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REMEDIAL LAW REVIEW (ATTY.

TRANQUIL SALVADOR III)


PRELIMINARY CONFERENCE (Missing Case)
Montemayor v. Bermejo
A.M. No. MTJ-04-1535, March 12, 2004 | Abu

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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 petitionerplaintiff. 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 petitioners
counsel, 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 service and filing is 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
the prima 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 of
justice.
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 the
offices 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
facie meritorious. 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 in Alonso 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
or Alonzo v. Villamor and 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,
th
or on the 39 day following the effectivity of the 1997 Rules).

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Musa v. Amor
G. R. No. 141396, April 9, 2002 | Ang

Lapid v. Laurea
G. R. No. 139607, October 28, 2002 | Angliongto

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 prompted
petitioners, 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.

FACTS:

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.

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 6
November 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 school
employee. 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 for
certiorari 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. Tuazon
G.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 the
Cerezo 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 declared
in 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 Appeals enumerates 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; and
4. 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 on 25
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 judgment
within 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 certiorari assailing 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 same
where 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 juridically
unassailable.
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 Sugbu and 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 indispensable
party. 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 during
trial, 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.

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 have
answered, 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.

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 defective
complaint 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?

FACTS:

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.

Philippine Export and Foreign Loan Guarantee Corporation v.


Philippine Infrastructures, Inc.
G.R. No. 120384, January 13, 2004 | Canilao

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


complaint for a sum of money against Philippine Infrastructure Inc. (PII). It alleges
that 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 as
an 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. The
provision 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. Where
no 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.

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:

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
st
him that Fr. Maximo left for Europe, and will be back on the 1 week of November.
nd
Actually, Fr. Maximo returned about the 2 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

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 personam is 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 reasonably calculated 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 be
temporarily 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 presumes
that 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 personam as 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 in
Sections 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 extended
thereafter; 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 exparte, 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 was
effected, 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 quo denied 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 personam and actions in rem or quasi in rem differ in that
actions in personam are directed against specific persons and seek personal
judgments. On the other hand, actions in rem or 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 defendant
who 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 nonresident 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 not
examine 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 for
the 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 summons Invalid
W/N the CA erred in dismissing the petition of the petitioner Yes
HELD:
An original action in the CA under Rule 47 to annul a judgment or final order
or 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, Caridad
Trocino. 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-Cebu
alleging 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 in Asiavest 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. This
cannot 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.
Schenker wherein 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 the
defendant 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,

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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 an
action 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 a
valid 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 lawyer
whether he was also representing the other petitioners. As co-defendant and coheirs 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 Asia
Development 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 of
FLADC. 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 the
grounds 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 not
rescission 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 be
reconsidered. 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

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
alimony pendente lite should he desire to pursue further remedies against private
respondent.
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?

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 support pendente 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 her
father 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 Order declaring 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 Decision on 12 May 2000 ordering petitioner to recognize

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 an
appeal 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.

4.

Mutilan v. Andiong
Adm. Matter No. RTJ-00-1581, July 2, 2002 | Garcia-Morera
5.
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 facts
This is a Petition for Review on Certiorari under 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 by
respondents, 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.

6.

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.
During the hearing for respondents Motion for Inhibition, the judge started to
hear the case before the scheduled time.
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 Order denying 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 thereafter
allowed 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 file their Comment/Objections to
petitioners Formal Offer. It is enough that he allowed both parties to be heard, and
that he decided based on their submissions.
Respondents have not shown that they were in any way denied their right
to object to questions propounded in the course of the hearing. They simple did not
raise any objections.
Denial of Requests for Postponement and the Forced Cross-Examination of Witnesses
A motion for continuance or postponement is not a matter of right, but a
request addressed to the sound discretion of the court. Parties asking for
postponement have absolutely no right to assume that their motions would be
granted. Thus, they must be prepared on the day of the hearing

