Cases Rules 14-17

Rules 14-17|Page 1 of 123
GENTLE SUPREME G.R. No. 183182

PHILIPPINES, INC.,
Petitioner, Present:
CARPIO, J., Chairperson,
- versus - NACHURA,
BERSAMIN,*
ABAD, and
MENDOZA, JJ.
RICARDO F. CONSULTA,
Respondent. Promulgated:
September 1, 2010
x --------------------------------------------------------------------------------------- x
DECISION
ABAD, J.:
This case is about the service of summons on a corporation and its officers, allegedly done improperly, resulting
in the failure of the trial court to acquire jurisdiction over the persons of the defendants and in the nullity of its
proceedings.
The Facts and the Case

On September 29, 2005 petitioner Gentle Supreme Philippines, Inc. (GSP) filed a collection case with
application for a writ of preliminary attachment[1] against Consar Trading Corporation (CTC), its president,
respondent Ricardo Consulta (Consulta), and its vice-president, Norberto Sarayba (Sarayba) before the Regional
Trial Court (RTC) of Pasig City, Branch 68, in Civil Case 70544. GSP alleged that CTC, through Consulta and
Sarayba, bought certain merchandise from it but refused to pay for them.
Before summons could be served, the RTC issued a writ of preliminary attachment [2] against the
defendants after GSP filed the required bond.[3] Afterwards, the RTC issued summons against the defendants.
On October 11, 2005 as the sheriff failed to serve the summons and copies of the complaint on any of
CTCs authorized officers as well as on Consulta and Sarayba, he left copies of such documents with Agnes
Canave (Canave) who, according to the sheriffs return,[4] was Saraybas secretary and an authorized
representative of both Sarayba and Consulta.
None of the defendants filed an answer to the complaint. Thus, upon motion,[5] on November 18, 2005
the RTC declared them in default[6] and proceeded to hear GSPs evidence ex parte. Meanwhile, the sheriff
attached a registered land[7] belonging to Consulta.[8] After trial, the RTC ruled that having defrauded GSP,
defendants CTC, Consulta, and Sarayba were solidarily liable for the value of the supplied goods plus attorneys
fees and costs of the suit.[9] And upon motion, on January 25, 2006 the RTC issued a writ of execution against
the defendants.[10]
On June 9, 2006 respondent Consulta filed a petition for annulment of the RTC decision before the
Court of Appeals (CA) in CA-G.R. SP 94817.[11] He alleged 1) that he found out about the case against him only
on May 19, 2006 when he received a notice of sale on execution of his house and lot in Marikina City; and 2)
that he was not properly served with summons because, although his address stated in the complaint was his
regular place of business, Canave, who received the summons, was not in charge of the matter.
Consulta invoked the Courts ruling in Keister v. Judge Navarro,[12] that the rule (on substituted service)
presupposes that such relation of confidence exists between the person with whom the copy is left and the
defendant and, therefore, assumes that such person will deliver the process to defendant or in some way give
him notice thereof. Consulta claimed that Canave was only Saraybas secretary. Thus, neither the sheriff nor the
RTC had basis for assuming that Canave would find a way to let Consulta know of the pending case against
him. Consulta concluded that the RTC did not acquire jurisdiction over his person.
In its answer to the petition,[13] GSP insisted on the validity of the service of summons on
Consulta. Also, assuming that summons was not properly served, Consultas ignorance was contrived. His
knowledge of the case against him may be proved by the following circumstances:
1. On February 25, 2006 CTC faxed GSP a letter proposing a schedule of payment for the adjudged
amounts in the RTC decision. Admittedly, it was only Sarayba who signed the letter. By the rules of evidence,
however, the act and declaration of a joint debtor is binding upon a party. [14] This means that Saraybas
knowledge and admission of the case and the defendants corresponding liability to GSP was binding on
Consulta. Besides, Consulta, together with Sarayba, signed the postdated checks as partial payment of CTCs
obligation to GSP;
2. The RTCs sheriff garnished CTCs bank accounts on the day the summons was served. As company
president, it was incredulous that Consulta was unaware of the garnishment and the reason for it;
3. Consulta admitted that CTC was properly served with summons through Canave. By that statement, it
can be deduced that Canave was in charge of the office, Consultas regular place of business, signifying proper
service of the summons on him.
On March 18, 2008 the CA rendered a decision, holding that the RTC sheriff did not properly serve
summons on all the defendants. It ordered the remand of the case to the trial court, enjoining it to take steps to
insure the valid service of summons on them.[15]
Respondent Consulta filed a motion for partial reconsideration of the decision but the CA denied it for being
late. Petitioner GSP also filed a motion for reconsideration [16]which the CA denied on May 29, 2008 for lack of
merit,[17] hence, this petition.
The Issue Presented
The sole issue presented in this case is whether the CA correctly ruled that summons had not been
properly served on respondent Consulta with the result that the RTC did not acquire jurisdiction over his person
and that the judgment against him was void.
The Ruling of the Court
First of all, only Consulta brought an action for the annulment of the RTC decision. CTC and Sarayba did
not. Consequently, the CA had no business deciding whether or not the latter two were properly served with
summons. The right to due process must be personally invoked and its circumstances specifically alleged by the
party claiming to have been denied such. [18]
Second, there is valid substituted service of summons on Consulta at his place of business with some
competent person in charge thereof. According to the sheriffs return, which is prima facie evidence of the facts
it states,[19] he served a copy of the complaint on Canave, an authorized representative of both Consulta and
Sarayba.[20] Besides Consultas bare allegations, he did not present evidence to rebut the presumption of
regularity on the manner that the sheriff performed his official duty. [21] Nor did Consulta present clear and
convincing evidence that Canave was not competent to receive the summons and the attached documents for
him.
In fact, in his petition for annulment of judgment, Consulta said that CTC had been apprised of the civil
action through Canave.[22] In other words, Canave was a person charged with authority to receive court
documents for the company as well as its officers who held office in that company. Absent contrary evidence,
the veracity of the returns content and its effectiveness stand.
Further, this Court has ruled that it is not necessary that the person in charge of the defendants regular
place of business be specifically authorized to receive the summons.It is enough that he appears to be in charge.
[23]
In this case, Canave, a secretary whose job description necessarily includes receiving documents and other
correspondence, would have the semblance of authority to accept the court documents.
It is true that this Court emphasized the importance of strict and faithful compliance in effecting substituted
service.[24] It must, however, be reiterated that when the rigid application of rules becomes a conduit for
escaping ones responsibility, the Court will intervene to set things right according to the rules.[25]
Further, Consulta does not deny a) that summons had been properly served on Sarayba, his vice-president,
through Canave at the companys office; b) that the summons on him was served on the same occasion also
through Canave; c) that the sheriff had succeeded in garnishing his companys bank deposits; and d) that his
company subsequently made an offer to settle the judgment against it. The Court is not dumb as to believe that
Consulta became aware of the suit only when the sheriff served a notice of execution sale covering his house
and lot.
WHEREFORE, premises considered, the Court REVERSES the Court of Appeals Decision in CA-
G.R. SP 94817 dated March 17, 2008 and REINSTATES the Regional Trial Courts Decision in Civil Case
70544 dated December 14, 2005.SO ORDERED
G.R. No. 156759 June 5, 2013
ALLEN A. MACASAET, NICOLAS V. QUIJANO, JR., ISAIAS ALBANO, LILY REYES, JANET BAY,
JESUS R. GALANG, AND RANDY HAGOS, Petitioners,
vs.
FRANCISCO R. CO, JR., Respondent.
DECISION
BERSAMIN, J.:
To warrant the substituted service of the summons and copy of the complaint, the serving officer must first
attempt to effect the same upon the defendant in person. Only after the attempt at personal service has become
futile or impossible within a reasonable time may the officer resort to substituted service.
The Case
Petitioners defendants in a suit for libel brought by respondent appeal the decision promulgated on March 8,
20021 and the resolution promulgated on January 13, 2003,2 whereby the Court of Appeals (CA) respectively
dismissed their petition for certiorari, prohibition and mandamus and denied their motion for reconsideration.
Thereby, the CA upheld the order the Regional Trial Court (RTC), Branch 51, in Manila had issued on March
12, 2001 denying their motion to dismiss because the substituted service of the summons and copies of the
complaint on each of them had been valid and effective.3
Antecedents
On July 3, 2000, respondent, a retired police officer assigned at the Western Police District in Manila, sued
Abante Tonite, a daily tabloid of general circulation; its Publisher Allen A. Macasaet; its Managing Director
Nicolas V. Quijano; its Circulation Manager Isaias Albano; its Editors Janet Bay, Jesus R. Galang and Randy
Hagos; and its Columnist/Reporter Lily Reyes (petitioners), claiming damages because of an allegedly libelous
article petitioners published in the June 6, 2000 issue of Abante Tonite. The suit, docketed as Civil Case No. 00-
97907, was raffled to Branch 51 of the RTC, which in due course issued summons to be served on each
defendant, including Abante Tonite, at their business address at Monica Publishing Corporation, 301-305 3rd
Floor, BF Condominium Building, Solana Street corner A. Soriano Street, Intramuros, Manila.4
In the morning of September 18, 2000, RTC Sheriff Raul Medina proceeded to the stated address to effect the
personal service of the summons on the defendants. But his efforts to personally serve each defendant in the
address were futile because the defendants were then out of the office and unavailable. He returned in the
afternoon of that day to make a second attempt at serving the summons, but he was informed that petitioners
were still out of the office. He decided to resort to substituted service of the summons, and explained why in his
sheriffs return dated September 22, 2005,5 to wit:
SHERIFFS RETURN
This is to certify that on September 18, 2000, I caused the service of summons together with copies of
complaint and its annexes attached thereto, upon the following:
1. Defendant Allen A. Macasaet, President/Publisher of defendant AbanteTonite, at Monica Publishing

Corporation, Rooms 301-305 3rd Floor, BF Condominium Building, Solana corner A. Soriano Streets,
Intramuros, Manila, thru his secretary Lu-Ann Quijano, a person of sufficient age and discretion
working therein, who signed to acknowledge receipt thereof. That effort (sic) to serve the said summons
personally upon said defendant were made, but the same were ineffectual and unavailing on the ground
that per information of Ms. Quijano said defendant is always out and not available, thus, substituted
service was applied;
2. Defendant Nicolas V. Quijano, at the same address, thru his wife Lu-Ann Quijano, who signed to
acknowledge receipt thereof. That effort (sic) to serve the said summons personally upon said defendant
were made, but the same were ineffectual and unavailing on the ground that per information of (sic) his
wife said defendant is always out and not available, thus, substituted service was applied;
3. Defendants Isaias Albano, Janet Bay, Jesus R. Galang, Randy Hagos and Lily Reyes, at the same
address, thru Rene Esleta, Editorial Assistant of defendant AbanteTonite, a person of sufficient age and
discretion working therein who signed to acknowledge receipt thereof. That effort (sic) to serve the said
summons personally upon said defendants were made, but the same were ineffectual and unavailing on
the ground that per information of (sic) Mr. Esleta said defendants is (sic) always roving outside and
gathering news, thus, substituted service was applied.
Original copy of summons is therefore, respectfully returned duly served.
Manila, September 22, 2000.
On October 3, 2000, petitioners moved for the dismissal of the complaint through counsels special appearance
in their behalf, alleging lack of jurisdiction over their persons because of the invalid and ineffectual substituted
service of summons. They contended that the sheriff had made no prior attempt to serve the summons
personally on each of them in accordance with Section 6 and Section 7, Rule 14 of the Rules of Court. They
further moved to drop Abante Tonite as a defendant by virtue of its being neither a natural nor a juridical person
that could be impleaded as a party in a civil action.
At the hearing of petitioners motion to dismiss, Medina testified that he had gone to the office address of
petitioners in the morning of September 18, 2000 to personally serve the summons on each defendant; that
petitioners were out of the office at the time; that he had returned in the afternoon of the same day to again
attempt to serve on each defendant personally but his attempt had still proved futile because all of petitioners
were still out of the office; that some competent persons working in petitioners office had informed him that
Macasaet and Quijano were always out and unavailable, and that Albano, Bay, Galang, Hagos and Reyes were
always out roving to gather news; and that he had then resorted to substituted service upon realizing the
impossibility of his finding petitioners in person within a reasonable time.
On March 12, 2001, the RTC denied the motion to dismiss, and directed petitioners to file their answers to the
complaint within the remaining period allowed by the Rules of Court,6 relevantly stating:
Records show that the summonses were served upon Allen A. Macasaet, President/Publisher of defendant
AbanteTonite, through LuAnn Quijano; upon defendants Isaias Albano, Janet Bay, Jesus R. Galang, Randy
Hagos and Lily Reyes, through Rene Esleta, Editorial Assistant of defendant Abante Tonite (p. 12, records). It is
apparent in the Sheriffs Return that on several occasions, efforts to served (sic) the summons personally upon
all the defendants were ineffectual as they were always out and unavailable, so the Sheriff served the summons
by substituted service.
Considering that summonses cannot be served within a reasonable time to the persons of all the defendants,
hence substituted service of summonses was validly applied. Secretary of the President who is duly authorized
to receive such document, the wife of the defendant and the Editorial Assistant of the defendant, were
considered competent persons with sufficient discretion to realize the importance of the legal papers served
upon them and to relay the same to the defendants named therein (Sec. 7, Rule 14, 1997 Rules of Civil
Procedure).
WHEREFORE, in view of the foregoing, the Motion to Dismiss is hereby DENIED for lack of merit..
Accordingly, defendants are directed to file their Answers to the complaint within the period still open to them,
pursuant to the rules.
SO ORDERED.
Petitioners filed a motion for reconsideration, asserting that the sheriff had immediately resorted to substituted
service of the summons upon being informed that they were not around to personally receive the summons, and
that Abante Tonite, being neither a natural nor a juridical person, could not be made a party in the action.
On June 29, 2001, the RTC denied petitioners motion for reconsideration.7 It stated in respect of the service of
summons, as follows:
The allegations of the defendants that the Sheriff immediately resorted to substituted service of summons upon
them when he was informed that they were not around to personally receive the same is untenable. During the
hearing of the herein motion, Sheriff Raul Medina of this Branch of the Court testified that on September 18,
2000 in the morning, he went to the office address of the defendants to personally serve summons upon them
but they were out. So he went back to serve said summons upon the defendants in the afternoon of the same
day, but then again he was informed that the defendants were out and unavailable, and that they were always out
because they were roving around to gather news. Because of that information and because of the nature of the
work of the defendants that they are always on field, so the sheriff resorted to substituted service of summons.
There was substantial compliance with the rules, considering the difficulty to serve the summons personally to
them because of the nature of their job which compels them to be always out and unavailable. Additional
matters regarding the service of summons upon defendants were sufficiently discussed in the Order of this
Court dated March 12, 2001.
Regarding the impleading of Abante Tonite as defendant, the RTC held, viz:
"Abante Tonite" is a daily tabloid of general circulation. People all over the country could buy a copy of
"Abante Tonite" and read it, hence, it is for public consumption. The persons who organized said publication
obviously derived profit from it. The information written on the said newspaper will affect the person, natural as
well as juridical, who was stated or implicated in the news. All of these facts imply that "Abante Tonite" falls
within the provision of Art. 44 (2 or 3), New Civil Code. Assuming arguendo that "Abante Tonite" is not
registered with the Securities and Exchange Commission, it is deemed a corporation by estoppels considering
that it possesses attributes of a juridical person, otherwise it cannot be held liable for damages and injuries it
may inflict to other persons.
Undaunted, petitioners brought a petition for certiorari, prohibition, mandamusin the CA to nullify the orders of
the RTC dated March 12, 2001 and June 29, 2001.
Ruling of the CA
On March 8, 2002, the CA promulgated its questioned decision,8 dismissing the petition for certiorari,
prohibition, mandamus, to wit:
We find petitioners argument without merit. The rule is that certiorari will prosper only if there is a showing of
grave abuse of discretion or an act without or in excess of jurisdiction committed by the respondent Judge. A
judicious reading of the questioned orders of respondent Judge would show that the same were not issued in a
capricious or whimsical exercise of judgment. There are factual bases and legal justification for the assailed
orders. From the Return, the sheriff certified that "effort to serve the summons personally xxx were made, but
the same were ineffectual and unavailing xxx.
and upholding the trial courts finding that there was a substantial compliance with the rules that allowed the
substituted service.
Furthermore, the CA ruled:
Anent the issue raised by petitioners that "Abante Tonite is neither a natural or juridical person who may be a
party in a civil case," and therefore the case against it must be dismissed and/or dropped, is untenable.
The respondent Judge, in denying petitioners motion for reconsideration, held that:
xxxx
Abante Tonites newspapers are circulated nationwide, showing ostensibly its being a corporate entity, thus the
doctrine of corporation by estoppel may appropriately apply.
An unincorporated association, which represents itself to be a corporation, will be estopped from denying its
corporate capacity in a suit against it by a third person who relies in good faith on such representation.
There being no grave abuse of discretion committed by the respondent Judge in the exercise of his jurisdiction,
the relief of prohibition is also unavailable.
WHEREFORE, the instant petition is DENIED. The assailed Orders of respondent Judge are AFFIRMED.
SO ORDERED.9
On January 13, 2003, the CA denied petitioners motion for reconsideration.10
Issues
Petitioners hereby submit that:
1. THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN HOLDING THAT THE

TRIAL COURT ACQUIRED JURISDICTION OVER HEREIN PETITIONERS.
2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR BY SUSTAINING THE

INCLUSION OF ABANTE TONITE AS PARTY IN THE INSTANT CASE. 11
Ruling
The petition for review lacks merit.
Jurisdiction over the person, or jurisdiction in personam the power of the court to render a personal judgment
or to subject the parties in a particular action to the judgment and other rulings rendered in the action is an
element of due process that is essential in all actions, civil as well as criminal, except in actions in rem or quasi
in rem. Jurisdiction over the defendantin an action in rem or quasi in rem is not required, and the court acquires
jurisdiction over an actionas long as it acquires jurisdiction over the resthat is thesubject matter of the action.
The purpose of summons in such action is not the acquisition of jurisdiction over the defendant but mainly to
satisfy the constitutional requirement of due process.12
The distinctions that need to be perceived between an action in personam, on the one hand, and an action inrem
or quasi in rem, on the other hand, are aptly delineated in Domagas v. Jensen,13 thusly:
The settled rule is that the aim and object of an action determine its character. Whether a proceeding is in rem,
or in personam, or quasi in rem for that matter, is determined by its nature and purpose, and by these only. A
proceeding in personam is a proceeding to enforce personal rights and obligations brought against the person
and is based on the jurisdiction of the person, although it may involve his right to, or the exercise of ownership
of, specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the
court. The purpose of a proceeding in personam is to impose, through the judgment of a court, some
responsibility or liability directly upon the person of the defendant. Of this character are suits to compel a
defendant to specifically perform some act or actions to fasten a pecuniary liability on him. An action in
personam is said to be one which has for its object a judgment against the person, as distinguished from a
judgment against the property to determine its state. It has been held that an action in personam is a proceeding
to enforce personal rights or obligations; such action is brought against the person. As far as suits for injunctive
relief are concerned, it is well-settled that it is an injunctive act in personam. In Combs v. Combs, the appellate
court held that proceedings to enforce personal rights and obligations and in which personal judgments are
rendered adjusting the rights and obligations between the affected parties is in personam. Actions for recovery
of real property are in personam.
On the other hand, a proceeding quasi in rem is one brought against persons seeking to subject the property of
such persons to the discharge of the claims assailed. In an action quasi in rem, an individual is named as
defendant and the purpose of the proceeding is to subject his interests therein to the obligation or loan burdening
the property. Actions quasi in rem deal with the status, ownership or liability of a particular property but which
are intended to operate on these questions only as between the particular parties to the proceedings and not to
ascertain or cut off the rights or interests of all possible claimants. The judgments therein are binding only upon
the parties who joined in the action.
As a rule, Philippine courts cannot try any case against a defendant who does not reside and is not found in the
Philippines because of the impossibility of acquiring jurisdiction over his person unless he voluntarily appears
in court; but when the case is an action in rem or quasi in rem enumerated in Section 15, Rule 14 of the Rules of
Court, Philippine courts have jurisdiction to hear and decide the case because they have jurisdiction over the
res, and jurisdiction over the person of the non-resident defendant is not essential. In the latter instance,
extraterritorial service of summons can be made upon the defendant, and such extraterritorial service of
summons is not for the purpose of vesting the court with jurisdiction, but for the purpose of complying with the
requirements of fair play or due process, so that the defendant will be informed of the pendency of the action
against him and the possibility that property in the Philippines belonging to him or in which he has an interest
may be subjected to a judgment in favor of the plaintiff, and he can thereby take steps to protect his interest if he
is so minded. On the other hand, when the defendant in an action in personam does not reside and is not found
in the Philippines, our courts cannot try the case against him because of the impossibility of acquiring
jurisdiction over his person unless he voluntarily appears in court.14
As the initiating party, the plaintiff in a civil action voluntarily submits himself to the jurisdiction of the court by
the act of filing the initiatory pleading. As to the defendant, the court acquires jurisdiction over his person either
by the proper service of the summons, or by a voluntary appearance in the action.15
Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court forthwith issues
the corresponding summons to the defendant.16 The summons is directed to the defendant and signed by the
clerk of court under seal. It contains the name of the court and the names of the parties to the action; a direction
that the defendant answers within the time fixed by the Rules of Court; and a notice that unless the defendant so
answers, the plaintiff will take judgment by default and may be granted the relief applied for.17 To be attached to
the original copy of the summons and all copies thereof is a copy of the complaint (and its attachments, if any)
and the order, if any, for the appointment of a guardian ad litem.18
The significance of the proper service of the summons on the defendant in an action in personam cannot be
overemphasized. The service of the summons fulfills two fundamental objectives, namely: (a) to vest in the
court jurisdiction over the person of the defendant; and (b) to afford to the defendant the opportunity to be heard
on the claim brought against him.19 As to the former, when jurisdiction in personam is not acquired in a civil
action through the proper service of the summons or upon a valid waiver of such proper service, the ensuing
trial and judgment are void.20 If the defendant knowingly does an act inconsistent with the right to object to the
lack of personal jurisdiction as to him, like voluntarily appearing in the action, he is deemed to have submitted
himself to the jurisdiction of the court.21 As to the latter, the essence of due process lies in the reasonable
opportunity to be heard and to submit any evidence the defendant may have in support of his defense. With the
proper service of the summons being intended to afford to him the opportunity to be heard on the claim against
him, he may also waive the process.21 In other words, compliance with the rules regarding the service of the
summons is as much an issue of due process as it is of jurisdiction.23
Under the Rules of Court, the service of the summons should firstly be effected on the defendant himself
whenever practicable. Such personal service consists either in handing a copy of the summons to the defendant
in person, or, if the defendant refuses to receive and sign for it, in tendering it to him.24 The rule on personal
service is to be rigidly enforced in order to ensure the realization of the two fundamental objectives earlier
mentioned. If, for justifiable reasons, the defendant cannot be served in person within a reasonable time, the
service of the summons may then be effected either (a) by leaving a copy of the summons at his residence with
some person of suitable age and discretion then residing therein, or (b) by leaving the copy at his office or
regular place of business with some competent person in charge thereof.25 The latter mode of service is known
as substituted service because the service of the summons on the defendant is made through his substitute.
It is no longer debatable that the statutory requirements of substituted service must be followed strictly,
faithfully and fully, and any substituted service other than that authorized by statute is considered
ineffective.26 This is because substituted service, being in derogation of the usual method of service, is
extraordinary in character and may be used only as prescribed and in the circumstances authorized by
statute.27 Only when the defendant cannot be served personally within a reasonable time may substituted service
be resorted to. Hence, the impossibility of prompt personal service should be shown by stating the efforts made
to find the defendant himself and the fact that such efforts failed, which statement should be found in the proof
of service or sheriffs return.28 Nonetheless, the requisite showing of the impossibility of prompt personal
service as basis for resorting to substituted service may be waived by the defendant either expressly or
impliedly.29
There is no question that Sheriff Medina twice attempted to serve the summons upon each of petitioners in
person at their office address, the first in the morning of September 18, 2000 and the second in the afternoon of
the same date. Each attempt failed because Macasaet and Quijano were "always out and not available" and the
other petitioners were "always roving outside and gathering news." After Medina learned from those present in
the office address on his second attempt that there was no likelihood of any of petitioners going to the office
during the business hours of that or any other day, he concluded that further attempts to serve them in person
within a reasonable time would be futile. The circumstances fully warranted his conclusion. He was not
expected or required as the serving officer to effect personal service by all means and at all times, considering
that he was expressly authorized to resort to substituted service should he be unable to effect the personal
service within a reasonable time. In that regard, what was a reasonable time was dependent on the
circumstances obtaining. While we are strict in insisting on personal service on the defendant, we do not cling
to such strictness should the circumstances already justify substituted service instead. It is the spirit of the
procedural rules, not their letter, that governs.30
In reality, petitioners insistence on personal service by the serving officer was demonstrably superfluous. They
had actually received the summonses served through their substitutes, as borne out by their filing of several
pleadings in the RTC, including an answer with compulsory counterclaim ad cautelam and a pre-trial brief ad
cautelam. They had also availed themselves of the modes of discovery available under the Rules of Court. Such
acts evinced their voluntary appearance in the action.
Nor can we sustain petitioners contention that Abante Tonite could not be sued as a defendant due to its not
being either a natural or a juridical person. In rejecting their contention, the CA categorized Abante Tonite as a
corporation by estoppel as the result of its having represented itself to the reading public as a corporation
despite its not being incorporated. Thereby, the CA concluded that the RTC did not gravely abuse its discretion
in holding that the non-incorporation of Abante Tonite with the Securities and Exchange Commission was of no
consequence, for, otherwise, whoever of the public who would suffer any damage from the publication of
articles in the pages of its tabloids would be left without recourse. We cannot disagree with the CA, considering
that the editorial box of the daily tabloid disclosed that basis, nothing in the box indicated that Monica
Publishing Corporation had owned Abante Tonite.
WHEREFORE, the Court AFFIRMS the decision promulgated on March 8, 2002; and ORDERS petitioners to
pay the costs of suit.
SO ORDERED.
G.R. No. 182153 April 7, 2014
TUNG HO STEEL ENTERPRISES CORPORATION, Petitioner,

