who fails to appear,
then the plaintiff is allowed to present his evidence ex parte an
the court shall render judgment on the basis thereon. Hence,
petition denied.
FACTS: 17-year old Gina Rey was married but separated de
facto from her husband when she met petitioner Jacinto
Saguid. After 9 years of cohabitation, the couple eventually
decided to separate as well.
Private respondent Gina Rey filed a Complaint for Partition
and Recovery of Personal Property with Receivership against
Jacinto Saguid with the RTC. RTC declared petitioner in
default for failure to file a pre-trial brief as required by SC
Circular No.1-89. CA denied petitioner’s Motion for
Reconsideration and also ordered that private respondent was
allowed to present evidence ex parte for failure of defendant to
file a pre-trial brief. Petitioner’s second Motion for
Reconsideration was denied.
The petitioner contends that his failure to file a pre-trial brief
is justified because he was not represented by counsel.
ISSUE: Whether or not the trial court erred in allowing Gina

52. Tiu vs. Middleton Pre-trial is an answer to the clarion call
134998 19 July 1999 for the speedy disposition of cases. It is
CASTRO essential in the simplification and the
speedy disposition of disputes. In light
of the objectives of a pre-trial and the
role of the trial court therein, it is
evident that judges have the discretion
to exclude witnesses and other pieces of
evidence not listed in the pre-trial brief,
provided the parties are given prior
notice to this effect. 
Rey to present evidence ex parte.
HELD: No, the trial court didn’t err.
In the case at bar, petitioner insists that his failure to file a
pre-trial brief is justified because he was not represented by
counsel. This justification is not, however, sufficient to set
aside the order directing private respondent to present
evidence ex parte, inasmuch as the petitioner chose at his own
risk not to be represented by counsel. Even without the
assistance of a lawyer, petitioner was able to file a motion for
extension to file an answer, the required answer stating
therein the special and affirmative defenses, and several other
motions. If it were true that the petitioner didn’t understand
the import of the April 23, 1997 order directing him to file a
pretrial brief, he could have inquired from the court or filed a
motion for extension of time to file the brief. Instead, he
waited until May 26, 1997, or 14 days from his alleged receipt
of the April 23, 1997 order before he filed a motion asking the
court to excuse his failure to file a brief. Pretrial rules are not
to be belittled or dismissed because their non-observance may
result in prejudice to a party’s substantive rights. Like all rules,
they should be followed except only for the most persuasive of
reasons when they may be relaxed to relieve a litigant of an
injustice not commensurate with the degree of his
thoughtlessness in not complying with the procedure
prescribed.
FACTS: The present Petition arose from a Complaint for
recovery of ownership and possession of real property,
accounting and damages filed against herein petitioner before
the RTC of Oroquieta City.
PROCEDURAL HISTORY: Before the commencement of
trial, the court a quo sent a Notice of Pre-trial Conference,
stating that witnesses whose names and addresses are not
submitted at the pre-trial may not be allowed to testify at the
trial, and documents not marked as exhibits at the pre-trial,
In his Pre-trial Order, however, the trial
judge did not exercise his discretion to
exclude the unlisted or unnamed
witnesses. Rather, it simply provided
that [t]he defendant will present six
witnesses. It made no mention at all
that they would be barred from
testifying unless they were named.
Significantly, it also stated that
plaintiffs will offer ten witnesses,
without however naming them. Since
the Order allowed respondents (as
plaintiffs before the trial court) to
present witnesses, it necessarily follows
that it should grant the same right to
petitioner.
except those then available or existing, may be barred
admission in evidence.
In his Pre-trial brief, petitioner averred that he would be
presenting six witnesses, but he did not name them. When
trial ensued, herein respondents, as plaintiffs in the case,
presented their witnesses in dure course. When his turn came,
petitioner called his first witness ,Antonia Tiu, respondents
objected, arguing that the witness could not be allowed to
testify because petitioner had failed to name her in his
Pre-trial Brief. The RTC ruled in favor of respondents, stating
that Antonia Tiu could not be presented as a witness.
ISSUE: WON a judge may exclude a witness whose name and
synopsis of testimony were not included in the pre-trial brief
RULING: Yes. Pre-trial is an answer to the clarion call for the
speedy disposition of cases. It is essential in the simplification
and the speedy disposition of disputes. In light of the
objectives of a pre-trial and the role of the trial court therein, it
is evident that judges have the discretion to exclude witnesses
and other pieces of evidence not listed in the pre-trial brief,
provided the parties are given prior notice to this effect. 
In his Pre-trial Order, however, the trial judge did not exercise
his discretion to exclude the unlisted or unnamed witnesses.
Rather, it simply provided that [t]he defendant will present six
witnesses. It made no mention at all that they would be barred
from testifying unless they were named. Significantly, it also
stated that plaintiffs will offer ten witnesses, without however
naming them. Since the Order allowed respondents (as
plaintiffs before the trial court) to present witnesses, it
necessarily follows that it should grant the same right to
petitioner.
Indeed, the court and the parties must pay attention not only
to the pre-trial briefs, but also to the pre-trial order. Section 7