Moreover, respondents cannot claim that all their requests were turned
down by Judge Dicdican. This Court takes notice of the fact that respondents asked
for an extension of time to file their answer and later asked for two postponements
of the pretrial. In fact, when the pretrial was finally set for August 11, 1998, they
then filed their Motion to Hear Affirmative Defenses. And when the judge denied it,
they again asked for a postponement of the pretrial, a request that was readily
granted by the trial court.
What further militates against respondents counsel is his excuse that he
was informed by a court personnel that his Motion to Reset had been granted.
Supposedly because of this information, the counsel was under the impression that
there would be no hearing on the last scheduled date. His assumption that his
motion to reset would be granted was bad enough. What was worse was that, in
following up the proceedings of the case, he relied on the unauthorized
communication of an unidentified court personnel. He could have easily verified if
there was a hearing, and what transpired if it indeed there was one. This is the duty
imposed upon lawyers.
Declaration of the Absence of the Possibility of a Compromise
From the time the original Complaint was filed up to the date of the pretrial,
the parties had more than seven months to enter into a compromise agreement.
This was more than sufficient time. It escapes this Court why, exactly on the day of
the pretrial, respondents suddenly informed the court that it was exploring the
possibility of a settlement. Besides, their absence during the pretrial negated the
sincerity of their desire to enter into a settlement.
East Asia Traders, Inc. v. Republic
G.R. No.152947, July 7, 2004 | Gregorio
Petilla v. Court of Appeals
G.R. No. 150792, March 3, 2004 | Gregorio
Alvarez v. Diaz
A.M. No. MTJ-00-1283, March 3, 2004 | Jalipa

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University of Immaculate Concepcion v. Secretary of Labor and Employment
G.R. No. 143557, June 25, 2004 | Lantion
FACTS:
Respondent DOLE Engineer Avinante sent to petitioner university a notice
requesting inspection of various documents but was repeatedly denied by petitioner.
Petitioner filed a motion seeking to enjoin the inspection of records. This led
Avinante to issue a notice of inspection results specifying labor law, safety, and
health violations. The DOLE Regional Director issued an order finding petitioner liable
for violation of said laws. DOLE Secretary affirmed. Petitioners filed a motion for
reconsideration but was denied. Petitioners filed a second motion for
reconsideration, but it was merely noted without action, the same being prohibited.
Petitioner filed a petition for review on certiorari, which was dismissed by
the CA for being late. The CA held: only one motion for reconsideration of the
judgment, order or resolution assailed is allowed for purposes of interrupting the
sixty (60) day period for filing a petition for certiorari. Inasmuch that petitioners
allowed four (4) days to lapse from receipt of the Order dated May 2, 1997 before
filing a motion for reconsideration thereof, they had only fifty-six (56) days left from
May 5, 1998, when they received a copy of the order dated April 23, 1998 denying
said motion for reconsideration, or until June 30, 1998, within which to file the
petition for certiorari. However, it was only on May 13, 1999 that the instant
petition was filed. Petitioners argue a second motion for reconsideration is allowed
for purposes of tolling the period within which to file a petition for certiorari.
ISSUE:
W/N CA erred in dismissing the petition for being filed out of time.
HELD:
Yes. Certiorari, being an extraordinary remedy, the party who seeks to avail
of the same must strictly observe the rules laid down by law. The remedy of an
aggrieved party in a Decision or Resolution of the Secretary of the DOLE is to timely
file a motion for reconsideration and then seasonably file a special civil action for
certiorari under Rule 65 within 60 days from receipt of DOLE Secs denial of the MR.
In the instant petition, it may be recalled that upon receipt on May 5, 1998
of the April 23, 1998 Order of the Office of the DOLE Secretary denying their motion
for reconsideration, petitioners, on May 20, 1998, filed a second motion for
reconsideration, a prohibited motion. It was only on May 13, 1999 that petitioners
filed a petition for certiorari. Clearly, petitioners incurred a delay of almost one year.

Even if petitioners second motion is in order, however, it is a pro


forma motion. As aptly stated by the Court of Appeals, "the second motion for
reconsideration filed by petitioners was a mere reiteration of the arguments raised
in their first motion for reconsideration and passed upon in the Order dated April
23, 1998."
In Vda de Espina vs. Abaya, we held that a second motion for
reconsideration, being pro-forma, does not suspend the period to file a petition for
certiorari, thus:
"The grounds stated in said motion being in reiteration of the same
grounds alleged in his first motion, the same is pro-forma. Furthermore,
the second motion for reconsideration has not stated new
grounds considering that the alleged failure of the Clerk of Court to set
plaintiffs' motion for reconsideration, although seemingly a different ground
than those alleged in their first motion for reconsideration, is only incidental
to the issues raised in their first motion for reconsideration, as it only refers
to the right of plaintiffs' counsel to argue his motion in court just to amplify
the same grounds already denied by the court.Therefore, it is very evident
that the second motion for reconsideration being pro-forma did not
suspend the running of the period of filing a petition for certiorari or
appeal, as the case may be."
PRE-TRIAL
Saguid v. Court of Appeals
G. R. No. 150611, June 10, 2003 | Lo
Republic of the Philippines v. Court of Appeals
G. R. No. 116463, June 10, 2003 | Lugtu
FACTS:
Private respondent Navotas Industrial Corporation (NIC) is a corporation
engaged in dredging operations throughout the Philippines. The Petitioner, DPWH,
awarded NIC P194,454,000.00 worth of dredging work in four contracts for
completion within 350 calendar days.
NIC contends that it accomplished 95.06 percent of the required total
volume of work or P184,847,970.00 worth of services based on an alleged evaluation
by DPWH. However, it maintains that DPWH paid only 79.22 percent of the
accomplished work, leaving a balance ofP30,799,676.00.