vs.
TING GUAN TRADING CORPORATION, Respondent.
DECISION
BRION, J.:
We resolve the petition for review on, certiorari1 filed by petitioner Tung Ho Steel Enterprises Corp. (Tung Ho)
to challenge the July 5, 2006 decision2 and the March 12, 2008 resolution3 of the Court of Appeals (CA) in CA-
G.R. SP No. 92828.
The Factual Antecedents
Tung Ho is a foreign corporation organized under the laws of Taiwan, Republic of China.4 On the other hand,
respondent Ting Guan Trading Corp. (Ting Guan) is a domestic corporation organized under the laws of the
Philippines.5
On January 9, 2002, Ting Guan obligated itself under a contract of sale to deliver heavy metal scrap iron and
steel to Tung Ho. Subsequently, Tung Ho filed a request for arbitration before the ICC International Court of
Arbitration (ICC) in Singapore after Ting Guan failed to deliver the full quantity of the promised heavy metal
scrap iron and steel.6
The ICC ruled in favor of Tung Ho on June 18, 2004 and ordered Ting Guan to pay Tung Ho the following: (1)
actual damages in the amount of US$ 659,646.15 with interest of 6% per annum from December 4, 2002 until
final payment; (2) cost of arbitration in the amount of US $ 47,000.00; and (3) legal costs and expenses in the
amount of NT $ 761,448.00 and US $ 34,552.83.7
On October 24, 2004, Tung Ho filed an action against Ting Guan for the recognition and enforcement of the
arbitral award before the Regional Trial Court (RTC) of Makati, Branch 145. Ting Guan moved to dismiss the
case based on Tung Hos lack of capacity to sue and for prematurity. Ting Guan subsequently filed a
supplemental motion to dismiss based on improper venue. Ting Guan argued that the complaint should have
been filed in Cebu where its principal place of business was located.8
The Proceedings before the RTC
The RTC denied Ting Guans motion to dismiss in an order dated May 11, 2005. Ting Guan moved to
reconsider the order and raised the RTCs alleged lack of jurisdiction over its person as additional ground for the
dismissal of the complaint. Ting Guan insisted that Ms. Fe Tejero, on whom personal service was served, was
not its corporate secretary and was not a person allowed under Section 11, Rule 14 of the Rules of Court to
receive a summons. It also asserted that Tung Ho cannot enforce the award in the Philippines without violating
public policy as Taiwan is not a signatory to the New York Convention.9
The RTC denied the motion in an order dated November 21, 2005 and ruled that Ting Guan had voluntarily
submitted to the courts jurisdiction when it raised other arguments apart from lack of jurisdiction in its motion
to dismiss.
The Proceedings before the CA
Ting Guan responded to the denials by filing a petition for certiorari before the CA with an application for the
issuance of a temporary restraining order and a writ of preliminary injunction.10
In its Memorandum, Tung Ho argued that a Rule 65 petition is not the proper remedy to assail the denial of a
motion to dismiss. It pointed out that the proper recourse for Ting Guan was to file an answer and to
subsequently appeal the case. It also posited that beyond the reglementary period for filing an answer, Ting
Guan was barred from raising other grounds for the dismissal of the case. Tung Ho also claimed that the RTC
acquired jurisdiction over the person of Ting Guan since the return of service of summons expressly stated that
Tejero was a corporate secretary.11
In its decision dated July 5, 2006, the CA dismissed the complaint for lack of jurisdiction over the person of
Ting Guan. The CA held that Tung Ho failed to establish that Tejero was Ting Guans corporate secretary. The
CA also ruled that a petition for certiorari is the proper remedy to assail the denial of a motion to dismiss if the
ground raised in the motion is lack of jurisdiction. Furthermore, any of the grounds for the dismissal of the case
can be raised in a motion to dismiss provided that the grounds were raised before the filing of an answer. The
CA likewise ruled that Tung Ho properly filed the complaint before the RTC-Makati.12
Subsequently, both parties moved to partially reconsider the CA decision. Tung Ho reiterated that there was
proper service of summons. On the other hand, Ting Guan sought to modify the CA decision with respect to the
proper venue of the case. The CA denied Ting Guans motion for partial reconsideration in an order dated
December 5, 2006.13
Ting Guan immediately proceeded to file a petition for review on certiorari before this Court to question the
CAs rulings as discussed below. In the interim (on February 11, 2008), Tung Ho (whose motion for
reconsideration of the CA decision was still pending with that court) filed a "Motion to Supplement and Resolve
Motion for Reconsideration" before the CA. In this motion, Tung Ho prayed for the issuance of an alias
summons if the service of summons had indeed been defective, but its motion proved unsuccessful.14
It was not until March 12, 2008, after the developments described below, that the CA finally denied Tung Hos
partial motion for reconsideration for lack of merit.
Ting Guans Petition before this Court
(G.R. No. 176110)
Ting Guans petition before this Court was docketed as G.R. No. 176110. Ting Guan argued that the dismissal
of the case should be based on the following additional grounds: first, the complaint was prematurely filed;
second, the foreign arbitral award is null and void; third, the venue was improperly laid in Makati; and lastly,
the enforcement of the arbitral award was against public policy.15
On April 24, 2007, Tung Ho filed its Comment dated April 24, 2007 in G.R. No. 176110, touching on the issue
of jurisdiction, albeit lightly. Tung Ho complained in its Comment that Ting Guan engaged in dilatory tactics
when Ting Guan belatedly raised the issue of jurisdiction in the motion for reconsideration before the RTC.
However, Tung Ho did not affirmatively seek the reversal of the July 5, 2006 decision. Instead, it merely stated
that Ting Guans petition "cannot be dismissed on the ground that the summons was wrongfully issued as the
petitioner can always move for the issuance of an alias summons to be served". Furthermore, Tung Ho only
prayed that Ting Guans petition be denied in G.R. No. 176110 and for other just and equitable reliefs. In other
words, Tung Ho failed to effectively argue its case on the merits before the Court in G.R. No. 176110.
On June 18, 2007, we issued our Resolution denying Ting Guans petition for lack of merit. On November 12,
2007, we also denied Ting Guans motion for reconsideration. On January 8, 2008, the Court issued an entry of
judgment in Ting Guans petition, G.R. No. 176110.
After the entry of judgment, we referred the matter back to the RTC for further proceedings. On January 16,
2008, the RTC declared the case closed and terminated. Its order stated:
Upon examination of the entire records of this case, an answer with caution was actually filed by the respondent
to which a reply was submitted by the petitioner. Since the answer was with the qualification that respondent is
not waiving its claim of lack of jurisdiction over its person on the ground of improper service of summons upon
it and that its petition to this effect filed before the Court of Appeals was acted favorably and this case was
dismissed on the aforementioned ground and it appearing that the Decision as well as the Order denying the
motion for reconsideration of the petitioner now final and executory, the Order of November 9, 2007 referring
this petition to the Court Annexed Mediation for possible amicable settlement is recalled it being moot and
academic. This case is now considered closed and terminated.
On February 6, 2008, Tung Ho moved to reconsider the RTC order. Nothing in the records shows whether the
RTC granted or denied this motion for reconsideration.
Tung Hos Petition before this Court
(G.R. No. 182153)
On May 7, 2008, Tung Ho seasonably filed a petition for review on certiorari to seek the reversal of the July 5,
2006 decision and the March 12, 2008 resolution of the CA. This is the present G.R. No. 182153 now before us.
Tung Ho reiterates that the RTC acquired jurisdiction over the person of Ting Guan. It also claims that the
return of service of summons is a prima facie evidence of the recited facts i.e., that Tejero is a corporate
secretary as stated therein and that the sheriff is presumed to have regularly performed his official duties in
serving the summons. In the alternative, Tung Ho argues that Ting Guans successive motions before the RTC
are equivalent to voluntary appearance. Tung Ho also prays for the issuance of alias summons to cure the
alleged defective service of summons.16
Respondent Ting Guans Position
(G.R. No. 182153)
In its Comment, Ting Guan submits that the appeal is already barred by res judicata. It also stresses that the
Court has already affirmed with finality the dismissal of the complaint.17 Ting Guan also argues that Tung Ho
raises a factual issue that is beyond the scope of a petition for review on certiorari under Rule 45 of the Rules of
Court.18
The Issues
This case presents to us the following issues:
1) Whether the present petition is barred by res judicata; and
2) Whether the trial court acquired jurisdiction over the person of Ting Guan, specifically:
a) Whether Tejero was the proper person to receive the summons; and
b) Whether Ting Guan made a voluntary appearance before the trial court.
The Courts Ruling
We find the petition meritorious.
I. The Court is not precluded from ruling on the jurisdictional issue raised in the petition
A. The petition is not barred by res judicata
Res judicata refers to the rule that a final judgment or decree on the merits by a court of competent jurisdiction
is conclusive on the rights of the parties or their privies in all later suits on all points and matters determined in
the former suit.19 For res judicata to apply, the final judgment must be on the merits of the case which means
that the court has unequivocally determined the parties rights and obligations with respect to the causes of
action and the subject matter of the case.20
Contrary to Ting Guans position, our ruling in G.R. No. 176110 does not operate as res judicata on Tung Hos
appeal; G.R. No. 176110 did not conclusively rule on all issues raised by the parties in this case so that this
Court would now be barred from taking cognizance of Tung Hos petition. Our disposition in G.R. No. 176110
only dwelt on technical or collateral aspects of the case, and not on its merits. Specifically, we did not rule on
whether Tung Ho may enforce the foreign arbitral award against Ting Guan in that case.
B. The appellate court cannot be ousted of jurisdiction until it finally disposes of the case
The courts jurisdiction, once attached, cannot be ousted until it finally disposes of the case. When a court has
already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final
determination of the case is retained.21 A judge is competent to act on the case while its incidents remain
pending for his disposition.
The CA was not ousted of its jurisdiction with the promulgation of G.R. No. 176110. The July 5, 2006 decision
has not yet become final and executory for the reason that there remained a pending incident before the CA
the resolution of Tung Hos motion for reconsideration when this Court promulgated G.R. No. 176110. In this
latter case, on the other hand, we only resolved procedural issues that are divorced from the present
jurisdictional question before us. Thus, what became immutable in G.R. No. 176110 was the ruling that Tung
Hos complaint is not dismissible on grounds of prematurity, nullity of the foreign arbitral award, improper
venue, and the foreign arbitral awards repugnance to local public policy. This leads us to the conclusion that in
the absence of any ruling on the merits on the issue of jurisdiction, res judicata on this point could not have set
in.
C. Tung Hos timely filing of a motion for reconsideration and of a petition for review on certiorari prevented
the July 5, 2006 decision from attaining finality
Furthermore, under Section 2, Rule 45 of the Rules of Court, Tung Ho may file a petition for review on
certiorari before the Court within (15) days from the denial of its motion for reconsideration filed in due time
after notice of the judgment. Tung Hos timely filing of a motion for reconsideration before the CA and of a
Rule 45 petition before this Court prevented the July 5, 2006 CA decision from attaining finality. For this Court
to deny Tung Hos petition would result in an anomalous situation where a party litigant is penalized and
deprived of his fair opportunity to appeal the case by faithfully complying with the Rules of Court.
II. The trial court acquired jurisdiction over the person of Ting Guan
A. Tejero was not the proper person to receive the summons
Nonetheless, we see no reason to disturb the lower courts finding that Tejero was not a corporate secretary and,
therefore, was not the proper person to receive the summons under Section 11, Rule 14 of the Rules of Court.
This Court is not a trier of facts; we cannot re-examine, review or re-evaluate the evidence and the factual
review made by the lower courts. In the absence of compelling reasons, we will not deviate from the rule that
factual findings of the lower courts are final and binding on this Court.22
B. Ting Guan voluntarily appeared before the trial court

However, we cannot agree with the legal conclusion that the appellate court reached, given the established
facts.23To our mind, Ting Guan voluntarily appeared before the trial court in view of the procedural recourse
that it took before that court. Its voluntary appearance is equivalent to service of summons.24
As a basic principle, courts look with disfavor on piecemeal arguments in motions filed by the parties. Under
the omnibus motion rule, a motion attacking a pleading, order, judgment, or proceeding shall include all
objections then available.25 The purpose of this rule is to obviate multiplicity of motions and to discourage
dilatory motions and pleadings. Party litigants should not be allowed to reiterate identical motions, speculating
on the possible change of opinion of the courts or of the judges thereof.
In this respect, Section 1, Rule 16 of the Rules of Court requires the defendant to file a motion to dismiss within
the time for, but before filing the answer to the complaint or pleading asserting a claim. Section 1, Rule 11 of
the Rules of Court, on the other hand, commands the defendant to file his answer within fifteen (15) days after
service of summons, unless a different period is fixed by the trial court. Once the trial court denies the motion,
the defendant should file his answer within the balance of fifteen (15) days to which he was entitled at the time
of serving his motion, but the remaining period cannot be less than five (5) days computed from his receipt of
the notice of the denial.26
Instead of filing an answer, the defendant may opt to file a motion for reconsideration. Only after the trial court
shall have denied the motion for reconsideration does the defendant become bound to file his answer.27 If the
defendant fails to file an answer within the reglementary period, the plaintiff may file a motion to declare the
defendant in default. This motion shall be with notice to the defendant and shall be supported by proof of the
failure.28
The trial courts denial of the motion to dismiss is not a license for the defendant to file a Rule 65 petition
before the CA. An order denying a motion to dismiss cannot be the subject of a petition for certiorari as the
defendant still has an adequate remedy before the trial court i.e., to file an answer and to subsequently appeal
the case if he loses the case.29 As exceptions, the defendant may avail of a petition for certiorari if the ground
raised in the motion to dismiss is lack of jurisdiction over the person of the defendant30 or over the subject
matter.31
We cannot allow and simply passively look at Ting Guans blatant disregard of the rules of procedure in the
present case. The Rules of Court only allows the filing of a motion to dismiss once.32 Ting Guans filing of
successive motions to dismiss, under the guise of "supplemental motion to dismiss" or "motion for
reconsideration", is not only improper but also dilatory.33 Ting Guans belated reliance on the improper service
of summons was a mere afterthought, if not a bad faith ploy to avoid the foreign arbitral awards enforcement
which is still at its preliminary stage after the lapse of almost a decade since the filing of the complaint.
Furthermore, Ting Guans failure to raise the alleged lack of jurisdiction over its person in the first motion to
dismiss is fatal to its cause. Ting Guan voluntarily appeared before the RTC when it filed a motion to dismiss
and a "supplemental motion to dismiss" without raising the RTCs lack of jurisdiction over its person. In
Anunciacion v. Bocanegra,34 we categorically stated that the defendant should raise the affirmative defense of
lack of jurisdiction over his person in the very first motion to dismiss. Failure to raise the issue of improper
service of summons in the first motion to dismiss is a waiver of this defense and cannot be belatedly raised in
succeeding motions and pleadings.
Even assuming that Ting Guan did not voluntarily appear before the RTC, the CA should have ordered the RTC
to issue an alias summons instead. In Lingner & Fisher GMBH vs. Intermediate Appellate Court35, we
enunciated the policy that the courts should not dismiss a case simply because there was an improper service of
summons. The lower courts should be cautious in haphazardly dismissing complaints on this ground alone
considering that the trial court can cure this defect and order the issuance of alias summons on the proper person
in the interest of substantial justice and to expedite the proceedings.
III. A Final Note
As a final note, we are not unaware that the present case has been complicated by its unique development. The
complication arose when the CA, instead of resolving the parties separate partial motions for reconsideration in
one resolution, proceeded to first resolve and to deny Ting Guans partial motion. Ting Guan, therefore, went to
this Court via a petition for review on certiorari while Tung Hos partial motion for reconsideration was still
unresolved.
Expectedly, Ting Guan did not question the portions of the CA decision favorable to it when it filed its petition
with this Court. Instead, Ting Guan reiterated that the CA should have included additional grounds to justify the
dismissal of Tung Hos complaint with the RTC. The Court denied Ting Guans petition, leading to the entry of
judgment that improvidently followed. Later, the CA denied Tung Hos partial motion for reconsideration,
prompting Tung Hos own petition with this Court, which is the present G.R. No. 182153.
Under the Rules of Court, entry of judgment may only be made if no appeal or motion for reconsideration was
timely filed.36 In the proceedings before the CA, if a motion for reconsideration (including a partial motion for
reconsideration37) is timely filed by the proper party, execution of the CAs judgment or final resolution shall be
stayed.38 This rule is applicable even to proceedings before the Supreme Court, as provided in Section 4, Rule
56 of the Rules of Court.39
In the present case, Tung Ho timely filed its motion for reconsideration with the CA and seasonably appealed
the CAs rulings with the Court through the present petition (G.R. No. 182153).
To now recognize the finality of the Resolution of Ting Guan petition (G.R. No. 176110) based on its entry of
judgment and to allow it to foreclose the present meritorious petition of Tung Ho, would of course cause unfair
and unjustified injury to Tung Ho. First, as previously mentioned, the Ting Guan petition did not question or
assail the full merits of the CA decision. It was Tung Ho, the party aggrieved by the CA decision, who
substantially questioned the merits of the CA decision in its petition; this petition showed that the CA indeed
committed error and Tung Hos complaint before the RTC should properly proceed. Second, the present case is
for the enforcement of an arbitral award involving millions of pesos. Tung Ho already won in the foreign
arbitration and the present case is simply for the enforcement of this arbitral award in our jurisdiction. Third,
and most importantly, Tung Ho properly and timely availed of the remedies available to it under the Rules of
Court, which provide that filing and pendency of a motion for reconsideration stays the execution of the CA
judgment. Therefore, at the time of the entry of judgment in G.R. No. 176110 in the Supreme Court on January
8, 2008, the CA decision which the Court affirmed was effectively not yet be final.
Significantly, the rule that a timely motion for reconsideration stays the execution of the assailed judgment is in
accordance with Rule 51, Section 10 (Rules governing the CA proceedings) which provides that "entry of
judgments may only be had if there is no appeal or motion for reconsideration timely filed. The date when the
judgment or final resolution becomes executory shall be deemed as the date of its entry." Incidentally, this
procedure also governs before Supreme Court proceedings.40 Following these rules, therefore, the pendency of
Tung Hos MR with the CA made the entry of the judgment of the Court in the Ting Guan petition premature
and inefficacious for not being final and executory.
Based on the above considerations, the Court would not be in error if it applies its ruling in the case of Realty
Sales Enterprises, Inc. and Macondray Farms, Inc. v. Intermediate Appellate Court, et al.41 where the Court, in a
per curiam resolution, ruled that an entry of judgment may be recalled or lifted motu proprio when it is clear
that the decision assailed of has not yet become final under the rules:
The March 6, 1985 resolution denying reconsideration of the January 30, 1985 resolution was, to repeat, not
served on the petitioners until March 20, 1985 - and therefore the Jan. 30, 1985 resolution could not be deemed
final and executory until one (1) full day (March 21) had elapsed, or on March 22, 1985 (assuming inaction on
petitioners' part.) The entry of judgment relative to the January 30, 1985 resolution, made on March 18, 1985,
was therefore premature and inefficacious. An entry of judgment does not make the judgment so entered final
and execution when it is not so in truth. An entry of judgment merely records the fact that a judgment, order or
resolution has become final and executory; but it is not the operative act that make the judgment, order or
resolution final and executory. In the case at bar, the entry of judgment on March 18, 1985 did not make the
January 30, 1985 resolution subject of the entry, final and executory, As of the date of entry, March 18, 1985,
notice of the resolution denying reconsideration of the January 30, 1985 resolution had not yet been served on
the petitioners or any of the parties, since March 18, 1985 was also the date of the notice (and release) of the
March 6, 1985 resolution denying reconsideration.1wphi1
According to this ruling, the motu proprio recall or setting aside of the entry of final judgment was proper and
"entirely consistent with the inherent power of every court inter alia to amend and control its process and orders
so as to make them conformable to law and justice [Sec. 5(g), Rule 135, Rules of Court,]. That the recall has in
fact served to achieve a verdict consistent with law and justice is clear from the judgment subsequently rendered
on the merits." This course of action is effectively what the Court undertook today, adapted of course to the
circumstances of the present case.
In light of these premises, we hereby REVERSE and SET ASIDE the July 5, 2006 decision and the March 12,
2008 resolution of the Court of Appeals in CA-G.R. SP No. 92828. SP. Proc. No. 11.-5954 is hereby ordered
reinstated. Let the records of this case be remanded to the court of origin for further proceedings. No costs.
SO ORDERED
LEAH PALMA, G.R. No. 165273

Petitioner,
Present:
CORONA, J., Chairperson,

- versus - VELASCO, JR.,
NACHURA,
PERALTA, and
MENDOZA, JJ.
HON. DANILO P. GALVEZ, in his capacity
as PRESIDING JUDGE of the REGIONAL
TRIAL COURT OF ILOILO CITY, Promulgated:
BRANCH 24; and PSYCHE ELENA
AGUDO, March 10, 2010
Respondents.
x-----------------------------------------------------------------------------------------x
DECISION
PERALTA, J.:
Assailed in this petition for certiorari under Rule 65 of the Rules of Court are the Orders dated May 7,
2004[1] and July 21, 2004[2] of the Regional Trial Court (RTC) of IloiloCity, Branch 24, granting the motion to
dismiss filed by private respondent Psyche Elena Agudo and denying reconsideration thereof, respectively.
On July 28, 2003, petitioner Leah Palma filed with the RTC an action for damages against the Philippine Heart
Center (PHC), Dr. Danilo Giron and Dr. Bernadette O. Cruz, alleging that the defendants committed
professional fault, negligence and omission for having removed her right ovary against her will, and losing the
same and the tissues extracted from her during the surgery; and that although the specimens were
subsequently found, petitioner was doubtful and uncertain that the same was hers as the label therein pertained
that of somebody else. Defendants filed their respective Answers. Petitioner subsequently filed a Motion for
Leave to Admit Amended Complaint, praying for the inclusion of additional defendants who were all nurses at
the PHC, namely, Karla Reyes, Myra Mangaser and herein private respondent Agudo. Thus, summons were
subsequently issued to them.
On February 17, 2004, the RTC's process server submitted his return of summons stating that the alias
summons, together with a copy of the amended complaint and its annexes, were served upon private respondent
thru her husband Alfredo Agudo, who received and signed the same as private respondent was out of the
country.[3]
On March 1, 2004, counsel of private respondent filed a Notice of Appearance and a Motion for Extension of
Time to File Answer[4] stating that he was just engaged by private respondent's husband as she was out of the
country and the Answer was already due.
On March 15, 2004, private respondent's counsel filed a Motion for Another Extension of Time to File Answer,
[5]
and stating that while the draft answer was already finished, the same would be sent to private respondent for
her clarification/verification before the Philippine Consulate in Ireland; thus, the counsel prayed for another 20
days to file the Answer.
On March 30, 2004, private respondent filed a Motion to Dismiss[6] on the ground that the RTC had not acquired
jurisdiction over her as she was not properly served with summons, since she was temporarily out of the
country; that service of summons on her should conform to Section 16, Rule 14 of the Rules of Court. Petitioner
filed her Opposition[7] to the motion to dismiss, arguing that a substituted service of summons on private
respondent's husband was valid and binding on her; that service of summons under Section 16, Rule 14 was not
exclusive and may be effected by other modes of service, i.e., by personal or substituted service. Private
respondent filed a Comment[8] on petitioner's Opposition, and petitioner filed a Reply[9] thereto.
On May 7, 2004, the RTC issued its assailed Order granting private respondent's motion to dismiss. It found that
while the summons was served at private respondent's house and received by respondent's husband, such
service did not qualify as a valid service of summons on her as she was out of the country at the time the
summons was served, thus, she was not personally served a summons; and even granting that she knew that a
complaint was filed against her, nevertheless, the court did not acquire jurisdiction over her person as she was
not validly served with summons; that substituted service could not be resorted to since it was established that
private respondent was out of the country, thus, Section 16, Rule 14 provides for the service of summons on her
by publication.
Petitioner filed a motion for reconsideration, which the RTC denied in its Order dated July 21, 2004.
Petitioner is now before us alleging that the public respondent committed a grave abuse of discretion amounting
to lack or excess of jurisdiction when he ruled that:
I. Substituted service of summons upon private respondent, a defendant residing in

the Philippines but temporarily outside the country is invalid;
II. Section 16, Rule 14, of the 1997 Rules of Civil Procedure limits the mode of service of
summons upon a defendant residing in the Philippines, but temporarily outside the country,
exclusively to extraterritorial service of summons under section 15 of the same rule;
III. In not ruling that by filing two (2) motions for extension of time to file Answer,
private respondent had voluntarily submitted herself to the jurisdiction of respondent court,
pursuant to Section 20, Rule 14 of the 1997 Rules of Civil Procedure, hence, equivalent to
having been served with summons;
IV. The cases cited in his challenged Order of May 7, 2004 constitute stare decisis despite
his own admission that the factual landscape in those decided cases are entirely different from
those in this case.[10]
Petitioner claims that the RTC committed a grave abuse of discretion in ruling that Section 16, Rule 14, limits
the service of summons upon the defendant-resident who is temporarily out of the country exclusively by means
of extraterritorial service, i.e., by personal service or by publication, pursuant to Section 15 of the same Rule.
Petitioner further argues that in filing two motions for extension of time to file answer, private respondent
voluntarily submitted to the jurisdiction of the court.
In her Comment, private respondent claims that petitioner's certiorari under Rule 65 is not the proper remedy
but a petition for review under Rule 45, since the RTC ruling cannot be considered as having been issued with
grave abuse of discretion; that the petition was not properly verified because while the verification was dated
September 15, 2004, the petition was dated September 30, 2004. She insists that since she was out of the
country at the time the service of summons was made, such service should be governed by Section 16, in
relation to Section 15, Rule 14 of the Rules of Court; that there was no voluntary appearance on her part when
her counsel filed two motions for extension of time to file answer, since she filed her motion to dismiss on the
ground of lack of jurisdiction within the period provided under Section 1, Rule 16 of the Rules of Court.
In her Reply, petitioner claims that the draft of the petition and the verification and certification against forum
shopping were sent to her for her signature earlier than the date of the finalized petition, since the petition could
not be filed without her signed verification. Petitioner avers that when private respondent filed her two motions
for extension of time to file answer, no special appearance was made to challenge the validity of the service of
summons on her.
The parties subsequently filed their respective memoranda as required.
We shall first resolve the procedural issues raised by private respondent.
Private respondent's claim that the petition for certiorari under Rule 65 is a wrong remedy thus the petition
should be dismissed, is not persuasive. A petition for certiorari is proper when any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction and there is no appeal, or any plain, speedy, and
adequate remedy at law.[11] There is grave abuse of discretion when public respondent acts in a capricious or
whimsical manner in the exercise of its judgment as to be equivalent to lack of jurisdiction.
Section 1, Rule 41 of the 1997 Rules of Civil Procedure states that an appeal may be taken only from a final
order that completely disposes of the case; that no appeal may be taken from (a) an order denying a motion for
new trial or reconsideration; (b) an order denying a petition for relief or any similar motion seeking relief from
judgment; (c) an interlocutory order; (d) an order disallowing or dismissing an appeal; (e) an order denying a
motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress,
or any other ground vitiating consent; (f) an order of execution; (g) a judgment or final order for or against
one or more of several parties or in separate claims, counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless the court allows an appeal therefrom; or (h) an order
dismissing an action without prejudice. In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil action for certiorari under Rule 65.
In this case, the RTC Order granting the motion to dismiss filed by private respondent is a final order
because it terminates the proceedings against her, but it falls within exception (g) of the Rule since the case
involves several defendants, and the complaint for damages against these defendants is still pending. [12] Since
there is no appeal, or any plain, speedy, and adequate remedy in law, the remedy of a special civil action
for certiorari is proper as there is a need to promptly relieve the aggrieved party from the injurious effects of the
acts of an inferior court or tribunal.[13]
Anent private respondent's allegation that the petition was not properly verified, we find the same to be
devoid of merit. The purpose of requiring a verification is to secure an assurance that the allegations of the
petition have been made in good faith, or are true and correct, not merely speculative. [14] In this instance,
petitioner attached a verification to her petition although dated earlier than the filing of her petition. Petitioner
explains that since a draft of the petition and the verification were earlier sent to her in New York for her
signature, the verification was earlier dated than the petition for certiorari filed with us. We accept such
explanation. While Section 1, Rule 65 requires that the petition for certiorari be verified, this is not an absolute
necessity where the material facts alleged are a matter of record and the questions raised are mainly of law. [15] In
this case, the issue raised is purely of law.
Now on the merits, the issue for resolution is whether there was a valid service of summons on private
respondent.
In civil cases, the trial court acquires jurisdiction over the person of the defendant either by the service of
summons or by the latters voluntary appearance and submission to the authority of the former.[16] Private
respondent was a Filipino resident who was temporarily out of the Philippines at the time of the service of
summons; thus, service of summons on her is governed by Section 16, Rule 14 of the Rules of Court, which
provides:
Sec. 16. Residents temporarily out of the Philippines. When an action is commenced against a
defendant who ordinarily resides within the Philippines, but who is temporarily out of it,
service may, by leave of court, be also effected out of the Philippines, as under the preceding
section. (Emphasis supplied)
The preceding section referred to in the above provision is Section 15, which speaks of extraterritorial
service, thus:
SEC. 15. Extraterritorial service. When the defendant does not reside and is not found
in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the
subject of which is, property within the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the defendant has been
attached within the Philippines, service may, by leave of court, be effected out of the Philippines
by personal service as under section 6; or by publication in a newspaper of general circulation in
such places and for such time as the court may order, in which case a copy of the summons and
order of the court shall be sent by registered mail to the last known address of the defendant, or in
any other manner the court may deem sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60) days after notice, within which the
defendant must answer.
The RTC found that since private respondent was abroad at the time of the service of summons, she was
a resident who was temporarily out of the country; thus, service of summons may be made only by publication.
We do not agree.
In Montefalcon v. Vasquez,[17] we said that because Section 16 of Rule 14 uses the words may and also, it
is not mandatory. Other methods of service of summons allowed under the Rules may also be availed of by the
serving officer on a defendant-resident who is temporarily out of the Philippines. Thus, if a resident defendant is
temporarily out of the country, any of the following modes of service may be resorted to: (1) substituted service
set forth in section 7 ( formerly Section 8), Rule 14; (2) personal service outside the country, with leave of
court; (3) service by publication, also with leave of court; or (4) in any other manner the court may deem
sufficient.[18]
In Montalban v. Maximo,[19] we held that substituted service of summons under the present Section 7,
Rule 14 of the Rules of Court in a suit in personam against residents of the Philippines temporarily absent
therefrom is the normal method of service of summons that will confer jurisdiction on the court over such
defendant. In the same case, we expounded on the rationale in providing for substituted service as the normal
mode of service for residents temporarily out of the Philippines.
x x x A man temporarily absent from this country leaves a definite place of residence, a dwelling
where he lives, a local base, so to speak, 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; to do all that is
necessary to protect his interests; and to communicate with him from time to time any incident of
importance that may affect him or his business or his affairs. 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 just 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. Long distance telephone calls
and cablegrams make it easy for one he left behind to communicate with him.[20]
Considering that private respondent was temporarily out of the country, the summons and complaint
may be validly served on her through substituted service under Section 7, Rule 14 of the Rules of Court which
reads:
SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served
within a reasonable time as provided in the preceding section, service may be effected (a) by
leaving copies of the summons at the defendants residence with some person of suitable age and
discretion then residing therein, or (b) by leaving the copies at defendants office or regular place
of business with some competent person in charge thereof.
We have held that a dwelling, house or residence refers to the place where the person named in the summons is
living at the time when the service is made, even though he may be temporarily out of the country at the time.
[21]
It is, thus, the service of the summons intended for the defendant that must be left with the person of suitable
age and discretion residing in the house of the defendant. Compliance with the rules regarding the service of
summons is as important as the issue of due process as that of jurisdiction.[22]
Section 7 also designates the persons with whom copies of the process may be left. The rule presupposes that
such a relation of confidence exists between the person with whom the copy is left and the defendant and,
therefore, assumes that such person will deliver the process to defendant or in some way give him notice
thereof.[23]
In this case, the Sheriff's Return stated that private respondent was out of the country; thus, the service of
summons was made at her residence with her husband, Alfredo P. Agudo, acknowledging receipt thereof.
Alfredo was presumably of suitable age and discretion, who was residing in that place and, therefore, was
competent to receive the summons on private respondent's behalf.
Notably, private respondent makes no issue as to the fact that the place where the summons was served was her
residence, though she was temporarily out of the country at that time, and that Alfredo is her husband. In fact, in
the notice of appearance and motion for extension of time to file answer submitted by private respondent's
counsel, he confirmed the Sheriff's Return by stating that private respondent was out of the country and that his
service was engaged by respondent's husband. In his motion for another extension of time to file answer, private
respondent's counsel stated that a draft of the answer had already been prepared, which would be submitted to
private respondent, who was in Ireland for her clarification and/or verification before the Philippine Consulate
there. These statements establish the fact that private respondent had knowledge of the case filed against her,
and that her husband had told her about the case as Alfredo even engaged the services of her counsel.
In addition, we agree with petitioner that the RTC had indeed acquired jurisdiction over the person of private
respondent when the latter's counsel entered his appearance on private respondent's behalf, without qualification
and without questioning the propriety of the service of summons, and even filed two Motions for Extension of
Time to File Answer. In effect, private respondent, through counsel, had already invoked the RTCs jurisdiction
over her person by praying that the motions for extension of time to file answer be granted. We have held that
the filing of motions seeking affirmative relief, such as, to admit answer, for additional time to file answer, for
reconsideration of a default judgment, and to lift order of default with motion for reconsideration, are
considered voluntary submission to the jurisdiction of the court.[24] When private respondent earlier invoked the
jurisdiction of the RTC to secure affirmative relief in her motions for additional time to file answer, she
voluntarily submitted to the jurisdiction of the RTC and is thereby estopped from asserting otherwise.[25]
Considering the foregoing, we find that the RTC committed a grave abuse of discretion amounting to excess of
jurisdiction in issuing its assailed Orders.
WHEREFORE, the petition is GRANTED. The Orders dated May 7, 2004 and July 21, 2004 of
the Regional Trial Court of Iloilo City, Branch 24, are hereby SET ASIDE.Private respondent
is DIRECTED to file her Answer within the reglementary period from receipt of this decision.
SO ORDERED
NM ROTHSCHILD & SONS G.R. No. 175799

(AUSTRALIA) LIMITED,
Present:
Petitioner,
CORONA, C.J.,
Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,
- versus - DEL CASTILLO, and
VILLARAMA, JR., JJ.
Promulgated:
LEPANTO CONSOLIDATED MINING