53. Kent vs. Micarez 185758 Although the RTC has legal basis to
9 March 2011 order the dismissal of the case, the
DE GALA Court finds this sanction too severe to
be imposed on the petitioner where the
records of the case is devoid of evidence
of willful or flagrant disregard of the
rules on mediation proceedings. There
of the same Rule states:
SEC. 7. Record of pre-trial. -- The proceedings in the
pre-trial shall be recorded. Upon the termination
thereof, the court shall issue an order which shall
recite in detail the matters taken up in the conference,
the action taken thereon, the amendments allowed to
the pleadings, and the agreements or admissions
made by the parties as to any of the matters
considered. Should the action proceed to trial, the
order shall explicitly define and limit the issues to be
tried. The contents of the order shall control the
subsequent course of action, unless modified before
trial to prevent manifest injustice. 
Hence, the provision in the Pre-trial Order allowing petitioner
to present six witnesses shall control the subsequent course of
action. The court a quo proceeded with the trial without
modifying the Order. In the same vein, respondents did not
challenge it before the trial. Neither did they invoke the power
of the trial court to compel the petitioner to submit the names
of his witnesses and summaries of their testimonies. By their
silence, respondents acquiesced to the Pre-trial Order allowing
the presentation of petitioner's unnamed witnesses. Modifying
a pre-trial order during the trial or, worse, when the defendant
is about to present witnesses will indubitably result in
manifest injustice. This could not have been the intention of
the Rules.
FACTS: This petition draws its origin from a complaint for
recovery of real property and annulment of title led by
petitioner, through her younger sister and authorized
representative, Rosita Micarez-Manalang, before the RTC.
Petitioner is of Filipino descent who became a naturalized
American citizen after marrying an "American national. She is
now a permanent resident of the United States of America.
is no clear demonstration that the
absence of petitioner’s representative
during mediation proceedings was
intended to perpetuate delay in the
litigation of the case. Neither is it
indicative of lack of interest on the part
of petitioner to enter into a possible
amicable settlement of the case.
The petitioner claimed that her parents the herein
respondents fraudulently and clandestinely transferred her
property to her brother, one of the respondents.
Aware that it was difficult to register a real property under her
name, she being married to an American citizen, she
purchased the subject property and registered it under the
name of her parents. A deed of absolute sale was executed
between her parents and the owner of the said property. TCT
was issued in the name of her parents. Years later the
petitioner learned that the said property was sold by her
parents to her brother. Considering that all the respondents
are residents of United States summons was served upon them
through publication. The respondents authorized their counsel
to le an answer and represent the min pre-trial conference
with power to enter into compromise agreement. The RTC
ordered the referral of the case to Philippine Mediation
Center, however respondents failed to appear during the
schedule. The Court ordered the petitioner to present her
evidence ex-parte. However, the counsel of the respondents
clarified that it was the counsel of the petitioner who did not
appear during the scheduled mediation proceedings, the
respondents counsel further explained that their counsel had
inadvertently affixed his signature on the space provided for
the counsel of the plaintiff in the mediation report
PROCEDURAL HISTORY: Considering that all the
respondents are now also permanent residents of the USA,
summons was served upon them by publication. Meanwhile,
the respondents executed two special powers of attorney
authorizing their counsel to file their answer and to represent
them during the pre-trial conference and all subsequent
hearings with power to enter into a compromise agreement.
After the parties had filed their respective pre-trial briefs, and
the issues in the case had been joined, the RTC referred to case
to the Philippine Mediation Center (PMC)/. Mediator
Esmeraldo padao, Sr. issued a Mediator’s Report to the RTC
allegedly due to the non-appearance of the respondents on the
scheduled conference before him. Acting on said report, the
RTC issued an order allowing petitioner to present her
evidence ex parte.

Later, Padao clarified, though a Manifestation, that it was

petitioner who did not attend the mediation proceedings. He
explained that respondent’s counsel inadvertently fixed his
signature for attendance purposes on the column provided for
the plaintiff’s counsel in the mediator’s report. In light of this
development, the RTC issued an order dismissing the case for
failure of plaintiffs and her counsel to appear during the
mediation proceeding.

Petitioner filed a motion for reconsideration invoking the

relaxation of the rule on non-appearance in the mediation
proceedings in the interest of justice and equity. Petitioner
urged the trial court not to dismiss the case based merely on
technicalities contending that litigations should as much as
possible be decided on the merits.

ISSUE: WON the dismissal is the proper sanction for failure

to attend the mediation process

RULING: No. Although the RTC has legal basis to order the
dismissal of the case, the Court finds this sanction too severe
to be imposed on the petitioner where the records of the case
is devoid of evidence of willful or flagrant disregard of the
rules on mediation proceedings. There is no clear
demonstration that the absence of petitioner’s representative
during mediation proceedings was intended to perpetuate
delay in the litigation of the case. Neither is it indicative of lack
of interest on the part of petitioner to enter into a possible
amicable settlement of the case.

Manalang was not entirely at fault for the cancellation and

resettings of the conferences. Respondents’ representative and
counsel, Atty. Miguel, came late during the January 19 and
 February 9, 2008 conferences which resulted in their
cancellation and the final resetting of the mediation
proceedings to March 1, 2008. Considering the circumstances,
it would be most unfair to penalize petitioner for the neglect of
her lawyer.

Assuming arguendo that the trial court correctly construed

the absence of Manalang as a deliberate refusal to comply with
its Order or to be dilatory, it cannot be said that the court was
powerless and virtually without recourse. Indeed, there are
other available remedies to the court a quo under A.M. No.
01-10-5-SC-PHILJA, apart from immediately ordering the
dismissal of the case. If Manalang’s absence upset the
intention of the court a quo to promptly dispose the case, a
mere censure or reprimand would have been sufficient for
petitioner’s representative and her counsel so as to be
informed of the court’s intolerance of tardiness and laxity in
the observation of its order. By failing to do so and refusing to
resuscitate the case, the RTC impetuously deprived petitioner
of the opportunity to recover the land which she allegedly paid
for.

Unless the conduct of the party is so negligent, irresponsible,

contumacious, or dilatory as for non-appearance to provide
substantial grounds for dismissal, the courts should consider
lesser sanctions which would still achieve the desired end. The
Court has written "inconsiderate dismissals, even if without
prejudice, do not constitute a panacea nor a solution to the
congestion of court dockets, while they lend a deceptive aura
of efficiency to records of the individual judges, they merely
postpone the ultimate reckoning between the parties. In the
absence of clear lack of merit or intention to delay, justice is
better served by a brief continuance, trial on the merits, and
final disposition of the cases before the court.

54. Citibank N.A. vs. Chua

102300 17 March 1993
 ESPIRITU

55. Calalang vs. Court of A pre-trial cannot validly be held until
Appeals 103185 22 the last pleading has been filed, which
January 1993 last pleading may be the plaintiff's
LEE
reply, except where the period to file the
last pleading has lapsed.
Facts: Respondent Filipinas Manufacturers Bank filed a
complaint of a sum of money against the petitioner Conrado
Calalang and 3 other defendants namely, Hugo M. Arca, Rio
Arturi Salceda and the Acropolis Trading Corporation with the
CFI of Rizal. Calalang filed a motion for the dismissal of the
case on the ground that the plaintiff has no cause of action
against him. This necessitated the filing of an opposition from
the plaintiff, a reply to said opposition from the defendant
Calalang, and a rejoinder to the said reply. The defendant
Arca, on the other hand initially sought an extension of time to
file a responsive pleading then filed a motion for a bill of
particulars, then later also a motion to dismiss the case. After
his motion to dismiss was denied Arca filed a motion for
reconsideration. In all these incidents pleadings and
counter-pleadings were filed and hearings held on the
motions, which resulted in the case dragging on for a
considerable time. The case was set for pre-trial several times
when, as aforestated, the issues were not yet joined for only
Arca had initially filed his answer to the complaint. The case
was ordered dismissed at least two times when the plaintiff’s
counsel failed to appear at these pre-trials but the dismissals
were considered and the class set anew. Another factor that
contributed to the confusion in the proceedings and the delay
in the case is the fact that the case was assigned from one
judge to another due probably to the judicial reorganization
that took place. In fact, there were no less than 4 judges who
handled the case. The answer of Arca was filed only on 1985
while Calalang’s was filed on 1987.