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On 20 September 1988, NIC filed a complaint for sum of money with the
Malabon trial court against the Republic of the Philippines, thru the DPWH.
In its Answer, petitioner contends that NIC is not entitled to the amount
claimed. It is alleged that the DPWH fact-finding committee discovered that the
dredging contracts of NIC with DPWH were null and void. Petitioner claims that NIC
worked on the project five or six months before the award of the dredging contracts
to NIC. The contracts of NIC were awarded without any public bidding. Moreover,
DPWH discovered that NIC, through its corporate officers, connived with some
DPWH officials in falsifying certain public documents to make it appear that NIC had
completed a major portion of the project, when no dredging work was actually
performed. Petitioner thus filed a counterclaim for the return of
the P146,962,072.47 plus interest and exemplary damages of P100 million.
Meanwhile, DPWH decided to file cases against former DPWH Minister
Hipolito, other DPWH officials, and the president of NIC for estafa thru falsification of
public documents and for violation of Republic Act No. 3019.
Petitioner filed a motion to consolidate the sum of money case and the
estafa case, but this was denied by the lower court and by the Court of Appeals.
On 12 September 1994, petitioner filed with the Court this petition for
review.
In its Comment, NIC seeks the dismissal of the petition on the ground that it
was not served on time. Petitioner admittedly filed two motions for extension of
time, each for fifteen days. The last day for filing the second motion for extension
was on 11 September 1994. NIC, however, asserts that a copy of the petition was
sent by registered mail to its counsel only on 12 September 1994 or a day after the
last day for filing.
ISSUE:
W/N the petition was filed on time.
HELD:
NIC harps on the fact that the petition was sent by registered mail only on
12 September 1994, when the last day for filing was on 11 September 1994. NIC,
however, overlooked one significant fact. The last day for filing, 11 September 1994,
fell on a Sunday.
Based on Section 1, Rule 22 of the Rules of Court, and as applied in several
cases, where the last day for doing any act required or permitted by law falls on a
Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall
not run until the next working day. Thus, petitioner filed on time its petition on 12

September 1994, the next working day, following the last day for filing which fell on
a Sunday.
Leonardo v. S.T. Best, Inc.
G.R. No. 142066, February 6, 2004 | Nieves
United Coconut Planters Bank v. Magpayo
G.R.No. 149908, May 27, 2004 | Ong
FACTS:
This is a petition for certiorari to review the decision of the CA, which
overturned the order of dismissal of the RTC of Paraaque.
Respondent filed a case for reimbursement of a sum of money and
consequent damages. After petitioners answer was filed, pre-trial was set on
September 26, 1997 at 1:30 p.m. When the case was called, only the respondents
counsel was present. Asked if he had a special power of attorney, counsel replied
that he had, but he left it in the office. Hence, the petitioner moved to declare the
respondent non-suited, pursuant to Rule 18, Sec. 5 of the Rules of Court.
Accordingly, the trial court issued an Order of Dismissal for failure to prosecute.
Respondent thus filed an Omnibus Motion stating therein that he arrived at
the court at around 2:00 p.m. and that he did not intend to be late for the pre-trial,
but the traffic at the South Superhighway was heavy due to construction work. He
attached copies of two powers of attorney which were dated May 20, 1997 and
6
September 24, 1997 respectively as proof that there indeed was a special power of
attorney executed but that respondents counsel forgot to bring it to the pre-trial.
Respondent prayed that the dismissal order be reversed and the trial court inhibit
itself from hearing the case.
RTC found the motion unmeritorious and affirmed the dismissal of the case.
On appeal, the CA reversed, stating that the Rules of Court is not cast in stone, and
that this case did not show either an evident scheme to delay the disposition of the
case, nor a wanton failure to observe the mandatory requirements of the rules. The
CA also gave credence to the manifestation of respondents counsel that he had a
special power of attorney from his client, which was attached to the appeal.
ISSUE:
W/N the CAs reversal of the RTCs dismissal was in accord the Rules of Court and
jurisprudence.

