admu remedial law review (cases)

7/26/2019 Admu Remedial Law Review (Cases)

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REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

Ateneo Law 4A 2011 |AY 2010-2011 1

PRELIMINARY CONFERENCE (Missing Case)

Montemayor v. Bermejo

A.M. No. MTJ-04-1535, March 12, 2004 |Abu


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Ateneo Law 4A 2011 |AY 2010-2011 2

PLEADINGS (Missing cases)

Solar Team Entertainment v. Ricafort

293 SCRA 661 |Andres

FACTS:Petitioner, as plaintiff, filed before the RTC in Paranaque a complaint for

recovery of possession and damages with prayer for a writ of replevin against herein

private respondents. The case was docketed as Civil Case No. 97-0304 and was

assigned to public respondent Judge Helen Bautista-Ricafort. Private respondents, as

defendants, filed their Answer (with Counterclaims). A copy thereof was furnished

counsel for petitioner by registered mail; however, the pleading did not contain any

written explanation as to why service was not made personally upon petitioner-

plaintiff. Petitioner filed a motion to expunge the Answer (with Counterclaims) and

to declare herein private respondents in default, alleging therein that the latter did

not observe the mandate of the aforementioned Section 11, especially since the

office of defendants counsel is just a stone throw away from the office of petitionerscounsel, with an estimate distance of about 200 meters more or less. Petitioner

further alleged that the post office was about ten (10) times farther from the office

of defendents counsel. Public respondent Judge Bautista-Ricafort issued an order

denying, for lack of merit, petitioners motion to expunge the Answer (with

Counterclaims) and to declare private respondents in default.

ISSUE:

W/N Judge Bautista-Ricafort committed GAD when she admitted private

respondents' "Answer (with Counterclaims)" notwithstanding violation of Section 11,

Rule 13.

HELD:

No. Section 11 of Rule 13, service and filing of pleadings and other papers

must, whenever practicable, be done personally; and if made through other modes,

the party concerned must provide a written explanation as to why the service or

filing was not done personally.

Personal serviceand filingis the general rule, and resort to other modes of

service and filing, the exception. Henceforth, whenever personal service or filing is

practicable, in light of the 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. In

adjudging the plausibility of an explanation, a court shall likewise consider the

importance of the subject matter of the case or the issues involved therein, and

theprima facie merit of the pleading sought to be expunged for violation of Section

11. This Court cannot rule otherwise, lest we allow circumvention of the innovation

introduced by the 1997 Rules in order to obviate delay in the administration ofjustice.

Here, the proximity between the offices of opposing counsel was

established; moreover, that the office of private respondents counsel was ten times

farther from the post office than the distance separating the offices of opposing

counsel. Of course, proximity would seem to make personal service most practicable,

but exceptions may nonetheless apply. For instance, where the adverse party or

opposing counsel to be served with a pleading seldom reports to office and no

employee is regularly present to receive pleadings, or where service is done on the

last day of the reglementary period and the office of the adverse party or opposing

counsel to be served is closed, for whatever reason.

Returning, however, to the merits of this case, in view of the proximity between theoffices of opposing counsel and the absence of any attendant explanation as to why

personal service of the answer was not effected, indubitably, private respondents

counsel violated Section 11 of Rule 13 and the motion to expunge was prima

faciemeritorious. However, the grant or denial of said motion nevertheless

remained within the sound exercise of the trial courts discretion. Thus, as guided by

Section 6, Rule 1 of the 1997 Rules of Civil Procedure, which ordains that the Rules

shall be liberally construed in order to promote their objective of securing a just,

speedy and inexpensive disposition of every action or proceeding, as well as by the

dictum laid down inAlonso v. Villamor, 16 Phil. 315 [1910], the trial court opted to

exercise its discretion in favor of admitting the Answer (with Counterclaims), instead

of expunging it from the record.

To our mind, if motions to expunge or strike out pleadings for violation of

Section 11 of Rule 13 were to be indiscriminately resolved under Section 6 of Rule 1

orAlonzo v. Villamorand other analogous cases, then Section 11 would become

meaningless and its sound purpose negated. Nevertheless, we sustain the challenged

ruling of the trial court, but for reasons other than those provided for in the

challenged order (The 1997 Rules of Civil Procedure took effect only on 1 July 1997,

while the questioned Answer (with Counterclaims) was filed only on 8 August 1997,

or on the 39th

day following the effectivity of the 1997 Rules).


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Musa v. Amor

G. R. No. 141396, April 9, 2002 | Ang

FACTS:

Rosario Dasig, administratrix of her son's landholdings while the latter migrated to

the United States, sold the property to respondent Sylvia Amor. This promptedpetitioners, claiming to be tenants of the landholding, to file a case for redemption

with the Department of Agrarian Reform Regional Adjudicator. Petitioners

subsequently filed a complaint for annulment of sale against respondent. The

Regional Adjudicator of the DAR ruled in favor of petitioners and declared them as

tenants of the subject landholding and nullified the deed of absolute sale between

Rosario Dasig and respondent. The DARAB modified the ruling a bit, saying that they

were bona fide tenants. The Court of Appeals however reversed the DARAB. The

petitioners argued that the CA should have dismissed respondents petition for

failure to cite an explanation for the mode of service.

ISSUE:W/N the Court of Appeals should not have given due course to the petition because

the respondent failed to attach thereto a written explanation why personal service

was not done

HELD:

The failure to explain why personal service was not done is not cause for

dismissal.

The service and filing of pleadings must be done personally whenever

practicable. In the present case, personal service would not be practicable.

Considering the distance between the Court of Appeals and Donsol, Sorsogon where

the petition was posted, clearly, service by registered mail would have entailed

considerable time, effort and expense. A written explanation why service was not

done personally might have been superfluous.

In any case, as the rule is so worded with the use of "may," signifying

permissiveness, a violation thereof gives the court discretion whether or not to

consider the paper as not filed. While it is true that procedural rules are necessary to

secure an orderly and speedy administration of justice, rigid application of Section

11, Rule 13 may be relaxed in this case in the interest of substantial justice.

Lapid v. Laurea

G. R. No. 139607, October 28, 2002 | Angliongto

FACTS:

Spouses Lapid are the parents of Christopher B. Lapid, who was a Grade 1

pupil of St. Therese of the Child Jesus. He was suspended for five days effective on 6November 1997. The Lapids filed a letter-complaint with the DECS. At the hearing,

they demanded a written retraction and a public apology from the school officials,

but the latter refused.

On May 8, 1998, the Lapids filed a complaint for damages against St.

Therese and its directress, teacher-in-charge, guidance counselor and principal

before the Malabon RTC. According to the Lapids, the schools malicious imputation

against their son tarnished their good name and reputation.

In their answer, the school officials stated that as early as June 1997, Ms.

Cruz had been sending them letters regarding Christophers mischief in school.

According to them, Christopher had committed serious infractions when he hurt not

only his classmates but also his classroom teacher, Ms. Cruz, and one schoolemployee. They also averred that on several occasions, the parents of students

offended by Christopher lodged complaints with the school against Christopher,

urging the administration to impose appropriate disciplinary action on him. After

most of these incidents, Ms. Cruz had called up the Lapids house to acquaint them

with these complaints. Said phone calls were received, often by Mrs. Gloria Manapat

Bautista, grandmother and guardian de facto of Christopher. All their efforts to reach

the Lapid spouses personally turned out to be futile.

On November 18, 1998, the Lapids filed a motion to declare St. Therese as

in default, which was denied by the trial court.MR was likewise denied. They filed a

petition for certiorari with the Court of Appeals, which dismissed the petition for

failure to indicate the material date, particularly the date of filing of motion for

reconsideration with the RTC, as required by Supreme Court Circular No. 39-98,

amending Section 3 of Rule 46 of the 1997 Rules of Civil Procedure. The Lapids filed

an MR of the CA resolution, but still without indicating the date as to when their MR

of the RTC order was filed. CA denied the MR.

ISSUE:

W/N the CA erred in dismissing the petition for certiorari filed by the Lapids on the

ground of formal and procedural deficiency, i.e., their failure to state a material date

in their petition for certiorari.


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HELD:

No. SC found no reversible error in the assailed resolutions of the CA

because in filing a special civil action for certiorari without indicating the requisite

material date thereon, the Lapids violated basic tenets of remedial law, particularly

Rule 65 of the Rules of Court.