Issue: Whether the pre-trial conference was premature

Held: No. The pre-trial conference was not pre-mature. A
pre-trial cannot validly be held until the last pleading has been
filed, which last pleading may be the plaintiff's reply, except
where the period to file the last pleading has lapsed. The
period to appear and file the necessary pleading having
expired on the Acropolis Trading Corporation, the lower court
can direct that a pre-trial conference be held among the
answering defendants. however, though it is within the
discretion of the trial court to declare a party non-suited for
non appearance in the pre-trial conference, such discretion
must not be abused. The precipitate haste of the lower court in
declaring the respondent bank non-suited was uncalled for
and deserved a second look. Considering the fact that the
counsel for the plaintiff/respondent bank did arrive for the
pre-trial conference, though a bit late and that counsel for the
defendant was himself also late, the trial court should have
called the case again. An admonition to both counsels to be
more prompt in appearing before the Court as scheduled
would have sufficed, instead of having dismissed the
complaint outright. Unless a party's conduct is so negligent,
irresponsible, contumacious, or dilatory as to provide
substantial grounds for dismissal for non-appearance, the
courts should consider lesser sanctions which would still
amount into achieving the desired end. "Inconsiderate
dismissals, even if without prejudice, do not constitute a
panacea nor a solution to the congestion of court dockets,
while they lend a deceptive aura of efficiency to records of
individual judges, they merely postpone the ultimate
reckoning between the parties. In the absence of clear lack of
merit or intention to delay, justice is better served by a brief
continuance, trial on the merits, and final disposition of the
cases before the court." (Ruiz v Enstenzo) And there is
authority that an order dismissing a plaintiff's complaint
without prejudice for failure of his counsel to appear at a
pre-trial conference must be reversed as too severe a sanction
to visit on a litigant where the record is devoid of evidence

XIX. INTERVENTION (RULE 19, SEC. 1 TO 4)
56. Mactan Cebu Intervention is a remedy by which a
International Airport third party, not originally impleaded in
vs. Heirs of Miñoza the proceedings, becomes a litigant
186045 2 February 2011 therein to enable him, her or it to
LIMIN protect or preserve a right or interest
which may be affected by such
proceedings. Under Rule 19,
intervention shall be allowed when a
person has (1) a legal interest in the
matter in litigation; (2) or in the success
of any of the parties; (3) or an interest
against the parties; (4) or when he is so
situated as to be adversely affected by a
distribution or disposition of property
in the custody of the court or an officer
thereof. Moreover, the court must take
into consideration whether or not the
intervention will unduly delay or
prejudice the adjudication of the rights
of the original parties, and whether or
not the intervenor's right or interest can
be adequately pursued and protected in
a separate proceeding. Furthermore, the
allowance or disallowance of a motion
for intervention rests on the sound
discretion of the court after
consideration of the appropriate
circumstances. Consequently, the denial
of the motion to intervene by the RTC
was but just and proper.
reflecting the litigant's willful or flagrant disregard for the
Court's authority.
Facts:
A Complaint for Reconveyance, Cancellation of Defendant's
Title, Issuance of New Title to Plaintiffs and Damages was
filed by Leila for herself and on behalf of the other heirs of the
late Estanislao Miñoza. It alleged that Leila's late great
grandfather, Estanislao Miñoza, was the registered owner of
Cadastral Lot Nos. 986 and 991-A (subject lots) at Cebu City.
It was, likewise, alleged that the late Estanislao Miñoza had
three children, namely, Adriana, Patricio, and Santiago, all
surnamed Miñoza. In the late 1940s, the National Airports
Corporation (NAC) embarked in an expansion project of the
Lahug Airport. Among the properties that were acquired
through a negotiated sale were the subject lots. Leila claimed
that their predecessors-in-interest, Adriana, Patricio, and
Santiago, executed a Deed of Sale conveying the subject lots to
the NAC on the assurance that they can buy the properties
back if the lots are no longer needed. The expansion project
eventually did not push through. More than 40 after the sale,
plaintiffs informed the NAC's successor-in-interest, petitioner
MCIAA, that they were exercising the buy-back option of the
agreement, but the MCIAA refused to allow the repurchase.
After the parties filed their respective pleadings, trial ensued.
However, before the MCIAA could present evidence, a Motion
for Intervention was filed before the RTC of Cebu City by the
heirs of Filomeno T. Miñoza, the heirs of Pedro T. Miñoza, and
the Heirs of Florencia T. Miñoza (Intervenors), who claimed to
be the true, legal, and legitimate heirs of the late Estanislao
Miñoza. The intervenors alleged in their complaint (1) that the
plaintiffs in the main case are not related to the late spouses
Estanislao Miñoza and Inocencia Togono; (2) that Adriana,
Patricio, and Santiago, executed, in fraud of the intervenors,
an Extrajudicial Settlement of the Estate and (3) that the same
Adriana, Patricio, and Santiago, fraudulently, deceitfully, and
in bad faith, sold the subject properties.
Issue:
Whether or not Motion for Intervention shall be granted.

Ruling:
Intervention is a remedy by which a third party, not originally
impleaded in the proceedings, becomes a litigant therein to
enable him, her or it to protect or preserve a right or interest
which may be affected by such proceedings. Under Rule 19,
intervention shall be allowed when a person has (1) a legal
interest in the matter in litigation; (2) or in the success of any
of the parties; (3) or an interest against the parties; (4) or
when he is so situated as to be adversely affected by a
distribution or disposition of property in the custody of the
court or an officer thereof. Moreover, the court must take into
consideration whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the original
parties, and whether or not the intervenor's right or interest
can be adequately pursued and protected in a separate
proceeding.