COMPANY,
November 28, 2011
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
LEONARDO-DE CASTRO, J.:
This is a Petition for Review on Certiorari assailing the Decision[1] of the Court of Appeals dated
September 8, 2006 in CA-G.R. SP No. 94382 and its Resolution [2] dated December 12, 2006, denying the
Motion for Reconsideration.
On August 30, 2005, respondent Lepanto Consolidated Mining Company filed with the Regional Trial
Court (RTC) of Makati City a Complaint[3] against petitioner NM Rothschild & Sons (Australia) Limited
praying for a judgment declaring the loan and hedging contracts between the parties void for being contrary to
Article 2018[4] of the Civil Code of the Philippines and for damages. The Complaint was docketed as Civil Case
No. 05-782, and was raffled to Branch 150. Upon respondents (plaintiffs) motion, the trial court authorized
respondents counsel to personally bring the summons and Complaint to the Philippine Consulate General in
Sydney, Australia for the latter office to effect service of summons on petitioner (defendant).
On October 20, 2005, petitioner filed a Special Appearance With Motion to Dismiss [5] praying for the
dismissal of the Complaint on the following grounds: (a) the court has not acquired jurisdiction over the person
of petitioner due to the defective and improper service of summons; (b) the Complaint failed to state a cause of
action and respondent does not have any against petitioner; (c) the action is barred by estoppel; and (d)
respondent did not come to court with clean hands.
On November 29, 2005, petitioner filed two Motions: (1) a Motion for Leave to take the deposition of
Mr. Paul Murray (Director, Risk Management of petitioner) before the Philippine Consul General; and (2) a
Motion for Leave to Serve Interrogatories on respondent.
On December 9, 2005, the trial court issued an Order[6] denying the Motion to Dismiss. According to the
trial court, there was a proper service of summons through the Department of Foreign Affairs (DFA) on account
of the fact that the defendant has neither applied for a license to do business in the Philippines, nor filed with the
Securities and Exchange Commission (SEC) a Written Power of Attorney designating some person on whom
summons and other legal processes maybe served. The trial court also held that the Complaint sufficiently stated
a cause of action. The other allegations in the Motion to Dismiss were brushed aside as matters of defense which
can best be ventilated during the trial.
On December 27, 2005, petitioner filed a Motion for Reconsideration. [7] On March 6, 2006, the trial court issued
an Order denying the December 27, 2005 Motion for Reconsideration and disallowed the twin Motions for
Leave to take deposition and serve written interrogatories.[8]
On April 3, 2006, petitioner sought redress via a Petition for Certiorari[9] with the Court of Appeals,
alleging that the trial court committed grave abuse of discretion in denying its Motion to Dismiss. The Petition
was docketed as CA-G.R. SP No. 94382.
On September 8, 2006, the Court of Appeals rendered the assailed Decision dismissing the Petition
for Certiorari. The Court of Appeals ruled that since the denial of a Motion to Dismiss is an interlocutory order,
it cannot be the subject of a Petition for Certiorari, and may only be reviewed in the ordinary course of law by
an appeal from the judgment after trial. On December 12, 2006, the Court of Appeals rendered the assailed
Resolution denying the petitioners Motion for Reconsideration.
Meanwhile, on December 28, 2006, the trial court issued an Order directing respondent to answer some
of the questions in petitioners Interrogatories to Plaintiff dated September 7, 2006.
Notwithstanding the foregoing, petitioner filed the present petition assailing the September 8, 2006
Decision and the December 12, 2006 Resolution of the Court of Appeals. Arguing against the ruling of the
appellate court, petitioner insists that (a) an order denying a motion to dismiss may be the proper subject of a
petition for certiorari; and (b) the trial court committed grave abuse of discretion in not finding that it had not
validly acquired jurisdiction over petitioner and that the plaintiff had no cause of action.
Respondent, on the other hand, posits that: (a) the present Petition should be dismissed for not being filed by a
real party in interest and for lack of a proper verification and certificate of non-forum shopping; (b) the Court of
Appeals correctly ruled that certiorari was not the proper remedy; and (c) the trial court correctly denied
petitioners motion to dismiss.
Our discussion of the issues raised by the parties follows:
Whether petitioner is a real party in interest

Respondent argues that the present Petition should be dismissed on the ground that petitioner no longer
existed as a corporation at the time said Petition was filed on February 1, 2007. Respondent points out that as of
the date of the filing of the Petition, there is no such corporation that goes by the name NM Rothschild and Sons
(Australia) Limited. Thus, according to respondent, the present Petition was not filed by a real party in interest,
citing our ruling in Philips Export B.V. v. Court of Appeals,[10] wherein we held:
A name is peculiarly important as necessary to the very existence of a corporation

(American Steel Foundries vs. Robertson, 269 US 372, 70 L ed 317, 46 S Ct 160; Lauman vs.
Lebanon Valley R. Co., 30 Pa 42; First National Bank vs. Huntington Distilling Co., 40 W Va
530, 23 SE 792). Its name is one of its attributes, an element of its existence, and essential to its
identity (6 Fletcher [Perm Ed], pp. 3-4). The general rule as to corporations is that each
corporation must have a name by which it is to sue and be sued and do all legal acts. The name
of a corporation in this respect designates the corporation in the same manner as the name of an
individual designates the person (Cincinnati Cooperage Co. vs. Bate, 96 Ky 356, 26 SW 538;
Newport Mechanics Mfg. Co. vs. Starbird, 10 NH 123); and the right to use its corporate name is
as much a part of the corporate franchise as any other privilege granted (Federal Secur. Co. vs.
Federal Secur. Corp., 129 Or 375, 276 P 1100, 66 ALR 934; Paulino vs. Portuguese Beneficial
Association, 18 RI 165, 26 A 36).[11]
In its Memorandum[12] before this Court, petitioner started to refer to itself as Investec Australia Limited
(formerly NM Rothschild & Sons [Australia] Limited) and captioned said Memorandum accordingly. Petitioner
claims that NM Rothschild and Sons (Australia) Limited still exists as a corporation under the laws of Australia
under said new name. It presented before us documents evidencing the process in the Australian Securities &
Investment Commission on the change of petitioners company name from NM Rothschild and Sons (Australia)
Limited to Investec Australia Limited.[13]
We find the submissions of petitioner on the change of its corporate name satisfactory and resolve not to
dismiss the present Petition for Review on the ground of not being prosecuted under the name of the real party
in interest. While we stand by our pronouncement in Philips Export on the importance of the corporate name to
the very existence of corporations and the significance thereof in the corporations right to sue, we shall not go so
far as to dismiss a case filed by the proper party using its former name when adequate identification is
presented. A real party in interest is the party who stands to be benefited or injured by the judgment in the suit,
or the party entitled to the avails of the suit. [14]There is no doubt in our minds that the party who filed the present
Petition, having presented sufficient evidence of its identity and being represented by the same counsel as that of
the defendant in the case sought to be dismissed, is the entity that will be benefited if this Court grants the
dismissal prayed for.
Since the main objection of respondent to the verification and certification against forum shopping
likewise depends on the supposed inexistence of the corporation named therein, we give no credit to said
objection in light of the foregoing discussion.
Propriety of the Resort to a Petition for Certiorari with the

Court of Appeals
We have held time and again that an order denying a Motion to Dismiss is an interlocutory order which
neither terminates nor finally disposes of a case as it leaves something to be done by the court before the case is
finally decided on the merits. The general rule, therefore, is that the denial of a Motion to Dismiss cannot be
questioned in a special civil action for Certiorari which is a remedy designed to correct errors of jurisdiction
and not errors of judgment.[15] However, we have likewise held that when the denial of the Motion to Dismiss is
tainted with grave abuse of discretion, the grant of the extraordinary remedy of Certiorari may be justified. By
grave abuse of discretion is meant:
[S]uch capricious and whimsical exercise of judgment that is equivalent to lack of

jurisdiction. The abuse of discretion must be grave as where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and
gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined by or to act all in contemplation of law.[16]
The resolution of the present Petition therefore entails an inquiry into whether the Court of Appeals
correctly ruled that the trial court did not commit grave abuse of discretion in its denial of petitioners Motion to
Dismiss. A mere error in judgment on the part of the trial court would undeniably be inadequate for us to reverse
the disposition by the Court of Appeals.
Issues more properly ventilated during the trial of the case

As previously stated, petitioner seeks the dismissal of Civil Case No. 05-782 on the following grounds:
(a) lack of jurisdiction over the person of petitioner due to the defective and improper service of summons; (b)
failure of the Complaint to state a cause of action and absence of a cause of action; (c) the action is barred by
estoppel; and (d) respondent did not come to court with clean hands.
As correctly ruled by both the trial court and the Court of Appeals, the alleged absence of a cause of
action (as opposed to the failure to state a cause of action), the alleged estoppel on the part of petitioner, and the
argument that respondent is in pari delicto in the execution of the challenged contracts, are not grounds in a
Motion to Dismiss as enumerated in Section 1, Rule 16 [17] of the Rules of Court. Rather, such defenses raise
evidentiary issues closely related to the validity and/or existence of respondents alleged cause of action and
should therefore be threshed out during the trial.
As regards the allegation of failure to state a cause of action, while the same is usually available as a
ground in a Motion to Dismiss, said ground cannot be ruled upon in the present Petition without going into the
very merits of the main case.
It is basic that [a] cause of action is the act or omission by which a party violates a right of another. [18] Its
elements are the following: (1) a right existing in favor of the plaintiff, (2) a duty on the part of the defendant to
respect the plaintiff's right, and (3) an act or omission of the defendant in violation of such right.[19] We have held
that to sustain a Motion to Dismiss for lack of cause of action, the complaint must show that the claim for relief
does not exist and not only that the claim was defectively stated or is ambiguous, indefinite or uncertain.[20]
The trial court held that the Complaint in the case at bar contains all the three elements of a cause of
action, i.e., it alleges that: (1) plaintiff has the right to ask for the declaration of nullity of the Hedging Contracts
for being null and void and contrary to Article 2018 of the Civil Code of the Philippines; (2) defendant has the
corresponding obligation not to enforce the Hedging Contracts because they are in the nature of wagering or
gambling agreements and therefore the transactions implementing those contracts are null and void under
Philippine laws; and (3) defendant ignored the advice and intends to enforce the Hedging Contracts by
demanding financial payments due therefrom.[21]
The rule is that in a Motion to Dismiss, a defendant hypothetically admits the truth of the material
allegations of the ultimate facts contained in the plaintiff's complaint. [22]However, this principle of hypothetical
admission admits of exceptions. Thus, in Tan v. Court of Appeals, [23] we held:
The flaw in this conclusion is that, while conveniently echoing the general rule that
averments in the complaint are deemed hypothetically admitted upon the filing of a motion to
dismiss grounded on the failure to state a cause of action, it did not take into account the equally
established limitations to such rule, i.e., that a motion to dismiss does not admit the truth of
mere epithets of fraud; nor allegations of legal conclusions; nor an erroneous statement of law;
nor mere inferences or conclusions from facts not stated; nor mere conclusions of law; nor
allegations of fact the falsity of which is subject to judicial notice; nor matters of evidence; nor
surplusage and irrelevant matter; nor scandalous matter inserted merely to insult the opposing
party; nor to legally impossible facts; nor to facts which appear unfounded by a record
incorporated in the pleading, or by a document referred to; and, nor to general averments
contradicted by more specific averments. A more judicious resolution of a motion to dismiss,
therefore, necessitates that the court be not restricted to the consideration of the facts alleged in
the complaint and inferences fairly deducible therefrom. Courts may consider other facts within
the range of judicial notice as well as relevant laws and jurisprudence which the courts are bound
to take into account, and they are also fairly entitled to examine records/documents duly
incorporated into the complaint by the pleader himself in ruling on the demurrer to the
complaint.[24](Emphases supplied.)
In the case at bar, respondent asserts in the Complaint that the Hedging Contracts are void for being
contrary to Article 2018[25] of the Civil Code. Respondent claims that under the Hedging Contracts, despite the
express stipulation for deliveries of gold, the intention of the parties was allegedly merely to compel each other
to pay the difference between the value of the gold at the forward price stated in the contract and its market price
at the supposed time of delivery.
Whether such an agreement is void is a mere allegation of a conclusion of law, which therefore cannot be
hypothetically admitted. Quite properly, the relevant portions of the contracts sought to be nullified, as well as a
copy of the contract itself, are incorporated in the Complaint. The determination of whether or not the
Complaint stated a cause of action would therefore involve an inquiry into whether or not the assailed contracts
are void under Philippine laws. This is, precisely, the very issue to be determined in Civil Case No. 05-
782. Indeed, petitioners defense against the charge of nullity of the Hedging Contracts is the purported intent of
the parties that actual deliveries of gold be made pursuant thereto. Such a defense requires the presentation of
evidence on the merits of the case. An issue that requires the contravention of the allegations of the complaint,
as well as the full ventilation, in effect, of the main merits of the case, should not be within the province of a
mere Motion to Dismiss.[26] The trial court, therefore, correctly denied the Motion to Dismiss on this ground.
It is also settled in jurisprudence that allegations of estoppel and bad faith require proof. Thus,
in Paraaque Kings Enterprises, Inc. v. Court of Appeals,[27] we ruled:
Having come to the conclusion that the complaint states a valid cause of action for breach
of the right of first refusal and that the trial court should thus not have dismissed the complaint,
we find no more need to pass upon the question of whether the complaint states a cause of action
for damages or whether the complaint is barred by estoppel or laches. As these
matters require presentation and/or determination of facts, they can be best resolved after
trial on the merits.[28] (Emphases supplied.)
On the proposition in the Motion to Dismiss that respondent has come to court with unclean hands,
suffice it to state that the determination of whether one acted in bad faith and whether damages may be awarded
is evidentiary in nature. Thus, we have previously held that [a]s a matter of defense, it can be best passed upon
after a full-blown trial on the merits.[29]
Jurisdiction over the person of petitioner
Petitioner alleges that the RTC has not acquired jurisdiction over its person on account of the improper
service of summons. Summons was served on petitioner through the DFA, with respondents counsel personally
bringing the summons and Complaint to the Philippine Consulate General in Sydney, Australia.
In the pleadings filed by the parties before this Court, the parties entered into a lengthy debate as to
whether or not petitioner is doing business in the Philippines. However, such discussion is completely irrelevant
in the case at bar, for two reasons. Firstly, since the Complaint was filed on August 30, 2005, the provisions of
the 1997 Rules of Civil Procedure govern the service of summons. Section 12, Rule 14 of said rules provides:
Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign
private juridical entity which has transacted business in the Philippines, service may be made
on its resident agent designated in accordance with law for that purpose, or, if there be no such
agent, on the government official designated by law to that effect, or on any of its officers or
agents within the Philippines. (Emphasis supplied.)
This is a significant amendment of the former Section 14 of said rule which previously provided:
Sec. 14. Service upon private foreign corporations. If the defendant is a foreign
corporation, or a nonresident joint stock company or association, doing business in the
Philippines, service may be made on its resident agent designated in accordance with law for
that purpose, or if there be no such agent, on the government official designated by law to that
effect, or on any of its officers or agents within the Philippines. (Emphasis supplied.)
The coverage of the present rule is thus broader.[30] Secondly, the service of summons to petitioner through the
DFA by the conveyance of the summons to the Philippine Consulate General in Sydney, Australia was clearly
made not through the above-quoted Section 12, but pursuant to Section 15 of the same rule which provides:
Sec. 15. Extraterritorial service. When the defendant does not reside and is not found in
the Philippines, and the action affects the personal status of the plaintiff or relates to, or the
subject of which is property within the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the defendant has been
attached within the Philippines, service may, by leave of court, be effected out of the Philippines
by personal service as under section 6; or by publication in a newspaper of general circulation in
such places and for such time as the court may order, in which case a copy of the summons and
order of the court shall be sent by registered mail to the last known address of the defendant, or
in any other manner the court may deem sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60) days after notice, within which the
defendant must answer.
Respondent argues[31] that extraterritorial service of summons upon foreign private juridical entities is not
proscribed under the Rules of Court, and is in fact within the authority of the trial court to adopt, in accordance
with Section 6, Rule 135:
Sec. 6. Means to carry jurisdiction into effect. When by law jurisdiction is conferred on a
court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into
effect may be employed by such court or officer; and if the procedure to be followed in the
exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable
process or mode of proceeding may be adopted which appears comformable to the spirit of said
law or rules.
Section 15, Rule 14, however, is the specific provision dealing precisely with the service of summons on
a defendant which does not reside and is not found in the Philippines, while Rule 135 (which is in Part V of the
Rules of Court entitled Legal Ethics) concerns the general powers and duties of courts and judicial officers.
Breaking down Section 15, Rule 14, it is apparent that there are only four instances wherein a defendant
who is a non-resident and is not found in the country may be served with summons by extraterritorial service, to
wit: (1) when the action affects the personal status of the plaintiffs; (2) when the action relates to, or the subject
of which is property, within the Philippines, in which the defendant claims a lien or an interest, actual or
contingent; (3) when the relief demanded in such action consists, wholly or in part, in excluding the defendant
from any interest in property located in the Philippines; and (4) when the defendant non-resident's property has
been attached within the Philippines. In these instances, service of summons may be effected by (a) personal
service out of the country, with leave of court; (b) publication, also with leave of court; or (c) any other manner
the court may deem sufficient.[32]
Proceeding from this enumeration, we held in Perkin Elmer Singapore Pte Ltd. v. Dakila Trading
Corporation[33] that:
Undoubtedly, extraterritorial service of summons applies only where the action is in

rem or quasi in rem, but not if an action is in personam.
When the case instituted is an action in rem or quasi in rem, Philippine courts already
have jurisdiction to hear and decide the case because, in actions in rem and quasi in rem,
jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the
court, provided that the court acquires jurisdiction over the res. Thus, in such instance,
extraterritorial service of summons can be made upon the defendant. The said extraterritorial
service of summons is not for the purpose of vesting the court with jurisdiction, but for
complying with the requirements of fair play or due process, so that the defendant will be
informed of the pendency of the action against him and the possibility that property in the
Philippines belonging to him or in which he has an interest may be subjected to a judgment in
favor of the plaintiff, and he can thereby take steps to protect his interest if he is so minded. On
the other hand, when the defendant or respondent does not reside and is not found in the
Philippines, and the action involved is in personam, Philippine courts cannot try any case
against him because of the impossibility of acquiring jurisdiction over his person unless he
voluntarily appears in court.[34] (Emphases supplied.)
In Domagas v. Jensen,[35] we held that:
[T]he aim and object of an action determine its character. Whether a proceeding is in rem, or in
personam, or quasi in rem for that matter, is determined by its nature and purpose, and by these
only. A proceeding in personam is a proceeding to enforce personal rights and obligations
brought against the person and is based on the jurisdiction of the person, although it may involve
his right to, or the exercise of ownership of, specific property, or seek to compel him to control
or dispose of it in accordance with the mandate of the court. The purpose of a proceeding in
personam is to impose, through the judgment of a court, some responsibility or liability directly
upon the person of the defendant. Of this character are suits to compel a defendant to specifically
perform some act or actions to fasten a pecuniary liability on him.[36]
It is likewise settled that [a]n action in personam is lodged against a person based on personal liability; an
action in rem is directed against the thing itself instead of the person; while an action quasi in rem names a
person as defendant, but its object is to subject that persons interest in a property to a corresponding lien or
obligation.[37]
The Complaint in the case at bar is an action to declare the loan and Hedging Contracts between the
parties void with a prayer for damages. It is a suit in which the plaintiff seeks to be freed from its obligations
to the defendant under a contract and to hold said defendant pecuniarily liable to the plaintiff for entering into
such contract. It is therefore an action in personam, unless and until the plaintiff attaches a property within the
Philippines belonging to the defendant, in which case the action will be converted to one quasi in rem.
Since the action involved in the case at bar is in personam and since the defendant, petitioner
Rothschild/Investec, does not reside and is not found in the Philippines, the Philippine courts cannot try any case
against it because of the impossibility of acquiring jurisdiction over its person unless it voluntarily appears in
court.[38]
In this regard, respondent vigorously argues that petitioner should be held to have voluntarily appeared
before the trial court when it prayed for, and was actually afforded, specific reliefs from the trial court.
[39]
Respondent points out that while petitioners Motion to Dismiss was still pending, petitioner prayed for and
was able to avail of modes of discovery against respondent, such as written interrogatories, requests for
admission, deposition, and motions for production of documents.[40]
Petitioner counters that under this Courts ruling in the leading case of La Naval Drug Corporation v.
Court of Appeals,[41] a party may file a Motion to Dismiss on the ground of lack of jurisdiction over its person,
and at the same time raise affirmative defenses and pray for affirmative relief, without waiving its objection to
the acquisition of jurisdiction over its person.[42]
It appears, however, that petitioner misunderstood our ruling in La Naval. A close reading of La
Naval reveals that the Court intended a distinction between the raising of affirmative defenses in an Answer
(which would not amount to acceptance of the jurisdiction of the court) and the prayer for affirmative
reliefs (which would be considered acquiescence to the jurisdiction of the court):
In the same manner that a plaintiff may assert two or more causes of action in a
court suit, a defendant is likewise expressly allowed, under Section 2, Rule 8, of the Rules of
Court, to put up his own defenses alternatively or even hypothetically. Indeed, under Section
2, Rule 9, of the Rules of Court, defenses and objections not pleaded either in a motion to
dismiss or in an answer, except for the failure to state a cause of action, are deemed waived. We
take this to mean that a defendant may, in fact, feel enjoined to set up, along with his objection to
the court's jurisdiction over his person, all other possible defenses. It thus appears that it is not
the invocation of any of such defenses, but the failure to so raise them, that can result in waiver
or estoppel. By defenses, of course, we refer to the grounds provided for in Rule 16 of the
Rules of Court that must be asserted in a motion to dismiss or by way of affirmative

defenses in an answer.
Mindful of the foregoing, in Signetics Corporation vs. Court of Appeals and Freuhauf
Electronics Phils., Inc. (225 SCRA 737, 738), we lately ruled:
This is not to say, however, that the petitioner's right to question the
jurisdiction of the court over its person is now to be deemed a foreclosed
matter. If it is true, as Signetics claims, that its only involvement in the
Philippines was through a passive investment in Sigfil, which it even later
disposed of, and that TEAM Pacific is not its agent, then it cannot really be said to
be doing business in the Philippines. It is a defense, however, that requires the
contravention of the allegations of the complaint, as well as a full ventilation, in
effect, of the main merits of the case, which should not thus be within the
province of a mere motion to dismiss. So, also, the issue posed by the petitioner as
to whether a foreign corporation which has done business in the country, but
which has ceased to do business at the time of the filing of a complaint, can still
be made to answer for a cause of action which accrued while it was doing
business, is another matter that would yet have to await the reception and
admission of evidence. Since these points have seasonably been raised by the
petitioner, there should be no real cause for what may understandably be its
apprehension, i.e., that by its participation during the trial on the merits, it
may, absent an invocation of separate or independent reliefs of its own, be
considered to have voluntarily submitted itself to the court's jurisdiction.
[43]
(Emphases supplied.)
In order to conform to the ruling in La Naval, which was decided by this Court in 1994, the former
Section 23, Rule 14[44] concerning voluntary appearance was amended to include a second sentence in its
equivalent provision in the 1997 Rules of Civil Procedure:
SEC. 20. Voluntary appearance. The defendant's voluntary appearance in the action shall
be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant shall not be deemed a
voluntary appearance. (Emphasis supplied.)
The new second sentence, it can be observed, merely mentions other grounds in a Motion to Dismiss
aside from lack of jurisdiction over the person of the defendant. This clearly refers to affirmative defenses,
rather than affirmative reliefs.
Thus, while mindful of our ruling in La Naval and the new Section 20, Rule 20, this Court, in several
cases, ruled that seeking affirmative relief in a court is tantamount to voluntary appearance therein. [45] Thus,
in Philippine Commercial International Bank v. Dy Hong Pi,[46] wherein defendants filed a Motion for Inhibition
without submitting themselves to the jurisdiction of this Honorable Court subsequent to their filing of a Motion
to Dismiss (for Lack of Jurisdiction), we held:
Besides, any lingering doubts on the issue of voluntary appearance dissipate when the
respondents' motion for inhibition is considered. This motion seeks a sole relief: inhibition of
Judge Napoleon Inoturan from further hearing the case. Evidently, by seeking affirmative relief
other than dismissal of the case, respondents manifested their voluntary submission to the
court's jurisdiction. It is well-settled that the active participation of a party in the proceedings is
tantamount to an invocation of the court's jurisdiction and a willingness to abide by the
resolution of the case, and will bar said party from later on impugning the court's jurisdiction.
[47]
(Emphasis supplied.)
In view of the above, we therefore rule that petitioner, by seeking affirmative reliefs from the trial court,
is deemed to have voluntarily submitted to the jurisdiction of said court. A party cannot invoke the jurisdiction
of a court to secure affirmative relief against his opponent and after obtaining or failing to obtain such relief,
repudiate or question that same jurisdiction.[48] Consequently, the trial court cannot be considered to have
committed grave abuse of discretion amounting to lack or excess of jurisdiction in the denial of the Motion to
Dismiss on account of failure to acquire jurisdiction over the person of the defendant.
WHEREFORE, the Petition for Review on Certiorari is DENIED. The Decision of the Court of
Appeals dated September 8, 2006 and its Resolution dated December 12, 2006 in CA-G.R. SP No. 94382 are
hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED
VILLAROSA VS BENITO
SYNOPSIS
In this instant petition, E.B. Villarosa and Partner Co., Ltd. contended that the trial court did not acquire
jurisdiction over its person because the summons intended for it was improperly served on its Branch Manager.
The Court agreed with petitioner. Designation of persons or officers who are authorized to accept summons
for a domestic corporation or partnership is now limited and more clearly specified in the 1997 Rules of Civil
Procedure. The rule must be strictly observed, service must be made to one named in the statute.
Petitioners filing of a motion to dismiss, precisely objecting to the jurisdiction of the court over the person
of the defendant, can by no means be deemed a submission to the jurisdiction of the court.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; SUMMONS; AGENTS NO LONGER AUTHORIZED TO
RECEIVE SUMMONS FOR CORPORATION. - Earlier cases have uphold service of summons upon a
construction project manager; a corporations assistant manager; ordinary clerk of a corporation; private
secretary of corporate executives; retained counsel; officials who had charge or control of the operations of
the
corporation, like the assistant general manager; or the corporations Chief Finance and Administrative Officer. In
these cases, these persons were considered as agent within the contemplation of the old rule. Notably, under
the new Rules, service of summons upon an agent of the corporation is no longer authorized.
2. ID.; ID.; ID.; DESIGNATION OF PERSONS OR OFFICERS AUTHORIZED TO RECEIVE
SUMMONS FOR DOMESTIC CORPORATIONS, LIMITED. - The designation of persons or officers
who are authorized to accept summons for a domestic corporation or partnership is now limited and more
clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil Procedure. The rule now states general
manager instead of only manager; corporate secretary instead of secretary; and treasurer instead of cashier.
The phrase agent, or any of its directors is conspicuously deleted in the new rule. x x x It should be noted
that even prior to the effectivity of the 1997 Rules of Civil Procedure, strict compliance with the rules has
been enjoined. (Delta Motor Sales Corporation vs. Mangosing, 70 SCRA 598 [1976])
3. ID.; ID.; ID.; JURISDICTION NOT ACQUIRED WHERE SERVICE OF SUMMONS WAS MADE
ON BRANCH MANAGER. -Accordingly, we rule that the service of summons upon the branch manager
of petitioner at its branch office at Cagayan de Oro, instead of upon the general manager at its principal
office at Davao City is improper. Consequently, the trial court did not acquire jurisdiction over the person
of the petitioner.
4. ID.; ID.; ID.; INEFFECTIVE SERVICE OF SUMMONS; FILING OF MOTION TO DISMISS DOES
NOT CONSTITUTE VOLUNTARY APPEARANCE. - The fact that defendant filed a belated motion to
dismiss did not operate to confer jurisdiction upon its person. There is no question that the defendants
voluntary appearance in the action is equivalent to service of summons. Before, the rule was that a party
may challenge the jurisdiction of the court over his person by making a special appearance through a
motion to dismiss and if in the same motion, the movant raised other grounds or invoked affirmative relief
which necessarily involves the exercise of the jurisdiction of the court, the party is deemed to have
submitted himself to the jurisdiction of the court. This doctrine has been abandoned in the case of La Naval
Drug Corporation vs. Court of Appeals, et al., which became the basis of the adoption of a new provision
in the former Section 23, which is now Section 20 of Rule 14 of the 1997 Rules. Section 20 now provides
that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of
the defendant shall not be deemed a voluntary appearance. The emplacement of this rule clearly
underscores the purpose to enforce strict enforcement of the rules on summons. Accordingly, the filing of a
motion to dismiss, whether or not belatedly filed by the defendant, his authorized agent or attorney,
precisely objecting to the jurisdiction of the court over the person of the defendant can by no means be
deemed a submission to the jurisdiction of the court. There being no proper service of summons, the trial
court cannot take cognizance of a case for lack of jurisdiction over the person of the defendant. Any
proceeding undertaken by the trial court will consequently be null and void.
[G.R. No. 136426. August 6, 1999]
E. B. VILLAROSA & PARTNER CO., LTD., petitioner, vs. HON. HERMINIO I. BENITO, in his capacity
as Presiding Judge, RTC, Branch 132, Makati City and IMPERIAL DEVELOPMENT
CORPORATION, respondent.
DECISION
GONZAGA-REYES, J.:
Before this Court is a petition for certiorari and prohibition with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction seeking to annul and set aside the Orders dated August 5,
1998 and November 20, 1998 of the public respondent Judge Herminio I. Benito of the Regional Trial Court of
Makati City, Branch 132 and praying that the public respondent court be ordered to desist from further
proceeding with Civil Case No. 98-824.
Petitioner E.B. Villarosa & Partner Co., Ltd. is a limited partnership with principal office address at 102
Juan Luna St., Davao City and with branch offices at 2492 Bay View Drive, Tambo, Paraaque, Metro Manila
and Kolambog, Lapasan, Cagayan de Oro City. Petitioner and private respondent executed a Deed of Sale with
Development Agreement wherein the former agreed to develop certain parcels of land located at Barrio Carmen,
Cagayan de Oro belonging to the latter into a housing subdivision for the construction of low cost housing
units. They further agreed that in case of litigation regarding any dispute arising therefrom, the venue shall be in
the proper courts of Makati.
On April 3, 1998, private respondent, as plaintiff, filed a Complaint for Breach of Contract and Damages
against petitioner, as defendant, before the Regional Trial Court of Makati allegedly for failure of the latter to
comply with its contractual obligation in that, other than a few unfinished low cost houses, there were no
substantial developments therein.[1]
Summons, together with the complaint, were served upon the defendant, through its Branch Manager Engr.
Wendell Sabulbero at the stated address at Kolambog, Lapasan, Cagayan de Oro City [2] but the Sheriffs Return
of Service[3] stated that the summons was duly served upon defendant E. B. Villarosa & Partner Co., Ltd. thru its
Branch Manager Engr. WENDELL SALBULBERO on May 5, 1998 at their new office Villa Gonzalo,
Nazareth, Cagayan de Oro City, and evidenced by the signature on the face of the original copy of the
summons.
On June 9, 1998, defendant filed a Special Appearance with Motion to Dismiss [4]alleging that on May 6,
1998, summons intended for defendant was served upon Engr. Wendell Sabulbero, an employee of defendant at
its branch office at Cagayan de Oro City. Defendant prayed for the dismissal of the complaint on the ground of
improper service of summons and for lack of jurisdiction over the person of the defendant. Defendant contends
that the trial court did not acquire jurisdiction over its person since the summons was improperly served upon its
employee in its branch office at Cagayan de Oro City who is not one of those persons named in Section 11, Rule
14 of the 1997 Rules of Civil Procedure upon whom service of summons may be made.
Meanwhile, on June 10, 1998, plaintiff filed a Motion to Declare Defendant in Default [5] alleging that
defendant has failed to file an Answer despite its receipt allegedly on May 5, 1998 of the summons and the
complaint, as shown in the Sheriffs Return.
On June 22, 1998, plaintiff filed an Opposition to Defendants Motion to Dismiss [6] alleging that the records
show that defendant, through its branch manager, Engr. Wendell Sabulbero actually received the summons and
the complaint on May 8, 1998 as evidenced by the signature appearing on the copy of the summons and not on
May 5, 1998 as stated in the Sheriffs Return nor on May 6, 1998 as stated in the motion to dismiss; that
defendant has transferred its office from Kolambog, Lapasan, Cagayan de Oro to its new office address at Villa
Gonzalo, Nazareth, Cagayan de Oro; and that the purpose of the rule is to bring home to the corporation notice
of the filing of the action.
On August 5, 1998, the trial court issued an Order [7] denying defendants Motion to Dismiss as well as
plaintiffs Motion to Declare Defendant in Default. Defendant was given ten (10) days within which to file a
responsive pleading. The trial court stated that since the summons and copy of the complaint were in fact
received by the corporation through its branch manager Wendell Sabulbero, there was substantial compliance
with the rule on service of summons and consequently, it validly acquired jurisdiction over the person of the
defendant.
On August 19, 1998, defendant, by Special Appearance, filed a Motion for Reconsideration [8] alleging that
Section 11, Rule 14 of the new Rules did not liberalize but, on the contrary, restricted the service of summons
on persons enumerated therein; and that the new provision is very specific and clear in that the word manager
was changed to general manager, secretary to corporate secretary, and excluding therefrom agent and director.
On August 27, 1998, plaintiff filed an Opposition to defendants Motion for Reconsideration [9] alleging that
defendants branch manager did bring home to the defendant-corporation the notice of the filing of the action
and by virtue of which a motion to dismiss was filed; and that it was one (1) month after receipt of the summons
and the complaint that defendant chose to file a motion to dismiss.
On September 4, 1998, defendant, by Special Appearance, filed a Reply [10] contending that the changes in
the new rules are substantial and not just general semantics.
Defendants Motion for Reconsideration was denied in the Order dated November 20, 1998.[11]
Hence, the present petition alleging that respondent court gravely abused its discretion tantamount to lack
or in excess of jurisdiction in denying petitioners motions to dismiss and for reconsideration, despite the fact
that the trial court did not acquire jurisdiction over the person of petitioner because the summons intended for it
was improperly served. Petitioner invokes Section 11 of Rule 14 of the 1997 Rules of Civil Procedure.
Private respondent filed its Comment to the petition citing the cases of Kanlaon Construction Enterprises
Co., Inc. vs. NLRC[12] wherein it was held that service upon a construction project manager is valid and in
Gesulgon vs. NLRC[13] which held that a corporation is bound by the service of summons upon its assistant
manager.
The only issue for resolution is whether or not the trial court acquired jurisdiction over the person of
petitioner upon service of summons on its Branch Manager.
When the complaint was filed by Petitioner on April 3, 1998, the 1997 Rules of Civil Procedure was
already in force.[14]
Section 11, Rule 14 of the 1997 Rules of Civil Procedure provides that:
When the defendant is a corporation, partnership or association organized under the laws of the Philippines with
a juridical personality, service may be made on the president, managing partner, general manager, corporate
secretary, treasurer, or in-house counsel. (underscoring supplied).
This provision revised the former Section 13, Rule 14 of the Rules of Court which provided that:
SEC. 13. Service upon private domestic corporation or partnership. If the defendant is a corporation organized
under the laws of the Philippines or a partnership duly registered, service may be made on the
president, manager, secretary, cashier, agent, or any of its directors. (underscoring supplied).
Petitioner contends that the enumeration of persons to whom summons may be served is restricted, limited
and exclusive following the rule on statutory construction expressio unios est exclusio alterius and argues that if
the Rules of Court Revision Committee intended to liberalize the rule on service of summons, it could have
easily done so by clear and concise language.
We agree with petitioner.
Earlier cases have uphold service of summons upon a construction project manager [15]; a corporations
assistant manager[16]; ordinary clerk of a corporation[17]; private secretary of corporate executives[18]; retained
counsel[19]; officials who had charge or control of the operations of the corporation, like the assistant general
manager[20]; or the corporations Chief Finance and Administrative Officer[21]. In these cases, these persons were
considered as agent within the contemplation of the old rule.[22] Notably, under the new Rules, service of
summons upon an agent of the corporation is no longer authorized.
The cases cited by private respondent are therefore not in point.
In the Kanlaon case, this Court ruled that under the NLRC Rules of Procedure, summons on the respondent
shall be served personally or by registered mail on the party himself; if the party is represented by counsel or
any other authorized representative or agent, summons shall be served on such person. In said case, summons
was served on one Engr. Estacio who managed and supervised the construction project in Iligan City (although
the principal address of the corporation is in Quezon City) and supervised the work of the employees. It was
held that as manager, he had sufficient responsibility and discretion to realize the importance of the legal papers
served on him and to relay the same to the president or other responsible officer of petitioner such that summons
for petitioner was validly served on him as agent and authorized representative of petitioner. Also in the
Gesulgon case cited by private respondent, the summons was received by the clerk in the office of the Assistant
Manager (at principal office address) and under Section 13 of Rule 14 (old rule), summons may be made upon
the clerk who is regarded as agent within the contemplation of the rule.
The designation of persons or officers who are authorized to accept summons for a domestic corporation or
partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil
Procedure. The rule now states general manager instead of only manager; corporate secretary instead of
secretary; and treasurer instead of cashier. The phrase agent, or any of its directors is conspicuously deleted in
the new rule.
The particular revision under Section 11 of Rule 14 was explained by retired Supreme Court Justice
Florenz Regalado, thus:[23]
x x x the then Sec. 13 of this Rule allowed service upon a defendant corporation to be made on the president,
manager, secretary, cashier, agent or any of its directors. The aforesaid terms were obviously ambiguous and
susceptible of broad and sometimes illogical interpretations, especially the word agent of the corporation. The
Filoil case, involving the litigation lawyer of the corporation who precisely appeared to challenge the validity of
service of summons but whose very appearance for that purpose was seized upon to validate the defective
service, is an illustration of the need for this revised section with limited scope and specific terminology. Thus
the absurd result in the Filoil case necessitated the amendment permitting service only on the in-house counsel
of the corporation who is in effect an employee of the corporation, as distinguished from an independent
practitioner. (underscoring supplied)
Retired Justice Oscar Herrera, who is also a consultant of the Rules of Court Revision Committee, stated
that (T)he rule must be strictly observed. Service must be made to one named in (the) statute x x x.[24]
It should be noted that even prior to the effectivity of the 1997 Rules of Civil Procedure, strict compliance
with the rules has been enjoined. In the case of Delta Motor Sales Corporation vs. Mangosing,[25] the Court held:
A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a
corporation. The officer upon whom service is made must be one who is named in the statute; otherwise the
service is insufficient. x x x.
The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an
action against it or to insure that the summons be served on a representative so integrated with the corporation
that such person will know what to do with the legal papers served on him. In other words, to bring home to the
corporation notice of the filing of the action. x x x.
The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to
the manner in which summons should be served on a domestic corporation. x x x. (underscoring supplied).
Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule) has been
held as improper.[26] Even under the old rule, service upon a general manager of a firms branch office has been
held as improper as summons should have been served at the firms principal office. In First Integrated Bonding
& Ins. Co., Inc. vs. Dizon,[27] it was held that the service of summons on the general manager of the insurance
firms Cebu branch was improper; default order could have been obviated had the summons been served at the
firms principal office.
And in the case of Solar Team Entertainment, Inc. vs. Hon. Helen Bautista Ricafort, et al. [28] the Court
succinctly clarified that, for the guidance of the Bench and Bar, strictest compliance with Section 11 of Rule 13
of the 1997 Rules of Civil Procedure (on Priorities in modes of service and filing) is mandated and the Court
cannot rule otherwise, lest we allow circumvention of the innovation by the 1997 Rules in order to obviate
delay in the administration of justice.
Accordingly, we rule that the service of summons upon the branch manager of petitioner at its branch office
at Cagayan de Oro, instead of upon the general manager at its principal office at Davao City is
improper. Consequently, the trial court did not acquire jurisdiction over the person of the petitioner.
The fact that defendant filed a belated motion to dismiss did not operate to confer jurisdiction upon its
person. There is no question that the defendants voluntary appearance in the action is equivalent to service of
summons.[29] Before, the rule was that a party may challenge the jurisdiction of the court over his person by
making a special appearance through a motion to dismiss and if in the same motion, the movant raised other
grounds or invoked affirmative relief which necessarily involves the exercise of the jurisdiction of the court, the
party is deemed to have submitted himself to the jurisdiction of the court. [30] This doctrine has been abandoned
in the case of La Naval Drug Corporation vs. Court of Appeals, et al., [31] which became the basis of the adoption
of a new provision in the former Section 23, which is now Section 20 of Rule 14 of the 1997 Rules. Section 20
now provides that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the
person of the defendant shall not be deemed a voluntary appearance. The emplacement of this rule clearly
underscores the purpose to enforce strict enforcement of the rules on summons. Accordingly, the filing of a
motion to dismiss, whether or not belatedly filed by the defendant, his authorized agent or attorney, precisely
objecting to the jurisdiction of the court over the person of the defendant can by no means be deemed a
submission to the jurisdiction of the court. There being no proper service of summons, the trial court cannot
take cognizance of a case for lack of jurisdiction over the person of the defendant. Any proceeding undertaken
by the trial court will consequently be null and void.[32]
WHEREFORE, the petition is hereby GRANTED. The assailed Orders of the public respondent trial court
are ANNULLED and SET ASIDE. The public respondent Regional Trial Court of Makati, Branch 132 is
declared without jurisdiction to take cognizance of Civil Case No. 98-824, and all its orders and issuances in
connection therewith are hereby ANNULLED and SET ASIDE.
SO ORDERED.
G.R. No. 130974 August 16, 2006
MA. IMELDA M. MANOTOC, Petitioner,