There are three material dates that must be stated in a petition forcertiorari brought under Rule 65. First, the date when notice of the judgment or final

order or resolution was received; second, the date when a motion for new trial or for

reconsideration was filed; and third, the date when notice of the denial thereof was

received. The petition filed with the CA failed to indicate the second date,

particularly the date of filing of their motion for reconsideration. As explicitly stated

in the Rule, failure to comply with any of the requirements shall be sufficient ground

for the dismissal of the petition.

DEFAULTS AND AMENDMENTS

Cerezo v. TuazonG.R. No. 141538, March 23, 2004 |Aquino

FACTS:

A passenger bus collided with a tricycle. Tuazon, the tricycle driver filed an

action for damages against the Mr. Cerezo, owner of the bus, her husband Atty.

Cerezo and Foronda, the bus driver. Tuazon filed a motion to litigate as a pauper. The

TC issued summons against the Cerezo spouses at the Makati address stated in the

complaint but the summons was returned unserved as they no longer held office nor

resided in Makati. An alias summons was sevred to the office of Atty. Cerezo in

Tarlac, who was then working as Tarlac Provincial Prosecutor.

The records show that the Cerezo spouses diligently participated in the TC

proceedings. The TC issued an order ruling that it was satisfied that Tuazon qualified

to prosecute his case as a pauper litigant but denied the Cerezos prayer requiring

new summons to be served to the defendants. The Cerezo spouses filed an MR,

which the court denied. The TC issued an order directing the Cerezo spouses to file

their answer within 15 days from receipt of the order. The Cerezo spouses DID NOT

file an answer. Tuazon filed a motion to declare the Cerezo spouses in default so the

TC issued an order declaring the Cerezo spouses in default and authorizing Tuazon to

present his evidence. After considering Tuazons testimonial and documentary

evidence, the TC ruled in Tuazons favor and held Mrs. Cerezo solely liable for her

employees negligence.

Cerezo filed a Petition for Relief from Judgment which the TC refused to

grant the petition stating that Cerezo should have availed of the remedy of appeal.

Cerezo filed a Petition for Certiorari with the CA, which was likewise denied. The CA

ruled that the Cerezo spouses failure to file an answer was due to their own

negligence, considering that they continued to participate in the proceedings

without filing an answer. There was also nothing in the records to show that theCerezo spouses actually offered a reasonable settlement to Tuazon. Undaunted, the

spouses filed a Petition for Annulment of Judgment, which was still denied

ISSUE:

Whether Cerezo was wrongfully declared in default.

Whether a Petion for Annulment of Judgment was the proper remedy after Cerezo

was declared in default.

HELD:

No. Records show that the petitioner previously filed with the lower court a

Petition for Relief from Judgment on the ground that they were wrongfully declaredin default while waiting for an amicable settlement of the complaint for damages.

The court a quo correctly ruled that such petition is without merit. The defendant

spouses admit that during the initial hearing they appeared before the court and

even mentioned the need for an amicable settlement. Thus, the lower court

acquired jurisdiction over the defendant spouses.

Therefore, petitioner having availed of a petition for relief, the remedy of an

annulment of judgment is no longer available. The proper action for the petitioner is

to appeal the order of the lower court denying the petition for relief.

An examination of the records of the entire proceedings shows that three

lawyers filed and signed pleadings on behalf of Mrs. Cerezo, namely, Atty. Daga,

Atty. Valera, and Atty. Cerezo. Despite their number, Mrs. Cerezos counsels failed to

avail of the proper remedies.It is either by sheer ignorance or by malicious

manipulation of legal technicalities that they have managed to delay the disposition

of the present case, to the detriment of pauper litigant Tuazon.

Lina v. Court of Appealsenumerates the remedies available to a party

declared in default:

1. 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 negligence, and that he has a meritorious defense

(Sec. 3, Rule 18 [now Sec. 3(b), Rule 9]);


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2. 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;

3. If the defendant discovered the default after the judgment has become final

and executory, he may file a petition for relief under Section 2 [now Section

1] of Rule 38; and4. 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). (Emphasis added)

Moreover, a petition for certiorari to declare the nullity of a judgment by

default is also available if the trial court improperly declared a party in default, or

even if the trial court properly declared a party in default, if grave abuse of discretion

attended such declaration.

Mrs. Cerezo admitted that she received a copy of the TCs decision on25

June 1995. Based on this admission, Mrs. Cerezo had at least three remedies at her

disposal: an appeal, a motion for new trial, or a petition for certiorari.

Mrs. Cerezo could have appealed under Rule 4 1from the default judgmentwithin 15 days from notice of the judgment. She could have availed of the power of

the CA to try cases and conduct hearings, receive evidence, and perform all acts

necessary to resolve factual issues raised in cases falling within its appellate

jurisdiction.

Mrs. Cerezo also had the option to file under Rule 37 a motion for new trial

within the period for taking an appeal.If the trial court grants a new trial, the original

judgment is vacated, and the action will stand for trial de novo.The recorded

evidence taken in the former trial, as far as the same is material and competent to

establish the issues, shall be used at the new trial without retaking the same.

Mrs. Cerezo also had the alternative of filing under Rule 65 a petition

for certiorariassailing the order of default within 60 days from notice of the

judgment.An order of default is interlocutory, and an aggrieved party may file an

appropriate special civil action under Rule 65. In a petition for certiorari, the

appellate court may declare void both the order of default and the judgment of

default.

Clearly, Mrs. Cerezo had every opportunity to avail of these remedies within

the reglementary periods provided under the Rules of Court. However, Mrs. Cerezo

opted to file a petition for relief from judgment, which is available only in exceptional

cases. A petition for relief from judgment should be filed within the reglementary

period of 60 days from knowledge of judgment and six months from entry of

judgment, pursuant to Rule 38 of the Rules of Civil Procedure. Evidently, there was

no fraud, accident, mistake, or excusable negligence that prevented Mrs. Cerezo

from filing an appeal, a motion for new trial or a petition for certiorari. It was error

for her to avail of a petition for relief from judgment.

Social Security System v. Chavez

G.R. No. 151259, October 13, 2004 |Atadero

FACTS:

Private Respondents spouses Obedencio sued the SSS at the Cagayan de

Oro RTC for Specific Performance. They wanted the SSS to cancel the mortgage on

their properties, give them back the titles to the properties, and to pay damages and

legal expenses. The SSS timely filed its answer with counterclaim, alleging that the

Obedencios still had unpaid obligations of around 48k.

A pre-trial conference was scheduled on Feb. 16, 1995, but was reset to

April 18, 1995 because the judge was indisposed. On the latter date, the SSS lawyer

was unable to attend. The Obedencios successfully moved on that day to declare the

SSS in default and to be allowed to present evidence ex parte.The SSS filed a Motion for Reconsideration praying for the lifting of the

order of default. This was denied by the RTC in an order dated May 22, 1995. The

SSS appealed this order to the CA by way of a Petition for Certiorari. The CA

dismissed the petition for SSS failure to meet the requirements of the Rules of

Court. According to the CA, a motion to lift order of default should be under oath,

verified and accompanied with an affidavit of merit SSS motion to lift order of

default was neither under oath nor accompanied by an affidavit of merit. MR denied

by CA.

The SSS elevates the case to the SC, asking for the liberal construction of the

rules, claiming that the strict, rigid and arbitrary application thereof denied it a

reasonable opportunity to present its meritorious defense, refute the evidence of

the private respondents, present its own, and exercise his right to due process. The

SSS claims its Motion for Reconsideration was in substantial compliance with the

rules whether or not it was verified with an affidavit of merit since the form of the

motion by which the default was sought to be lifted is secondary and the

requirements of the Rules of Court need not be strictly complied with, unlike in cases

of default for failure to answer.

ISSUE:

W/N the default order of the lower court should be lifted, so that substantial justice

would prevail over technical rules.


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HELD:

No. The SSS failed to comply with 2 rules not appearing at pre-trial and

filing a motion for reconsideration to lift the order of default that lacked verification,

notice of hearing, and affidavit of merit. If not accompanied by affidavits of merit,

the trial court has no authority to consider the same. A motion to lift an order of

default is fatally flawed and the trial court has no authority to consider the samewhere it was not under oath and unaccompanied by an affidavit of merit. In effect,

the petitioner failed to set aside the order of default and must suffer the

consequences thereof.