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HELD:
No. Heavy traffic as a reason for tardiness cannot be accepted as a valid
cause to warrant the relaxation of Section 4, Rule 18 of the Rules of Civil Procedure.
Moreover, the heavy traffic referred to was not sudden or unexpected. It was caused
by the construction of the skyway along the South Superhighway. The respondent is
a resident of Paraaque and conducts his business in Calamba, Laguna. It may be
easily assumed that he had prior knowledge of recurrent traffic buildup at the South
Superhighway, as he most surely would have been frequently traversing the same.
As such, respondents omission is one that falls short of being either due to
excusable negligence or a valid cause.
That respondents counsel was equipped with a special power of attorney,
which he allegedly forgot to bring at the pre-trial, deserves hardly any consideration.
Section 4, Rule 18, of the Rules of Civil Procedure is clear and unambiguous.
Respondents counsel, as representative, must have appeared in respondents behalf
fully authorized in writing.
Prior to the 1997 Rules of Court, a representative was allowed to establish
the authority needed by showing either a written special power of attorney or by
23
competent evidence other than the self-serving assertions of the representative.
Noteworthy is the fact that Section 4, Rule 18 of the 1997 Rules of Court is a new
provision; and requires nothing less than that the representative should appear in a
partys behalf fully authorized in writing to enter into an amicable settlement, to
submit to alternative modes of dispute resolution, and to enter into stipulations of
facts and of documents.
To uphold respondents position would be a setback to the improvement of
the old rules which the new provision wishes to make. It defeats the purpose of the
new provision, and is no better than the situation where the counsel appeared at the
pre-trial alone and assured the court that he had authority verbally given by the
party. The rules now require the special power of attorney be in writing because the
courts can neither second-guess the specific powers given to the representative, nor
can the courts assume that all the powers specified in Section 4 of Rule 18 are
granted by the party to his representative.
Villanueva v. Court of Appeals
G.R. No. 143286, April 14, 2004 | Ortiz

INTERVENTION
Nordic Asia Limited v. Court of Appeals
G. R. No. 1111159, June 10, 2003 | Padilla
DISCOVERY
Santos v. Philippine National Bank
G. R. No. 148218, April 29, 2002 | Posadas
FACTS:
The facts are not in dispute. Santos et.al. are the children of the deceased
Angel C. Santos. A few years after his death, petitioners discovered that the
decedent had a time deposit in PNB which was later converted to a Premium Savings
Account amounting to almost 2M. However, when Santos tried to withdraw from
the deposit, the bank, its branch manager, disallowed the withdrawal on the ground
that a certain Bernardito Manimbo had claimed the deposit and had in fact
withdrawn considerable amounts a few years before. PNB claimed that Manimbo
had presented (1) an Affidavit of Self-Adjudication allegedly executed by Reyme L.
Santos, one of the petitioners in this case, in which it was made to appear that he
was the sole heir of Angel C. Santos; and (2) a Special Power of Attorney also
allegedly executed by petitioner Reyme L. Santos appointing Angel P. Santos and
Bernardito Manimbo his attorneys-in-fact.
Claiming that these documents were falsified, Santos et.al. brought suit
against PNB for recovery of the deposit in the RTC. PNB filed their answer to the
complaint, attaching mere photocopies the Affidavit and SPA.
Santos et.al. filed a motion for the production of the originals of the
documents offered in evidence by PNB and the examination of the documents by the
NBI, but their motion was denied by the trial court which directed them to seek the
assistance of the NBI without issuing an order to the NBI. For this reason, they wrote
the NBI requesting the examination of the documents but the NBI denied the
request, reiterating that the NBI could not examine the documents without
submission of the originals of the documents in question and a court order for the
examination of the same. They therefore brought a special civil action for certiorari
in the CA, but their action was likewise dismissed. Hence, this petition for review on
certiorari of the decision of the Court of Appeals and its resolution denying
reconsideration.