vs.
HONORABLE COURT OF APPEALS and AGAPITA TRAJANO on behalf of the Estate of
ARCHIMEDES TRAJANO, Respondents.
DECISION
VELASCO, JR., J.:
The courts jurisdiction over a defendant is founded on a valid service of summons. Without a valid service, the
court cannot acquire jurisdiction over the defendant, unless the defendant voluntarily submits to it. The
defendant must be properly apprised of a pending action against him and assured of the opportunity to present
his defenses to the suit. Proper service of summons is used to protect ones right to due process.
The Case
This Petition for Review on Certiorari 1 under Rule 45 presents the core issue whether there was a valid
substituted service of summons on petitioner for the trial court to acquire jurisdiction. Petitioner Manotoc
claims the court a quo should have annulled the proceedings in the trial court for want of jurisdiction due to
irregular and ineffective service of summons.
The Facts
Petitioner is the defendant in Civil Case No. 63337 entitled Agapita Trajano, pro se, and on behalf of the Estate
of Archimedes Trajano v. Imelda Imee R. Marcos-Manotoc 2 for Filing, Recognition and/or Enforcement of
Foreign Judgment. Respondent Trajano seeks the enforcement of a foreign courts judgment rendered on May 1,
1991 by the United States District Court of Honolulu, Hawaii, United States of America, in a case entitled
Agapita Trajano, et al. v. Imee Marcos-Manotoc a.k.a. Imee Marcos, Civil Case No. 86-0207 for wrongful death
of deceased Archimedes Trajano committed by military intelligence officials of the Philippines allegedly under
the command, direction, authority, supervision, tolerance, sufferance and/or influence of defendant Manotoc,
pursuant to the provisions of Rule 39 of the then Revised Rules of Court.
Based on paragraph two of the Complaint, the trial court issued a Summons 3 on July 6, 1993 addressed to
petitioner at Alexandra Condominium Corporation or Alexandra Homes, E2 Room 104, at No. 29 Meralco
Avenue, Pasig City.
On July 15, 1993, the Summons and a copy of the Complaint were allegedly served upon (Mr.) Macky de la
Cruz, an alleged caretaker of petitioner at the condominium unit mentioned earlier. 4 When petitioner failed to
file her Answer, the trial court declared her in default through an Order 5 dated October 13, 1993.
On October 19, 1993, petitioner, by special appearance of counsel, filed a Motion to Dismiss 6 on the ground of
lack of jurisdiction of the trial court over her person due to an invalid substituted service of summons. The
grounds to support the motion were: (1) the address of defendant indicated in the Complaint (Alexandra Homes)
was not her dwelling, residence, or regular place of business as provided in Section 8, Rule 14 of the Rules of
Court; (2) the party (de la Cruz), who was found in the unit, was neither a representative, employee, nor a
resident of the place; (3) the procedure prescribed by the Rules on personal and substituted service of summons
was ignored; (4) defendant was a resident of Singapore; and (5) whatever judgment rendered in this case would
be ineffective and futile.
During the hearing on the Motion to Dismiss, petitioner Manotoc presented Carlos Gonzales, who testified that
he saw defendant Manotoc as a visitor in Alexandra Homes only two times. He also identified the Certification
of Renato A. de Leon, which stated that Unit E-2104 was owned by Queens Park Realty, Inc.; and at the time
the Certification was issued, the unit was not being leased by anyone. Petitioner also presented her Philippine
passport and the Disembarkation/Embarkation Card 7 issued by the Immigration Service of Singapore to show
that she was a resident of Singapore. She claimed that the person referred to in plaintiffs Exhibits "A" to
"EEEE" as "Mrs. Manotoc" may not even be her, but the mother of Tommy Manotoc, and granting that she was
the one referred to in said exhibits, only 27 out of 109 entries referred to Mrs. Manotoc. Hence, the infrequent
number of times she allegedly entered Alexandra Homes did not at all establish plaintiffs position that she was
a resident of said place.
On the other hand, Agapita Trajano, for plaintiffs estate, presented Robert Swift, lead counsel for plaintiffs in
the Estate of Ferdinand Marcos Human Rights Litigation, who testified that he participated in the deposition
taking of Ferdinand R. Marcos, Jr.; and he confirmed that Mr. Marcos, Jr. testified that petitioners residence
was at the Alexandra Apartment, Greenhills. 8 In addition, the entries 9 in the logbook of Alexandra Homes from
August 4, 1992 to August 2, 1993, listing the name of petitioner Manotoc and the Sheriffs Return, 10 were
adduced in evidence.
On October 11, 1994, the trial court rejected Manotocs Motion to Dismiss on the strength of its findings that
her residence, for purposes of the Complaint, was Alexandra Homes, Unit E-2104, No. 29 Meralco Avenue,
Pasig, Metro Manila, based on the documentary evidence of respondent Trajano. The trial court relied on the
presumption that the sheriffs substituted service was made in the regular performance of official duty, and such
presumption stood in the absence of proof to the contrary. 11
On December 21, 1994, the trial court discarded Manotocs plea for reconsideration for lack of merit. 12
Undaunted, Manotoc filed a Petition for Certiorari and Prohibition 13 before the Court of Appeals (CA) on
January 20, 1995, docketed as CA-G.R. SP No. 36214 seeking the annulment of the October 11, 1994 and
December 21, 1994 Orders of Judge Aurelio C. Trampe.
Ruling of the Court of Appeals
On March 17, 1997, the CA rendered the assailed Decision, 14 dismissing the Petition for Certiorari and
Prohibition. The court a quo adopted the findings of the trial court that petitioners residence was at Alexandra
Homes, Unit E-2104, at No. 29 Meralco Avenue, Pasig, Metro Manila, which was also the residence of her
husband, as shown by the testimony of Atty. Robert Swift and the Returns of the registered mails sent to
petitioner. It ruled that the Disembarkation/Embarkation Card and the Certification dated September 17, 1993
issued by Renato A. De Leon, Assistant Property Administrator of Alexandra Homes, were hearsay, and that
said Certification did not refer to July 1993the month when the substituted service was effected.
In the same Decision, the CA also rejected petitioners Philippine passport as proof of her residency in
Singapore as it merely showed the dates of her departure from and arrival in the Philippines without presenting
the boilerplates last two (2) inside pages where petitioners residence was indicated. The CA considered the
withholding of those pages as suppression of evidence. Thus, according to the CA, the trial court had acquired
jurisdiction over petitioner as there was a valid substituted service pursuant to Section 8, Rule 14 of the old
Revised Rules of Court.
On April 2, 1997, petitioner filed a Motion for Reconsideration 15 which was denied by the CA in its
Resolution 16dated October 8, 1997.
Hence, petitioner has come before the Court for review on certiorari.
The Issues
Petitioner raises the following assignment of errors for the Courts consideration:
I. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR IN RENDERING THE

DECISION AND RESOLUTION IN QUESTION (ANNEXES A AND B) IN DEFIANCE OF LAW AND
JURISPRUDENCE IN RULING THAT THE TRIAL COURT ACQUIRED JURISDICTION OVER THE
PERSON OF THE PETITIONER THROUGH A SUBSTITUTED SERVICE OF SUMMONS IN
ACCORDANCE WITH SECTION 8, RULE 14 OF THE REVISED RULES OF COURT.
II. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR WHEN IT RULED THAT
THERE WAS A VALID SERVICE OF SUMMONS ON AN ALLEGED CARETAKER OF PETITIONERS
RESIDENCE IN COMPLETE DEFIANCE OF THE RULING IN CASTILLO VS. CFI OF BULACAN, BR.
IV, G.R. NO. L-55869, FEBRUARY 20, 1984, 127 SCRA 632 WHICH DEFINES THE PROPRIETY OF
SUCH SERVICE UPON MERE OVERSEERS OF PREMISES WHERE A PARTY SUPPOSEDLY RESIDES.
III. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR IN CONCLUDING THAT
THE RESIDENCE OF THE HUSBAND IS ALSO THE RESIDENCE OF HIS WIFE CONTRARY TO THE
RULING IN THE BANK OF THE PHILIPPINE ISLANDS VS. DE COSTER, G.R. NO. 23181, MARCH 16,
1925, 47 PHIL. 594.
IV. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR IN FAILING TO APPLY
THE RULE ON EXTRA-TERRITORIAL SERVICE OF SUMMONS UNDER SECTIONS 17 AND 18, RULE
14 OF THE REVISED RULES OF COURT. 17
The assigned errors bring to the fore the crux of the disagreementthe validity of the substituted service of
summons for the trial court to acquire jurisdiction over petitioner.
The Courts Ruling
We GRANT the petition.
Acquisition of Jurisdiction
Jurisdiction over the defendant is acquired either upon a valid service of summons or the defendants voluntary
appearance in court. When the defendant does not voluntarily submit to the courts jurisdiction or when there is
no valid service of summons, "any judgment of the court which has no jurisdiction over the person of the
defendant is null and void." 18 In an action strictly in personam, personal service on the defendant is the
preferred mode of service, that is, by handing a copy of the summons to the defendant in person. If defendant,
for excusable reasons, cannot be served with the summons within a reasonable period, then substituted service
can be resorted to. While substituted service of summons is permitted, "it is extraordinary in character and in
derogation of the usual method of service." 19 Hence, it must faithfully and strictly comply with the prescribed
requirements and circumstances authorized by the rules. Indeed, "compliance with the rules regarding the
service of summons is as much important as the issue of due process as of jurisdiction." 20
Requirements for Substituted Service
Section 8 of Rule 14 of the old Revised Rules of Court which applies to this case provides:
SEC. 8. 21 Substituted service. If the defendant cannot be served within a reasonable time as provided in the
preceding section [personal service on defendant], service may be effected (a) by leaving copies of the
summons at the defendants residence with some person of suitable age and discretion then residing therein, or
(b) by leaving the copies at defendants office or regular place of business with some competent person in
charge thereof.
We can break down this section into the following requirements to effect a valid substituted service:
(1) Impossibility of Prompt Personal Service
The party relying on substituted service or the sheriff must show that defendant cannot be served promptly or
there is impossibility of prompt service. 22 Section 8, Rule 14 provides that the plaintiff or the sheriff is given a
"reasonable time" to serve the summons to the defendant in person, but no specific time frame is mentioned.
"Reasonable time" is defined as "so much time as is necessary under the circumstances for a reasonably prudent
and diligent man to do, conveniently, what the contract or duty requires that should be done, having a regard for
the rights and possibility of loss, if any[,] to the other party." 23 Under the Rules, the service of summons has no
set period. However, when the court, clerk of court, or the plaintiff asks the sheriff to make the return of the
summons and the latter submits the return of summons, then the validity of the summons lapses. The plaintiff
may then ask for an alias summons if the service of summons has failed. 24 What then is a reasonable time for
the sheriff to effect a personal service in order to demonstrate impossibility of prompt service? To the plaintiff,
"reasonable time" means no more than seven (7) days since an expeditious processing of a complaint is what a
plaintiff wants. To the sheriff, "reasonable time" means 15 to 30 days because at the end of the month, it is a
practice for the branch clerk of court to require the sheriff to submit a return of the summons assigned to the
sheriff for service. The Sheriffs Return provides data to the Clerk of Court, which the clerk uses in the Monthly
Report of Cases to be submitted to the Office of the Court Administrator within the first ten (10) days of the
succeeding month. Thus, one month from the issuance of summons can be considered "reasonable time" with
regard to personal service on the defendant.
Sheriffs are asked to discharge their duties on the service of summons with due care, utmost diligence, and
reasonable promptness and speed so as not to prejudice the expeditious dispensation of justice. Thus, they are
enjoined to try their best efforts to accomplish personal service on defendant. On the other hand, since the
defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the process on the defendant. For substituted service of summons to
be available, there must be several attempts by the sheriff to personally serve the summons within a reasonable
period [of one month] which eventually resulted in failure to prove impossibility of prompt service. "Several
attempts" means at least three (3) tries, preferably on at least two different dates. In addition, the sheriff must
cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or
accepted.
(2) Specific Details in the Return
The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted
personal service. 25 The efforts made to find the defendant and the reasons behind the failure must be clearly
narrated in detail in the Return. The date and time of the attempts on personal service, the inquiries made to
locate the defendant, the name/s of the occupants of the alleged residence or house of defendant and all other
acts done, though futile, to serve the summons on defendant must be specified in the Return to justify
substituted service. The form on Sheriffs Return of Summons on Substituted Service prescribed in the
Handbook for Sheriffs published by the Philippine Judicial Academy requires a narration of the efforts made to
find the defendant personally and the fact of failure. 26 Supreme Court Administrative Circular No. 5 dated
November 9, 1989 requires that "impossibility of prompt service should be shown by stating the efforts made to
find the defendant personally and the failure of such efforts," which should be made in the proof of service.
(3) A Person of Suitable Age and Discretion
If the substituted service will be effected at defendants house or residence, it should be left with a person of
"suitable age and discretion then residing therein." 27 A person of suitable age and discretion is one who has
attained the age of full legal capacity (18 years old) and is considered to have enough discernment to understand
the importance of a summons. "Discretion" is defined as "the ability to make decisions which represent a
responsible choice and for which an understanding of what is lawful, right or wise may be
presupposed". 28 Thus, to be of sufficient discretion, such person must know how to read and understand
English to comprehend the import of the summons, and fully realize the need to deliver the summons and
complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the
person must have the "relation of confidence" to the defendant, ensuring that the latter would receive or at least
be notified of the receipt of the summons. The sheriff must therefore determine if the person found in the
alleged dwelling or residence of defendant is of legal age, what the recipients relationship with the defendant
is, and whether said person comprehends the significance of the receipt of the summons and his duty to
immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. These
matters must be clearly and specifically described in the Return of Summons.
(4) A Competent Person in Charge
If the substituted service will be done at defendants office or regular place of business, then it should be served
on a competent person in charge of the place. Thus, the person on whom the substituted service will be made
must be the one managing the office or business of defendant, such as the president or manager; and such
individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its
importance, and the prejudicial effects arising from inaction on the summons. Again, these details must be
contained in the Return.
Invalid Substituted Service in the Case at Bar
Let us examine the full text of the Sheriffs Return, which reads:
THIS IS TO CERTIFY that on many occasions several attempts were made to serve the summons with
complaint and annexes issued by this Honorable Court in the above entitled case, personally upon the defendant
IMELDA IMEE MARCOS-MANOTOC located at Alexandra Condominium Corpration [sic] or Alexandra
Homes E-2 Room 104 No. 29 Merlaco [sic] Ave., Pasig, Metro-Manila at reasonable hours of the day but to no
avail for the reason that said defendant is usually out of her place and/or residence or premises. That on the 15th
day of July, 1993, substituted service of summons was resorted to in accordance with the Rules of Court in the
Philippines leaving copy of said summons with complaint and annexes thru [sic] (Mr) Macky de la Cruz,
caretaker of the said defendant, according to (Ms) Lyn Jacinto, Receptionist and Telephone Operator of the said
building, a person of suitable age and discretion, living with the said defendant at the given address who
acknowledged the receipt thereof of said processes but he refused to sign (emphases supplied).
WHEREFORE, said summons is hereby returned to this Honorable Court of origin, duly served for its record
and information.
Pasig, Metro-Manila July 15, 1993. 29
A meticulous scrutiny of the aforementioned Return readily reveals the absence of material data on the serious
efforts to serve the Summons on petitioner Manotoc in person. There is no clear valid reason cited in the Return
why those efforts proved inadequate, to reach the conclusion that personal service has become impossible or
unattainable outside the generally couched phrases of "on many occasions several attempts were made to serve
the summons x x x personally," "at reasonable hours during the day," and "to no avail for the reason that the said
defendant is usually out of her place and/or residence or premises." Wanting in detailed information, the Return
deviates from the rulingin Domagas v. Jensen 30 and other related cases 31that the pertinent facts and
circumstances on the efforts exerted to serve the summons personally must be narrated in the Return. It cannot
be determined how many times, on what specific dates, and at what hours of the day the attempts were made.
Given the fact that the substituted service of summons may be assailed, as in the present case, by a Motion to
Dismiss, it is imperative that the pertinent facts and circumstances surrounding the service of summons be
described with more particularity in the Return or Certificate of Service.
Besides, apart from the allegation of petitioners address in the Complaint, it has not been shown that
respondent Trajano or Sheriff Caelas, who served such summons, exerted extraordinary efforts to locate
petitioner. Certainly, the second paragraph of the Complaint only states that respondents were "informed, and so
[they] allege" about the address and whereabouts of petitioner. Before resorting to substituted service, a plaintiff
must demonstrate an effort in good faith to locate the defendant through more direct means. 32 More so, in the
case in hand, when the alleged petitioners residence or house is doubtful or has not been clearly ascertained, it
would have been better for personal service to have been pursued persistently.
In the case Umandap v. Sabio, Jr., 33 it may be true that the Court held that a Sheriffs Return, which states that
"despite efforts exerted to serve said process personally upon the defendant on several occasions the same
proved futile," conforms to the requirements of valid substituted service. However, in view of the numerous
claims of irregularities in substituted service which have spawned the filing of a great number of unnecessary
special civil actions of certiorari and appeals to higher courts, resulting in prolonged litigation and wasteful
legal expenses, the Court rules in the case at bar that the narration of the efforts made to find the defendant and
the fact of failure written in broad and imprecise words will not suffice. The facts and circumstances should be
stated with more particularity and detail on the number of attempts made at personal service, dates and times of
the attempts, inquiries to locate defendant, names of occupants of the alleged residence, and the reasons for
failure should be included in the Return to satisfactorily show the efforts undertaken. That such efforts were
made to personally serve summons on defendant, and those resulted in failure, would prove impossibility of
prompt personal service.
Moreover, to allow sheriffs to describe the facts and circumstances in inexact terms would encourage routine
performance of their precise duties relating to substituted servicefor it would be quite easy to shroud or
conceal carelessness or laxity in such broad terms. Lastly, considering that monies and properties worth millions
may be lost by a defendant because of an irregular or void substituted service, it is but only fair that the
Sheriffs Return should clearly and convincingly show the impracticability or hopelessness of personal service.
Granting that such a general description be considered adequate, there is still a serious nonconformity from the
requirement that the summons must be left with a "person of suitable age and discretion" residing in defendants
house or residence. Thus, there are two (2) requirements under the Rules: (1) recipient must be a person of
suitable age and discretion; and (2) recipient must reside in the house or residence of defendant. Both
requirements were not met. In this case, the Sheriffs Return lacks information as to residence, age, and
discretion of Mr. Macky de la Cruz, aside from the sheriffs general assertion that de la Cruz is the "resident
caretaker" of petitioner as pointed out by a certain Ms. Lyn Jacinto, alleged receptionist and telephone operator
of Alexandra Homes. It is doubtful if Mr. de la Cruz is residing with petitioner Manotoc in the condominium
unit considering that a married woman of her stature in society would unlikely hire a male caretaker to reside in
her dwelling. With the petitioners allegation that Macky de la Cruz is not her employee, servant, or
representative, it is necessary to have additional information in the Return of Summons. Besides, Mr. Macky de
la Cruzs refusal to sign the Receipt for the summons is a strong indication that he did not have the necessary
"relation of confidence" with petitioner. To protect petitioners right to due process by being accorded proper
notice of a case against her, the substituted service of summons must be shown to clearly comply with the rules.
It has been stated and restated that substituted service of summons must faithfully and strictly comply with the
prescribed requirements and in the circumstances authorized by the rules. 34
Even American case law likewise stresses the principle of strict compliance with statute or rule on substituted
service, thus:
The procedure prescribed by a statute or rule for substituted or constructive service must be strictly
pursued. 35There must be strict compliance with the requirements of statutes authorizing substituted or
constructive service. 36
Where, by the local law, substituted or constructive service is in certain situations authorized in the place of
personal service when the latter is inconvenient or impossible, a strict and literal compliance with the provisions
of the law must be shown in order to support the judgment based on such substituted or constructive
service. 37 Jurisdiction is not to be assumed and exercised on the general ground that the subject matter of the
suit is within the power of the court. The inquiry must be as to whether the requisites of the statute have been
complied with, and such compliance must appear on the record. 38 The fact that the defendant had actual
knowledge of attempted service does not render the service effectual if in fact the process was not served in
accordance with the requirements of the statute.39
Based on the above principles, respondent Trajano failed to demonstrate that there was strict compliance with
the requirements of the then Section 8, Rule 14 (now Section 7, Rule 14 of the 1997 Rules of Civil Procedure).
Due to non-compliance with the prerequisites for valid substituted service, the proceedings held before the trial
court perforce must be annulled.
The court a quo heavily relied on the presumption of regularity in the performance of official duty. It reasons
out that "[t]he certificate of service by the proper officer is prima facie evidence of the facts set out herein, and
to overcome the presumption arising from said certificate, the evidence must be clear and convincing." 40
The Court acknowledges that this ruling is still a valid doctrine. However, for the presumption to apply, the
Sheriffs Return must show that serious efforts or attempts were exerted to personally serve the summons and
that said efforts failed. These facts must be specifically narrated in the Return. To reiterate, it must clearly show
that the substituted service must be made on a person of suitable age and discretion living in the dwelling or
residence of defendant. Otherwise, the Return is flawed and the presumption cannot be availed of. As
previously explained, the Return of Sheriff Caelas did not comply with the stringent requirements of Rule 14,
Section 8 on substituted service.
In the case of Venturanza v. Court of Appeals, 41 it was held that "x x x the presumption of regularity in the
performance of official functions by the sheriff is not applicable in this case where it is patent that the sheriffs
return is defective (emphasis supplied)." While the Sheriffs Return in the Venturanza case had no statement on
the effort or attempt to personally serve the summons, the Return of Sheriff Caelas in the case at bar merely
described the efforts or attempts in general terms lacking in details as required by the ruling in the case of
Domagas v. Jensen and other cases. It is as if Caelas Return did not mention any effort to accomplish personal
service. Thus, the substituted service is void.
On the issue whether petitioner Manotoc is a resident of Alexandra Homes, Unit E-2104, at No. 29 Meralco
Avenue, Pasig City, our findings that the substituted service is void has rendered the matter moot and academic.
Even assuming that Alexandra Homes Room 104 is her actual residence, such fact would not make an irregular
and void substituted service valid and effective.
IN VIEW OF THE FOREGOING, this Petition for Review is hereby GRANTED and the assailed March 17,
1997 Decision and October 8, 1997 Resolution of the Court of Appeals and the October 11, 1994 and December
21, 1994 Orders of the Regional Trial Court, National Capital Judicial Region, Pasig City, Branch 163 are
hereby REVERSEDand SET ASIDE.No costs.
SO ORDERED.
G.R. No. 163584 December 12, 2006