In the case at bar, the intervenors are claiming that they are
the legitimate heirs of Estanislao Miñoza and Inocencia
Togono and not the original plaintiffs represented by Leila
Hermosisima. True, if their allegations were later proven to be
valid claims, the intervenors would surely have a legal interest
in the matter in litigation. Nonetheless, this Court has ruled
that the interest contemplated by law must be actual,
substantial, material, direct and immediate, and not simply
contingent or expectant. It must be of such direct and
immediate character that the intervenor will either gain or lose
by the direct legal operation and effect of the judgment.With
regard to the second contention, this issue would
unnecessarily complicate and change the nature of the
proceedings. The parties would also present additional
evidence in support of this new allegation of fraud, deceit, and
bad faith and resolve issues of conflicting claims of ownership,
authenticity of certificates of titles, and regularity in their
acquisition. This would definitely cause unjust delay in the
adjudication of the rights claimed by the original parties,
 which primarily hinges only on the issue of whether or not the
heirs represented by Leila have a right to repurchase the
subject properties from the MCIAA. In general, an
independent controversy cannot be injected into a suit by
intervention. Furthermore, the allowance or disallowance of a
motion for intervention rests on the sound discretion of the
court after consideration of the appropriate circumstances.
Consequently, the denial of the motion to intervene by the
RTC was but just and proper.

57. Pulgar vs. RT of Mauban FACTS: The Municipality of Mauban, Quezon assessed the
157583 10 September buildings and machinery of the Mauban Plant, a coal-fired
2014 electric generation facility owned by the Quezon Power
NAKAGAWA
Limited (QPL), at a market value of P29, 626,578,291,00 or an
annual real estate tax of P500 Million, more or less.

Quezon Power Limited filed a sworn statement declaring that

the properties had a value of only P15, 055,951,378.00 and
tendered to the Municipal Assesor the amount of P60,
233,805.51 as first quarter instalment payment of the real
estate taxes. The Municipal Assessor rejected it, hence QPL
filed a complaint for Consignation and Damages before the
RTC against the province of Quezon, the municipal assessor
and treasurer, and the provincial assessor and treasurer of
Quezon, tendering to the RTC the payment for the first quarter
installment payment on real estate taxes.

The defendants asserted that QPL is estopped from

questioning the authority of the municipal assessor since it
paid realty taxes based on the former’s assessment.
Flumencio, alleging himself as a taxpayer and resident of
Quezon Province, filed his Motion for Leave to Admit
Answer-in-Intervention, since the power plant of QPL was
responsible for the mindless disturbance of the forest and
marine environment. His answer in intervention was
admitted.

The RTC later dismissed the complaint filed by QPL for lack of
jurisdiction in the absence of tax payment under protest which
QPL tried to skirt by alleging that it is the authority of the
municipal assessor which it challenges. It ruled that the Local
Board of Assessment Appeals that has jurisdiction to hear the
case. It also dismissed Frumencio’s motion for intervention
since it had no leg to stand with the dismissal of the main case.
His motion for reconsideration denied, Frumencio filed a
petition for review on certiorari before the Supreme Court to
challenge the dismissal of his motion for intervention.

ISSUE: Whether or not the RTC erred in dismissing Pulgar’s

motion for intervention as a consequence of the dismissal of
the main case.

HELD: No. Jurisdiction over an intervention is governed by

jurisdiction over the main action. Accordingly, an intervention
presupposes the pendency of a suit in a court of competent
jurisdiction.

In this case, Pulgar does not contest the RTC’s dismissal of

Civil Case No. 0587-M for lack of jurisdiction, but oddly
maintains his intervention by asking in this appeal a review of
the correctness of the subject realty tax assessment. This
recourse, the Court, however, finds to be improper since the
RTC’s lack of jurisdiction over the main case necessarily
resulted in the dismissal of his intervention. In other words,
the cessation of the principal litigation – on jurisdictional
grounds at that – means that Pulgar had, as a matter of
course, lost his right to intervene. Verily, it must be borne in
mind that:

XX. CALENDAR OF CASES (RULE 20, SEC. 1 TO 2)
58. Ang Kek Chen vs. Bello
The principal issue of
L-76344-46 30 June 1988
alleged grave abuse of
NATO
discretion in violation of
Circular No. 7 of this
Court, regarding the
manner of raffle of cases,
not denied or explained
by public respondent, is
not a trivial one. The
raffle of cases is of vital
importance to the
administration of justice
because it is intended to
insure impartial
adjudication of cases. By
raffling the cases public
suspicion regarding
assignment of cases to
predetermined judges is
obviated.
A violation or disregard
of the Court's circular on
[I] Intervention is never an independent action, but is
ancillary and supplemental to the existing litigation. Its
purpose is not to obstruct nor x xx unnecessarily delay the
placid operation of the machinery of trial, but merely to afford
one not an original party, yet having a certain right or interest
in the pending case, the opportunity to appear and be joined
so he could assert or protect such right or interests.
Otherwise stated, the right of an intervenor should only be in
aid of the right of the original party. Where the right of the
latter has ceased to exist, there is nothing to aid or fight for;
hence, the right of intervention ceases.
Facts:
Petitioner questions the alleged grave abuse of discretion
amounting to excess of jurisdiction, committed by respondent
Judge Abundio Bello in violating Administrative Circular No. 7
regarding the raffle of Criminal Cases and prays for its outright
dismissal.
Petitioner Ang was charged before the then Manila City, with the
crimes of "MALTREATMENT," "THREATS," and "SLIGHT
PHYSICAL INJURIES," committed against one LE HE CO Y YU
DE ANG, as follows:
1. by then and there, slapping her and giving her fist/blows on
her head- Criminal Case No. 021429 (Maltreatment)
2. threatening to kill her- Criminal Case No. 021430 (Threats)
3. assault and use personal violence- Criminal Case No. 021431
(Slight Physical Injuries)
After the prosecution had presented its evidence, Ang filed a
how the raffle of cases Demurrer to Evidence which was denied. Ang elevated the incident
should be conducted is to the RTC of Manila on certiorari and prohibition with prayer for
not to be countenanced. preliminary injunction and/or temporary restraining orders, which
A party has the right to was denied.
be heard by an impartial
and unbiased tribunal. On appeal, the Court of Appeals affirmed in toto the RTC.
LLjur
When the respondent Meanwhile, the then presiding judge of MTC Branch VIII (where
judge conducted the the raises were pending) was promoted to the RTC of Manila.
raffle of the three
criminal cases in · Respondent judge, as officer-in-charge of the
question, apparently in MTC (Manila), directed the return of the case
violation of the Court's records to the Clerk of Court for "re-raffle.
Circular No. 7, he did not
only arouse the · Petitioner, however, alleged that he received
suspicion that he had the corresponding order only on August 23, 1984,
some ulterior motive for or AFTER the cases had already been actually
doing so, but he violated "re-raffled" and assigned to respondent judge on
the cardinal rule that all August 16, 1984.
judicial processes must
be done above board. We · On September 27, 1984, Ang filed a motion to
consider the procedure re-raffle the cases, which was denied. The
of raffling cases to be an subsequent motion for reconsideration was
important element of likewise denied Hence, the present petition.
judicial proceedings,
designed precisely to Issue:
give assurance to the
parties that the court W/N the judge acted in GADLEJ in raffling the criminal cases in
hearing their case would violation of Circular No. 7 of this Court (regarding the manner of
be impartial. On this raffle of cases).
point, we found the
petition meritorious. Held:

The cases are remanded to the Executive Judge for re-raffle in

accordance with this Courts Circular No. 7, except for the case
regarding threat which was dismissed. ;;

Solicitor General stated that the issue of the alleged

non-compliance with the Court's circular regarding the raffle of
 cases was trivial, that the Court's guidelines on the matter did not
vest any substantive right and a violation thereof did not per se
infringe any constitutional right of the accused, and that the
raffling of cases did not involve an exercise of judicial function, but
was a mere administrative matter involving the distribution of
cases among the different branches of the court, which could not be
the subject matter of a special civil action for certiorari.

A violation or disregard of the Court's circular on how the raffle of

cases should be conducted is not to be countenanced. A party has
the right to be heard by an impartial and unbiased tribunal.

The raffle of cases is of vital importance to the administration of

justice because it is intended to insure impartial adjudication of
cases. By raffling the cases public suspicion regarding assignment
of cases to predetermined judges is obviated.

When the respondent judge conducted the raffle of the three

criminal cases in question, apparently in violation of the Court's
Circular No. 7, he did not only arouse the suspicion that he had
some ulterior motive for doing so, but he violated the cardinal rule
that all judicial processes must be done above board. We consider
the procedure of raffling cases to be an important element of
judicial proceedings, designed precisely to give assurance to the
parties that the court hearing their case would be impartial. On this
point, we found the petition meritorious.

XXI. SUBPOENA (RULE 21, SEC. 1 TO 10)

59. Collado vs. Bravo A.M. A subpoena is a process directed to a
No. P-99-1307 10 April person requiring him to attend and to
2001 testify at the hearing or the trial of an
PEREZ action, or at any investigation
conducted by competent authority, or
for the taking of his deposition.
Absent any proceedings, suit, or
action commenced or pending before
FACTS:
Complainant Lorena O. Collado charged respondent Teresita
G. Bravo, Clerk of Court of the Municipal Trial Court (MTC) of
Naguilian, La Union, with Grave Misconduct and/or Conduct
Prejudicial to the Best Interest of the Service.
Complainant alleged that on July 11, 1997, she received
through priority mail, a subpoena from the MTC of Naguilian,
La Union, directing her to appear before the said court at 2:00
a court, a subpoena may not issue. P.M., July 14, 1997. The subpoena was duly signed by
respondent in her capacity as Clerk of Court. Before proceeding
to said court, complainant sought assistance from the Office of
the Governor of La Union and Mr. Arthur T. Madayag, Legal
Assistant II of the Provincial Legal Office, who was detailed to
accompany her to court.chanrob1es virtua1 1aw 1ibrary

Upon arriving at the MTC of Naguilian, complainant talked to

Respondent. When complainant asked for copies of the
complaint and other details of the case, respondent replied that
no complaint had been filed and her intention in issuing the
subpoena was to allow a certain Perla Baterina, the labor
recruiter of complainant’s son, Emmanuel Collado, to talk to
complainant.

Complainant claimed that she felt humiliated, harassed, and

experienced extreme nervousness as a result of respondent’s
issuance of the subpoena.chanrob1es virtua1 1aw 1ibrary

In her answer, respondent admitted issuing the subpoena. She

claimed, however, that it was done with good intentions since
she only acceded to the urgent request of the spouses Rogelio
and Perla Baterina who came to her office on July 7, 1997,
airing their grievances against complainant. Respondent
averred that her only purpose in issuing the subpoena was to
enable complainant and the Baterinas to settle their
differences. 3

In its Memorandum, the Office of the Court Administrator

(OCA) recommended that the complaint be docketed as an
administrative matter and respondent be fined Five Thousand
Pesos (P5,000.00) for Grave Misconduct with a Warning that
the commission of a similar act would merit a more serious
penalty.

The Court required the parties to manifest whether they were

willing to submit this case for decision on the basis of the
pleadings already filed. Respondent agreed. Though
complainant had not yet responded, and her compliance is now
deemed waived, we shall now resolve her complaint.
ISSUE:
Whether or not the Clerk of Court committed grave
misconduct.

HELD:
Yes.
Respondent’s act of issuing the subpoena to complainant was
evidently not directly or remotely connected with respondent’s
judicial or administrative duties. It appears that she merely
wanted to act as a mediator or conciliator in the dispute
between complainant and the Baterinas, upon the request of
the latter.

Respondent as Clerk of Court is primarily tasked with making

out and issuing all writs and processes issuing from the court.
She should have known or ought to know what a subpoena is.
"A subpoena is a process directed to a person requiring him to
attend and to testify at the hearing or the trial of an action, or
at any investigation conducted by competent authority, or for
the taking of his deposition."
She should have known that a process is "the means whereby a
court compels the appearance of the defendant before it; or a
compliance with its demands." Hence, absent any proceedings,
suit, or action commenced or pending before a court, a
subpoena may not issue. In this case, respondent knew there
was no case filed against complainant. Neither had
complainant commenced any proceeding against the Baterinas
for whose benefit the subpoena was issued. Respondent, then,
had absolutely neither the power nor the authority nor the duty
to issue a subpoena to the complainant.