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ISSUE:
W/N the lower courts committed grave abuse of discretion in denying the motion for
the production of the originals and in not giving the order for the examination of the
same.
HELD:
Yes. The general rule, and indeed a fundamental principle of appellate
procedure, is that decisions of a trial court which lie in its discretion will not be set
aside on appeal. This is true whether the case is civil or criminal, and whether the
case is one at law or in equity. But where the exercise of discretionary power by an
inferior court affects adversely the substantial rights of a litigant, the exercise of such
discretion becomes a proper subject of review on appeal. Affirmative relief will be
granted upon a clear showing of a grave abuse of discretion. After all, the discretion
conferred upon trial courts is a sound discretion which should be exercised with due
regard to the rights of the parties and the demands of equity and justice.
In this case, the action of the Court of Appeals, in denying petitioners'
request for the production of documents used by respondent bank in its defense and
the examination of such documents by experts, amounts to a grave abuse of
discretion on the part of the appeals court. For contrary to the finding of the trial
court and the Court of Appeals, Santos et.al.s failure to secure assistance from the
NBI was not of their own making. A requirement of the NBI is that if documents are
the subject of litigation, the NBI will examine them only if an order is issued by a
court for their examination. Thus, Memorandum Order No. 78, s. 1998, of the
Director of the NBI states:
2. No examination shall be conducted by the Questioned Document Division
on any document if the case is already pending before the Prosecutor's
Office or any Judicial body without a written order coming from said body
directing the Bureau to conduct the examination;
Except for the court order and the submission of the originals of the
documents, petitioners complied with all these requirements. They submitted a
motion for examination of the documents, together with eighteen (18) specimen
signatures of petitioner Reyme L. Santos. They expressed their willingness to replace
the materials that would be used in the examination and to pay for the traveling
expenses of the experts who would testify. Clearly, it was up to the trial court to
determine whether an inspection should take place. The NBI merely held petitioners'
request in abeyance until the court issued an order and transmitted the specimen
signatures to the agency.

It has been held that where the requisite circumstances exist, a party may
be entitled to the production of records for inspection, copying, and photocopying as
a matter of right. The trial court was in error in ruling that the genuineness and due
execution of the questioned documents had been admitted by petitioners, thereby
foreclosing the possibility of having the signatures subjected to inspection and
handwriting analysis and preventing petitioners from contradicting respondents'
assertion that a valid withdrawal of the decedent's deposit had been made, when no
such admission had been made by them. PNB is thus ordered produce the originals
and the Court to direct the NBI to examine the same.
Duque v. Court of Appeals
G. R. No. 125383, July 2, 2002 | Reyes
FACTS:
Petitioner Duque filed a complaint with the RTC of Valenzuela against the
Spouses Bonifacio (SB). According to Duque, SB negotiated certain checks in
exchange for cash in the total amount of P270,000. Duque said that the SB told her
that they are holders in due course and that the checks are fully funded. However,
upon presentation of the checks they were dishonored. Duque repeatedly
demanded the SB to pay her but they refused to honor the checks.
Petitioner Valenzuela alleged that the SB did the same thing to her and they
owe her P432,000.
The Spouses Bonifacio denied all of the allegations of the petitioners. They
also claim that upon learning that they checks were returned to the petitioners they
made arrangements for settlement but only for the checks duly issued by them.
They also claim that "they do not owe that much" to either of the petitioners.
Several months after the Pre-trial the petitioners filed a Request for Admission and
they furnished the counsel of the Spouses Bonifacion. They requested that the
spouses admit that:
1. they negotiated with plaintiffs for valuable consideration the checks annexed to
the respective complaints;
2. defendant Edna M. Bonifacio signed separate promissory notes dated November
23, 1987, acknowledging that she is indebted to plaintiff Duque in the sum of
Two Hundred Seventy Thousand Pesos (P270,000.00) and to plaintiff Valenzuela
Four Hundred Thirty Two Thousand Pesos (P432,000.00), respectively; and
3. the plaintiffs in the two cases sent letters of demand to the defendants both
dated November 28, 1987 which the latter received on December 5, 1987.