REMELITA M. ROBINSON, petitioner,

vs.
CELITA B. MIRALLES, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is the instant petition for review on certiorari assailing the Resolutions dated February 111 and May
11, 20042 of the Regional Trial Court (RTC), Branch 274, Paraaque City, in Civil Case No. 00-0372.
On August 25, 2000, Celita Miralles, respondent, filed with the said court a complaint for sum of money against
Remelita Robinson, petitioner, docketed as Civil Case No. 00-0372. Respondent alleged that petitioner
borrowed from her US$20,054.00 as shown by a Memorandum of Agreement they both executed on January
12, 2000.
Summons was served on petitioner at her given address. However, per return of service of Sheriff Maximo
Potente dated March 5, 2001, petitioner no longer resides at such address.
On July 20, 2001, the trial court issued an alias summons to be served at No. 19 Baguio St., Alabang Hills,
Muntinlupa City, petitioners new address.
Again, the summons could not be served on petitioner. Sheriff Potente explained that:
The Security Guard assigned at the gate of Alabang Hills refused to let me go inside the subdivision so
that I could effect the service of the summons to the defendant in this case. The security guard alleged
that the defendant had given them instructions not to let anybody proceed to her house if she is not
around. I explained to the Security Guard that I am a sheriff serving the summons to the defendant, and
if the defendant is not around, summons can be received by any person of suitable age and discretion
living in the same house. Despite of all the explanation, the security guard by the name of A.H. Geroche
still refused to let me go inside the subdivision and served (sic) the summons to the defendant. The same
thing happened when I attempted to serve the summons previously.
Therefore, the summons was served by leaving a copy thereof together with the copy of the complaint to
the security guard by the name of A.H. Geroche, who refused to affix his signature on the original copy
thereof, so he will be the one to give the same to the defendant.
Eventually, respondent filed a motion to declare petitioner in default for her failure to file an answer seasonably
despite service of summons.
On February 28, 2003, the trial court granted respondents motion declaring petitioner in default and allowing
respondent to present her evidence ex parte.
On June 20, 2003, the trial court issued an Order, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against defendant ordering the
defendant to pay the plaintiff as follows:
1. The sum of US$20,054.00 as the unpaid obligation, plus the stipulated interest of 3% a month from
May 2000 (date of default) until fully paid;
2. Php100,000.00 for moral damages;
3. Php50,000.00 plus Php1,500.00 per appearance as attorneys fees;
4. Costs of suit.
SO ORDERED.
A copy of the Order was sent to petitioner by registered mail at her new address.
Upon respondents motion, the trial court, on September 8, 2003, issued a writ of execution.
On September 26, 2003, petitioner filed with the trial court a petition for relief from the judgment by default.
She claimed that summons was improperly served upon her, thus, the trial court never acquired jurisdiction over
her and that all its proceedings are void.
On February 11, 2004, the trial court issued a Resolution denying the petition for relief. Petitioner filed a motion
for reconsideration, but it was denied by the trial court in a Resolution dated May 11, 2004.
Hence, the instant recourse.
The sole issue for our resolution is whether the trial court correctly ruled that a substituted service of summons
upon petitioner has been validly effected.
Summons is a writ by which the defendant is notified of the action brought against him or her.3 In a civil action,
service of summons is the means by which the court acquires jurisdiction over the person of the defendant.4 Any
judgment without such service, in the absence of a valid waiver, is null and void.5 Where the action is in
personamand the defendant is in the Philippines, the service of summons may be made through personal or
substituted service in the manner provided for in Sections 6 and 7, Rule 14 of the 1997 Rules of Procedure, as
amended,6 thus:
SEC. 6. Service in person on defendant. Whenever practicable, the summons shall be served by
handing a copy thereof to the defendant in person, or if he refuses to receive and sign for it, by tendering
it to him.
SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a
reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of
the summons at the defendants residence with some person of suitable age and discretion then residing
therein; or (b) by leaving the copies at the defendants office or regular place of business with some
competent person in charge thereof.
Under our procedural rules, personal service is generally preferred over substituted service, the latter mode of
service being a method extraordinary in character.7 For substituted service to be justified, the following
circumstances must be clearly established: (a) personal service of summons within a reasonable time was
impossible; (b) efforts were exerted to locate the party; and (c) the summons was served upon a person of
sufficient age and discretion residing at the partys residence or upon a competent person in charge of the
partys office or place of business.8 Failure to do so would invalidate all subsequent proceedings on
jurisdictional grounds.9
Petitioner contends that the service of summons upon the subdivision security guard is not in compliance with
Section 7, Rule 14 since he is not related to her or staying at her residence. Moreover, he is not duly authorized
to receive summons for the residents of the village. Hence, the substituted service of summons is not valid and
that the trial court never acquired jurisdiction over her person.
We have ruled that the statutory requirements of substituted service must be followed strictly, faithfully, and
fully and any substituted service other than that authorized by the Rules is considered ineffective.10 However,
we frown upon an overly strict application of the Rules. It is the spirit, rather than the letter of the procedural
rules, that governs.
In his Return, Sheriff Potente declared that he was refused entry by the security guard in Alabang Hills twice.
The latter informed him that petitioner prohibits him from allowing anybody to proceed to her residence
whenever she is out. Obviously, it was impossible for the sheriff to effect personal or substituted service of
summons upon petitioner. We note that she failed to controvert the sheriffs declaration. Nor did she deny
having received the summons through the security guard.
Considering her strict instruction to the security guard, she must bear its consequences. Thus, we agree with the
trial court that summons has been properly served upon petitioner and that it has acquired jurisdiction over her.
WHEREFORE, we DENY the petition and we AFFIRM the assailed Orders of the RTC, Branch 274,
Paraaque City, in Civil Case No. 00-0372. Costs against petitioner.
SO ORDERED.
PEDRO T. SANTOS, JR., G.R. No. 170943

Petitioner,
Present:
PUNO, C.J., Chairperson,

CARPIO,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.
PNOC EXPLORATION
CORPORATION,
Respondent. Promulgated:
September 23, 2008
x---------------------------------------------------x
DECISION
CORONA, J.:
This is a petition for review [1] of the September 22, 2005 decision[2] and December 29, 2005
resolution[3] of the Court of Appeals in CA-G.R. SP No. 82482.
On December 23, 2002, respondent PNOC Exploration Corporation filed a complaint for a sum of
money against petitioner Pedro T. Santos, Jr. in the Regional Trial Court of Pasig City, Branch 167. The
complaint, docketed as Civil Case No. 69262, sought to collect the amount of P698,502.10 representing
petitioners unpaid balance of the car loan[4] advanced to him by respondent when he was still a member of its
board of directors.
Personal service of summons to petitioner failed because he could not be located in his last known address
despite earnest efforts to do so. Subsequently, on respondents motion, the trial court allowed service of
summons by publication.
Respondent caused the publication of the summons in Remate, a newspaper of general circulation in the
Philippines, on May 20, 2003. Thereafter, respondent submitted the affidavit of publication of the advertising
manager of Remate[5] and an affidavit of service of respondents employee [6] to the effect that he sent a copy of
the summons by registered mail to petitioners last known address.
When petitioner failed to file his answer within the prescribed period, respondent moved that the case be set for
the reception of its evidence ex parte. The trial court granted the motion in an order dated September 11, 2003.
Respondent proceeded with the ex parte presentation and formal offer of its evidence. Thereafter, the
case was deemed submitted for decision on October 15, 2003.
On October 28, 2003, petitioner filed an Omnibus Motion for Reconsideration and to Admit Attached Answer.
He sought reconsideration of the September 11, 2003 order, alleging that the affidavit of service submitted by
respondent failed to comply with Section 19, Rule 14 of the Rules of Court as it was not executed by the clerk
of court. He also claimed that he was denied due process as he was not notified of the September 11, 2003
order. He prayed that respondents evidence ex parte be stricken off the records and that his answer be admitted.
Respondent naturally opposed the motion. It insisted that it complied with the rules on service by publication.
Moreover, pursuant to the September 11, 2003 order, petitioner was already deemed in default for failure to file
an answer within the prescribed period.
In an order dated February 6, 2004, the trial court denied petitioners motion for reconsideration of the
September 11, 2003 order. It held that the rules did not require the affidavit of complementary service by
registered mail to be executed by the clerk of court. It also ruled that due process was observed as a copy of the
September 11, 2003 order was actually mailed to petitioner at his last known address. It also denied the motion
to admit petitioners answer because the same was filed way beyond the reglementary period.
Aggrieved, petitioner assailed the September 11, 2003 and February 6, 2004 orders of the trial court in the Court
of Appeals via a petition for certiorari. He contended that the orders were issued with grave abuse of discretion.
He imputed the following errors to the trial court: taking cognizance of the case despite lack of jurisdiction due
to improper service of summons; failing to furnish him with copies of its orders and processes, particularly the
September 11, 2003 order, and upholding technicality over equity and justice.
During the pendency of the petition in the Court of Appeals, the trial court rendered its decision in Civil Case
No. 69262. It ordered petitioner to pay P698,502.10 plus legal interest and costs of suit.[7]
Meanwhile, on September 22, 2005, the Court of Appeals rendered its decision [8] sustaining the September 11,
2003 and February 6, 2004 orders of the trial court and dismissing the petition. It denied reconsideration.
[9]
Thus, this petition.
Petitioner essentially reiterates the grounds he raised in the Court of Appeals, namely, lack of jurisdiction over
his person due to improper service of summons, failure of the trial court to furnish him with copies of its orders
and processes including the September 11, 2003 order and preference for technicality rather than justice and
equity. In particular, he claims that the rule on service by publication under Section 14, Rule 14 of the Rules of
Court applies only to actions in rem, not actions in personam like a complaint for a sum of money. He also
contends that the affidavit of service of a copy of the summons should have been prepared by the clerk of court,
not respondents messenger.
The petition lacks merit.
PR OPRI ETY OF
SERVICE BY PUBLICATION
Section 14, Rule 14 (on Summons) of the Rules of Court provides:
SEC. 14. Service upon defendant whose identity or whereabouts are unknown. In any
action where the defendant is designated as an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by
leave of court, be effected upon him by publication in a newspaper of general
circulationand in such places and for such times as the court may order. (emphasis supplied)
Since petitioner could not be personally served with summons despite diligent efforts to locate his
whereabouts, respondent sought and was granted leave of court to effect service of summons upon him by
publication in a newspaper of general circulation. Thus, petitioner was properly served with summons by
publication.
Petitioner invokes the distinction between an action in rem and an action in personam and claims that
substituted service may be availed of only in an action in rem. Petitioner is wrong. The in rem/in
personam distinction was significant under the old rule because it was silent as to the kind of action to which
the rule was applicable.[10] Because of this silence, the Court limited the application of the old rule to in
rem actions only.[11]
This has been changed. The present rule expressly states that it applies [i]n any action where the defendant is
designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry. Thus, it now applies to any action, whether in personam, in rem or quasi in rem.
[12]
Regarding the matter of the affidavit of service, the relevant portion of Section 19, [13] Rule 14 of the
Rules of Court simply speaks of the following:

an affidavit showing the deposit of a copy of the summons and order for publication in the post
office, postage prepaid, directed to the defendant by registered mail to his last known address.
Service of summons by publication is proved by the affidavit of the printer, his foreman or principal
clerk, or of the editor, business or advertising manager of the newspaper which published the summons. The
service of summons by publication is complemented by service of summons by registered mail to the
defendants last known address. This complementary service is evidenced by an affidavit showing the deposit of
a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by
registered mail to his last known address.
The rules, however, do not require that the affidavit of complementary service be executed by the clerk
of court. While the trial court ordinarily does the mailing of copies of its orders and processes, the duty to make
the complementary service by registered mail is imposed on the party who resorts to service by publication.
Moreover, even assuming that the service of summons was defective, the trial court acquired
jurisdiction over the person of petitioner by his own voluntary appearance in the action against him. In
this connection, Section 20, Rule 14 of the Rules of Court states:
SEC. 20. Voluntary appearance. The defendants voluntary appearance in the action
shall be equivalent to service of summons. The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a
voluntary appearance. (emphasis supplied)
Petitioner voluntarily appeared in the action when he filed the Omnibus Motion for Reconsideration and to
Admit Attached Answer.[14] This was equivalent to service of summons and vested the trial court with
jurisdiction over the person of petitioner.
E NTITLE ME NT TO
NOTICE OF PROCEEDINGS
The trial court allowed respondent to present its evidence ex parte on account of petitioners failure to
file his answer within the prescribed period. Petitioner assails this action on the part of the trial court as well as
the said courts failure to furnish him with copies of orders and processes issued in the course of the proceedings.
The effects of a defendants failure to file an answer within the time allowed therefor are governed by
Sections 3 and 4, Rule 9 (on Effect of Failure to Plead) of the Rules of Court:
SEC. 3. Default; declaration of. If the defending party fails to answer within the time
allowed therefor, the court shall, upon motion of the claiming party with notice to the
defending party, and proof of such failure, declare the defending party in default.
Thereupon, the court shall proceed to render judgment granting the claimant such relief as his
pleading may warrant, unless the court in its discretion requires the claimant to submit evidence.
Such reception of evidence may be delegated to the clerk of court.
SEC. 4. Effect of order of default. A party in default shall be entitled to notice of

subsequent proceedings but not to take part in the trial. (emphasis supplied)
If the defendant fails to file his answer on time, he may be declared in default upon motion of the plaintiff with
notice to the said defendant. In case he is declared in default, the court shall proceed to render judgment
granting the plaintiff such relief as his pleading may warrant, unless the court in its discretion requires the
plaintiff to submit evidence. The defaulting defendant may not take part in the trial but shall be entitled to notice
of subsequent proceedings.
In this case, even petitioner himself does not dispute that he failed to file his answer on time. That was in
fact why he had to file an Omnibus Motion for Reconsideration and to Admit Attached Answer. But
respondent moved only for the ex parte presentation of evidence, not for the declaration of petitioner in default.
In its February 6, 2004 order, the trial court stated:
The disputed Order of September 11, 2003 allowing the presentation of evidence ex-parte
precisely ordered that despite and notwithstanding service of summons by publication, no answer
has been filed with the Court within the required period and/or forthcoming.[] Effectively[,] that
was a finding that the defendant [that is, herein petitioner] was in default for failure to file
an answer or any responsive pleading within the period fixed in the publication as precisely
the defendant [could not] be found and for which reason, service of summons by publication was
ordered. It is simply illogical to notify the defendant of the Order of September 11, 2003 simply
on account of the reality that he was no longer residing and/or found on his last known address
and his whereabouts unknown thus the publication of the summons. In other words, it was
reasonable to expect that the defendant will not receive any notice or order in his last known
address. Hence, [it was] impractical to send any notice or order to him. Nonetheless, the
record[s] will bear out that a copy of the order of September 11, 2003 was mailed to the
defendant at his last known address but it was not claimed. (emphasis supplied)
As is readily apparent, the September 11, 2003 order did not limit itself to permitting respondent to present its
evidence ex parte but in effect issued an order of default. But the trial court could not validly do that as an order
of default can be made only upon motion of the claiming party. [15] Since no motion to declare petitioner in
default was filed, no default order should have been issued.
To pursue the matter to its logical conclusion, if a party declared in default is entitled to notice of subsequent
proceedings, all the more should a party who has not been declared in default be entitled to such notice. But
what happens if the residence or whereabouts of the defending party is not known or he cannot be located? In
such a case, there is obviously no way notice can be sent to him and the notice requirement cannot apply to him.
The law does not require that the impossible be done.[16] Nemo tenetur ad impossibile. The law obliges no one to
perform an impossibility.[17] Laws and rules must be interpreted in a way that they are in accordance with logic,
common sense, reason and practicality.[18]
Hence, even if petitioner was not validly declared in default, he could not reasonably demand that copies
of orders and processes be furnished him. Be that as it may, a copy of the September 11, 2003 order was
nonetheless still mailed to petitioner at his last known address but it was unclaimed.
CORRECTNESSOF
NON-ADMISSION OF ANSWER
Petitioner failed to file his answer within the required period. Indeed, he would not have moved for the
admission of his answer had he filed it on time. Considering that the answer was belatedly filed, the trial court
did not abuse its discretion in denying its admission.
Petitioners plea for equity must fail in the face of the clear and express language of the rules of
procedure and of the September 11, 2003 order regarding the period for filing the answer. Equity is available
only in the absence of law, not as its replacement.[19] Equity may be applied only in the absence of rules of
procedure, never in contravention thereof.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.
RULE 15
HOME DEVELOPMENT MUTUAL FUND G.R. No. 170292

(HDMF),
CORONA, C.J., Chairperson,

- versus - LEONARDO-DE CASTRO,
DEL CASTILLO,
PEREZ, and
SPOUSES FIDEL and FLORINDA R. SEE MENDOZA, JJ.
and SHERIFF MANUEL L. ARIMADO,
Promulgated:
Respondents. June 22, 2011
x--------------------------------------------------------x
DECISION
DEL CASTILLO, J.:
A party that loses its right to appeal by its own negligence cannot seek refuge in the remedy of a writ of certiorari.
This is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court assailing the August 31, 2005 Decision,
[2]
as well as the October 26, 2005 Resolution,[3] of the Court of Appeals (CA) in CA-G.R. SP No. 70828. The dispositive
portion of the assailed CA Decision reads thus:
WHEREFORE, premises considered, the instant petition is DENIED DUE COURSE and is
accordingly DISMISSED. The assailed Decision of the Regional Trial Court, Branch
6, Legazpi City dated February 21, 2002 and its Order dated March 15, 2002 are AFFIRMED.
SO ORDERED.[4]
Factual Antecedents
Respondent-spouses Fidel and Florinda See (respondent-spouses) were the highest bidders in the extrajudicial foreclosure
sale of a property[5] that was mortgaged to petitioner Home Development Mutual Fund or Pag-ibig Fund (Pag-ibig). They
paid the bid price of P272,000.00 in cash to respondent Sheriff Manuel L. Arimado (Sheriff Arimado). In turn,
respondent-spouses received a Certificate of Sale wherein Sheriff Arimado acknowledged receipt of the purchase price,
and an Official Receipt No. 11496038 dated January 28, 2000 from Atty. Jaime S. Narvaez, the clerk of court with whom
Sheriff Arimado deposited the respondent-spouses payment.[6]
Despite the expiration of the redemption period, Pag-ibig refused to surrender its certificate of title to the respondent-
spouses because it had yet to receive the respondent-spouses payment from Sheriff Arimado [7] who failed to remit the
same despite repeated demands.[8] It turned out that Sheriff Arimado withdrew from the clerk of court the P272,000.00
paid by respondent-spouses, on the pretense that he was going to deliver the same to Pag-ibig. The money never reached
Pag-ibig and was spent by Sheriff Arimado for his personal use.[9]
Considering Pag-ibigs refusal to recognize their payment, respondent-spouses filed a complaint for specific performance
with damages against Pag-ibig and Sheriff Arimado before Branch 3 of the Regional Trial Court (RTC) of Legazpi City.
The complaint alleged that the law on foreclosure authorized Sheriff Arimado to receive, on behalf of Pag-ibig, the
respondent-spouses payment. Accordingly, the payment made by respondent-spouses to Pag-ibigs authorized agent
should be deemed as payment to Pag-ibig.[10] It was prayed that Sheriff Arimado be ordered to remit the amount
of P 272,000.00 to Pag-ibig and that the latter be ordered to release the title to the auctioned property to respondent-
spouses.[11]
Pag-ibig admitted the factual allegations of the complaint (i.e., the bid of respondent-spouses,[12] their full payment in cash
to Sheriff Arimado,[13] and the fact that Sheriff Arimado misappropriated the money [14]) but maintained that respondent-
spouses had no cause of action against it. Pag-ibig insisted that it has no duty to deliver the certificate of title to
respondent-spouses unless Pag-ibig actually receives the bid price. Pag-ibig denied that the absconding sheriff was its
agent for purposes of the foreclosure proceedings.[15]
When the case was called for pre-trial conference, the parties submitted their Compromise Agreement for the courts
approval. The Compromise Agreement reads:
Undersigned parties, through their respective counsels[,] to this Honorable Court respectfully submit this
Compromise Agreement for their mutual interest and benefit that this case be amicably settled, the terms
and conditions of which are as follows:
1. [Respondent] Manuel L. Arimado, Sheriff IV RTC, Legazpi acknowledges his obligation to

the Home Development Mutual Fund (PAG-IBIG), Regional Office V, Legazpi City and/or to
[respondent-spouses] the amount of P300,000.00, representing payment for the bid price and other
necessary expenses incurred by the [respondent-spouses], the latter being the sole bidder of the property
subject matter of the Extrajudicial Foreclosure Sale conducted by Sheriff Arimado on January 14, 2000,
at the Office of the Clerk of Court, RTC, Legazpi;
xxxx
3. Respondent Manuel L. Arimado due to urgent financial need acknowledge[s] that he

personally used the money paid to him by [respondent-spouses] which represents the bid price of the
above[-]mentioned property subject of the foreclosure sale. The [money] should have been delivered/paid
by Respondent Arimado to Home Development Mutual Fund (PAG-IBIG) as payment and in satisfaction
of its mortgage claim.
4. Respondent Manuel L. Arimado obligates himself to pay in cash to [petitioner] Home

Development Mutual Fund (PAG-IBIG) the amount of P272,000.00 representing full payment of its
claim on or before October 31, 2001 [so] that the title to the property [could] be released by PAG-IBIG to
[respondent-spouses]. An additional amount of P28,000.00 shall likewise be paid by [respondent]
Arimado to the [respondent-spouses] as reimbursement for litigation expenses;
5. [Petitioner] Home Development Mutual Fund (PAG-IBIG) shall upon receipt of

the P272,000.00 from [respondent] Manuel L. Arimado release immediately within a period of three (3)
days the certificate of title of the property above-mentioned to [respondent-spouses] being the rightful
buyer or owner of the property;
6. In the event [respondent] Manuel L. Arimado fails to pay [petitioner] Home Development
Mutual Fund (PAG-IBIG), or, [respondent-spouses] the amount of P272,000.00 on or before October 31,
2001, the [respondent-spouses] shall be entitled to an immediate writ of execution without further
notice to respondent Manuel L. Arimado and the issue as to whether [petitioner] Home Development
Mutual Fund (PAG-IBIG) shall be liable for the release of the title to [respondent spouses] under the
circumstances or allegations narrated in the complaint shall continue to be litigated upon in order that
the Honorable Court may resolve the legality of said issue;
7. In the event [respondent] Manuel L. Arimado complies with the payment as above-stated, the
parties mutually agree to withdraw all claims and counterclaim[s] they may have against each other
arising out of the above-entitled case.[16]
The trial court approved the compromise agreement and incorporated it in its Decision dated October 31, 2001. The trial
court stressed the implication of paragraph 6 of the approved compromise agreement:
Accordingly, the parties are enjoined to comply strictly with the terms and conditions of their
Compromise Agreement.
In the event that [respondent] Manuel L. Arimado fails to pay [petitioner] HDMF (Pag-ibig), or
[respondent-spouses] the amount of P272,000.00 on October 31, 2001, the Court, upon motion of
[respondent-spouses], may issue the necessary writ of execution.
In this connection, with respect to the issue as to whether or not [petitioner] HDMF (Pag-ibig) shall be
liable for the release of the title of the [respondent-spouses] under the circumstances narrated in the
Complaint which necessitates further litigation in court, let the hearing of the same be set on December
14, 2001 at 9:00 oclock in the morning.
SO ORDERED.[17]
None of the parties sought a reconsideration of the aforequoted Decision.
When Sheriff Arimado failed to meet his undertaking to pay on or before October 31, 2001, the trial court proceeded to
rule on the issue of whether Pag-ibig is liable to release the title to respondent-spouses despite non-receipt of their
payment.[18]
Ruling of the Regional Trial Court[19]

The trial court rendered its Decision dated February 21, 2002 in favor of respondent-spouses, reasoning as follows: Under
Article 1240 of the Civil Code, payment is valid when it is made to a person authorized by law to receive the same. In
foreclosure proceedings, the sheriff is authorized by Act No. 3135 and the Rules of Court to receive payment of the bid
price from the winning bidder. When Pag-ibig invoked the provisions of these laws by applying for extrajudicial
foreclosure, it likewise constituted the sheriff as its agent in conducting the foreclosure and receiving the proceeds of the
auction. Thus, when the respondent-spouses paid the purchase price to Sheriff Arimado, a legally authorized
representative of Pag-ibig, this payment effected a discharge of their obligation to Pag-ibig.
The trial court thus ordered Pag-ibig to deliver the documents of ownership to the respondent-spouses. The dispositive
portion reads thus:
WHEREFORE, premises considered, decision is hereby rendered in favor of the [respondent-spouses]