Procedural rules are not to be disregarded or dismissed simply because

their non-observance may have resulted in prejudice to a partys substantive rights.

Like all rules they are to be followed, except only when for the most persuasive of

reasons 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. Here, the petitioner has not shown any persuasive reason why he should

be exempt from abiding by the rules. Accordingly, the order declaring the petitioner

in default and the denial of the motion to lift the order of default are juridicallyunassailable.

All is not lost for the SSS the law still requires the plaintiffs (Obedencios)

to substantiate the allegations in their complaint. Further, the court will consider the

pleadings (answer, pre-trial brief) of the SSS in deciding if the Obedencios claim is

meritorious.

Ng v. Soco

G. R. No. 149432, May 9, 2002 | Atcheco

FACTS:

Petitioners (Spouses Ng) are the owners of Jos Chicken Barbecue (Chicken

Inato) secret recipe, which is used by petitioners chain of restaurants. They entered

into a partnership agreement with respondents (Spouses Soco) to operate the Socos

Manokan Nook Restaurant. The agreement provided that in the event of the

dissolution of the partnership, respondents shall lose the right to use the secret

recipe and ownership thereof shall revert back to petitioners. Not long after, the

partnership was dissolved. Petitioners believed that respondents continued to

operate the same business, so they filed a complaint for accounting, injunction and

damages with writ of preliminary injunction and TRO against respondents. During

the hearing for the issuance of preliminary injunction, they filed a motion to admit

amended complaint to include Garcia, respondents nephew, because they learned

that Garcia was operating a restaurant named Manokan sa Sugbuand they believed

he was a dummy of the respondents. The trial court denied the motion, saying that

the amendment not only requires or compels the respondents to change their

defense but also subjects them to all the acts, knowledge, admission and omissions

of Garcia. The CA affirmed, holding that the amendment is substantial and has the

effect of changing the theory of the case, and that Garcia is not an indispensableparty. MR was denied. Petitioners filed a petition for review on certiorari.

ISSUE:

Whether the amended complaint which seeks to include the dummy of respondents

could not be admitted because petitioners theory of the case will change and that

the dummy is not an indispensable party.

HELD:

Under Sections 2 and 3 of Rule 10 of the Rules of Court, formal and

substantial amendments to a pleading may be made at anytime before a responsive

pleading has been filed. Such amendment is a matter of right. Thereafter, and duringtrial, amendments may only be done with the permission of the court. Amendments

are not proper and should be denied when delay would arise, or when amendments

would result in a change of cause of action or theory of the case, or would be

inconsistent with the allegations in the original complaint.

The trial court did not commit any grave abuse of discretion in denying

petitioners amended complaint. The admission thereof was clearly not a matter of

right on the part of petitioners as they sought the same only after a responsive

pleading (an answer) had already been filed by respondents. The matter was thus

within the discretion of the trial court. And, as consistently held by the Court, the

granting of leave to file amended pleadings is a matter peculiarly within the sound

discretion of the trial court and such discretion would not normally be disturbed on

appeal except when evident abuse thereof is apparent, none of which has been

shown in this case.

Remington Industrial Sales Corp. v. Court of Appeals

G. R. No. 133657, May 29, 2002 | Bautista

FACTS:

Petitioner Remington filed a complaint for sum of money and damages

arising from breach of contract against Industrial Steels, Ltd. (ISL), with Ferro Trading

GMBH and respondent British Steel as alternative defendants.


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ISL and respondent British Steel separately moved for the dismissal on the

ground that it failed to state a cause of action against them. The trial court denied

their motions to dismiss and the MRs. ISL filed an answer. Respondent British Steel

filed a petition for certiorari (Rule 65) before the Court of Appeals stating that the

complaint did not contain a single averment that respondent committed any act or is

guilty of any omission in violation of petitioners legal rights.Meanwhile, petitioner sought to amend its complaint by incorporating

therein additional factual allegations constitutive of its cause of action against

respondent under rule 10, section 2. Petitioner also manifests to the CA about the

motion to amend and prayed that the proceedings in the CA be suspended.

The trial court admitted the amended complaint. Then the CA ruled on the

petition dismissing the action against respondent for failure to state a cause of

action.

ISSUE:

Did the CA correctly order the dismissal of the complaint for failure to state a cause

of action, despite the fact that petitioner exercised its right to amend the defectivecomplaint under Section 2, Rule 10 of the Rules of Court? Or stated differently, can a

complaint still be amended as a matter of right before an answer has been filed,

even if there was a pending proceeding for its dismissal before the higher court?

HELD:

No. The complaint may still be amended as a matter of right.

Section 2, Rule 10 of the Revised Rules of Court explicitly states that a

pleading may be amended as a matter of right before a responsive pleading is

served. This only means that prior to the filing of an answer, the plaintiff has the

absolute right to amend the complaint whether a new cause of action or change in

theory is introduced.

It cannot be said that the defendants rights have been violated by changes

made in the complaint if he has yet to file an answer thereto. In such an event, the

defendant has not presented any defense that can be altered or affected by the

amendment of the complaint in accordance with Section 2 of Rule 10.

The right to amend the complaint before an answer has been served is not

precluded by the filing of a motion to dismiss or any other proceeding contesting its

sufficiency. Otherwise, the right to amend a pleading under Section 2, Rule 10 will be

rendered nugatory and ineffectual, since all that a defendant has to do to foreclose

this remedial right is to challenge the adequacy of the complaint before he files an

answer.

Moreover, amendment of pleadings is favored and should be liberally

allowed in the furtherance of justice in order to determine every case as far as

possible on its merits without regard to technicalities.

The fact that the other defendants below has filed their answers to the

complaint does not bar petitioners right to amend the complaint as against

respondent British Steel. In a case where some but not all the defendants haveanswered, the plaintiff may still amend its complaint once, as a matter of right, in

respect to claims asserted solely against the non-answering defendant, but not as to

claims asserted against the other defendants.

Philippine Export and Foreign Loan Guarantee Corporation v.

Philippine Infrastructures, Inc.

G.R. No. 120384, January 13, 2004 | Canilao

FACTS:

Philippine Export and Foreign Loan Guarantee Corporation (PX) filed a

complaint for a sum of money against Philippine Infrastructure Inc. (PII). It allegesthat PX issued 5 separate letters of guarantee in favor of PNB as security for various

credit accommodations extended by PNB to PII. PII and other parites executed a

Deed of Undertaking binding themselves to pay or reimburse PX which PX may pay

on account of the guarantees. PNB demanded for the payment of P20,959,529 which

PX paid after PII and the other parties refused to pay it. During trial, PX presented

Roberto Termulo, the treasury department manager, who testified that PX paid the

said amount. PX also presented a debit memo to prove such payment. Consequently,

petitioner filed a motion to amend the complaint to conform to the evidence . The

court then dismissed the case without prejudice on the ground of failure of the

complaint to state a cause of action. PX then appealed under rule 45.

ISSUE:

1. Whether an order dismissing a petition without prejudice should be appealed by

way of an ordinary appeal.

2. Whether PX can amend the complaint to confor to evidence.

HELD:

1. No. No appeal may be taken from an order dismissing an action without

prejudice. However, it may be subject of a special civil action for certiorari under

rule 65.


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2. (related issue) Yes. Respondents contend that the amendment would introduce

a subsequently acquired cause of action as there was none at the time the

original complaint was filed. This is untenable. The amendment was sought after

PX had already presented evidence, specifically when it presented the testimony

of the treasury manager and the debit memo. Respondents contend that since

they had already alleged the failure of the complaint to state a cause of action asan affirmative defense in their action, there was no need to object at the time

the evidence was presented. Respondents failure to object to the evidence at

the time it was presented is fatal to their cause inasmuch as whatever perceived

defect the complaint had was cured by the introduction of PXs evidence.