Perusal of the subpoena she issued to complainant shows that

the form used was the one used in criminal cases, giving
complainant the impression that her failure to appear would
subject her to "the penalty of law," and that the subpoena was
issued with the trial court’s sanction. We find, therefore, that
respondent was using without authority some element of state
coercion against complainant who was understandably
compelled to heed the contents of the subpoena resulting in

60. Universal Rubber In order to entitle a party to the
Products, Inc. vs. CA issuance of a "subpoena duces
L-30266 29 June 1984 tecum," it must appear, by clear and
PURIFICACION unequivocal proof, that the book or
document sought to be produced
contains evidence relevant and
material to the issue before the court,
and that the precise book, paper or
document containing such evidence
has been so designated or described
that it may be identified (Arnaldo vs.
Locsin, 69 Phil. 113). A "subpoena
duces tecum" once issued by the court
may be quashed upon motion if the
issuance thereof is unreasonable and
oppressive, or the relevancy of the
books, documents or things does not
appear, or if the persons in whose
behalf the subpoena is issued fails to
advance the reasonable cost of
production thereof (Sec. 4, Rule 23,
Revised Rules of Court).
her humiliation. Such naked abuse of authority by complainant
could not be allowed to pass without appropriate sanction.
Accordingly, this Court has no recourse but to agree with the
recommendation of the OCA that respondent be disciplined
and fined.chanrob1es virtua1 1aw 1ibrary
WHEREFORE, respondent Teresita G. Bravo is hereby found
GUILTY of Grave Misconduct and Conduct Prejudicial to the
Best Interest of the Service for which she is fined Five
Thousand Pesos (P5,000.00) with a WARNING that a
repetition of the same or similar act would be treated more
severely.
SO ORDERED.
Facts:
Converse Rubber Corporation and Edwardson Manufacturing
Co., Inc. (respondents) sued Universal Rubber Products, Inc.
(petitioner) for unfair competition.
Respondent corporations made a request to the respondent
Judge Hon. Pedro C. Navarro to issue a subpoena duces tecum
against the treasurer of petitioner as regards to its sales
invoices, sales books, and ledgers.
Petitioner moved to quash the subpoena on the grounds that:
1. the said subpoena is both unreasonable and oppressive
as the books and documents called for are numerous
and voluminous;
2. there is no good cause shown for the issuance thereof;
and
3. the books and documents are not relevant to the case
pending below.
Respondent judge denied the motion to quash.
Petitioner filed a motion for reconsideration seeking the said
court to reconsider its order denying the motion to quash the
subpoena duces tecum. Respondent judge denied the MR.
Petitioner Universal Rubber Products, Inc. filed its present
petition for certiorari with preliminary injunction, alleging that
in so denying its motion to quash the subpoena duces tecum
and its subsequent motion for reconsideration, respondent
Judge acted with grave abuse of discretion amounting to an
excess of jurisdiction

Issue: Whether the issuance of the "subpoena duces tecum" is

proper in a suit for unfair competition

Held:
Well-settled is our jurisprudence that, in order to entitle a
party to the issuance of a "subpoena duces tecum", it must
appear, by clear and unequivocal proof, that the book or
document sought to be produced contains evidence relevant
and material to the issue before the court, and that the precise
book, paper or document containing such evidence has been so
designated or described that it may be identified. A "subpoena
duces tecum" once issued by the court may be quashed upon
motion if the issuance thereof is unreasonable and oppressive,
or the relevancy of the books, documents or things does not
appear, or if the persons in whose behalf the subpoena is
issued fails to advance the reasonable cost of production
thereof.

In the instant case, in determining whether the books subject

to the subpoena duces tecum are relevant and reasonable in
relation to the complaint of private respondent for unfair
competition, we have to examine Republic Act No. 166, which
provides:

CHAPTER V. — Rights and Remedies

xxx xxx xxx
Sec. 23. Actions, and damages and injunction for
infringement. — Any person entitled to the exclusive
use of a registered mark or trade name may recover
damages in a civil action from any person who
infringes his rights and the measure of the damages
suffered shall be either the reasonable profit which the

61. Roco vs. Contreras A subpoena is a process directed to a
158275 28 June 2005 person requiring him to attend and to
SABIO testify at the hearing. Well-settled is
the rule that before a subpoena duces
tecum may issue, the court must first
be satisfied that the test on relevancy
and test on definiteness be followed.
complaining party would have made, had the
defendant not infringed his said rights, or the profit
which the defendant actually made out of the
infringement, or in the event such measure of damages
cannot be readily ascertained with reasonable
certainty, then the court may award as damages a
reasonable percentage based upon the amount of gross
sales of the defendant of the value of the services in
connection with which the mark or trade name was
used in the infringement of the rights of the
complaining party. In cases where actual intent to
mislead the public or to defraud the complaining party
shall be shown in the discretion of the court, the
damages may be doubled.
The complaining party, upon proper showing may also
be granted injunction.
In giving life to this remedial statute, we must uphold the order
of the court a quo denying the motion of the petitioner to
quash the "subpoena duces tecum" previously issued against
the petitioner. In a suit for unfair competition, it is only
through the issuance of the questioned "subpoena
duces tecum" that the complaining party is afforded
his full rights of redress.
FACTS: Cal’s Corp. (respondent) filed a case for violations of
BP 22 against Roco with the MTCC of Roxas. The MTCC
declared the cases submitted for decision on account of Roco’s
failure to adduce evidence and Roco was convicted. Roco
appealed to the RTC and they remanded the case back to the
MTCC.
During the pendency of the remanded cases, Roco filed with
the MTCC a “request for issuance of subpoena ad
testificandum and subpoena duces tecum”, requiring Cal
Corp’s duly authorized representatives to appear and testify in
court. The MTCC granted the order of Roco’s request for the
issuance of the subpoenas.
 The private prosecutor manifested that it was improper for the
trial court to have directed the issuance of the requested
subpoenas. Cal’s Corp. maintained that the production of the
documents was inappropriate because they are immaterial and
irrelevant to the crimes for which Roco was being prosecuted.
The issuance of the subpoenas was then denied.

The MTCC ruled in favor of Cal’s Corp. Roco went to the RTC
but was dismissed. Roco then went to the CA on appeal but
was also dismissed.

ISSUE: Whether or not the denial of the request for the

issuance of the subpoenas was proper.

HELD: YES. A subpoena is a process directed to a person

requiring him to attend and to testify at the hearing.
Well-settled is the rule that before a subpoena duces tecum
may issue, the court must first be satisfied that the test on
relevancy and test on definiteness be followed.

In the case at bar, while Roco passed the test on definiteness,

he fails in the test of relevancy. Roco would want it to appear
that the books and documents subject of his request for
subpoena duces tecum are indispensable, or, at least, relevant
to prove his innocence. The issuance of the subpoena serves no
purpose but to further delay proceedings in the pending
criminal cases.