and against the [petitioner] HDMF, ordering said [petitioner] to execute a Release and/or Discharge of
Mortgage, and to deliver the same to the [respondent-spouses] together with the documents of ownership
and the owners copy of Certificate of Title No. T-78070 covering the property sold [to respondent-
spouses] in the auction sale within ten (10) days from the finality of this decision.
Should [petitioner] HDMF fail to execute the Release and/or Discharge of Mortgage and to deliver the
same together with the documents of ownership and TCT No. T-78070 within ten (10) days from the
finality of this decision, the court shall order the Clerk of Court to execute the said Release and/or
Discharge of Mortgage and shall order the cancellation of TCT No. T-78070 and the issuance of a second
owners copy thereof.
SO ORDERED.[20]
Pag-ibig filed a motion for reconsideration on the sole ground that [Pag-ibig] should not be compelled to release the title
to x x x [respondent-spouses] See because Manuel Arimado [has] yet to deliver to [Pag-ibig] the sum of P272,000.00.[21]
The trial court denied the motion on March 15, 2002. It explained that the parties compromise agreement duly authorized
the court to rule on Pag-ibigs liability to respondent-spouses despite Sheriff Arimados non-remittance of the proceeds of
the auction.[22]
Pag-ibig received the denial of its motion for reconsideration on March 22, 2002[23] but took no further action. Hence, on
April 23, 2002, the trial court issued a writ of execution of its February 21, 2002 Decision.[24]
On May 24, 2002,[25] Pag-ibig filed before the CA a Petition for Certiorari under Rule 65 in order to annul and set aside
the February 21, 2002 Decision of the trial court. Pag-ibig argued that the February 21, 2002 Decision, which ordered
Pag-ibig to deliver the title to respondent-spouses despite its non-receipt of the proceeds of the auction, is void because it
modified the final and executory Decision dated October 31, 2001.[26] It maintained that the October 31, 2001 Decision
already held that Pag-ibig will deliver its title to respondent-spouses only upon receipt of the proceeds of the auction from
Sheriff Arimado. Since Sheriff Arimado did not remit the said amount to Pag-ibig, the latter has no obligation to deliver
the title to the auctioned property to respondent-spouses.[27]
Further, Pag-ibig contended that the February 21, 2002 Decision was null and void because it was issued without
affording petitioner the right to trial.[28]
Ruling of the Court of Appeals[29]
The CA denied the petition due course. The CA noted that petitioners remedy was to appeal the February 21, 2002
Decision of the trial court and not a petition for certiorari under Rule 65. At the time the petition was filed, the Decision
of the trial court had already attained finality. The CA then held that the remedy of certiorari was not a substitute for a lost
appeal.[30]
The CA also ruled that petitioners case fails even on the merits. It held that the February 21, 2002 Decision did not modify
the October 31, 2001 Decision of the trial court. The latter Decision of the trial court expressly declared that in case
Sheriff Arimado fails to pay the P272,000.00 to Pag-ibig, the court will resolve the remaining issue regarding Pag-ibigs
obligation to deliver the title to the respondent-spouses.[31]
As to the contention that petitioner was denied due process when no trial
was conducted for the reception of evidence, the CA held that there was no need for the trial court to conduct a full-blown
trial given that the facts of the case were already admitted by Pag-ibig and what was decided in the February 21, 2002
Decision was only a legal issue.[32]
Petitioner filed a motion for reconsideration[33] which was denied for lack of merit in the Resolution dated October 26,
2005.[34]
Issues
Petitioner then raises the following issues for the Courts consideration:
1. Whether certiorari was the proper remedy;
2. Whether the February 21, 2002 Decision of the trial court modified its October 31, 2001 Decision based on the
compromise agreement;
3. Whether petitioner was entitled to a trial prior to the rendition of the February 21, 2002 Decision.
Our Ruling
Petitioner argues that the CA erred in denying due course to its petition for certiorari and maintains that the remedy
of certiorari is proper for two reasons: first, the trial court rendered its February 21, 2002 Decision without the benefit of
a trial; and second, the February 21, 2002 Decision modified the October 31, 2001 Decision, which has already attained
finality. These are allegedly two recognized instances where certiorari lies to annul the trial courts Decision because of
grave abuse of discretion amounting to lack of jurisdiction.[35]
The argument does not impress.
[C]ertiorari is a limited form of review and is a remedy of last recourse.[36] It is proper only when appeal is not available to
the aggrieved party.[37] In the case at bar, the February 21, 2002 Decision of the trial court was appealable under Rule 41 of
the Rules of Court because it completely disposed of respondent-spouses case against Pag-ibig. Pag-ibig does not explain
why it did not resort to an appeal and allowed the trial courts decision to attain finality. In fact, the February 21, 2002
Decision was already at the stage of execution when Pag-ibig belatedly resorted to a Rule 65 Petition
for Certiorari. Clearly, Pag-ibig lost its right to appeal and tried to remedy the situation by resorting to certiorari. It is
settled, however, that certiorari is not a substitute for a lost appeal, especially if the [partys] own negligence or error in
[the] choice of remedy occasioned such loss or lapse.[38]
Moreover, even assuming arguendo that a Rule 65 certiorari could still be resorted to, Pag-ibigs petition would still have
to be dismissed for having been filed beyond the reglementary period of 60 days from notice of the denial of the motion
for reconsideration.[39] Pag-ibig admitted receiving the trial courts Order denying its Motion for Reconsideration on March
22, 2002;[40] it thus had until May 21, 2002 to file its petition for certiorari. However, Pag-ibig filed its petition only on
May 24, 2002,[41] which was the 63rd day from its receipt of the trial courts order and obviously beyond the reglementary
60-day period.
Pag-ibig stated that its petition for certiorari was filed within sixty (60) days from receipt of the copy of the writ of
execution by petitioner [Pag-ibig] on 07 May 2002, which writ sought to enforce the Decision assailed in the petition.
[42]
This submission is beside the point. Rule 65, Section 4 is very clear that the reglementary 60-day period is counted
from notice of the judgment, order or resolution being assailed, or from notice of the denial of the motion [for
reconsideration], and not from receipt of the writ of execution which seeks to enforce the assailed judgment, order or
resolution. The date of Pag-ibigs receipt of the copy of the writ of execution is therefore immaterial for purposes of
computing the timeliness of the filing of the petition for certiorari.
Since Pag-ibigs petition for certiorari before the CA was an improper remedy and was filed late, it is not even necessary
to look into the other issues raised by Pag-ibig in assailing the February 21, 2002 Decision of the trial court and the CAs
rulings sustaining the same. At any rate, Pag-ibigs arguments on these other issues are devoid of merit.
As to Pag-ibigs argument that the February 21, 2002 Decision of the RTC is null and void for having been issued without
a trial, it is a mere afterthought which deserves scant consideration.The Court notes that Pag-ibig did not object to the
absence of a trial when it sought a reconsideration of the February 21, 2002 Decision. Instead, Pag-ibig raised the
following lone argument in their motion:
3. Consequently, [Pag-ibig] should not be compelled to release the title to other [respondent-spouses] See
because Manuel Arimado [has] yet to deliver to [Pag-ibig] the sum of P 272,000.00.[43]
Under the Omnibus Motion Rule embodied in Section 8 of Rule 15 of the Rules of Court, all available objections that are
not included in a partys motion shall be deemed waived.
Pag-ibig next argues that the February 21, 2002 Decision of the trial court, in ordering Pag-ibig to release the title despite
Sheriff Arimados failure to remit the P272,000.00 to Pag-ibig, modified the October 31, 2001 Decision. According to
Pag-ibig, the October 31, 2001 Decision allegedly decreed that Pag-ibig would deliver the title to respondent-
spouses only after Sheriff Arimado has paid the P272,000.00.[44] In other words, under its theory, Pag-ibig cannot be
ordered to release the title if Sheriff Arimado fails to pay the said amount.
The Court finds no merit in this argument. The October 31, 2001 Decision (as well as the Compromise Agreement on
which it is based) does not provide that Pag-ibig cannot be ordered to release the title if Sheriff Arimado fails to pay. On
the contrary, what the Order provides is that if Sheriff Arimado fails to pay, the trial court shall litigate (and, necessarily,
resolve) the issue of whether Pag-ibig is obliged to release the title. This is based on paragraph 6 of the Compromise
Agreement which states that in the event Sheriff Arimado fails to pay, the [respondent-spouses] shall be entitled to an
immediate writ of execution without further notice to [Sheriff] Arimado and the issue as to whether [Pag-ibig] shall be
liable for the release of the title to [respondent spouses] under the circumstances or allegations narrated in the
complaint shall continue to be litigated upon in order that the Honorable Court may resolve the legality of said
issue. In fact, the trial court, in its October 31, 2001 Decision, already set the hearing of the same on December 14, 2001
at 9:00 oclock in the morning.[45]
It is thus clear from both the October 31, 2001 Decision and the Compromise Agreement that the trial court was
authorized to litigate and resolve the issue of whether Pag-ibig should release the title upon Sheriff Arimados failure to
pay the P272,000.00. As it turned out, the trial court eventually resolved the issue against Pag-ibig, i.e., it ruled that Pag-
ibig is obliged to release the title. In so doing, the trial court simply exercised the authority provided in the October 31,
2001 Decision (and stipulated in the Compromise Agreement). The trial court did not thereby modify the October 31,
2001 Decision.
WHEREFORE, premises considered, the petition is DENIED. The assailed August 31, 2005 Decision, as well as the
October 26, 2005 Resolution, of
the Court of Appeals in CA-G.R. SP No. 70828 are AFFIRMED.
GLICERIA SARMIENTO, G.R. No. 167471
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.
- versus -
Promulgated:
February 5, 2007
EMERITA ZARATAN,
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CHICO-NAZARIO, J.:
This petition for Review on Certiorari under Rule 45 of the Rules of Court seeks to nullify the Court of Appeals
Decision[1] in CA-G.R. SP No. 79001 entitled, Emerita Zaratan v. Hon. Ramon A. Cruz, as Presiding Judge of
RTC, Quezon City, Branch 223, and Gliceria Sarmiento, dated 17 August 2004, which reversed and set side the
Orders dated 19 June 2003 and 31 July 2003 of the Regional Trial Court (RTC) of Quezon City in Civil Case
No. Q-03-49437, dismissing respondents appeal for failure to file the memorandum within the period provided
for by law.
On 2 September 2002, petitioner Gliceria Sarmiento filed an ejectment case [2] against respondent Emerita
Zaratan, in the Metropolitan Trial Court (MeTC) of Quezon City, Branch 36, docketed as Civil Case No. 29109.
On 31 March 2003, the MeTC rendered a decision in favor of petitioner, the dispositive portion of which reads:
WHEREFORE, the Court finds that plaintiff has sufficiently established her causes against the
defendant and hereby order the defendant and all persons claiming rights under her:
1. to pay plaintiff the monthly rentals of P3,500.00 for the said premises from August
1, 2002 until defendant vacates the premises;
2. to pay plaintiff the sum of P20,000.00 plus P1,500.00 per appearance of counsel in
court, as and for attorneys fees; and
to pay the cost of suit.[3]
Respondent filed her notice of appeal.[4] Thereafter, the case was raffled to the RTC of Quezon City, Branch
223, docketed as Civil Case No. Q-03-49437.
In the Notice of Appealed Case,[5] the RTC directed respondent to submit her memorandum in accordance with
the provisions of Section 7(b) of Rule 40 of the Rules of Court and petitioner to file a reply memorandum
within 15 days from receipt.
Respondents counsel having received the notice on 19 May 2003, he had until 3 June 2003 within which to file
the requisite memorandum. But on 3 June 2003, he filed a Motion for Extension of Time of five days due to his
failure to finish the draft of the said Memorandum. He cited as reasons for the delay of filing his illness for one
week, lack of staff to do the work due to storm and flood compounded by the grounding of the computers
because the wirings got wet.[6] But the motion remained unacted.
On 9 June 2003, respondent filed her Memorandum. On 19 June 2003, the RTC dismissed the appeal as
follows:
Record shows that defendant-appellant received the Notice of Appealed Case, through
counsel, on May 19, 2003 (Registry Return Receipt dated May 12, 2003, Record, back of p.
298). Thus, under Section 7(b), Rule 40 of the 1997 Rules of Civil Procedure, she had fifteen
(15) days or until June 3, 2003 within which to submit a memorandum on appeal. As further
appears on record, however, the required Memorandum was filed by defendant-appellant only
on June 9, 2003 (Record, p. 623), or six (6) days beyond the expiration of the aforesaid fifteen
day period.
It should be stressed that while the rules should be liberally construed, the provisions on
reglemenatry periods are strictly applied as they are deemed indispensable to the prevention of
needless delays and necessary to the orderly and speedy discharge of judicial business (Legaspi-
Santos vs. Court of Appeals, G.R. No. 60577, October 11, 1983) and strict compliance therewith
is mandatory and imperative (FJR Garments Industries vs. Court of Appeals, G.R. No. L-
49329, June 29, 1984). The same is true with respect to the rules on the manner and periods for
perfecting appeals (Gutierrez vs. Court of Appeals, L-25972, November 26, 1968).
Premises considered, the instant appeal is hereby DISMISSED. This renders academic
defendant-appellants application for a writ of preliminary injunction.[7]
On the basis of the above-quoted Order, petitioner filed a Motion for Immediate Execution, [8] while
respondent moved for the Reconsideration.[9] Both motions were denied by the RTC on 31 July 2003. The Order
in part reads:
In the main, defendant-appellants Motion for Reconsideration is premised on the

argument that she filed a timely Motion for Extension of Time To File Memorandum, dated and
filed on June 3, 2003, but that her motion was not acted upon by this Court. She adds that her
appeal memorandum was filed well within the period sought by her in her Motion for Extension
of Time to File Memorandum so that her appeal should not have been dismissed.
The argument is without merit. This Court did not take cognizance of defendant-
appellants Motion for Extension of Time to File Memorandum, and rightly so, because it did not
contain a notice of hearing as required by Sections 4 and 5, Rule 15 of the Rules of Court, an
omission for which it could offer no explanation. As declared in the case of Gozon, et al. v. court
of Appeals (G.R. No. 105781, June 17, 1993);
xxx
It is well-entrenched in this jurisdiction that a motion does not meet the

requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is considered a
worthless piece of paper which the clerk has no right to receive, and the court has
no authority to act upon.
xxx
Moreover, parties and counsel should not assume that courts are bound to grant the time
they pray for. A motion that is not acted upon in due time is deemed denied (Orosa vs. Court of
Appeals, 261 SCRA 376 [1996]). Thus, defendant-appellants appeal was properly dismissed on
account of her failure to file an appeal memorandum within the fifteen (15) day period provided
under Section 7(b), Rule 40 of the 1997 Rules of Civil Procedure.
With regard to the Motion for Immediate Execution, dated June 23, 2003, filed by
plaintiff-appellee, the rule is explicit that the execution of a judgment in an ejectment case, must
be sought with the inferior court which rendered the same. The appellate court which affirms a
decision brought before it on appeal cannot decree its execution in the guise of an execution of
the affirming decision. The only exception is when said appellate court grants an execution
pending appeal, which is not the case herein (City of Manila vs. Court of Appeals, 204 SCRA
362; Sy vs. Romero, 214 SCRA 187).[10]
Petitioner moved for reconsideration of the said Order, while respondent sought clarification on whether
the 31 July 2003 Order dismissing the appeal was anchored on Section (b), Rule 40 or Section 7(c) of the same
Rule.
On 27 August 2003, the RTC reconsidered its previous Order by granting petitioners motion for
Immediate Execution, but denied respondents Motion for Clarification, in this wise:
Section 21, Rule 70 of the Rules of Court provides that the judgment of the Regional
Trial Court against the defendant shall be immediately executory, without prejudice to a further
appeal that may be taken therefrom. Pursuant to this Rule and taking into account the arguments
of the plaintiff in her Urgent Motion for Reconsideration, the Court is inclined to grant the
same. As further correctly argued by the plaintiff, through counsel, during the hearing on her
motion on August 15, 2003, the cases of City of Manila v. Court of Appeals (204 SCRA 362) and
Sy vs. Romero (214 SCRA 187) cited in the July 31, 2003 Order refer to ejectment cases which
has (sic) been decided with finality and hence, inapplicable to this case where a further appeal is
still available to the defendant. It should likewise be noted that while the Supreme Court ruled in
these cases that execution of a judgment in an ejectment case must be sought with the inferior
court which rendered the same, it likewise provided that for an exception to this rule, that is, in
cases where the appellate court grants an execution pending appeal, as the case herein.
With regard to defendants Motion for Clarification, contained in her Opposition, the
Court notes that the issues raised therein have already been squarely dealt with in the July 31,
2003 Order. The same must, therefore, be denied.[11]
Aggrieved, respondent filed a Petition for Certiorari in the Court of Appeals, which was granted in a
decision dated 17 August 2004. The appellate court nullified and set aside the 19 June 2003 and 31 July
2003 Orders of the RTC and ordered the reinstatement of respondents appeal. Consequently, respondents appeal
memorandum was admitted and the case remanded to the RTC for further proceedings.[12]
Petitioner filed a motion for reconsideration[13] on 13 September 2004, followed by a Motion for
Inhibition[14] of the members of the Eighth Division of the Court of Appeals on 20 September 2004. Both
motions were denied for lack of merit on 10 March 2005.[15]
Hence, this appeal by petitioner posing the following issues,[16] thus:

1. Whether respondents petition for certiorari should have been dismissed in the first
place;
2. Whether the trial court committed grave abuse of discretion in denying respondents
motion for extension;
3. Whether it is Section 19 of Rule 7 that applies, and not Section 21; and
4. Whether the Court of Appeals Justices should have inhibited themselves from
further proceeding with the subject case.
Stated otherwise, the main issue for resolution is whether the Court of Appeals committed a reversible
error of law in granting the Writ of Certiorari. In granting the petition, the Court of Appeals ruled that the RTC
erred in dismissing respondents appeal for failure to file the required Memorandum within the period provided
by law and in granting petitioners Motion for Immediate Execution of the MeTC decision.
Before resolving the substantive issues raised by petitioner, the Court will first address the procedural
infirmities ascribed by petitioner. Petitioner assails the correctness and propriety of the remedy resorted to by
respondent by filing a Petition for Certiorari in the Court of Appeals. According to petitioner, certiorari is not
appropriate and unavailing as the proper remedy is an appeal.
It must be noted that respondents appeal in the RTC was dismissed for failure to file the required
memorandum within the period allowed by law, as the Motion for Extension of Time to file Memorandum was
not acted upon for failure to attach a notice of hearing. From the said dismissal, respondent filed a Petition
for Certiorari in the Court of Appeals.
Respondent correctly filed said petition pursuant to Section 41 of the Rules of Court, which provides:
Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that
completely disposes of the case, or of a particular matter therein when declared by these Rules to
be appealable.
No appeal may be taken:
xxxx
(d) An order disallowing or dismissing an appeal;
xxxx
In all the above instances where the judgment or final order is not appealable, the
aggrieved party may file an appropriate civil action under Rule 65. (Underscoring supplied.)
Petitioner also contends that the Petition for Certiorari filed in the Court of Appeals should be dismissed
as the certification of non-forum shopping was defective. The verification in part reads:
I, EMERITA ZARATAN, of legal age, after having been duly sworn to, according to law,
depose and say:
That I, Emerita Zaratan is one of the respondent (sic) in the above entitled case, hereby
declare, that I have caused the preparation and filing of the foregoing Comment on the
Petition; that I have read all the allegations therein, which are true and correct to the best
of my own knowledge.
That as respondent, I further certify that I have not commenced any other action or
proceeding involving the same issues in the foregoing Petition in the Court of Appeals,
the Supreme Court, or different Divisions thereof, respectively, or any tribunal, or
agency; and should it be known that a similar action or proceeding has been filed or is
pending in any of the abovementioned Courts or different Divisions thereof, the petitioner
shall notify the Honorable Court to which this certification is filed, within five (5) days
from such notice.(Underscoring ours.)
Petitioner avers that respondent by stating in the above-quoted certification that she was the respondent,
while in truth she was the petitioner and by stating that respondent caused the preparation of the comment on
the petition, instead of the petition itself, indicate that respondent did not understand what she was signing. The
defect of the verification all renders the petition in the Court of Appeals without legal effect and constitutes
ground for its dismissal.
The contention is baseless.
The purpose of requiring a verification is to secure an assurance that the allegations of the petition have
been made in good faith, or are true and correct, not merely speculative. This requirement is simply a condition
affecting the form of pleadings and non-compliance therewith does not necessarily render it fatally defective.
[17]
Perusal of the verification in question shows there was sufficient compliance with the requirements of the
Rules and the alleged defects are not so material as to justify the dismissal of the petition in the Court of
Appeals. The defects are mere typographical errors. There appears to be no intention to circumvent the need for
proper verification and certification, which are intended to assure the truthfulness and correctness of the
allegations in the petition and to discourage forum shopping.[18]
Now, the substantial issues.
Corollary to the dismissal of the appeal by the RTC is the question of whether the lack of notice of
hearing in the Motion for Extension of Time to file Memorandum on Appeal is fatal, such that the filing of the
motion is a worthless piece of paper.
Petitioner avers that, because of the failure of respondent to include a Notice of Hearing in her Motion
for Extension of Time to file Memorandum on Appeal in the RTC, the latters motion is a worthless piece of
paper with no legal effect.
It is not disputed that respondent perfected her appeal on 4 April 2003 with the filing of her Notice of
Appeal and payment of the required docket fees. However, before the expiration of time to file the
Memorandum, she filed a Motion for Extension of Time seeking an additional period of five days within which
to file her Memorandum, which motion lacked the Notice of Hearing required by Section 4, Rule 15 of the 1997
Rules of Court which provides:
SEC. 4. Hearing of Motion. - Except for motions which the court may act upon without
prejudicing the rights of the adverse party, every written motion shall be set for hearing by the
applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be served in
such a manner as to ensure its receipt by the other party at least three (3) days before the date of
hearing, unless the court for good cause sets the hearing on shorter notice.
As may be gleaned above and as held time and again, the notice requirement in a motion is
mandatory. As a rule, a motion without a Notice of Hearing is considered pro forma and does not affect the
reglementary period for the appeal or the filing of the requisite pleading.[19]
As a general rule, notice of motion is required where a party has a right to resist the relief sought by the
motion and principles of natural justice demand that his right be not affected without an opportunity to be heard.
[20]
The three-day notice required by law is intended not for the benefit of the movant but to avoid surprises upon
the adverse party and to give the latter time to study and meet the arguments of the motion. [21] Principles of
natural justice demand that the right of a party should not be affected without giving it an opportunity to be
heard.[22]
The test is the presence of the opportunity to be heard, as well as to have time to study the motion and
meaningfully oppose or controvert the grounds upon which it is based. [23] Considering the circumstances of the
present case, we believe that procedural due process was substantially complied with.
There are, indeed, reasons which would warrant the suspension of the Rules: (a) the existence of special
or compelling circumstances, b) the merits of the case, (c) a cause not entirely attributable to the fault or
negligence of the party favored by the suspension of rules, (d) a lack of any showing that the review sought is
merely frivolous and dilatory, and (e) the other party will not be unjustly prejudiced thereby.[24] Elements or
circumstances (c), (d) and (e) exist in the present case.
The suspension of the Rules is warranted in this case. The motion in question does not affect the
substantive rights of petitioner as it merely seeks to extend the period to file Memorandum. The required
extension was due to respondents counsels illness, lack of staff to do the work due to storm and flood,
compounded by the grounding of the computers. There is no claim likewise that said motion was interposed to
delay the appeal.[25] As it appears, respondent sought extension prior to the expiration of the time to do so and
the memorandum was subsequently filed within the requested extended period. Under the circumstances,
substantial justice requires that we go into the merits of the case to resolve the issue of who is entitled to
the possession of the land in question.
Further, it has been held that a motion for extension of time x x x is not a litigated motion where notice
to the adverse party is necessary to afford the latter an opportunity to resist the application, but an ex
parte motion made to the court in behalf of one or the other of the parties to the action,
in the absence and usually without the knowledge of the other party or parties. As a general rule, notice of
motion is required where a party has a right to resist the relief sought by the motion and principles of natural
justice demand that his rights be not affected without an opportunity to be heard. It has been said that ex
parte motions are frequently permissible in procedural matters, and also in situations and under circumstances
of emergency; and an exception to a rule requiring notice is sometimes made where notice or the resulting delay
might tend to defeat the objective of the motion.[26]
It is well to remember that this Court, in not a few cases, has consistently held that cases shall be
determined on the merits, after full opportunity to all parties for ventilation of their causes and defense, rather
than on technicality or some procedural imperfections. In so doing, the ends of justice would be better served.
[27]
Furthermore, this Court emphasized its policy that technical rules should accede to the demands of
substantial justice because there is no vested right in technicalities. Litigations, should, as much as possible, be
decided on their merits and not on technicality. Dismissal of appeals purely on technical grounds is frowned
upon, and the rules of procedure ought not to be applied in a very rigid, technical sense, for they are adopted to
help secure, not override, substantial justice, and thereby defeat their very aims. As has been the constant
rulings of this Court, every party-litigant should be afforded the amplest opportunity for the proper and just
disposition of his cause, free from constraints of technicalities.[28] Indeed, rules of procedure are mere tools
designed to expedite the resolution of cases and other matters pending in court. A strict and rigid application of
the rules that would result in technicalities that tend to frustrate rather than promote justice must be avoided.[29]
The visible emerging trend is to afford every party-litigant the amplest opportunity for the proper and
just determination of his cause, free from constraints and technicalities.
Parenthetically, it must be noted also that when the appeal was dismissed on 19 June 2003, the
memorandum was already filed in court on 9 June 2003.
On the issue of immediate execution of judgment.
The applicable provision is Section 19, Rule 70 of the Rules of Court, which reads:
SEC. 19. Immediate Execution of judgment; how to stay the same.- If judgment is
rendered against the defendant, execution shall issue immediately upon motion, unless an appeal
has been perfected and the defendant to stay execution files a sufficient supersedeas bond,
approved by the Municipal Trial Court and executed in favor of the plaintiff to pay the rents,
damages, and costs accruing down to the time of the judgment appealed from, and unless, during
the pendency of the appeal, he deposits with the appellate court the amount of rent due from time
to time under the contract, if any, as determined by the judgment of the Municipal Trial Court. x
x x.
To stay the immediate execution of judgment in ejectment proceedings, Section 19 requires that the
defendant-appellant must (a) perfect his appeal, (b) file a supersedeas bond, and (c) periodically deposit the
rentals falling due during the pendency of the appeal.
As correctly observed by the Court of Appeals, execution pending appeal was premature as respondent
had already filed a supersedeas bond and the monthly rental for the current month of the premises in question.[30]
The invocation of petitioner of the provisions of Section 21, Rule 70 of the Rules of Court, which runs:
Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court.- The
judgment of the Regional Trial Court against the defendant shall be immediately executory,
without prejudice to a further appeal that may be taken therefrom.
to justify the issuance of the writ of execution pending appeal in this case is misplaced.
A closer examination of the above-quoted provision reveals that said provision applies to decision of the
RTC rendered in its appellate jurisdiction, affirming the decision of the MeTC. In the case at bar, the RTC order
was an order dismissing respondents appeal based on technicality. It did not resolve substantive matters delving
on the merits of the parties claim in the ejectment case. Thus, the case brought to the Court of Appeals was the
dismissal of the appeal for failure to file the required memorandum within the period provided by law, and not
on the merits of the ejectment case.
Lastly, petitioner posited the view that the Court of Appeals justices should have inhibited themselves
because of bias and partiality for deciding the case within eight months and for being very selective in
discussing the issues.
We reject the proposition.
Inhibition must be for just and valid causes. The mere imputation of bias and partiality is not enough
ground for judges to inhibit, especially when the charge is without basis. This Court has to be shown acts or
conduct clearly indicative of arbitrariness or prejudice before it can brand them with the stigma of bias and
partiality.[31] This Court has invariably held that for bias and prejudice to be considered valid reasons for the
voluntary inhibition of judges, mere suspicion is not enough. Bare allegations of their partiality will not suffice
in the absence of clear and convincing evidence to overcome the presumption that the judge will undertake his
noble role to dispense justice according to law and evidence and without fear and favor.[32]
There is no factual support to petitioners charge of bias and partiality. A perusal of the records of the
case fails to reveal that any bias or prejudice motivated the Court of Appeals in granting respondents
petition. Neither did this Court find any questionable or suspicious circumstances leading to the issuance of the
questioned decision, as suggested by petitioner.
The fact alone that the Court of Appeals decided the case within eight months does not in any way
indicate bias and partiality against petitioner. It is within the constitutional mandate to decide the case within 12
months.[33]
As to petitioners allegation that the Court of Appeals was selective in choosing what issues to resolve, it
bears to stress again that a judges appreciation or misappreciation of the sufficiency of evidence x x x adduced
by the parties, x x x, without proof of malice on the part of respondent judge, is not sufficient to show bias and
partiality.[34] We also emphasized that repeated rulings against a litigant, no matter how erroneously, vigorously
and consistently expressed, do not amount to bias and prejudice which can be bases for the disqualification of a
judge.[35]
IN ALL, petitioner utterly failed to show that the appellate court erred in issuing the assailed
decision. On the contrary, it acted prudently in accordance with law and jurisprudence.
WHEREFORE, the instant petition is hereby DENIED for lack of merit. The Decision dated 17 August
2004 and the Resolution dated 10 March 2005 of the Court of Appeals in CA-G.R. SP No. 79001 are
hereby AFFIRMED. No costs.
SO ORDERED.
G.R. No. 207376 August 6, 2014
AIDA PADILLA, Petitioner,

vs.
GLOBE ASIATIQUE REALTY HOLDINGS CORPORATION, FILMAL REALTY CORPORATION,
DELFIN S. LEE and DEXTER L. LEE, Respondents.
DECISION
VILLARAMA, JR., J.:

Assailed in this petition for review under Rule 45 are the Orders1 dated November 12, 2012 denying the motion
to set the counterclaim for pre-trial and May 8, 2013 denying petitioner's motion for reconsideration, issued by
the Regional Trial Court (RTC) of Pasig City, Branch 155 in Civil Case No. 73132.
Factual Antecedents
From the years 2005 to 2008, Philippine National Bank (PNB) entered into several Contracts to Sell (CTS)
Facility Agreements2 with respondents Globe Asiatique Realty Holdings Corporation (Globe Asiatique) and
Filmal Realty Corporation (Filmal) represented by Delfin S. Lee and Dexter L. Lee, President and Vice-
President, respectively, of the two corporations. PNB thereby agreed to make available toGlobe Asiatique and
Filmal CTS Facility in the amount not exceeding Two Hundred Million Pesos (200,000,000.00) to finance the
purchase of certain Accounts Receivables or the in-house installment receivables of respondents arising from
the sale of subdivision houses in their real estate/housing projects as evidenced by contracts to sell. These
availments werelater increased to a total amount of One Billion Two Hundred Million Pesos
(1,200,000,000.00).3
Pursuant to and as a condition for the CTS Facility availments, respondents executed in favor of PNB several
Deeds of Assignment4 covering accounts receivables in the aggregate amount of One Billion One Hundred
Ninety-Five Million Nine Hundred Twenty-Six Thousand Three Hundred Ninety Pesos and Seventy-two
centavos (1,195,926,390.72). In the said instruments, respondents acknowledged the total amount of One
Billion Three Hundred Ninety FiveMillion Six Hundred Sixty-Five Thousand Five Hundred Sixty-FourPesos
and Sixty-nine centavos (1,395,665,564.69) released to themby PNB in consideration of the aforesaid accounts
receivables.5
Sometime in the first quarter of 2010, respondents defaulted in the payment of their outstanding balance and
delivery to PNB of transfer certificates of title corresponding to the assigned accounts receivables, for which
PNB declared them in default under the CTS Facility Agreements. Subsequently, respondents made partial
payments and made proposals for paying in full its obligation to PNB as shown in the exchange of
correspondence between respondents and PNB.
In a letter dated August 5, 2010,6 PNB made a formal and final demand upon respondents to pay/settle the total
amount of 974,377,159.10 representing their outstanding obligation.In the course of credit monitoring and
verification, PNB claimed it discovered 231 out of 240 Contracts to Sell to have either inexistent addresses
ofbuyers or the names of the buyers are non-existent or both.
Thereafter, PNB instituted Civil Case No. R-PSY-10-04228-CV (Philippine National Bank v. Globe Asiatique
Realty Holdings Corporation, Filmal Realty Corporation, Delfin S. Lee and Dexter L. Lee) for recovery of sum
of money and damages with prayerfor writ of preliminary attachment before the RTC of Pasay City.
In their complaint, PNB alleged in detail the fraudulent acts and misrepresentations committed by respondents
in obtaining PNBs conformity to the CTS Facility Agreements and the release of various sums to respondents
in the total amountof 974,377,159.10. PNB accused respondents of falsely representing that they have valid
and subsisting contracts to sell, which evidently showed they had no intention to pay their loan obligations. The
Verification and Certification of Non-Forum Shopping attached to the complaint was signed byPNBs Senior
Vice-president of the Remedial Management Group, Aida Padilla, who likewise executed an "Affidavit in
Support of the Application for the Issuance of the Writ of Preliminary Attachment."
Proceedings in the Pasay

City RTC (Civil Case No.
R-PSY-10-04228-CV)
On August 25, 2010, the Pasay City RTC issued an Order7 granting PNBs application for issuance of
preliminary attachment after finding that defendants Globe Asiatique and Filmal "through the active
participation or connivance/conspiracy of defendants Delfin and Dexter Lee from the revealing evidence
presented by plaintiff are guilty of fraud in contracting their outstanding loan applications to plaintiff Philippine
National Bank (PNB)."8 The writ of preliminary attachment was accordingly issued on August 27, 2010 after
PNB complied withthe posting of attachment bond as ordered by the court.9
Defendants Delfin Lee and DexterLee filed their Answer with Counterclaim with motion to dismiss,arguing that
PNB has no cause of action against them as there is nothing in the CTS Facility Agreements that suggest they
are personally liable or serve as guarantors for Globe Asiatique and Filmal, and that they were just sued as
signatories of the CTS Facility Agreements. They likewise filed a motion to discharge preliminary attachment.10
Defendants Globe Asiatique and Filmalalso filed their Answer with Counterclaim denying PNBs allegationsof
fraud and misrepresentation particularly after PNB had accepted payments from the corporations. In their
motion to discharge preliminary attachment, Globe Asiatique and Filmal asserted that the allegations of fraud in
the complaint are without basis and no proof was presented by plaintiff on the existence of preconceived fraud
and lack of intention to pay their obligations, citing their timely payments made to PNB. They further assailed
the affidavit executed by Aida Padilla who they claimed has no personal knowledge of the subject transactions
and there being no allegation of threat or possibility that defendant corporations will dispose oftheir properties
in fraud of their creditors.11
In its Order12 dated April 29, 2011, the Pasay City RTC denied defendants motion to dismiss, motions to
discharge preliminary attachment and to expunge or suspend proceedings, as well as PNBs motion to expunge.
In succession, the parties in Civil Case No. R-PSY-10-04228-CV filed the following motions:
1) Defendants Motion for Reconsideration of the Order dated April 29, 2011 filed on May 27, 2011;
2) Plaintiffs Motion to Set Case for Pre-trial Conference filed on June 8, 2011;
3) Plaintiffs Motion for Summary Judgment filed on June 28, 2011;
4) Defendants Motion for Leave to Admit Attached Amended Answer with Compulsory Counterclaim
filed on July 12, 2011;
5) Defendants Omnibus Motion (a) to discharge the writ of attachment on the ground of newly
discovered evidence; (b) set preliminary hearing on affirmative defenses pleaded in the amended
answer; (c) issue preliminary attachment against plaintiff on account of fraud in incurring the obligation
as alleged in the amended answer; and (d) render partial summary judgment on the compulsory
counterclaim, filed on July 26, 2011;
6) Defendants Motion for Reconsideration of the Order dated July 29, 2011, with Motion to Continue
with the Proceedings Involving Defendants Omnibus Motion, filed on August 31, 2011; 7) Defendants
Motion to Set for Hearing their earlier motion to discharge the writ of attachment filed on January 24,
2012; and
8) Plaintiffs Motion to Expunge defendants Reply (on defendants motion to set hearing) filed on April
30, 2012.
Meanwhile, and before the Pasay City RTC could act upon the foregoing motions, defendants Globe Asiatique,
Filmal, Delfin S. Lee and Dexter L. Lee filed on August 10, 2011 a complaint13 for Damages in the RTC of
Pasig City, Branch 155 docketed as Civil Case No. 73132.
On May 18, 2012, the Pasay City RTC issued an Order14 resolving the pending motions, as follows:
WHEREFORE, the motion for reconsideration of the Order dated 27 May 2011 is denied insofar as the prayer
to reconsider denial of the motion to dismiss. However, the prayer to expunge the Manifestation filed on 26
November 2010 is granted thus, the Manifestation is expunged.
The motion for leave and to admit amended answer is denied. The motion for reconsideration of the Order dated
29 July 2011 is likewise denied. The other prayers in the omnibus motion to set preliminary hearing of
affirmative defenses in the amended answer, issuance of preliminary attachment based thereon and for partial
summary judgment on the compulsory counterclaims in the amended answer are denied. Plaintiffs motion to
expunge defendants reply is likewise denied.
Hearing on plaintiffs motion for summary judgment is set on 19 June 2012 at 8:30 a.m., while hearing on
defendants motion to discharge the writ of preliminary attachmentis set on 26 June 2012 at 8:30 a.m.
Action on plaintiffs motion to set the case for pre-trial is deferred until after resolution of the motion for
summary judgment.
SO ORDERED.15
Pasig City RTC Case