SERVICE OF PLEADINGS

Payongayong v. Court of Appeals

G.R. No. 144576, May 28, 2004 | Castillo

FACTS:Mendoza Mortgaged a parcel of land to the Meralco Employees Savings and

Loan Association (MESALA), which was duly annotated in its title. Later Mendoza

executed a deed of sale with assumption mortgage over the same land in favor of

petitioners, spouses Payongayong. Without the knowledge of the petitioners,

Mendoza took a second mortgage with MESALA over the same property. Then,

Mendoza executed a Deed of Absolute Sale over the same land in favor of private

respondents, spouses Salvador. The respondents then caused the cancellation of

Mendozas title and the issuance of a TCT in their name. When petitioners found

out, they filed a complaint for annulment of deed of absolute sale and transfer

certificate of title with recovery of possession and damages against spouses

Mendoza and respondents before the RTC of QC. The case was archived because of

failure to locate spouses Mendoza. A motion for revival of the case against

respondents and its dismissal against Mendoza was later granted by the RTC. A

decision was rendered in favor of respondents. CA affirmed.

ISSUE:

Whether the petition should be allowed on the ground that the petition was not

accompanied by a written explanation why service was not done personally.

HELD:

The petition which was filed by registered mail was not accompanied by a

written explanation why such service was not done personally, in contravention of

Section 11, Rule 13 of the Rules of Court. That provision requires personal service of

pleadings and papers whenever practicable. If made through other modes, the party

concerned must provide a written explanation why it was not done personally. Theprovision is mandatory in nature and it even gives the court the discretion to

consider a pleading or paper as not filed if no such explanation is made. Strictest

compliance is mandated, lest this provision be rendered meaningless and its sound

purpose negated.

United Pulp and Paper Co. v. United Pulp and Paper Chapter-FFW

G.R. No. 141117, March 15, 2004 | Casuela

FACTS:

Teodorico Simbulan was promoted with a corresponding salary increase.

Respondent union, on behalf of Simbulan, questioned the salary increase,maintaining that Simbulan was entitled to a higher salary increase based on their

CBA. The case was submitted to the grievance machinery, but failed to settle. Thus,

the matter was elevated to the Voluntary Arbitrators, which rendered a decision

favourable to Simbulan.

IMPT PART: Petitioner filed with the CA a petition for review, assailing the

decision of the Voluntary Arbitrators. The CA dismissed the petition outright for

being insufficient in form, stating:

1. The verification and certification of non-forum shopping was signed only by

counsel for petitioner corporation rather than by a duly-authorized officer

2. The affidavit of service is inadequate, as the registry receipts evidencing mailing

of copies of the petition were not attached

3.

There was no mandatory written explanation required under sec. 11, Rule 13.

Petitioner filed a petition for review on certiorari alleging that the CAs

seriously erred in dismissing the case because of mere technicalities.

ISSUE:

Did the CA err in dismissing the case?

HELD:

No. Under section 5 , Rule 7, the plaintiff or principal party shall certify

under oath in the complaint or other initiatory pleading that he has not commenced


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any action involving the same issues in any court, tribunal or quasi-judicial agency. In

this case, only the petitioners counsel signed the certification against forum

shopping and there was no showing that he was authorized by the petitioner to do

so.

The petitioners failure to attach with the petition a written explanation

why the service or filing was not done personally violates section 11, Rule 13. Whereno explanation is offered to justify the service of pleadings by other modes, the

discretionary power of the court to expunge the pleading becomes mandatory.

The rules of procedure exists for a purpose, and to disregard such rules in

the guise of liberal construction would be to defeat such purpose.

SUMMONS

Maximo v. Montalban

22 SCRA 1077 | Chavez

FACTS:Montalban commenced suit against Fr. Maximo who was residing at the

parish church in Rizal. Plaintiffs' cause of action sprang from a car accident which

occurred at Padre Faura St., Manila. Paul Montalban, son of plaintiffs, suffered

injuries. On the same day that the complaint was filed, summons was served on

defendant Fr. Maximo at the church in Rizal, through Fr. Bautista a priest in the

same church.

Fr. Bautista sent a letter to the Clerk of Court of the CFI of Manila, informing

him that Fr. Maximo left for Europe, and will be back on the 1st

week of November.

Actually, Fr. Maximo returned about the 2nd

week of October, 1958. The LC

declared defendant in default and rendered judgment sentencing defendant to pay

Montalban damages. Plaintiffs wrote Fr. Maximo, at the Church, requesting prompt

compliance. Defendant answered the letter expressing regret that he could not

comply with plaintiffs' request, because he was not aware of the civil case, and that,

in the criminal action arising out of the same incident, he was acquitted. Sheriff of

Rizal notified defendant and demanded payment. The Sheriff's return shows that in

response to such demand, defendant alleged that he was then "financially hard up"

and that the Sheriff found no property that could be subject to execution. The

Deputy Sheriff attached and levied on a residential house located in Caloocan City

and purportedly belonging to defendant.

2 years and 2 months after defendant admittedly learned of the LCs

decision, defendant filed a verified motion in the same case praying for the

annulment of the entire proceedings. His ground is this: Summons was not duly

served upon him "as provided under Sec. 7, Rule 7 of the Rules of Court;"

accordingly, the LC "did not acquire jurisdiction over his person"; and "the trial and

decision by default" are "null and void." Court denied.

ISSUE:W/N summons in a suit in personam against a resident of the Philippines temporarily

absent therefrom may be validly effected by substituted service under Section 8,

Rule 14, (formerly Section 8, Rule 7) of the Rules of Court.

HELD:

Yes. Plaintiffs argue that if the ordinary method prescribed by the rules that

is, personal service under Section 7, Rule 14, is not feasible, then the substituted

service in Section 8 aforesaid comes into play. Defendant advances the theory that

where defendant was temporarily abroad, the sole and exclusive method of service

of summons in a case in personamis that set forth in Section 18, Rule 14 of the Rules

(formerly Section 18, Rule 7).Substituted service such as one contemplated in Section 8 upon a

temporarily absent resident, it has been held, is wholly adequate to meet the

requirements of due process. The constitutional requirement of due process exacts

that the service be such as may be reasonably expected to give the notice desired.

Once the service provided by the rules reasonably accomplishes that end, the

requirement of justice is answered; the traditional notions of fair play are satisfied;

due process is served.

In American jurisprudence, whether a defendant be in another state under

the federal system or is abroad in Europe, substituted service is still considered to be

valid. Milliken vs. Meyer states: "Its adequacy so far as due process is concerned is

dependent on whether or not the form of substituted service provided for such cases

and employed is reasonablycalculated to give him actual notice of the proceedings

and an opportunity to be heard.

When the framers of our Rules adapted Section 8, it is to be implied that

they intended to give the provision the same meaning. Section 8 is to be viewed in

the same context it is understood in the American legal system. The word

"defendant" in that provision is to be construed as including any resident of this

country. By comparative construction, Section 8 is to be applied to all resident

defendants without distinction as to whether he is physically present in this

country or not.


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Chief Justice Moran states: "Since the defendant is residing in the

Philippines, jurisdiction over his person may be acquired by Philippine courts by

substituted service of summons under section 8. But extra-territorial service is

allowed also by leave of court according to the above provision." Justice Martin

regards the word "residence" in Section 8 as "the place where the person named in

the summons is living at the time when the service is made, even though he may betemporarily out of the state at the time."

Under the rules, a plaintiff, in the initial stage of suit, is merely required to

know the defendant's "dwelling house or residence" or his "office or regular place of

business" and no more. He is not asked to investigate where a resident defendant

actually is at the precise moment of filing suit. Once defendant's dwelling house or

residence or office or regular place of business is known, he can expect valid service

of summons to be made on "some person of suitable age and discretion then

residing" in defendant's dwelling house or residence, or on "some competent person

in charge" of his office or regular place of business. By the terms of the law, plaintiff

is not even duty-bound to see to it that the person upon whom service was actually

made delivers the summons to defendant or inform him about it. The law presumesthat for him.

It is immaterial then that defendant does not in fact receive actual notice.

This will not affect the validity of the service. Accordingly, the defendant may be

charged by a judgment in personamas a result of legal proceedings upon a method

of service which is not personal, "which in fact may not become actual notice to

him," and which may be accomplished in his lawful absence from the country.For,

the rules do not require that papers be served on defendant personally or a showing

that the papers were delivered to defendant by the person with whom they were

left.

A man temporarily absent from this country leaves a definite place of

residence, to which any inquiry about him may be directed and where he is bound to

return. Where one temporarily absents himself, he leaves his affairs in the hands of

one who may be reasonably expected to act in his place and stead. It is usual for

such a man to leave at his home or with his business associates information as to

where he may be contacted in the event a question that affects him crops up. If he

does not do what is expected of him, and a case comes up in court against him, he

cannot in justice raise his voice and say that he is not subject to the processes of our

courts. He cannot stop a suit from being filed against him upon a claim that he

cannot be summoned at his dwelling house or residence or his office or regular place

of business. Not that he cannot be reached within a reasonable time to enable him

to contest a suit against him. There are now advanced facilities of communication.