62. People of the Philippines Section 9, Rule 23 applies only

vs. Montejo L-24154 31 to civil cases. Facts:
October 1967
ARIBON A criminal case (Criminal Case No. 3225) was filed in the CFI
of Zamboanga City against a certain Felix Wee Sit for double
homicide and serious physical injuries, causing the death of 2
young girls and injuries to 4. Trial commenced, after which it
was stated that a certain Ernesto Uaje Salvador, a permanent
resident of Montalban, Rizal was considered a material and
important witness in the case. At the time the case against the
accused was called for trial, then presided by the respondent
Judge, the witness had returned to Montalban, Rizal.
Repondent Judge issued a subpoena to Uaje addressed in
Montalban, Rizal, ordering him to appear at the trial of the
case set for continuation. Although Uaje had received the
subpoena, he failed to appear. Hence, the City Fiscal moved for
an order of arrest. The respondent Judge sought to annul the
petition. MR was filed and was likewise denied. When the
petition was given due course, a preliminary injunction was
issued. Respondent judge and accused filed an answer, denying
the allegation that Uaje was a material witness in the case. In a
special affirmative defense, the respondent alleged that in
applying Section 9, Rule 23 in the case at bar, the accused
cannot be held to constitute contempt because his residence
was not less than 50 km from the place of trial. Thus, there was
no grave abuse of discretion on respondent judge’s part.

Issue:

W/N the lower court erred in holding that Section 9, Rule 23

applies to both criminal and civil cases.

Held:

No. While the Court states that the counsel of respondent’s

arguments that the application of Section 9, Rule 23 makes no
distinction between a civil and criminal case and must thus be
applied to the case at bar does not lack plausibility, the
contention of t he respondents failed to enlist the assent of a
majority of the Court. Thus, the Court interprets that Rule 23,
Sec 9 is solely applied to civil cases. Under the circumstances,
in view of the serious handicap to which the prosecution would
thus be subjected in proving its case, the respondent judge’s
denial of an order of arrest based on a clear misapprehension
of the Rules of Court could be viewed as amounting to grave

63. Genorga vs. Quintain It was argued that under the
Adm. Matter No. 981-CFI Rules of Court, a witness is not
29 July 1977 bound to attend a hearing if held
SOMEROS outside the province he resides
unless the distance be less than
50 kilometers from his
residence to the place of trial.
Such contention did not
command the assent of this
Court. Section 9 of Rule 23 (Sec
10, Rule 21 of the 1997 ROC and
2019 Amendment) is thus
interpreted to apply solely to
civil cases.
abuse of discretion.
FACTS: Dr. Gil Geñorga was a former municipal health officer
in Masbate and was later assigned to Negros Oriental. A
warrant of arrest was issued against him for his failure to
appear as government medico-legal witness in a pending
murder case before respondent Judge Pedro C. Quitain of the
CFI of Masbate.
Dr. Geñorga averred that he was able to testify but his
nonappearance was by reason of the fact that he had
previously asked respondent Judge thru a telegram if he
would be reimbursed for the traveling expenses to be
incurred and that he had received no reply. As a result he
was humiliated for having been arrested and confined in
the headquarters of PH Constabulary as if he were a
criminal. But the Provincial Commander of Negros
Oriental, allowed him to proceed to Masbate alone at his
own expense." Respondent Judge then dictated in open
court the order for his release.
Now, Dr. Geñorga filed an administrative complaint for
grave abuse of authority and conduct against judge Quitain
for ignoring him and treating him with discourtesy.
Respondent Judge in his comment. he averred that order
of arrest issued for his failure to appear in Court, in spite of
a subpoena duly served upon him as a government witness
in the case and did not deny the other allegations because
it was the honest conviction of the undersigned that he is
not duty bound to make any inquiry for the complainant,
much less advice the complainant in any manner. That the
telegram lacked the element of courtesy since did not
sound as a request.
He also denies the allegation of discourtesy because he
sympathizes with the complainant for the latter's
experiences, but there was no way out of the predicament
except to obey the subpoena. Thereafter he issued the
order of immediate release of the complainant.

XXII. COMPUTATION OF TIME (RULE 22, SEC. 1 TO 2)
64. Neypes vs. CA 141524 14 The fresh period of 15 days becomes
September 2005 significant only when a party opts to
TAN file a motion for new trial or motion
for reconsideration. In this manner,
the trial court which rendered the
assailed decision is given another
opportunity to review the case and, in
The matter was elevated to CA with Acting Assistant
Judicial Consultant Relova for study, report and
recommendation to which it said that the charges be
dismissed.
He explained that to be administratively liable would be
allowing a disregard of the coercive power of the courts to
compel attendance in court of cited witnesses. (Section 5
(e) of Rule 135 of ROC)
This court accepts such recommendations.
ISSUE: whether a CFI hearing a criminal case may compel
by subpoena the attendance of a witness in his sala in
Zamboanga City, when the known address of such witness is
at Montalban, Rizal.
HELD: YES, It is loathe to clip what undoubtedly is the
inherent power of the Court to compel the attendance of
persons to testify in a case pending therein. What was done
by Judge Quitain was, therefore, within his discretion. There
was no grave abuse of authority. Nor can the accusation of
conduct unbecoming a judge be taken seriously.
It was argued that under the Rules of Court, a witness
is not bound to attend a hearing if held outside the province he
resides unless the distance be less than 50 kilometers from his
residence to the place of trial. Such contention did not
command the assent of this Court. Section 9 of Rule 23
(Sec 10, Rule 21 of the 1997 ROC and 2019
Amendment) is thus interpreted to apply solely to civil
cases.
FACTS:
Petitioners Domingo Neypes, Luz Faustino, Rogelio Faustino,
Lolito Victoriano, Jacob Obania and Domingo Cabacungan
filed an action for annulment of judgment and titles of land
and/or reconveyance and/or reversion with preliminary
injunction before the Regional Trial Court, Branch 43, of
Roxas, Oriental Mindoro, against the Bureau of Forest
the process, minimize and/or rectify
any error of judgment.
In this case, the new period of 15 days
eradicates the confusion as to when
the 15-day appeal period should be
counted ' from receipt of notice of
judgment (March 3, 1998) or from
receipt of notice of 'final order
appealed from (July 22, 1998).
Development, Bureau of Lands, Land Bank of the Philippines
and the heirs of Bernardo del Mundo, namely, Fe, Corazon,
Josefa, Salvador and Carmen.
The parties (both petitioners and respondents) filed various
motions with the trial court. Among these were: (1) the motion
filed by petitioners to declare the respondent heirs, the Bureau
of Lands and the Bureau of Forest Development in default and
(2) the motions to dismiss filed by the respondent heirs and the
Land Bank of the Philippines, respectively.
In an order dated May 16, 1997, the trial court, presided by
public respondent Judge Antonio N. Rosales, resolved the
foregoing motions as follows: (1) the petitioners' motion to
declare respondents Bureau of Lands and Bureau of Forest
Development in default was granted for their failure to file an
answer, but denied as against the respondent heirs of del
Mundo because the substituted service of summons on them
was improper; (2) the Land Bank's motion to dismiss for lack
of cause of action was denied because there were hypothetical
admissions and matters that could be determined only after
trial, and (3) the motion to dismiss filed by respondent heirs of
del Mundo, based on prescription, was also denied because
there were factual matters that could be determined only after
trial.
The respondent heirs filed a motion for reconsideration of the
order denying their motion to dismiss on the ground that the
trial court could very well resolve the issue of prescription.
February 12, 1998, the trial court dismissed petitioners'
complaint on the ground that the action had already
prescribed. Petitioners allegedly received a copy of the order of
dismissal on March 3, 1998 and, on the 15th day thereafter or
on March 18, 1998, filed a motion for reconsideration. On July
1, 1998, the trial court issued another order dismissing the
motion for reconsideration [3] which petitioners received on
July 22, 1998. Five days later, on July 27, 1998, petitioners
 filed a notice of appeal [4] and paid the appeal fees on August
3, 1998.