(Civil Case No. 73132)
In their Complaint against Judge Pedro De Leon Gutierrez and Aida Padilla (both sued in their personal
capacity), respondents claimed that Globe Asiatique and Filmal are well-known and successful real estate
developers whose projects were "being continuously supported by various banks and other financial institutions
prior to the malicious and devastating unfounded civil action" filed by AidaPadilla (petitioner) which wrought
havoc to their businesses and lives. As to the CTS Facility Agreements with PNB, respondents alleged that these
were already novated by the parties who agreed upon a term loan starting May 31, 2010 and to expire on April
30, 2012. But despite her knowledge of such novation and that the obligation was not yet due and demandable,
petitioner with malice and evident bad faith still executed a "perjured" Affidavit in support of the application for
writ of preliminary attachment before the Pasay City RTC. Respondents likewise sought to hold Judge Gutierrez
personally liable for issuing the writ of preliminary attachment in favor of PNB notwithstanding that the
obligation subject of PNBs complaint was sufficiently secured by the value of realproperties sold to it by virtue
of the CTS Facility Agreements and deeds ofassignment of accounts receivables.
They further contended that Judge Gutierrez blindly approved the attachment bond offered by PNBs sister
company, PNB General Insurers Company, Inc. despite the fact that from its submitted documents, said
insurers authorized capital stock isonly 400 million while its paid-up capital is only 312.6 million, which is
way below the 974,377,159.10 attachment bond it issued.
Respondents thus prayed for a judgment ordering petitioner and Judge Gutierrez to pay moral damages,
exemplary damages, litigation expenses, attorneys fees and cost of suit.
Judge Gutierrez moved to dismiss16 the complaint against him on the following grounds: (1) respondents haveno
cause of action against him; and (2) the Pasig City court has no jurisdiction over the case and his person,
movant being of co-equal and concurrent jurisdiction.
Petitioner filed her Answer With Compulsory Counterclaims,17 praying for the dismissal of respondents
complaint on the following grounds: (1) submission of a false certification of non-forum shopping by
respondents and their blatant commission of willful, deliberate and contumacious forum shopping (respondents
failed to disclose a criminal complaint entitled "Tbram Cuyugan v. Aida Padilla and Members of the Board of
Directors of PNB", docketed as I.S. No. XV-13-INV-11-H-01208 pending before the office of the
CityProsecutor of Pasay City); (2) litis pendentia; (3) respondents failure to attach the alleged actionable
document, i.e.the supposed "new term loan", inviolation of Section 7, Rule 8 of the Rules of Court; (4) failure to
state a cause of action against petitioner; and (5) petitioner cannot be held personally liable for her official acts
done for and in behalf of PNB.
On January 5, 2012, petitioner filed a motion for preliminary hearing on affirmative defenses, contending that
respondents are parroting the very same arguments raised and relying on the same evidence they presented
before the Pasay City RTC to establish the alleged novation and purported insufficiency of the attachment
bond,which issues are still pending in the said court. It was thus stressed that respondents are evidently guilty of
forum shopping.18
Respondents filed their Comment/Opposition,19 arguing that there is nothing in their complaint that would
slightly suggest they are asking the Pasig City RTC to issue any injunction or otherwise issue an order setting
aside the writ of preliminary attachmentissued by the Pasay City RTC, and neither did they ask for a ruling on
whether said writ is illegal or whether Judge Gutierrez committed a grave abuse of discretion.They asserted that
what they seek from the Pasig City RTC is to allow them to recover damages from Judge De Leon for his
tortious action in approving PNBs attachment bond. They also insisted that forum shopping and litis
pendentiaare absent in this case, contrary to petitioners claims. Respondents likewise opposed20 the motion to
dismiss filed by Judge Gutierrez, citing this Courts ruling in J. King & Sons Company, Inc. v. JudgeAgapito L.
Hontanosas, Jr.21 in support of their position that the separate complaint before another forum against the judge
for his actionable wrong in a pending case before him can proceed independently without necessarily interfering
with the courts jurisdiction, as what happened in the said case where the judge was merely penalized for gross
misconduct and gross ignorance of the law without actually invalidating the judges order approving the
counter-bond without reviewing the documents presented.
In her Reply,22 petitioner reiterated her previous arguments and additionally contended that in any event, there is
no basis for respondents claim for damages arising from the issuance of the writ of preliminary attachment
before the Pasay City RTC considering that PNBGEN Bond No. SU-JC14-HO-10-0000001-00 is valid and
sufficient to secure and answer for whatever damages respondents may have suffered by reason of such issuance
should it be finally decided that PNB was not entitled to the said bond.
On April 2, 2012, the RTC of Pasig City issued an Order23 dismissing Civil Case No. 73132 for lack of
jurisdiction.
On May 7, 2012, petitioner filed a Motion to Set Counterclaims for Pre-Trial Conference.24
On October 22, 2012, the Pasig CityRTC denied respondents motion for reconsideration of the April 2, 2012
Order dismissing their complaint.25 Respondents filed a Notice of Appeal26 under Section 1(a), Rule 41 of the
Rules of Court.
On November 12, 2012, the Pasig City RTC issued the first questioned Order, which reads:
xxxx
Records show that this Court, through then Acting Presiding Judge Amorfina Cerrado-Cezar, issued an Order
dated April 2, 2012, dismissing the case on the ground that issues involved in this case already impinge upon
the validity of the Order dated August 25, 2010 and Writ of Attachment dated August 27, 2010 issued by the
Regional Trial Court, Branch 119, Pasay City, a court of concurrent and coordinate jurisdiction, in Civil Case
No. R-PSY-10-04228 entitled "Philippine National Bank vs. Globe Asiatique Realty Holdings Corp. et al." The
ruling in said Order dated April 2, 2012, was affirmed by this Court per its Order dated October 22, 2012,
whereby it reiterated that acting on the plaintiffs Complaint is a brazen violation of the principle of judicial
stability, which essentially states that the judgment or order of a court of competent jurisdiction may not be
interfered with by any court of concurrent jurisdiction for the simple reason that the power to open, modify or
vacate the said order is not only possessed but is restricted to the court in which the judgment or order is
rendered or issued. (Cojuangco vs. Villegas, 184 SCRA 374)
The foregoing principles are equally applicable to the counterclaims of Aida Padilla. Indeed, to hear the
counterclaims of defendant Aida Padilla will open the door, so to speak, for the plaintiffs to interpose as
ostensibledefenses its claims regarding the alleged illegality of the aforesaid orders and writ of attachment
issued by the RTC of Pasay City. In effect this Court will be forced to dwell upon issues involving the pending
civil case in the RTC Branch 199, Pasay City, thereby interfering, albeit indirectly, with said issues.This is
precisely the very evil which the Court sought to avoid when it dismissed the plaintiffs complaint. Therefore,
upholding once more the principle of judicial stability, this Court is impelled to refuse to hear the counterclaims
of defendant Padilla.
WHEREFORE, premises considered, the instant Motion filed by defendant Aida Padilla is DENIED without
prejudice to the re-filing of defendant Aida Padillas causes of action against herein plaintiffs after final
resolution of Civil Case No. R-PSY-10-04228 entitled "Philippine National Bank vs. Globe Asiatique Realty
Holdings Corp, et al."
SO ORDERED. (Emphasis supplied.)
Petitioners motion for reconsideration was likewise denied under the second assailed Order27 dated May 8,
2013, as follows:
xxxx
Defendant Padilla argues that this Court has jurisdictional competence and authority to resolve her
counterclaims notwithstanding the dismissal of the Complaint dated August 10, 2011 for violation of the
principle of judicial stability. The resolution of her compulsory counterclaims will not require this Court to look
into or pass upon the validity of the acts of the Regional Trial Court of Pasay City, Branch 119 in issuing the
Writ of Attachment dated August 27, 2010. Defendant Padillas counterclaims arose directly from the malicious
filing by the plaintiffs of the Complaint and are compulsory counterclaims which must be raised and resolved in
the same action as the Complaint.
The Court remains unpersuaded of the propriety of proceeding to hear defendant Padillas counterclaims.
As movant herself stated, the grant of her counterclaim calls for the determination of the issue of whether or not
herein plaintiffs had maliciously filed the above-entitled Complaint against defendants. Necessarily, the Court in
threshing out such issue would be constrained to rule on whether the plaintiffs filed their complaint with a
sinister design knowing fully wellthat their cause of action was baseless. Thus, the Court would have to pass
upon the veracity or genuineness of plaintiffs claims thatthey were unjustly injured by the orders and processes
issued by RTC Branch 119, Pasay City, in Civil Case No. R-PSY-10-04228entitled "Philippine National Bank
vs. Globe Asiatique Realty Holdings Corp. et al." Hence, whatever ruling this Court may arrive at on said issues
would inevitably impinge upon matters already pending before the RTC Branch 119, Pasay City.
Once more, under the principle of juridical stability, the Court is constrained to refuse to hear defendant
Padillas counterclaims. Verily, this Court cannot allow itself to interfere either directly, as desired by plaintiff,
or indirectly, as defendant Padilla would have it with the acts of a co-equal court.
WHEREFORE, premises considered, the instant Motion for Reconsideration filed by defendant Aida Padilla is
hereby DENIED without prejudice to the re-filing of defendant Aida Padillas causes of action against herein
plaintiffs after resolution of Civil Case No. R-PSY-10-04228 entitled "Philippine National Bank vs. Globe
Asiatique Realty Holdings Corp. et al."
SO ORDERED. (Emphasis supplied.)
The Petition
Petitioner came directly to this Court raising the primordial legal issue of whether or not a court can take
cognizance of a compulsory counterclaim despite the fact that the corresponding complaint was dismissed for
lack of jurisdiction.
The present petition was de-consolidated from seven other petitions involving respondents and their
transactions with Home Development Mutual Fund, as well as the pending criminal complaints arising
therefrom.28
The Courts Ruling
Before we resolve the legal question presented, we first address the issue of propriety of petitioners resort to
Rule 45.
Respondents are incorrect in arguing that petitioner adopted the wrong mode of appeal, stating that the remedy
from the dismissal of her counterclaims without prejudice is a petition for certiorari under Rule 65 and not an
appeal under Rule 45.
There is no dispute with respect to the fact that when an appeal raises only pure questions of law, this Court has
jurisdiction to entertain the same.29 Section 1, Rule 45 of the 1997 Rules of Civil Procedure, as amended,
provides:
SECTION 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment
or final order or resolution of the Court of Appeals,the Sandiganbayan, the Regional Trial Court or other courts
whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The
petition shall raise only questions of law which must be distinctly set forth.
In Republic v. Sunvar Realty Development Corporation,30 this Court held:
Respondent Sunvar argued that petitioners resort to a Rule 45 Petition for Review on Certioraribefore this
Court is an improper mode of review of the assailed RTC Decision. Allegedly, petitioners should have availed
themselves of a Rule 65 Petition instead, since the RTC Decision was an order of dismissal of the Complaint,
from which no appeal can be taken except by a certiorari petition.
The Court is unconvinced of the arguments of respondent Sunvar and holds that the resortby petitioners to the
present Rule 45 Petition is perfectly within the bounds of our procedural rules.
As respondent Sunvar explained, noappeal may be taken from an order of the RTC dismissing an action without
prejudice, but the aggrieved party may file a certiorari petition under Rule 65. Nevertheless, the Rules do not
prohibit any of the parties fromfiling a Rule 45 Petition with this Court, in case only questions of law are raised
or involved. This latter situation was one that petitioners found themselves in when they filed the instant
Petition to raise only questions of law. In Republic v. Malabanan, the Court clarified the three modes of appeal
from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ of error under Rule 41, whereby
judgment was rendered in a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2) by
a petition for review under Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate
jurisdiction; and (3) by a petition for review on certioraribefore the Supreme Court under Rule 45. "The first
mode of appeal istaken to the [Court of Appeals] on questions of fact or mixed questions of fact and law. The
second mode of appeal is brought to the CA on questions of fact, of law, or mixed questions of fact and law. The
third mode of appeal is elevated to the Supreme Court only on questions of law." (Emphasis supplied.)
There is a question of law when the issue does not call for an examination of the probative value of the evidence
presented or of the truth or falsehood of the facts being admitted, and the doubt concerns the correct application
of law and jurisprudence on the matter. The resolution of the issue must rest solely on what the law provides on
the given set of circumstances.
In the instant case, petitioners raise only questions of law with respect to the jurisdiction of the RTC to entertain
a certioraripetition filed against the interlocutory order of the MeTC in an unlawful detainer suit. At issue in the
present case is the correct application of the Rules on Summary Procedure; or, more specifically, whether the
RTC violated the Rules when it took cognizance and granted the certioraripetition against the denial by the
MeTC of the Motion to Dismiss filed by respondent Sunvar. This is clearly a question of law that involves the
proper interpretation of the Rules on Summary Procedure. Therefore, the instant Rule 45 Petition has been
properly lodged with this Court.
In this case, petitioner raises the lone issue of whether the Pasig City RTC was correct in refusing to hear her
counterclaims after the dismissal of respondents complaint for lack of jurisdiction. Said issue involves the
proper interpretation of the 1997 Rules of Civil Procedure, as amended, specifically on whether the dismissal of
the complaint automatically results in the dismissal of counterclaims pleaded by the defendant. Since this is
clearly a question of law, petitioner appropriately filed in thisCourt a Rule 45 petition.
On the lone issue raised in the petition, we rule for the petitioner.
A counterclaim is any claim which a defending party may have against an opposing party.31 It is in the nature of
a cross-complaint; a distinct and independent cause of action which, though alleged in the answer, is not part of
the answer.32
Counterclaims may be either compulsory or permissive. Section 7, Rule 6 of the 1997 Rules of Civil Procedure
provides:
SEC. 7. Compulsory counterclaim. A compulsory counterclaim is one which, being cognizable by the regular
courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter
of the opposing partys claim and does not require for its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the
amount and the nature thereof, except that in an original action before the Regional Trial Court, the
counterclaim may be considered compulsory regardless of the amount.
In this case, petitioners counterclaim for damages raised in her answer before the Pasig City RTC
iscompulsory, alleging suffering and injury caused to her as a consequence of the unwarranted filing of the
baseless complaint filed byrespondents. Said court, however, dismissed her counterclaim upon the same ground
of lackof jurisdiction as its resolution supposedly would entail passing upon the validity of orders and processes
still pending before the Pasay City RTC. In Metals Engineering Resources Corp. v. Court of Appeals,33 we
reversed the trial courts order allowing private respondent to proceed with the presentation of his evidence in
support of his counterclaim after the complaint was dismissed for not paying the correct docket fee and hence
the trial court did not acquire jurisdiction over the case. We held that if the court does not have jurisdiction to
entertain the main action of the case and dismisses the same, then the compulsorycounterclaim, being ancillary
to the principal controversy, must likewise be dismissed since no jurisdiction remained for any grant of relief
under the counterclaim.34
Under the 1997 Rules of Civil Procedure, it is now explicitly provided that the dismissal of the complaint due
tofailure of the plaintiff to prosecute his case is "without prejudice to the rightof the defendant to prosecute his
counterclaim in the same or in a separate action."35 The effect of this amendment on previous rulings on whether
the dismissal of a complaint carries with it the dismissal of the counterclaims as well, was discussed in the case
of Pinga v. The Heirs of German Santiago,36 thus:
Similarly, Justice Feria notes that "the present rule reaffirms the right of the defendant to move for the dismissal
of the complaint and to prosecute his counterclaim, as stated in the separate opinion [of Justice Regalado in BA
Finance.] Retired Court of Appeals Justice Herrera pronounces that the amendment to Section 3, Rule 17 settles
that "nagging question" whether the dismissal of the complaint carries with it the dismissal of the counterclaim,
and opines that by reason of the amendments, the rulings in Metals Engineering, International Container, and
BA Finance"may be deemed abandoned." On the effect of amendment to Section 3, Rule 17, the commentators
are in general agreement, although there is less unanimity of views insofar as Section 2, Rule 17 is concerned.
To be certain, when the Court promulgated the 1997 Rules of Civil Procedure, including the amended Rule 17,
those previous jural doctrines that were inconsistent with the new rules incorporated in the 1997 Rules of Civil
Procedure were implicitly abandoned insofar as incidents arising after the effectivity of the new procedural rules
on 1 July 1997. BA Finance, or even the doctrine that a counterclaim may be necessarily dismissed along with
the complaint, clearly conflicts with the 1997 Rules of Civil Procedure. The abandonment of BA Financeas
doctrine extends as far back as 1997, when the Court adopted the new Rules of Civil Procedure. we thus rule
that the dismissal of a complaint due to fault of the plaintiff is without prejudice to the right of the defendant to
prosecute any pending counterclaims ofwhatever nature in the same or separate action. We confirm that BA
Financeand all previous rulings of the Court that are inconsistent with this present holding are now abandoned.
(Emphasis supplied.)
Subsequently, in Perkin Elmer Singapore Pte Ltd. v. Dakila Trading Corporation37 this Court held that while the
declaration in Pinga refers to instances covered by Section 3, Rule 17 on dismissal of complaints due to the fault
of plaintiff, it does not preclude the application of the same rule when the dismissal was upon the instance of
defendant who correctly argued lack of jurisdiction over its person.Further, in stark departure from Metals
Engineering, we declared that the courts jurisdiction over respondents complaint is not to be confusedwith
jurisdiction over petitioners counterclaim, viz:
.Petitioner seeks to recover damages and attorneys fees as a consequence of the unfounded suitfiled by
respondent against it. Thus, petitioners compulsory counterclaim isonly consistent with its position that the
respondent wrongfully filed a case against it and the RTC erroneously exercised jurisdiction over its person.
Distinction must be made in Civil Case No. MC99-605 as to the jurisdiction of the RTC over respondents
complaint and over petitioners counterclaim while it may have no jurisdiction over the former, it may
exercise jurisdiction over the latter. The compulsory counterclaim attached to petitioners Answer ad
cautelamcan be treated as a separate action, wherein petitioner is the plaintiff while respondent is the defendant.
Petitioner could have instituted a separate action for the very same claims but, for the sake of expediency and to
avoid multiplicity of suits, it chose to demand the samein Civil Case No. MC99-605. Jurisdiction of the RTC
over the subject matter and the parties in the counterclaim must thus be determined separately and
independently from the jurisdiction of the samecourt in the same case over the subject matter and the parties in
respondents complaint.38 (Emphasis supplied.)
Still anchored on the pronouncement in Pinga, we then categorically ruled that a counterclaim arising from the
unfounded suit may proceed despite the dismissal of the complaint for lack of jurisdiction over the person of
defendant-counterclaimant, thus:
Also in the case of Pinga v. Heirs of German Santiago, the Court discussed the situation wherein the very filing
of the complaint by the plaintiff against the defendant caused the violation of the latters rights. As to whether
the dismissal of such a complaint should also include the dismissal of the counterclaim, the Court
acknowledged that said matter is still debatable, viz:
Whatever the nature of the counterclaim, it bears the same integral characteristics as a complaint; namely a
cause (or causes) of action constituting an act or omission by which a party violates the right of another. The
main difference lies in that the cause of action in the counterclaim is maintained bythe defendant against the
plaintiff, while the converse holds true with the complaint. Yet, as with a complaint, a counterclaim without a
cause of action cannot survive.
x x x if the dismissal of the complaint somehow eliminates the cause(s) of the counterclaim, then the
counterclaim cannot survive. Yet that hardly is the case, especially as a general rule. More often than not, the
allegations that form the counterclaim are rooted in an act or omission of the plaintiff other than the plaintiffs
very act of filing the complaint. Moreover, such acts or omissions imputed to the plaintiff are often claimed to
have occurred prior to the filing of the complaint itself.The only apparent exception to thiscircumstance is if it is
alleged in the counterclaim that the very act of the plaintiff in filing the complaint precisely causes the violation
of the defendants rights. Yet even in such an instance, it remains debatable whether the dismissal or withdrawal
of the complaint is sufficient to obviate the pending cause of action maintained by the defendant against the
plaintiff.
Based on the aforequoted ruling of the Court, if the dismissal of the complaint somehow eliminates the cause of
the counterclaim, then the counterclaim cannot survive. Conversely, if the counterclaim itself states sufficient
cause of action then it should stand independently of and survive the dismissal of the complaint. Now, having
been directly confronted with the problem of whether the compulsory counterclaim by reason of the unfounded
suit may prosper even if the maincomplaint had been dismissed, we rule in the affirmative.
It bears to emphasize that petitioners counterclaim against respondent is for damages and attorneys fees arising
from the unfounded suit. While respondents Complaint against petitioner is already dismissed, petitioner may
have very well already incurred damages and litigation expenses such as attorneys fees since it was forced to
engage legal representation in the Philippines to protect its rights and to assert lack of jurisdiction of the courts
over its person by virtue of the improper service of summons upon it. Hence, the cause of action of petitioners
counterclaim is not eliminated by the mere dismissal of respondents complaint.
It may also do well to rememberthat it is this Court which mandated that claims for damages and attorneys fees
based on unfounded suit constitute compulsory counterclaim which must be pleaded in the same action or,
otherwise, it shall be barred. It will then be iniquitous and the height of injustice to require the petitioner to
make the counterclaim in the present action, under threat of losing his right to claim the same ever again in any
other court, yet make his right totally dependent on the fate of the respondents complaint.
If indeed the Court dismisses petitioners counterclaim solely on the basis of the dismissal of respondents
Complaint, then what remedy is left for the petitioner? It can be said that he can still file a separate action to
recover the damages and attorneys fees based on the unfounded suit for he cannot be barred from doing so
since he did file the compulsory counterclaim in the present action, only that it was dismissed when
respondents Complaint was dismissed. However, this reasoning is highly flawed and irrational considering that
petitioner, already burdened by the damages and attorneys fees itmay have incurred in the present case, must
again incur more damages and attorneys fees in pursuing a separate action, when, in the first place, it should
not have been involved in any case at all.
Since petitioners counterclaim iscompulsory in nature and its cause of action survives that of the dismissal of
respondents complaint, then it should be resolved based on its own merits and evidentiary
support.39 (Additional emphasis supplied.)
The above ruling was applied in Rizal Commercial Banking Corporation v. Royal Cargo Corporation40 where
we granted petitioners prayer for attorneys fees under its Compulsory Counterclaim notwithstanding the
dismissal of the complaint.
In the present case, the RTC of Pasig City should have allowed petitioners counterclaim to proceed
notwithstanding the dismissal of respondents complaint, the same being compulsory in nature and with its
cause not eliminated by such dismissal.It bears stressing that petitioner was hailed to a separate court (Pasig
City RTC) even while the dispute between PNB and respondents was still being litigated, and she already
incurred expenses defending herself, having beensued by respondents in her personal capacity. The accusations
hurled against her were serious (perjury and misrepresentation in executing the affidavit in support of the
application for writ of attachment before the Pasay City RTC) with hints at possible criminal prosecution apart
from that criminal complaint already lodged in the Pasig City Prosecutors Office. The Pasig City RTC clearly
erred in refusing to hear the counterclaims upon the same ground for dismissal of the complaint, i.e.,lack of
jurisdiction in strictobservance of the policy against interference with the proceedings of a co-equal court.
Respondents contend that if petitioner is allowed to prove her counterclaims before the Pasay City RTC, they
have no choice but to justify their action in filing their case beforethe Pasig City RTC by going back to the
allegations in their complaint that they are merely vindicating themselves against the perjured affidavit executed
by petitioner which led to the issuance of the illegal orders of the Pasay City RTC that resulted to the damage
and injury sustained by respondents. Obviously, respondents are invoking the same principle of judicialstability
which we find inapplicable insofar as petitioners counterclaim arising from respondents unfounded suit. As
petitioner set forth in her Compulsory Counterclaim, there is actually no necessity for the Pasig City RTC, in
ruling on the merits of the counterclaim, to pass upon the validity ofthe writ of attachment and related orders
issued by the Pasay City RTC. Precisely, petitioner faulted the respondents in prematurely, and in a
contumacious act of forum shopping, filing a separate damage suit when there is no final judicial determination
yet of any irregularity in the attachment proceedings before the Pasay City RTC.
5.95. In this regard, it must be noted that in filing the present suit, plaintiffs goal is to have the Honorable Court
reexamine and review the pronouncements made by defendant JudgeGutierrez in the Pasay case.
With all due respect, the Honorable Court certainly has no such power over the Pasay Court which is a co-equal
court. While the power to determine whether or not a judgment or order is unjust is a judicial function, the
hierarchy of courts should be respected:
"To belabor the obvious, the determination of whether or not a judgment or order is unjust or was (or was not)
rendered within the scope of the issuing judges authority, or that the judge had exceeded his jurisdiction and
powers or maliciously delayed the disposition of a case is an essentially judicial function, lodged by existing
law and immemorial practice in a hierarchy of courts and ultimately in the highest court of the land. To repeat,
no other entity or official of the Government, not the prosecution or investigation service or any other branch,
nor any functionary thereof, has competence to review a judicial order or decision whether final and executory
or not and pronounce it erroneous soas to lay the basis for a criminal or administrative complaint for rendering
an unjust judgment or order. That prerogative belongs to the courts alone." [Emphasis supplied]
5.96. Accordingly, since there is no "final judicial pronouncement" yet on whether the filing of the PNB
Complaintand the issuance of the writ of preliminary attachment violate any law, neither is there any basis for
defendant Padilla to be held liable for damages on account of her official acts as Head of the Remedial
Management Group of PNB.1wphi1
5.97. Clearly, the filing of this baseless, if not contemptuous, suit is nothing but a continuation of plaintiffs
fraudulent attempt to evade the payment of undeniably due and demandable obligations. Accordingly, the
complaint against defendant Padilla should be dismissed for utter lack of merit.41 (Emphasis supplied.)
Ironically, while it is the respondents who erroneously and maliciously asked the Pasig City RTC to pass upon
these issues still pending in a co-equal court, for which reason the said court dismissed their complaint,
petitioner was notallowed to prove her counterclaim by reason of the unfounded suit in the same case
aspurportedly it will entail verifying respondents claim that they were prejudiced by the orders and processes in
the Pasay City RTC. This situation exemplifies the rationale in Perkin Elmer Singapore Pte Ltd.42 on requiring
the petitioner to make the counterclaim in the present action, under threat of losing such right to claim the same
ever again any other court, yet make such right of the petitioner totally dependent on the fate of the respondents
complaint.
As fittingly expressed by petitioner in her Reply:
Pertinently, it is relevant to note that respondents never denied in their Commentthat the institution of the case a
quowas premature and violated the principle of judicial stability. Stated otherwise, respondents admit that they
are the ones who have invited the court a quo to interfere with the rulings of the Pasay Court, which fortunately,
the former refused to do so. To allow the respondents to cite their own unlawful actions as a shield against the
harm that they have inflicted upon petitioner Padilla would indubitably allow the respondents to profit from
their own misdeeds. With due respect, this cannot be countenanced by the Honorable Court.43 WHEREFORE,
the petition is GRANTED. The Orders dated November 12, 2012 and May 8, 2013 of the Regional Trial Court
of Pasig City, Branch 155 in Civil Case No. 73132 are hereby REVERSED and SET ASIDE. Said court is
hereby directed to proceed with the presentation of evidence in support of the compulsory counterclaim of
petitioner Aida Padilla.
SO ORDERED.
FLORENTINO PINEDA, G.R. No. 143188