In practical terms, we perceive that in suits in personam the more

circuitous procedure delineated in Sections 17 and 18 is resorted to by a plaintiff if

defendant's dwelling house or residence or place of business in this country is not

known; or, if known, service upon him cannot be had thereat upon the terms of

Section 8. Here, since personal service is impossible, resort to substituted service

becomes a necessity. A comparison between the service in Section 8 and that inSections 17 and 18 is beside the point. They both provide for substituted service.

Samarino v. Ralu

G. R. No. 131482, July 3, 2002 | Cukingnan

FACTS:

On January 25, 1996, respondents instituted against petitioner Regalado P.

Samartino a complaint for ejectment at the Trial Court of Noveleta, Cavite.

They alleged that during the lifetime of Filomena Bernardo (wife of the

respondent), she leased her share in the property to petitioner for a period of five

years counted from 1986; that the said lease expired and was not extendedthereafter; and that petitioner refused to vacate the property despite demands

therefor.

Summons was served on Roberto Samartino, brother of petitioner since the

petitioner was confined at the National Bureau of Investigation Treatment and

Rehabilitation Center (NBI-TRC).

The trial court, despite the written certification from NBI-TRC, granted respondents

motion to declare petitioner in default and ordered them to present evidence ex-

parte, eventually ruling for the respondents.

After learning of the adverse decision against him, petitioners counsel filed

with the Regional Trial Court of Cavite City, Branch 16, a motion to set aside

judgment and after this and denied motions for reconsideration, appealed to the SC.

ISSUE:

W/N summons was properly done considering the petitioner was confined for

rehabilitation and whether substituted summons was proper.

HELD:

No. In actions in personam, summons on the defendant must be served by

handing a copy thereof to the defendant in person, or, if he refuses to receive it, by

tendering it to him. If efforts to serve the summons personally to defendant is

impossible, service may be effected by leaving copies of the summons at the


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defendants dwelling house or residence with some person of suitable age and

discretion residing therein, or by leaving the copies at the defendants office or

regular place of business with some competent person in charge thereof. Otherwise

stated, service of summons upon the defendant shall be by personal service first and

only when the defendant cannot be promptly served in person will substituted

service be availed of.Clearly, the above return failed to show the reason why personal service

could not be made. It failed to state that prompt and personal service on the

defendant was rendered impossible. It was not shown that efforts were made to find

the defendant personally and that said efforts failed. As stated above, these

requirements are indispensable because substituted service is in derogation of the

usual method of service. It is an extraordinary method since it seeks to bind the

defendant to the consequences of a suit even though notice of such action is served

not upon him but upon another whom law could only presume would notify him of

the pending proceedings.

Furthermore, nowhere in the return of summons or in the records of this case is it

shown that petitioners brother, on whom substituted service of summons waseffected, was a person of suitable age and discretion residing at petitioners

residence.

There being no valid substituted service of summons, the trial court did not

acquire jurisdiction over the person of petitioner.

Romualdez-Liocaros v. Licaros

G. R. No. 150656, April 29, 2003 | Dela Cuesta

FACTS:

This case arose when spouses Abelardo and Margarita Licaros executed an

Agreement of Separation of Properties and filed a petition for the dissolution of the

conjugal partnership of gains. The trial court granted the petition and approved the

separation of property agreement. Thereafter, Abelardo commenced a civil case for

the declaration of nullity of his marriage with Margarita based on psychological

incapacity. As Margarita was then residing at 96 Mulberry Lane, Atherton, California,

U.S.A., Abelardo initially moved that summons be served through the International

Express Courier Service. The court a quodenied the motion. Instead, it ordered that

summons be served by publication in a newspaper of general circulation once a

week for three (3) consecutive weeks, at the same time furnishing respondent a copy

of the order, as well as the corresponding summons and a copy of the petition at the

given address in the United States through the Department of Foreign Affairs, all at

the expense of Abelardo. Consequently, the trial court declared the marriage

between Abelardo and Margarita null and void. In this petition, Margarita attacked

the validity of the service of summons on her and the judgment dissolving the

conjugal partnership of gains.

ISSUE:Was Summons validly served on Margarita Romualdez Licaros?

HELD:

Actions in personamand actions in remor quasi in remdiffer in that

actions in personamare directed against specific persons and seek personal

judgments. On the other hand, actions in remor quasi in rem are directed against

the thing or property or status of a person and seek judgments with respect thereto

as against the whole world.

At the time Abelardo filed the petition for nullity of the marriage in 1991,

Margarita was residing in the United States. She left the Philippines in 1982 together

with her two children. The trial court considered Margarita a non-resident defendantwho is not found in the Philippines. Since the petition affects the personal status of

the plaintiff, the trial court authorized extraterritorial service of summons under

Section 15, Rule 14 of the Rules of Court. The term "personal status" includes family

relations, particularly the relations between husband and wife.

Under Section 15 of Rule 14 of the Rules of Court, a defendant who is a non-

resident and is not found in the country may be served with summons by

extraterritorial service in four instances: (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 has or claims a lien or

interest, actual or contingent; (3) when the relief demanded consists, wholly or in

part, in excluding the defendant from any interest in property located in the

Philippines; or (4) when the property of the defendant has been attached within the

Philippines.

In these instances, extraterritorial service of summons may be effected

under any of three modes: (1) by personal service out of the country, with leave of

court; (2) by publication and sending a copy of the summons and order of the court

by registered mail to the defendant's last known address, also with leave of court; or

(3) by any other means the judge may consider sufficient. Applying the foregoing

rule, the trial court required extraterritorial service of summons to be effected on

Margarita. The trial court's prescribed mode of extraterritorial service does not fall


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under the first or second mode specified in Section 15 of Rule 14, but under the third

mode. This refers to 'any other means that the judge may consider sufficient."

The Court further ruled that it is bound by the factual findings of the trial

and appellate courts that the parties freely and voluntarily executed the petition for

dissolution of the conjugal partnership of gains and the agreement of separation of

properties and that there was no showing of coercion or fraud. The Court will notexamine the evidence introduced by the parties below to determine if the trial and

appellate courts correctly assessed and evaluated the evidence on record. The

decision of the Court of Appeals was affirmed.

Ancheta v. Ancheta

G.R. No. 145370, March 4, 2004 | Dina

FACTS:

Rodolfo-Respondent and Marietta-Petitioner got married and had 8

children. After 33 years, respondent left and abandoned the petitioner and their

children; hence, petitioner filed with the RTC of Makati, against the respondent forthe dissolution of their conjugal partnership and judicial separation of property. At

that time, the petitioner was renting a house in BF Homes, Almanza, Las Pias, Metro

Manila. While the case was pending, the parties executed a compromise agreement

adjudicating to the petitioner a parcel of land located at Bancal, Carmona, Cavite.

The petitioner, with the knowledge of the respondent, henceforth resided in the said

property. A year after, the respondent wanted to remarry, thus, he filed a case to

declare the nullity of his marriage with the petitioner on the ground of PI. Although

the respondent knew that the petitioner was already residing at the resort in Bancal,

Carmona, Cavite, he, nevertheless, alleged in his petition that the petitioner was

residing at BF Homes, Almanza, Las Pias, Metro Manila, "where she may be served

with summons. The clerk of court issued summons to the petitioner at the address

stated in the petition. The sheriff served the summons and a copy of the petition by

substituted service on the petitioners son, Venancio, at his residence in Bancal,

Carmona, Cavite. The petitioner failed to file an answer and was declared in default

which resulted in the presentation of the respondents evidence ex parte. The RTC

declared the marriage void ab initio. Then, the petitioner filed a verified petition

against the respondent with the CA under Rule 47 for the annulment of the order of

the RTC alleging lack of jurisdiction over her person and perpetration of extrinsic

fraud. CA dismissed the petition.