On August 4, 1998, the court a quo denied the notice of appeal,

holding that it was filed eight days late. [5] This was received
by petitioners on July 31, 1998. Petitioners filed a motion for
reconsideration but this too was denied in an order dated
September 3, 1998.

Via a petition for certiorari and mandamus under Rule 65 of

the 1997 Rules of Civil Procedure, petitioners assailed the
dismissal of the notice of appeal before the Court of Appeals.

ISSUE: Whether the court of appeals erred in dismissing the

petitioners' petition for certiorari and mandamus and in
affirming the order of the RTC which dismissed the petitioners'
appeal in the RTC, even after the petitioners had paid the
appeal docket fees.

HELD:
Yes, the CA erred in this case.

The SC states that petitioners seasonably filed their notice of

appeal within the fresh period of 15 days, counted from July
22, 1998 (the date of receipt of notice denying their motion for
reconsideration). This pronouncement is not inconsistent with
Rule 41, Section 3 of the Rules which states that the appeal
shall be taken within 15 days from notice of judgment or final
order appealed from.
Neither does this new rule run counter to the spirit of Section
39 of BP 129 which shortened the appeal period from 30 days
to 15 days to hasten the disposition of cases. The original
period of appeal (in this case March 3-18, 1998) remains and
the requirement for strict compliance still applies.

65. Luz vs. National Amnesty In explaining Rule 22, Section 1, the Facts:
Commission 159708 24 SC, in its Resolution in A.M. No. Petitioner Luz was charged with violation of PD No. 1866
September 2004 00-2-14-SC, provided, among others (illegal possession of firearms) in the RTC of Makati City.
TANADA that: “Any extension of time to file the
required pleading should therefore be
counted from the expiration of the
period regardless of the fact that said
due date is a Saturday, Sunday or
legal holiday.” The extension granted
by the Court of Appeals should be
tacked to the original period and
commences immediately after the
expiration of such period.
Thereafter, he filed an application for amnesty with the Local
Amnesty Board for Metro Manila. The Board denied his
application. The National Amnesty Commission affirmed the
denial of the Local Amnesty Board. The MR was likewise
denied. Under Rule III, Section 4 of NAC Administrative Order
No. 2, Series of 1999, the petitioner had until December 7,
2002, a Saturday, within which to file a petition for review of
the resolution with the CA. On Dec. 9, 2002, petitioner filed a
motion in the CA for an extension of 15 days from Dec. 9, 2002
or until Dec. 24, 2002 within which to file his petitioner,
alleging therein that he had just engaged the services of counsel
who needed additional time to study the case and draft the
petition. Petitioner, however, failed to file his petition for
review. December 24 and 25, 2002 were declared as a national
holiday. On Dec. 26, 2002, petitioner filed a second motion for
extension of 15 days from December 26, 2002 or until January
10, 2002, within which to file his petition. He filed his petition
for review with the CA on January 10, 2003. On January 13,
2003, the CA granted petitioner’s first motion for a 15-day
extension, to be counted form Dec. 7, 2002 or until Dec. 22,
2002, within which to file said petition. On February 20, 2003,
the CA denied petitioner’s second motion for having been filed
out of time. Petitioner filed a motion for reconsideration of the
February 20, 2003 Resolution claiming that, since the last day
to file his petition was a Saturday, December 7, 2002, and the
next day, December 8, 2002 was a Sunday, the last day for
filing the petition was December 9, 2002. The CA denied the
motion, relying on A.M. No. 00-2-14-SC issued on February
29, 2000, which provides that any extension of time to file the
required pleading should be counted from the expiration of the
period regardless of the fact that the said due date is a
Saturday, Sunday, or legal holiday.
Issue:
Whether or not petitioner timely filed his second motion for
extension of time to file his petition for review.
Held: No.
Petitioner claimed that the CA resolutions are contrary to Rule
22, Section 1 of the Rules of Court and previous SC ruling. He
avers that the rule in A.M. No. 00-2-14-SC should apply only
where a motion for extension does not specifically state the
reckoning date of the extension prayed for, such that the
extension will be reckoned from the last day of the period, even
if it was a Saturday, Sunday, or a legal holiday. He contends
that even assuming that his second motion for extension was
filed out of time, the Court of Appeals should have admitted his
petition for review in the interest of justice. The SC held that
petitioner’s motion for a second extension of time to file his
petition for review was filed out of time. In explaining Rule 22,
Section 1, the SC, in its Resolution in A.M. No. 00-2-14-SC,
provided, among others that: “Any extension of time to file the
required pleading should therefore be counted from the
expiration of the period regardless of the fact that said due date
is a Saturday, Sunday or legal holiday.” The extension granted
by the Court of Appeals should be tacked to the original period
and commences immediately after the expiration of such
period. Under the Resolution of this Court in A.M. No.
00-2-14-SC, the CA has no discretion to reckon the
commencement of the extension it granted from a date later
than the expiration of such period, regardless of the fact that
said due date is a Saturday, Sunday, or a legal holiday. The CA
cannot be faulted for granting petitioner’s first motion,
reckoned from December 7, 2002, and not December 9, 2002.
In so doing, it merely applied Rule 22, Section 1, as clarified via
the said Resolution. Had Had the CA granted the petitioner's
first motion for extension and reckoned the 15-day period from
December 9, 2002, instead of from December 7, 2002, the
appellate court would have acted with grave abuse of its
discretion. However, in this case, the SC applied a liberal
interpretation of the said Resolution to the petitioner, in light
of the peculiar factual background of the case.