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Using Rule 26 Section 1 and 2 of the Rules of Court, the RTC issued an order
saying that the spouses failure to respond is an implied admission. The RTC found in
favor of the petitioners. The CA vacated and set aside the decision of the RTC and
remanded the case back to the court of origin.
ISSUE:
1. W/N the failure of the private respondents to respond to the request for
admission by the petitioners is tantamount to an implied admission under
Sections 1 and 2, Rule 26 of the Rules of Court;
2. W/N there was personal service of the request on private respondents.
HELD:
1. No. This particular Rule seeks to obtain admissions from the adverse party
regarding the genuineness of relevant documents or relevant matters of fact
through requests for admissions to enable a party to discover the evidence of
the adverse side thereby facilitating an amicable settlement of the case or
expediting the trial of the same. However, if the request for admission only
serves to delay the proceeding by abetting redundancy in the pleadings, the
intended purpose for the rule will certainly be defeated.
The RTC should have considered the spouses failure to respond as an
implied admission. Matters #1 and #3 were already denied by the spouses in
their answer. Requiring a denial would be superflous.
Re: Matter #2, petitioners request for admission regarding the promissory
notes was defective because they did not attach the said promissory notes to
the request and the respondents were not previously furnished a copy of the
same. They failed to comply with the requirements of section 1 Rule 26.
2.

No. Records show that only the counsel of the respondents, Atty. H.G. Domingo,
Jr. was furnished copies of the requests. This is not sufficient compliance with
the Rules. According to the rules the request for admission must served to the
respondents and not to their counsel.

Larada v. Court of Appeals


G. R. No. 102390, February 1, 2002 | Escosia

picket line in front of the companys factory in Niugan, Cabuyao, Laguna.


Subsequently, the NLRC issued a TRO against the UFE. In order that it could transfer
its products from the Cabuyao factory to its warehouse in Taguig, Metro Manila
during the strike, Nestle hired the trucks of the Alimagno brothers. Representatives
of UFE and Nestle agreed to allow the entry of the trucks in the compound, but in
apparent bad faith, the Francis Santos (Nestle rep) signaled both the PC contingent
to disperse the strikers at the barricades in front of the plant gate, and the
overloaded cargo trucks waiting inside the compound to proceed with getting out of
the plant. This resulted in the arrest of 14 strikers and injuries to many others.
Now, Dr. Vied Vemir Garcia Hemedez was on his way home from
his masteral class at UP when his car collided with the sixth ten-wheeler truck leaving
the Nestle compound in full speed. The truck also side-swept a house off the road,
rammed down a beauty parlor, and run over and killed 2 persons sitting on a bench
near the parlor facing the Iglesia ni Cristo chapel. Dr. Hemedez also died as a result of
the vehicular accident.
Subsequently, the parents of Dr. Hemedez (Hemedez spouses) filed a
complaint for damages against Nestle, Jesus Alimagno (owner of truck), Santos
(Nestle rep), Pacifico Galasao (driver of truck), and PC/Capt. Rey Laada. All the
defendants denied their liability in their Answer. Thereafter, the Hemedez spouses
served the defendants a request for admission of the truth of the facts set forth in
their complaint and the genuineness of each of the documents appended thereto.
Through their respective counsel, Nestle et al. filed their verified answer to the
request for admission.
Contending that under Section 2 of Rule 26 of the Rules of Court the parties
themselves and not their counsel should personally answer the request for
admission and hence the answer filed by their counsel in their behalf was by nature
based on hearsay, they sought the striking out of said answers. RTC denied the
Hemedez spouses motion to strike. On appeal, the CA granted the motions to strike
out the answers subject of the requests for admission and declaring each of the
matters requested to be impliedly admitted, and remanding the case to the court a
quo for proper proceedings.
ISSUE:
May the counsel of a party to whom a written request for admission is addressed
under Section 1, Rule 26 of the Rules of Court, answer such request for his client?

FACTS:
The Union of Filipro Employees (UFE) declared a strike on account of alleged
unfair labor practices committed by Nestle Philippines, Inc. (Nestle) and put up a