ISSUE:

W/N there is a valid service of summonsInvalid

W/N the CA erred in dismissing the petition of the petitionerYes

HELD:

An original action in the CA under Rule 47 to annul a judgment or final orderor resolution in civil actions of the RTC may be based on two grounds: (a) extrinsic

fraud; or (b) lack of jurisdiction. The SC ruled that the CA erred in dismissing the

petition because it failed to take note from the material allegations of the petition,

that the petition was based not only on extrinsic fraud but also on lack of jurisdiction

over the person of the petitioner, on her claim that the summons and the copy of

the complaint were not served on her.

In Paramount Insurance Corporation v. Japzon, it was said that jurisdiction is

acquired by a trial court over the person of the defendant either by his voluntary

appearance in court and his submission to its authority or by service of summons.

The service of summons and the complaint on the defendant is to inform him that a

case has been filed against him and, thus, enable him to defend himself. He is, thus,put on guard as to the demands of the plaintiff or the petitioner. Without such

service in the absence of a valid waiver renders the judgment of the court null and

void. Jurisdiction cannot be acquired by the court on the person of the defendant

even if he knows of the case against him unless he is validly served with summons.

Summons and complaint may be served on the defendant either by handing

a copy thereof to him in person, or, if he refuses to receive and sign for it, by

tendering it to her. However, if there is impossibility of prompt service of the

summons personally on the defendant despite diligent efforts to find him, service of

the summons may be effected by substituted service as provided in Section 7, Rule

14.

In Miranda v. CA, it was held that the modes of service should be strictly

followed in order that the court may acquire jurisdiction over the person of the

defendant. Thus, it is only when a defendant cannot be served personally within a

reasonable time that substituted service may be made by stating the efforts made to

find him and personally serve on him the summons and complaint and the fact that

such effort failed. This statement should be made in the proof of service to be

accomplished and filed in court by the sheriff. This is necessary because substituted

service is a derogation of the usual method of service. It has been held that

substituted service of summons is a method extraordinary in character; hence, may

be used only as prescribed and in the circumstances categorized by statutes.


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Gomez v. Court of Appeals

G.R. No. 127692, March 10, 2004 | Dizon

FACTS:

The Gomez spouses filed an action for specific performance and/or

rescission against the heirs of Jesus Trocino and his surviving spouse, CaridadTrocino. The spouses Trocino refused to convey ownership of two parcels of land to

petitioners, hence, the complaint.

On January 10, 1992, the Cebu RTCs Process Server served summons on

respondents, in the manner described in his "Return of Service," stating that

summons and copies of the complaint were served to the defendants Jacob, Jesus

Jr., Adolfo, Mariano, Consolacion, Alice, Racheal thru defendant Caridad Trocino at

their given address at Cebu City. On January 27, 1992, the defendants, through their

counsel Atty. Expedito P. Bugarin, filed their Answer. Defendant Caridad A. Trocino,

respondents mother, verified said pleading.The RTC rendered judgment in favor of

the Gomez spouses. Respondents Adolfo and Mariano Trocino filed with the Court of

Appeals, a petition for the annulment of the judgment rendered by the RTC-Cebualleging that the trial courts decision is null and void on the ground that it did not

acquire jurisdiction over their persons as they were not validly served with a copy of

the summons and the complaint. According to them, at the time summons was

served on them, Adolfo Trocino was already in Ohio, U.S.A., while Mariano Trocino

was in Talibon, Bohol, and has been residing there since 1986. They also refuted the

receipt of the summons by Caridad A. Trocino, and the representation made by Atty.

Bugarin in their behalf. The CA granted the petition and annulled the RTCs decision.

ISSUE:

W/N summonses were effectively served on all respondents.

HELD:

NO. Summons is a writ by which the defendant is notified of the action

brought against him. Service of such writ is the means by which the court acquires

jurisdiction over his person.Any judgment without such service in the absence of a

valid waiver is null and void.

To resolve whether there was valid service of summons on respondents, the

nature of the action filed against them must first be determined. As the Court

explained inAsiavest Limited vs. Court of Appeals ,it will be helpful to determine first

whether the action is in personam, in rem, or quasi in rem because the rules on

service of summons under Rule 14 apply according to the nature of the action.

In actions in personam, summons on the defendant must be served by

handing a copy thereof to the defendant in person, or, if he refuses to receive it, by

tendering it to him. This is specifically provided in Section 7, Rule 14 of the Rules of

Court. When the defendant in an action in personam is a non-resident who does not

voluntarily submit himself to the authority of the court, personal service of summons

within the State is essential to the acquisition of jurisdiction over his person. Thiscannot be done if the defendant is not physically present in the country, and thus,

the court cannot acquire jurisdiction over his person and therefore cannot validly try

and decide the case against him. An exception was accorded in Gemperle vs.

Schenkerwherein service of summons through the non-residents wife, who was a

resident of the Philippines, was held valid, as the latter was his representative and

attorney-in-fact in a prior civil case filed by the non-resident, and the second case

was merely an offshoot of the first case.

Meanwhile, in actions in rem or 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, although summons must be served upon

the defendant in order to satisfy the due process requirements. Thus, where thedefendant is a non-resident who is not found in the Philippines, and (1) the action

affects the personal status of the plaintiff; (2) the action relates to, or the subject

matter of which is property in the Philippines in which the defendant has or claims a

lien or interest; (3) the action seeks the exclusion of the defendant from any interest

in the property located in the Philippines; or (4) the property of the defendant has

been attached in the Philippines, summons may be served extraterritorially 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.

In the present case, petitioners cause of action is anchored on the claim

that the spouses Jesus and Caridad Trocino reneged on their obligation to convey

ownership of the two parcels of land subject of their sale. Thus, petitioners pray in

their complaint that the spouses Trocino be ordered to execute the appropriate

deed of sale and that the titles be delivered to them; or in the alternative, that the

sale be revoked and rescinded. The action instituted by petitioners affect the parties

alone, not the whole world. Hence, it is an action in personam, i.e., any judgment

therein is binding only upon the parties properly impleaded.

Contrary to petitioners belief, the complaint they filed for specific

performance and/or rescission is not an action in rem. While it is a real action

because it affects title to or possession of the two parcels of land, it does not

automatically follow that the action is already one in rem. In Hernandez vs. Rural

Bank of Lucena, Inc., the Court made the following distinction: In a personal action,
http://www.lawphil.net/judjuris/juri1998/sep1998/gr_128803_1998.htmlhttp://www.lawphil.net/judjuris/juri1998/sep1998/gr_128803_1998.htmlhttp://www.lawphil.net/judjuris/juri1998/sep1998/gr_128803_1998.htmlhttp://www.lawphil.net/judjuris/juri1998/sep1998/gr_128803_1998.html


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the plaintiff seeks the recovery of personal property, the enforcement of a contract

or the recovery of damages. In a real action, the plaintiff seeks the recovery of real

property, or, as indicated in section 2(a) of Rule 4, a real action is an action affecting

title to real property or for the recovery of possession, or for partition or

condemnation of, or foreclosure of a mortgage on, real property. An action in

personam is an action against a person on the basis of his personal liability, while anaction in rem is an action against the thing itself, instead of against the person.

Hence, a real action may at the same time be an action in personam and not

necessarily an action in rem.

The objective sought in petitioners complaint was to establish a claim

against respondents for their alleged refusal to convey to them the title to the two

parcels of land that they inherited from their father, Jesus Trocino, who was one of

the sellers of the properties to petitioners. Hence, to repeat, the case is an action in

personam because it is an action against persons, namely, herein respondents, on

the basis of their personal liability. As such, personal service of summons upon the

defendants is essential in order for the court to acquire of jurisdiction over their

persons.

A distinction, however, must be made with regard to service of summons on

respondents Adolfo Trocino and Mariano Trocino. Adolfo Trocino, as records show, is

already a resident of Ohio, U.S.A. for 25 years. Being a non-resident, the court cannot

acquire jurisdiction over his person and validly try and decide the case against him.

On the other hand, Mariano Trocino has been in Talibon, Bohol since 1986. To validly

acquire jurisdiction over his person, summons must be served on him personally, or

through substituted service, upon showing of impossibility of personal service. Such

impossibility, and why efforts exerted towards personal service failed, should be

explained in the proof of service. The pertinent facts and circumstances attendant to

the service of summons must be stated in the proof of service or Officers Return.

Failure to do so would invalidate all subsequent proceedings on jurisdictional

grounds.

In the present case, the process server served the summons and copies of the

complaint on respondents Jacob, Jesus, Jr., Adolfo, Mariano, Consolacion, Alice and

Racheal,through their mother, Caridad Trocino. The return did not contain any

particulars as to the impossibility of personal service on Mariano Trocino within a

reasonable time. Such improper service renders the same ineffective. Moreover,

inasmuch as the sheriffs return failed to state the facts and circumstances showing

the impossibility of personal service of summons upon respondents within a

reasonable time, petitioners should have sought the issuance of an alias summons.

Under Section 5, Rule 14 of the Rules of Court, alias summons may be issued when

the original summons is returned without being served on any or all of the

defendants. Petitioners, however, did not do so, and they should now bear the

consequences of their lack of diligence.

The fact that Atty. Expedito Bugarin represented all the respondents

without any exception does not transform the ineffective service of summons into avalid one. It does not constitute a valid waiver or even a voluntary submission to the

trial courts jurisdiction. There was not even the slightest proof showing that

respondents authorized Atty. Bugarins appearance for and in their behalf. The

records show that in all the pleadings which required verification, only Caridad

Trocino signed the same. There was never a single instance where defendant heirs

signed the pleading. The fact that a pleading is signed by one defendant does not

necessarily mean that it is binding on a co-defendant.

Since the defendant heirs are co-defendants, the trial court should have

verified the extent of Atty. Bugarins authority when petitioners failed to appear as

early as the pre-trial stage, where the parties are required to appear. The absence of

the defendant heirs should have prompted the trial court to inquire from the lawyerwhether he was also representing the other petitioners. As co-defendant and co-

heirs over the disputed properties, the defendant heirs had every right to be present

during the trial. Only Caridad Trocino appeared and testified on her own behalf. All

the defenses raised were her own, not the defendant heirs.

Consequently, the judgment sought to be executed against respondents

were rendered without jurisdiction as there was neither a proper service of

summons nor was there any waiver or voluntary submission to the trial courts

jurisdiction. Hence, the same is void, with regard to private respondents except

Caridad Trocino. It must be pointed out that while it was the spouses Jesus and

Caridad Trocino who sold the properties to petitioners, their right to proceed against

Jesus Trocino when he died was passed on to his heirs, which includes respondents

and Caridad Trocino. When the process server personally served the summons on

Caridad Trocino, the trial court validly acquired jurisdiction over her person alone.

Hence, the trial courts decision is valid and binding with regard to her, but only in

proportion to Caridad Trocinos share.

MOTIONS

National Commercial Bank of Saudi Arabia v. Court of Appeals

G. R. No. 124267, January 31, 2003 | Enriquez


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Ong Yong v. Tiu

G. R. No. 1444476, April 8, 2003 | Escosia

FACTS:

In 1994, the construction of the Masagana Citimall in Pasay City was

threatened with stoppage and incompletion when its owner, the First Landlink AsiaDevelopment Corporation (FLADC), which was owned by the Tius, encountered dire

financial difficulties. It was heavily indebted to (PNB) for P190 million. To stave off

foreclosure of the mortgage on the two lots where the mall was being built, the Tius

invited the Ongs, to invest in FLADC. Under the Pre-Subscription Agreement they

entered into, the Ongs and the Tius agreed to maintain equal shareholdings in

FLADC: the Ongs were to subscribe to 1M shares at a par value of P100.00 each while

the Tius were to subscribe to an additional 549,800 shares at P100.00 each in

addition to their already existing subscription of 450,200 shares. Furthermore, they

agreed that the Tius were entitled to nominate the Vice-President and the Treasurer

plus 5 directors while the Ongs were entitled to nominate the President, the

Secretary and 6 directors (including the chairman) to the board of directors ofFLADC. Moreover, the Ongs were given the right to manage and operate the mall.

Accordingly, the Ongs paid P100M in cash for their subscription to 1M shares of

stock. The Ongs paid in another P70M to FLADC and P20M to the Tius over and

above their P100M investment, the total sum of which (P190M) was used to settle

the P190 million mortgage indebtedness of FLADC to PNB. The business harmony

between the Ongs and the Tius in FLADC, however, was shortlived because the Tius,

on 23 February 1996, rescinded the Pre-Subscription Agreement.

The Tius accused the Ongs of (1) refusing to credit to them the FLADC

shares covering their real property contributions; (2) preventing David S. Tiu and Cely

Y. Tiu from assuming the positions of and performing their duties as Vice-President

and Treasurer, respectively, and (3) refusing to give them the office spaces agreed

upon. After hearing, the SEC, through then Hearing Officer Rolando G. Andaya, Jr.,

issued a decision confirming the rescission sought by the Tius. The SEC en banc

confirmed the rescission of the Pre-Subscription Agreement but reverted to

classifying the P70 million paid by the Ongs as premium on capital and not as a loan

or advance to FLADC, hence, not entitled to earn interest.

Their MR to the CA having been denied, both parties filed separate petitions

for review before the Supreme Court. The SC affirmed the assailed decision of the CA

but with the modifications that the P20 million loan extended by the Ongs to the Tius

shall earn interest at 12% per annum to be computed from the time of judicial

demand which is from 23 April 1996; that the P70 million advanced by the Ongs to

the FLADC shall earn interest at 10% per annum to be computed from the date of the

FLADC Board Resolution which is 19 June 1996; and that the Tius shall be credited

with 49,800 shares in FLADC for their property contribution, specifically, the 151 sq.

m. parcel of land. The Court affirmed the fact that both the Ongs and the Tius

violated their respective obligations under the Pre-Subscription Agreement.

The Tius filed to the SC Motion for Issuance of a Writ of Execution on thegrounds that: (a) the SEC order had become executory as early as September 11,

1998 pursuant to Sections 1 and 12, Rule 43 of the Rules of Court; (b) any further

delay would be injurious to the rights of the Tius since the case had been pending for

more than six years; and (c) the SEC no longer had quasi-judicial jurisdiction under

RA 8799 (Securities Regulation Code).

The Ongs filed their opposition, contending that the SEC order was not yet

final and executory; that no good reason existed to issue a warrant of execution; and

that, pursuant to Section 5.2 of RA 8799, the SEC retained jurisdiction over pending

cases involving intra-corporate disputes already submitted for final resolution upon

the effectivity of the said law. Also, the Ongs filed their own Motion for Partial

Reconsideration, raising two main points: (a) that specific performance and notrescission was the proper remedy under the premises; and (b) that, assuming

rescission to be proper, the subject decision of this Court should be modified to

entitle movants to their proportionate share in the mall.

The Tius, in their opposition to the Ongs MR, counter that the arguments

therein are a mere re-hash of the contentions in the Ongs petition for review and

previous MR of the CAs decision, and is therefore pro-forma and did not prevent the

Decision of the SC from attaining finality.

ISSUE:

W/N the Ongs MR should be granted.

HELD:

Yes. After a thorough re-examination of the case, the Court found that its

Decision of February 1, 2002 overlooked certain aspects which, if not corrected, will

cause extreme and irreparable damage and prejudice to the Ongs, FLADC and its

creditors.

The procedural rule on pro-forma motions pointed out by the Tius should

not be blindly applied to meritorious motions for reconsideration. As long as the

same adequately raises a valid ground (i.e., the decision or final order is contrary to

law), the SC has to evaluate the merits of the arguments to prevent an unjust

decision from attaining finality. In Security Bank and Trust Company vs. Cuenca, the


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SC ruled that a motion for reconsideration is not pro-forma for the reason alone that

it reiterates the arguments earlier passed upon and rejected by the appellate

court. A movant may raise the same arguments, if only to convince the SC that its

ruling was erroneous. Moreover, the rule (that a motion is pro-forma if it only

repeats the arguments in the previous pleadings) will not apply if said arguments

were not squarely passed upon and answered in the decision sought to bereconsidered. In the case at bar, no ruling was made on some of the petitioner Ongs

arguments. For instance, no clear ruling was made on why an order distributing

corporate assets and property to the stockholders would not violate the statutory

preconditions for corporate dissolution or decrease of authorized capital stock. Thus,

it would serve the ends of justice to entertain the subject motion for reconsideration

since some important issues therein, although mere repetitions, were not

considered or clearly resolved by the SC.