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HELD:
Yes. Section 23 of Rule 138 provides that (a)ttorneys have authority to bind
their clients in any case by any agreement in relation thereto made in writing, and in
taking appeals, and in all matters of ordinary judicial procedure x x x .
Thus, when Rule 26 states that a party shall respond to the request for
admission, it should not be restrictively construed to mean that a party may not
engage the services of counsel to make the response in his behalf.
In this case, neither is there a showing that petitioners Nestle and Santos
did not authorize their respective counsel to file in their behalf the respective
answers requested of them by private respondents in the latters written request for
admission. There is no reason to strictly construe the phrase the party to whom the
request is directed to refer solely or personally to the petitioners themselves.
Moreover, the subject matters of the request for admission are the same as
the ultimate facts alleged in the complaint for which private respondents have filed
their respective answers. A party should not be compelled to admit matters of fact
already admitted by his pleading and concerning which there is no issue, nor should
he be required to make a second denial of those already denied in his answer to the
complaint. A request for admission is not intended to merely reproduce or reiterate
the allegations of the requesting partys pleading but should set forth relevant
evidentiary matters of fact, or documents described in and exhibited with the
request, whose purpose is to establish said partys cause of action or defense. Unless
it serves that purpose, it is pointless, useless, and a mere redundancy.
The rule on admission as a mode of discovery is intended to expedite trial
and to relieve parties of the costs of proving facts which will not be disputed on trial
and the truth of which can be ascertained by reasonable inquiry. Thus, if the
request for admission only serves to delay the proceedings by abetting redundancy
in the pleadings, the intended purpose for the rule will certainly be defeated.
Moreover, Sec. 1 of Rule 26 requires that the request for admission must be served
directly upon the party requested. Otherwise, that party cannot be deemed to have
admitted the genuineness of any relevant matters of fact set forth therein on
account of failure to answer the request for admission. It is thus unfair and
unreasonable for private respondents to expect the petitioners to answer the
requests for admission that they in fact did not personally receive. Private
respondents failure to serve copies of the request for admission directly upon the
petitioners themselves suffices to warrant denial of the motion to strike out
petitioners responses to said request.
The application of the rules on modes of discovery rests upon the sound
discretion of the court. In the same vein, the determination of the sanction to be

imposed upon a party who fails to comply with the modes of discovery rests on the
same sound judicial discretion. It is the duty of the courts to examine thoroughly the
circumstances of each case and to determine the applicability of the modes of
discovery, bearing always in mind the aim to attain an expeditious administration of
justice.
Jonathan Landoil International Co., Inc. v. Mangudadatu
G.R. No. 1550110, August 16, 2004 | Saranillo
Manzano v. Despabiladares
G.R.No. 148786, December 16, 2004 | Sia
FACTS:
In 1989, respondent Luz Despabiladeras obtained on credit from petitioner
Roger Manzano various construction materials which she used in her construction
project at the Camarines Sur Polytechnic Colleges (CSPC). Petitioner claims that the
materials costs around P307K of which only P130K was paid by respondent despite
payment by CSPC for the project. Petitioner filed a sum of money claim with
damages in the RTC of Iriga City, in her answer with counterclaim respondent alleged
that petitioner substantially altered the cost of materials and that she made
additional payments via two checks (+P57K). In his reply, petitioner alleges that the
checks represented payment for other obligations.
The issues were joined and in the pre-trial, both parties agreed that
petitioner shall make an offer to stipulate to respondent to determine the cost of
the materials in dispute and the latter will state her comment or objections. Instead
of making an offer to stipulate, petitioner filed a request for admission asking
respondent to admit within 15 days that (1. That respondent received the materials
from petitioner and 2. Of the P307K, only P130K was paid by respondent).
Respondent did not answer. RTC ordered the requested facts be admitted confirmed
and later on ruled in favor of petitioner. CA set aside the decision of the RTC
ISSUE:
What is the legal consequence when a request for admission of material and
relevant facts pursuant to Rule 26 is not answered under oath within the period
stated in the Rules by a party litigant served therefore?

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HELD:
It is deemed to have been admitted. The agreement of the parties during
the pre-trial conference was that "the petitioner shall submit an offer to
stipulate showing an itemized list of construction materials delivered to the
respondent together with the cost claimed by the petitioner within fifteen 15 days
furnishing copy thereof to the respondent who will state her objections if any, or
comment thereon within the same period of time." In substantial compliance with
said agreement, petitioner chose to instead file a request for admission, a remedy
afforded by a party under Rule 26.
Respondent having failed to discharge what is incumbent upon her under
Rule 26, that is, to deny under oath the facts bearing on the main issue contained in
the "Request for Admission," she was deemed to have admitted that she received
the construction materials, the cost of which was indicated in the request and was
indebted to petitioner in the amount of P184,610.50 (P314,610.50 less the partial
payment of P130,000.00).
During the trial, however, petitioner admitted that aside from
the P130,000.00 partial payment, he had received a total of P122,000.00 (P97,000.00
plus P25,000.00). Respondent thus had a remaining balance of P62,610.50.

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