In the of the Petition for Habeas Corpus of Benjamin Vergara v. Gedorio

G. R. No. 154037, April 30, 2003 | Estorninos

Gan v. Reyes

G. R. No. 145527, May 28, 2002 | Fortea

FACTS:

Quite apprehensive that she would not be able to send to school her three

3-year old daughter Francheska Joy S. Pondevida, Bernadette S. Pondevida wrote

petitioner Augustus Caezar R. Gan demanding support for their "love child."

Petitioner, in his reply, denied paternity of the child. An exasperated Bernadette

thereafter instituted in behalf of her daughter a complaint against petitioner for

support with prayer for supportpendente lite.

Petitioner moved to dismiss on the ground that the complaint failed to state

a cause of action. He argued that since Francheska's certificate of birth indicated herfather as "UNKNOWN," there was no legal or factual basis for the claim of support.

His motion was denied. Despite denial of his motion, petitioner failed to file his

answer within the reglementary period. On 19 January 2000 private respondent

moved that petitioner be declared in default, which motion was granted. In

its Orderdeclaring petitioner in default the trial court noted that petitioner's Motion

to Admit Answer was filed more than ninety (90) days after the expiration of the

reglementary period.

After finding that the claim of filiation and support was adequately proved,

the trial court rendered its Decisionon 12 May 2000 ordering petitioner to recognize

private respondent Francheska Joy S. Pondevida as his illegitimate child and support

her with P20,000.00 every month to be paid on or before the 15th of each month

starting 15 April 2000. Likewise petitioner was also ordered to pay the accumulated

arrears from the day she was born, attorney's fees and expenses of litigation,

plus P20,000.00 on or before the 15th of every month from 15 May 2000 as

alimonypendente lite should he desire to pursue further remedies against privaterespondent.

Private respondent moved for execution of the judgment of support, which

the trial court granted by issuing a writ of execution, citing as reason Francheska's

immediate need for schooling.Pursuant to the writ, the sheriff levied upon a motor

vehicle, a Honda City, registered in the name of "A.B. Leasing & Fin. Corp., Leased to:

G & G Trading," and found within the premises of petitioner's warehouse in Caloocan

City.

Petitioner appealed to the CA but his petition was denied with the

ratiocination that judgements for support are immediately executory and cannot be

stayed by an appeal.

ISSUE:

Was there GADLEJ on the part of the trial court in its issuance of the writ of

execution?

HELD:

No. Section 4, Rule 39, of the Rules of Court clearly states that, unless

ordered by the trial court, judgments in actions for support are immediately

executory and cannot be stayed by an appeal. This is an exception to the general rule

which provides that the taking of an appeal stays the execution of the judgment and

that advance executions will only be allowed if there are urgent reasons therefor.

The aforesaid provision peremptorily calls for immediate execution of all judgments

for support and makes no distinction between those which are the subject of anappeal and those which are not. To consider then petitioner's argument that there

should be good reasons for the advance execution of a judgment would violate the

clear and explicit language of the rule mandating immediate execution.

The court also found the petitioners attempts to delay the execution. As

the records show, in partial fulfilment of the writ of execution, petitioner

surrendered a sedan which was not his and was later ordered to be released to a

third party who laid claim over the vehicle.

Moreover, the Court finds no useful purpose to dwell on petitioners

arguments concerning the validity of the judgment by default and the paternity


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issue. It s not for the SC at this instance to review or revise the decision of the RTC. In

all cases involving a child, his paramount interest and welfare are always the

paramount concerns.

Mutilan v. Andiong

Adm. Matter No. RTJ-00-1581, July 2, 2002 | Garcia-Morera

Gochan v. Gochan

G. R. No. 143089, February 27, 2003 | Grapilon

FACTS:

Allegations and perceptions of bias from the mere tenor and language of a

judge is insufficient to show prejudgment. Allowing inhibition for these reasons

would open the floodgates to abuse. Unless there is concrete proof that a judge has

a personal interest in the proceedings, and that his bias stems from an extra-judicial

source, this Court shall always commence from the presumption that a magistrate

shall decide on the merits of a case with an unclouded vision of its factsThis is a Petition for Review on Certiorariunder Rule 45 of the Resolution of

the Court of Appeals (CA) granting that Judge Dicdican should inhibit himself from

the civil case (Complaint for Specific Performance and Damages) based on bias and

partiality.

Basically, Judge Dicdican denied the several motions of the respondents

and since they believe that the Judge was biased and partial, the Judge ruled

against them.

On Appeal, The CA opined that the apprehensions of respondents about the

bias or partiality of Judge Dicdican in favor of petitioners were well-founded.

The CA based its ruling on the following circumstances pointed out by

respondents:

1.

Judge Dicdican denied the Motion to Hear Affirmative Defenses filed byrespondents, but in the same Order ruled on its merits without giving them an

opportunity to be heard.

2. The above Order of the judge was too well-prepared to be extemporaneous,

leading respondents to suspect that he was bent on deciding the case in favor of

petitioners.

3. Without indicating for the record respondents objections, Judge Dicdican

admitted all exhibits of petitioners and even allowed their witnesses to answer

all questions, even if he had not yet resolved the applicability of the Statute of

Frauds.

4. The judge denied respondents requests for postponements, which were

reasonable and justified under the circumstances. Further, during the April 28,

1999 hearing, he allowed petitioners to present their witnesses even in the

absence of respondents counsel. And, knowing that the counsel was absent

when those witnesses testified in the previous hearing, the judge forced him to

cross-examine them in the subsequent April 30, 1999 hearing.5. During the hearing for respondents Motion for Inhibition, the judge started to

hear the case before the scheduled time.

6. Judge Dicdican issued a Pretrial Order stating that the possibility of a

compromise was "nil" despite the pretrial manifestation of respondents counsel

that the parties were willing to explore the possibility of a compromise.

ISSUE:

1. Whether respondents are guilty of forum shopping.

2. Whether Judge Dicdican should have inhibited himself.

HELD:1. NO.

2. The Petition is meritorious insofar as the second issue is concerned. Judge

Dicdican need not inhibit himself. A judge may, in the exercise of his sound

discretion, disqualify himself from sitting in a case, for just or valid reasons other

than those mentioned above.

The Rules contemplate two kinds of inhibition: compulsory and voluntary.

The instances mentioned in the first paragraph of the cited Rule conclusively

presume that judges cannot actively and impartially sit in a case. The second

paragraph, which embodies voluntary inhibition, leaves to the discretion of the

judges concerned whether to sit in a case for other just and valid reasons, with only

their conscience as guide.The Supreme Court has said that bias and prejudice, to be considered valid

reasons for the voluntary inhibition of judges, must be proved with clear and

convincing evidence

Denial of Respondents Motion to Hear Affirmative Defenses

The fact that respondents Motion for Hearing was denied does not by itself

show bias and partiality. Clearly, Judge Dicdican based his denial on the Rules of

Court, according to which a preliminary hearing on affirmative defenses is indeed

discretionary on the part of a judge. Thus, Judge Dicdican cannot be charged with


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bias and partiality, merely on the basis of his decision not to grant a motion for a

preliminary hearing.

Judge Dicdicans Orderdenying respondents Motion for Hearing was based

on the pleadings filed by both parties. Respondents filed their Motion to Hear

Affirmative Defenses, while petitioners filed their Comment to the Motion. Thus, it

cannot be said that respondent judge arbitrarily ruled thereon. He thereafterallowed the respondents and petitioners to file their Motion for Reconsideration and

Opposition, respectively, before deciding on the matter again.

Character of the Order Denying Respondents Motion

Respondents further argue that before hearing their Motion to Hear

Affirmative Defenses, Judge Dicdican had already prepared an Order denying their

plea. This is an allegation that they have not been able to prove. We cannot rely

merely on their submissions that he was in fact bent on ruling against them.

The argument that the Order of Judge Dicdican was too scholarly to be

extemporaneous is merely the conjecture of respondents. This characterization does

not show in any way that he was biased or partial. Besides, as earlier adverted to,both the Motion and the Comment thereto had been filed days before the hearing

thereon. It is not unusual -- in fact, it is expected -- that the judge would study the

Motion and the Comment filed before him. If he prepared well for the arguments, he

should be commended, not faulted.

Admission of Petitioners Exhibits Without indicating Respondents Objections

We cannot see how such an Order would translate to bias and partiality.

Respondents argue the judge should have indicated their objections for the record.

But it is clear that he indeed allowed them to

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