Petitioner,
Present:
- versus - QUISUMBING, J.,

Chairperson,
CARPIO,
HEIRS OF ELISEO GUEVARA, CARPIO MORALES,
represented by ERNESTO E. TINGA, and
GUEVARA and ISAGANI S. VELASCO, JR.
GUEVARA, namely: ELISEO
GUEVARA, JR., ZENAIDA G. Promulgated:
SAPALICIO, DANTE G.
GUEVARA, DANILO C. GUEVARA,
and ISAGANI S. GUEVARA, February 14, 2007
Respondents.
x -------------------------------------------------------------------------------------x
DECISION
TINGA, J.:
On appeal by way of certiorari under Rule 45 of the 1997 Rules of Civil Procedure are the Decision [1] and
Resolution of the Court of Appeals in CA-G.R. CV No. 54074. The Decision reversed the order of dismissal of
the Regional Trial Court (RTC), Branch 273, Marikina, and directed the court a quo to conduct trial on the
merits, while the Resolution denied petitioner Pinedas motion for reconsideration.
As borne out by the records, the following are the factual antecedents.
On 7 September 1995, respondents Eliseo Guevara, Jr., Zenaida G. Sapalicio, Dante G. Guevara and Isagani S.
Guevara, collectively referred hereinafter as the Guevara heirs, filed an action for the nullification of the
certificates of title of a parcel of land measuring approximately 2,304 hectares situated in Marikina.
Named defendants were the estate of the late Pedro Gonzales, Virginia Perez, Crisanta Perez, Jose Perez,
Roy Guadalupe, Lino Bucad and Florentino Pineda. The complaint, docketed as Civil Case No. 95-171-MK,
was raffled to Branch 273 of the RTC of Marikina.
The Guevara heirs alleged in the complaint that they were the co-owners of a property originally covered by
Original Certificate of Title (OCT) No. 386 issued on 7 December 1910 in favor of the spouses Emiliano
Guevara and Matilde Crimen. The couples son, and the Guevara heirs predecessor-in-interest, Eliseo Guevara,
allegedly purchased the property on 1 January 1932 and had exercised ownership over the property since then
by selling and donating portions thereof to third persons. The Guevara heirs averred that the sale of the property
to Eliseo Guevara was annotated at the back of OCT No. 386.
According to the Guevara heirs, the defendants illegally claimed ownership and possession over a
certain portion of the property, particularly that area covered by Transfer Certificate of Title (TCT) No. 223361
issued to the estate of Pedro C. Gonzales. TCT No. 223361 was derived from OCT No. 629, which the Guevara
heirs described as fake, having been issued only on 26 January 1912 or subsequent to the issuance of OCT No.
386. Hence, the Guevara heirs prayed that OCT No. 629 and its derivative titles, to wit, TCT Nos. 223361,
244447, 244448, 244449 be cancelled, that the Guevara heirs be declared owners of the property and that a new
certificate of title be issued in their names.
Defendant Pineda filed an answer with counterclaim, raising the defenses of lack of cause of action,
prescription, laches and estoppel. He averred that he was a buyer in good faith and had been in actual
possession of the land since 1970 initially as a lessor and subsequently as an owner. He registered the property
in his name and was issued TCT No. 257272.
Defendants Virginia, Crisanta, and Jose, all surnamed Perez, filed an answer with compulsory
counterclaim and averred that their father, Marcos Perez, purchased the property from the late Pedro Gonzales
and had it declared in Perezs name for taxation purposes. According to them, they had been in actual possession
of a lot measuring 375 square meters before 1958 and had been regularly paying the property taxes thereon.
The rest of the defendants, including the estate of Pedro Gonzales, also filed an answer with
counterclaim, raising the same defenses of laches and prescription and res judicata. They claimed that OCT No.
629 was issued to the Municipality of Marikina in 1912 and that the late Pedro Gonzales and his family started
occupying the property as early as 1950 as lessees thereon. The late Pedro Gonzales allegedly bought the
property from the Municipality of Marikina in a public bidding on 25 April 1966 and had allowed defendants to
occupy the property. They asserted that the Guevara heirs never actually occupied the property.
On 4 December 1995, the RTC set the case for hearing as if a motion to dismiss had been filed. During
the hearing, the parties presented oral arguments and were directed to file their memoranda.
After submission of memoranda, the RTC issued an Order dated 7 May 1996, dismissing the action on
the ground of laches. The Guevara heirs appealed the order of dismissal, claiming the denial of their right to due
process.
On 23 August 1999, the Court of Appeals promulgated the assailed Decision, which set aside the RTCs
order of dismissal and directed the reinstatement of Civil Case No. 95-171-MK. The appellate court ruled that a
complaint cannot be dismissed under Rule
16, Section 1[2] of the Rules of Court based on laches since laches is not one of the grounds enumerated under
said provision. Although the RTC order of dismissal did not rule on the other affirmative defenses raised by
petitioners in the answer, such as lack of cause of action, prescription and res judicata, the Court of Appeals
discussed them and ruled that none of these affirmative defenses raised were present to warrant the dismissal of
the action.
Only Pineda sought reconsideration. In its 3 May 2000 Resolution, the Court of Appeals denied Pinedas
motion. Hence, the instant petition, attributing the following errors to the Court of Appeals:
THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE APPEAL

OF RESPONDENTS WHICH RAISED ONLY PURELY QUESTIONS OF LAW; AND,
THEREFORE, IT ACTED WITHOUT JURISDICTION IN HEARING AND DECIDING THE
SAID APPEALED CASE.
THE COURT OF APPEALS ERRED IN NOT CONSIDERING THE AFFIRMATIVE

DEFENSE OF LACHES AS ANALOGOUS TO PRESCRIPTION.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL COURTS

DISMISSAL OF THE RESPONDENTS COMPLAINT IS ERRONEOUS FOR THE REASON
THAT THE AFFIRMATIVE DEFENSE OF LACHES IS NOT AMONG THE GROUNDS FOR
A MOTION TO DISMISS UNDER THE RULES, WHICH MAY BE ALLEGED AS
AFFIRMATIVE DEFENSE TO BE PROVED DURING THE TRIAL.
AS A COROLLARY TO THE THIRD ASSIGNED ERROR ABOVE, THE COURT OF

APPEALS ERRED IN NOT TREATING THE ASSAILED ORDER OF DISMISSAL OF
RESPONDENTS COMPLAINT BY THE TRIAL COURT AS A SUMMARY JUDGMENT, TO

AVOID PROTRACTED LITIGATION.
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT WHILE

PRESCRIPTION IN DEROGATION OF THE TITLE TO REGISTERED OWNERS WILL
NOT LIE, LACHES WILL.[3]
Counsel for the estate of Pedro Gonzales filed a Comment/Manifestation, [4] stating that her clients have
adopted and joined Pinedas petition praying for the reinstatement of the trial courts order of dismissal.
At bottom, the petition raises two main issues, to wit: (1) whether or not the appeal of the heirs of
Guevara was improperly elevated to the Court of Appeals since, according to them, it raised a pure question of
law; and (2) whether or not the trial court correctly dismissed the action on the ground of laches without
conducting trial on the merits.
Petitioner Pineda had ample opportunity to raise before the Court of Appeals the objection on the
improper mode of appeal taken by the heirs of Guevara. This, he failed to do. The issue of improper appeal was
raised only in Pinedas motion for reconsideration of the Court of Appeals Decision. Hence, this Court cannot
now, for the first time on appeal, pass upon this issue. For an issue cannot be raised for the first time on appeal.
[5]
In any case, the appeal by the heirs of Guevara also raised the issue regarding the existence of laches on the
part of petitioners as defendants, which is factual in nature as discussed below.
Now, did the trial court correctly order the dismissal of the complaint based on laches without
conducting trial on the merits? The Court of Appeals disagreed, holding that under Rule 16, Section 1 [6] of the
Rules of Court, laches is not enumerated under said provision, hence, it must be proved during trial. On the
other hand, petitioner Pineda asserts that laches is analogous to prescription and, therefore, can be a ground of
dismissing a complaint as though a motion to dismiss is filed.
Well-settled is the rule that the elements of laches must be proved positively. Laches is evidentiary in
nature which could not be established by mere allegations in the pleadings and can not be resolved in a motion
to dismiss. At this stage therefore, the dismissal of the complaint on the ground of laches is premature. [7] Those
issues must be resolved at the trial of the case on the merits wherein both parties will be given ample
opportunity to prove their respective claims and defenses.[8]
The elements of laches are: (1) conduct on the part of the defendant, or of one under whom he claims,
giving rise to the situation of which the complaint seeks a remedy; (2) delay in asserting the complainants
rights, the complainant having had knowledge or notice of the defendants conduct as having been afforded an
opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complainant
would assert the right in which he bases his suit; and (4) injury or prejudice to the defendant in the event relief
is accorded to the complainant, or the suit is not held barred.[9]
Whether or not the elements of laches are present is a question involving a factual determination by the
trial court. There is no absolute rule as to what constitutes laches or staleness of demand; each case is to be
determined according to its particular circumstances.[10] Laches is not concerned with the mere lapse of time,
rather, the party must have been afforded an opportunity to pursue his claim in order that the delay may
sufficiently constitute laches.[11] Without prejudging the instant case, an apparent delay in the enforcement of
ones claim does not automatically constitute laches. The party charged with negligence or omission in invoking
his right must be afforded the opportunity to raise his defenses, which can be accommodated only in a
contentious proceeding.
In reversing the RTCs order of dismissal, the Court of Appeals held that laches could not be a ground to
dismiss the complaint as it is not enumerated under Rule 16, Section 1. [12] This is not entirely correct. Under
paragraph (h) thereof, where a claim or demand set forth in the plaintiffs pleading has been paid,
waived, abandoned, or otherwise extinguished, the same may be raised in a motion to dismiss. The language of
the rule, particularly on the relation of the words abandoned and otherwise extinguished to the phrase claim or
demand deemed set forth in the plaintiffs pleading is broad enough to include within its ambit the defense of bar
by laches. However, when a party moves for the dismissal of the complaint based on laches, the trial court must
set a hearing on the motion where the parties shall submit not only their arguments on the questions of law but
also their evidence on the questions of fact involved.[13] Thus, being factual in nature, the elements of laches
must be proved or disproved through the presentation of evidence by the parties. As discussed above, an
apparent delay in the filing of a complaint as shown in a pleading does not automatically warrant the dismissal
of the complaint on the ground of laches.
In the case at bar, while the trial court correctly set the case for hearing as though a motion to dismiss
had been filed, the records do not reveal that it extended to the parties the opportunity to present evidence. For
instance, counsel for the heirs of Guevara filed and served written interrogatories [14] on one of the defendants
but the trial court held in abeyance the resolution of the motion to order the defendant to submit answers to the
written interrogatories.[15] The trial court likewise denied the Ex Parte Motion To Set Trial filed by the heirs of
Guevara.[16] These were the instances which would have enabled the trial court to receive evidence on which to
anchor its factual findings. Although the trial court heard oral arguments and required the parties to submit their
respective memoranda, the presentation of evidence on the defenses which are grounds for a motion to dismiss
was not held at all. Otherwise, the oral arguments and memoranda submitted by the parties would have enabled
this Court to review the trial courts factual finding of laches instead of remanding the case for trial on the
merits. A perusal of the records precludes this Court from making a categorical declaration on whether the heirs
of Guevara were guilty of laches.
Neither does the affirmative defense of prescription alleged in an answer automatically warrant the
dismissal of the complaint under Rule 16. An allegation of prescription can effectively be used in a motion to
dismiss only when the complaint on its face shows that indeed the action has already prescribed. [17] Otherwise,
the issue of prescription is one involving evidentiary matters requiring a full-blown trial on the merits and
cannot be determined in a mere motion to dismiss. [18] Pinedas theory that the defense of laches should be treated
as an affirmative defense of prescription warranting the dismissal of the complaint is erroneous.
There is also no basis in procedural law to treat the RTCs order of dismissal as a summary judgment.
The trial court cannot motu proprio decide that summary judgment on an action is in order. Under the applicable
provisions of Rule 35, the defending party or the claimant, as the case may be, must invoke the rule on
summary judgment by filing a motion.[19] The adverse party must be notified of the motion for summary
judgment[20] and furnished with supporting affidavits, depositions or admissions before hearing is conducted.
[21]
More importantly, a summary judgment is permitted only if there is no genuine issue as to any material fact
and a moving party is entitled to a judgment as a matter of law.[22]
Based on the parties allegations in the complaint and answer, the issues in the case at bar are far from
settled. For instance, both petitioner and respondents claim their ownership rights over the same property based
on two different original certificates of title. Respondents charge petitioner of illegal occupation while the latter
invokes good faith in the acquisition of the property. Clearly, these are factual matters which can be best
ventilated in a full-blown proceeding before the trial court, especially when what are involved appear to be
sizeable parcels of land covered by two certificates of title.
Except for Pineda, the other defendants did not elevate the Court of Appeals Decision to this Court. With
respect to them, the appellate courts Decision has already become final and conclusive, notwithstanding their
adoption[23] of Pinedas petition.
WHEREFORE, the instant petition for review on certiorari is DENIED and the Decision and Resolution
of the Court of Appeals in CA-G.R. CV No. 54074 are AFFIRMED. Let the records of the case be remanded for
further proceedings to the Regional Trial Court of Marikina City, which is hereby ORDERED to try and decide
the case with deliberate speed.
SO ORDERED.
G.R. No. 175507 October 8, 2014
RAMON CHING AND POWING PROPERTIES, INC., Petitioners,

vs.
JOSEPH CHENG, JAIME CHENG, MERCEDES IGNE1 AND LUCINA SANTOS, Respondents.
DECISION
LEONEN, J.:
Rule 17 of the Rules of Civil Procedure governs dismissals of actions at the instance of the plaintiff. Hence, the
"two-dismissal rule" under Rule 17, Section 1 of the Rules of Civil Procedure will not apply if the prior
dismissal was done at the instance of the defendant.
This is a petition for review on certiorari assailing the decision2 and resolution3 of the Court of Appeals in CA-
G.R. SP. No. 86818, which upheld the (1) order4 dated November 22, 2002 dismissing Civil Case No. 02-
103319 without prejudice, and (2) the omnibus order5 dated July 30, 2004, which denied petitioners motion for
reconsideration. Both orders were issued by the Regional Trial Court of Manila, Branch 6.6
The issues before this court are procedural. However, the factual antecedents in this case, which stemmed from
a complicated family feud, must be stated to give context to its procedural development.
It is alleged that Antonio Ching owned several businesses and properties, among which was Po Wing Properties,
Incorporated (Po Wing Properties).7 His total assets are alleged to have been worth more than 380 million.8 It is
also alleged that whilehe was unmarried, he had children from two women.9
Ramon Ching alleged that he was the only child of Antonio Ching with his common-law wife, Lucina
Santos.10 She, however, disputed this. She maintains that even ifRamon Chings birth certificate indicates that he
was Antonio Chings illegitimate child, she and Antonio Ching merely adopted him and treated him like their
own.11
Joseph Cheng and Jaime Cheng, on the other hand, claim to be Antonio Chings illegitimate children with his
housemaid, Mercedes Igne.12 While Ramon Ching disputed this,13 both Mercedes and Lucina have not.14
Lucina Santos alleged that when Antonio Ching fell ill sometime in 1996, he entrusted her with the distribution
of his estate to his heirs if something were to happen to him. She alleged that she handed all the property titles
and business documents to Ramon Ching for safekeeping.15 Fortunately, Antonio Ching recovered from illness
and allegedly demanded that Ramon Ching return all the titles to the properties and business documents.16
On July 18, 1996, Antonio Ching was murdered.17 Ramon Ching allegedly induced Mercedes Igne and her
children, Joseph Cheng and Jaime Cheng, to sign an agreement and waiver18 to Antonio Chings estate in
consideration of 22.5 million. Mercedes Ignes children alleged that Ramon Ching never paid them.19 On
October 29, 1996, Ramon Ching allegedly executed an affidavit of settlement of estate,20 naming himself as the
sole heir and adjudicating upon himself the entirety of Antonio Chings estate.21
Ramon Ching denied these allegationsand insisted that when Antonio Ching died, the Ching family association,
headed by Vicente Cheng, unduly influenced him to give Mercedes Igne and her children financial aid
considering that they served Antonio Ching for years. It was for this reason that an agreement and waiver in
consideration of 22.5 million was made. He also alleged that hewas summoned by the family association to
execute an affidavit of settlement of estate declaring him to be Antonio Chings sole heir.22
After a year of investigating Antonio Chings death, the police found Ramon Ching to be its primary
suspect.23Information24 was filed against him, and a warrant of arrest25 was issued.
On October 7, 1998, Joseph Cheng, Jaime Cheng, and Mercedes Igne (the Chengs) filed a complaint for
declaration of nullity of titles against Ramon Ching before the Regional Trial Court of Manila. This case was
docketed as Civil Case No. 98-91046 (the first case).26
On March 22, 1999, the complaint was amended, with leave of court, to implead additional defendants,
including Po Wing Properties, of which Ramon Ching was a primary stockholder.The amended complaint was
for "Annulment of Agreement, Waiver, Extra-Judicial Settlement of Estate and the Certificates of Title Issued
by Virtue of Said Documents with Prayer for Temporary Restraining Order and Writ of Preliminary
Injunction."27 Sometime after, Lucina Santos filed a motion for intervention and was allowed to intervene.28
After the responsive pleadings had been filed, Po Wing Properties filed a motion to dismiss on the ground of
lack of jurisdiction of the subject matter.29
On November 13, 2001, the Regional Trial Court of Manila, Branch 6, granted the motion to dismiss on the
ground of lack of jurisdiction over the subject matter.30 Upon motion of the Chengs counsel, however, the
Chengs and Lucina Santos were given fifteen (15) days to file the appropriate pleading. They did not do so.31
On April 19, 2002, the Chengs and Lucina Santos filed a complaint for "Annulment of Agreement, Waiver,
Extra-Judicial Settlement of Estate and the Certificates of Title Issued by Virtue of Said Documents with Prayer
for Temporary Restraining Order and Writ of Preliminary Injunction" against Ramon Ching and Po Wing
Properties.32This case was docketed as Civil Case No. 02-103319 (the second case) and raffled to Branch 20 of
the Regional Trial Court of Manila.33 When Branch 20 was made aware of the first case, it issued an order
transferring the case to Branch 6, considering that the case before it involved substantially the same parties and
causes of action.34
On November 11, 2002, the Chengs and Lucina Santos filed a motion to dismiss their complaint in the second
case, praying that it be dismissed without prejudice.35
On November 22, 2002, Branch 6 issued an order granting the motion to dismiss on the basis that the summons
had not yet been served on Ramon Ching and Po Wing Properties, and they had not yet filed any responsive
pleading. The dismissal of the second case was made without prejudice.36
On December 9, 2002, Ramon Ching and Po Wing Properties filed a motion for reconsideration of the order
dated November 22, 2002. They argue that the dismissal should have been with prejudice under the "two
dismissal rule" of Rule 17, Section 1 of the 1997 Rules of Civil Procedure, in view of the previous dismissal of
the first case.37
During the pendency of the motion for reconsideration, the Chengs and Lucina Santos filed a complaint for
"Disinheritance and Declaration of Nullity of Agreement and Waiver, Affidavit of Extra judicial Agreement,
Deed of Absolute Sale, and Transfer Certificates of Title with Prayer for TRO and Writ of Preliminary
Injunction" against Ramon Ching and Po Wing Properties. This case was docketed as Civil Case No. 02-
105251(the third case) and was eventually raffled to Branch 6.38
On December 10, 2002, Ramon Ching and Po Wing Properties filed their comment/opposition to the application
for temporary restraining order in the third case. They also filed a motion to dismiss on the ground of res
judicata, litis pendencia, forum-shopping, and failure of the complaint to state a cause of action. A series of
responsive pleadings were filed by both parties.39
On July 30, 2004, Branch 6 issued an omnibus order40 resolving both the motion for reconsideration in the
second case and the motion to dismiss in the third case. The trial court denied the motion for reconsideration
and the motion to dismiss, holding that the dismissal of the second case was without prejudice and, hence,
would not bar the filing of the third case.41 On October 8, 2004, while their motion for reconsideration in the
third case was pending, Ramon Ching and Po Wing Properties filed a petition for certiorari (the first certiorari
case) with the Court of Appeals, assailing the order dated November 22,2002 and the portion of the omnibus
order dated July 30, 2004, which upheldthe dismissal of the second case.42
On December 28, 2004, the trial court issued an order denying the motion for reconsideration in the third case.
The denial prompted Ramon Ching and Po Wing Properties to file a petition for certiorari and prohibition with
application for a writ of preliminary injunction or the issuance of a temporary restraining order (the second
certiorari case) with the Court of Appeals.43
On March 23, 2006, the Court of Appeals rendered the decision44 in the first certiorari case dismissing the
petition. The appellate court ruled that Ramon Ching and Po Wing Properties reliance on the "two-dismissal
rule" was misplaced since the rule involves two motions for dismissals filed by the plaintiff only. In this case, it
found that the dismissal of the first case was upon the motion of the defendants, while the dismissal of the
second case was at the instance of the plaintiffs.45
Upon the denial of their motion for reconsideration,46 Ramon Ching and Po Wing Properties filed this present
petition for review47 under Rule 45 of the Rules of Civil Procedure.
Ramon Ching and Po Wing Properties argue that the dismissal of the second case was with prejudice since the
non-filing of an amended complaint in the first case operated as a dismissal on the merits.48 They also argue that
the second case should be dismissed on the ground of res judicata since there was a previous final judgment of
the first case involving the same parties, subject matter, and cause of action.49
Lucina Santos was able to file a comment50 on the petition within the period required.51 The Chengs, however,
did not comply.52 Upon the issuance by this court of a show cause order on September 24, 2007,53 they
eventually filed a comment with substantially the same allegations and arguments as that of Lucina Santos.54
In their comment, respondents allege that when the trial court granted the motion to dismiss, Ramon Chings
counsel was notified in open court that the dismissal was without prejudice. They argue that the trial courts
order became final and executory whenhe failed to file his motion for reconsideration within the reglementary
period.55
Respondents argue that the petition for review should be dismissed on the ground of forum shopping and litis
pendencia since Ramon Ching and Po Wing Properties are seeking relief simultaneously in two forums by filing
the two petitions for certiorari, which involved the same omnibus order by the trial court.56 They also argue that
the "two-dismissal rule" and res judicata did not apply since (1) the failure to amend a complaint is not a
dismissal, and (2) they only moved for dismissal once in the second case.57
In their reply,58 petitioners argue that they did not commit forum shopping since the actions they commenced
against respondents stemmed from the complaints filed against them in the trial courts.59 They reiterate that their
petition for review is only about the second case; it just so happened that the assailed omnibus order resolved
both the second and third cases.60
Upon the filing of the parties respective memoranda,61 the case was submitted for decision.62
For this courts resolution are the following issues:
I. Whether the trial courts dismissal of the second case operated as a bar to the filing of a third case,
asper the "two-dismissal rule"; and
II. Whether respondents committed forum shopping when they filed the third case while the motion for
reconsideration of the second case was still pending.
The petition is denied.
The "two-dismissal rule" vis--vis
the Rules of Civil Procedure
Dismissals of actions are governed by Rule 17 of the 1997 Rules of Civil Procedure. The pertinent provisions
state:
RULE 17
DISMISSAL OF ACTIONS
SEC. 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a notice
of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice
being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the
dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in a competent court an action based on or including the same claim.
SEC. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding section, a complaint shall
not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions
as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of
the plaintiffs motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be
without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within
fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the
same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without
prejudice. A class suit shall not be dismissed or compromised without the approval of the court.
SEC. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails to appear on the date
of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable
length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon
motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise declared by the court. (Emphasis supplied)
The first section of the rule contemplates a situation where a plaintiff requests the dismissal of the case
beforeany responsive pleadings have been filed by the defendant. It is donethrough notice by the plaintiff and
confirmation by the court. The dismissal is without prejudice unless otherwise declared by the court.
The second section of the rule contemplates a situation where a counterclaim has been pleaded by the defendant
before the service on him or her of the plaintiffs motion to dismiss. It requires leave of court, and the dismissal
is generally without prejudice unless otherwise declared by the court.
The third section contemplates dismissals due to the fault of the plaintiff such as the failure to prosecute. The
case is dismissed either upon motion of the defendant or by the court motu propio. Generally, the dismissal is
with prejudice unless otherwise declared by the court.
In all instances, Rule 17 governs dismissals at the instance of the plaintiff, not of the defendant. Dismissals upon
the instance of the defendant are generally governed by Rule 16, which covers motions to dismiss.63
In Insular Veneer, Inc. v. Hon. Plan,64 Consolidated Logging and Lumber Mills filed a complaint against Insular
Veneer to recover some logs the former had delivered to the latter. It also filed ex partea motion for issuance of
a restraining order. The complaint and motion were filed in a trial court in Isabela.65
The trial court granted the motion and treated the restraining order as a writ of preliminary injunction. When
Consolidated Logging recovered the logs, it filed a notice of dismissal under Rule 17, Section 1 of the 1964
Rules of Civil Procedure.66
While the action on its notice for dismissal was pending, Consolidated Logging filed the same complaint
against Insular Veneer, this time in a trial court in Manila. It did not mention any previous action pending in the
Isabela court.67
The Manila court eventually dismissed the complaint due to the nonappearance of Consolidated Loggings
counsel during pre-trial. Consolidated Logging subsequently returned to the Isabela court to revive the same
complaint. The Isabela court apparently treated the filing of the amended complaint as a withdrawal of its notice
of dismissal.68
Insular Veneer also filed in the Isabela court a motion to dismiss, arguing that the dismissal by the Manila court
constituted res judicataover the case. The Isabela court, presided over by Judge Plan, denied the motion to
dismiss. The dismissal was the subject of the petition for certiorari and mandamus with this court.69
This court stated that:
In resolving that issue, we are confronted with the unarguable fact that Consolidated Logging on its volition
dismissed its action for damages and injunction in the Isabela court and refiled substantially the same action in
the Manila court. Then, when the Manila court dismissed its action for failure to prosecute, it went hack [sic] to
the Isabela court and revived its old action by means of an amended complaint.
Consolidated Logging would liketo forget the Manila case, consign it to oblivion as if it were a bad dream, and
prosecute its amended complaint in the Isabela court as if nothing had transpired in the Manila court. We hold
that it cannot elude the effects of its conduct in junking the Isabela case and in giving that case a reincarnation
in the Manila court.
Consolidated Logging [sic] filed a new case in Manila at its own risk. Its lawyer at his peril failed toappear at
the pre-trial.70
This court ruled that the filing of the amended complaint in the Isabela court was barred by the prior dismissal
of the Manila court, stating that:
The provision in section 1(e), Rule 16 of the Rules of Court that an action may be dismissed because "there is
another action pending between the same parties for the same cause" presupposes that two similar actions are
simultaneously pending in two different Courts of First Instance. Lis pendensas a ground for a motion to
dismiss has the same requisites as the plea of res judicata.
On the other hand, when a pleading is amended, the original pleading is deemed abandoned. The original ceases
to perform any further function as a pleading. The case stands for trial on the amended pleading only. So, when
Consolidated Logging filed its amended complaint dated March 16, 1970 in Civil Case No. 2158, the prior
dismissal order dated January 5, 1970 in the Manila case could he [sic] interposed in the Isabela court to support
the defense of res judicata.71
As a general rule, dismissals under Section 1 of Rule 17 are without prejudice except when it is the second time
that the plaintiff caused its dismissal. Accordingly, for a dismissal to operate as an adjudication upon the merits,
i.e, with prejudice to the re-filing of the same claim, the following requisites must be present:
(1) There was a previous case that was dismissed by a competent court;
(2) Both cases were based on or include the same claim;
(3) Both notices for dismissal werefiled by the plaintiff; and
(4) When the motion to dismiss filed by the plaintiff was consented to by the defendant on the ground
that the latter paid and satisfied all the claims of the former.72
The purpose of the "two-dismissal rule" is "to avoid vexatious litigation."73 When a complaint is dismissed a
second time, the plaintiff is now barred from seeking relief on the same claim.
The dismissal of the second case was without prejudice in view of the "two-dismissal rule"
Here, the first case was filed as an ordinary civil action. It was later amended to include not only new
defendants but new causes of action that should have been adjudicated in a special proceeding. A motion to
dismiss was inevitably filed by the defendants onthe ground of lack of jurisdiction.
The trial court granted that motion to dismiss, stating that:
A careful perusal of the allegations of the Amended Complaint dated February 10, 1999, filed by Plaintiff
Joseph Cheng, show that additional causes of action were incorporated i.e. extra-judicial settlement of the
intestate estate of Antonio Ching and receivership, subject matters, which should be threshed out in a special
proceedings case. This is a clear departure from the main cause of action in the original complaint which is for
declaration of nullity of certificate of titles with damages. And the rules of procedure which govern special
proceedings case are different and distinct from the rules of procedure applicable in an ordinary civil action.
In view of the afore-going, the court finds the Motion to Dismiss filed by Atty. Maria Lina Nieva S. Casals to be
meritorious and the Court is left with no alternative but to dismiss as it hereby dismisses the Amended
Complaint.
However, on motion of Atty. Mirardo Arroyo Obias, counsel for the plaintiffs, he is given a period of fifteen
(15) days from today, within which to file an appropriate pleading, copy furnished to all the parties concerned.
....
SO ORDERED.74
Petitioners are of the view that when Atty. Mirardo Arroyo Obias failed to file the appropriate pleading within
fifteen (15) days, he violated the order of the court. This, they argue, made the original dismissal an
adjudication upon the merits, in accordance with Rule 17, Section 3, i.e., a dismissal through the default of the
plaintiff. Hence, they argue that when respondents filed the second case and then caused its dismissal, the
dismissal should have been with prejudice according to Rule 17, Section 1, i.e., two dismissals caused by the
plaintiff on the same claim. Unfortunately, petitioners theory is erroneous.
The trial court dismissed the first case by granting the motion to dismiss filed by the defendants. When it
allowed Atty. Mirardo Arroyo Obias a period of fifteen (15) days tofile an appropriate pleading, it was merely
acquiescing to a request made bythe plaintiffs counsel that had no bearing on the dismissal of the case.
Under Rule 17, Section 3, a defendant may move to dismiss the case if the plaintiff defaults; it does not
contemplate a situation where the dismissal was due to lack of jurisdiction. Since there was already a dismissal
prior to plaintiffs default, the trial courts instruction to file the appropriate pleading will not reverse the
dismissal. If the plaintiff fails to file the appropriate pleading, the trial court does not dismiss the case anew; the
order dismissing the case still stands.
The dismissal of the first case was done at the instance of the defendant under Rule 16, Section 1(b) of the
Rules of Civil Procedure, which states:
SECTION 1. Grounds. Within the time for but before filing the answer to the complaint or pleading asserting
a claim, a motion to dismiss may be made on any of the following grounds:
....
(b) That the court has no jurisdiction over the subject matter of the claim;
Rules 14-17 |
Under Section 5 of the same rule,75 a party may re-file the same action or claim subject to certain exceptions.
Thus, when respondents filed the second case, they were merely refiling the same claim that had been
previously dismissed on the basis of lack of jurisdiction. When they moved to dismiss the second case, the
motion to dismiss can be considered as the first dismissal at the plaintiffs instance.
Petitioners do not deny that the second dismissal was requested by respondents before the service of any
responsive pleadings. Accordingly, the dismissal at this instance is a matter of right that is not subject to the trial
courts discretion. In O.B. Jovenir Construction and Development Corporation v. Macamir Realty and
Development Corporation:76
[T]he trial court has no discretion or option to deny the motion, since dismissal by the plaintiff under Section 1,
Rule 17 is guaranteed as a matter of right to the plaintiffs. Even if the motion cites the most ridiculous of
grounds for dismissal, the trial court has no choice but to consider the complaint as dismissed, since the plaintiff
may opt for such dismissal as a matter of right, regardless of ground.77 (Emphasis supplied)
For this reason, the trial court issued its order dated November 22, 2002 dismissing the case, without prejudice.
The order states:
When this Motion was called for hearing, all the plaintiffs namely, Joseph Cheng, Jaime Cheng, Mercedes Igne
and Lucina Santos appeared without their counsels. That they verbally affirmed the execution of the Motion to
Dismiss, as shown by their signatures over their respective names reflected thereat. Similarly, none of the
defendants appeared, except the counsel for defendant, Ramon Chang [sic], who manifested that they have not
yet filed their Answer as there was a defect in the address of Ramon Cheng [sic] and the latter has not yet been
served with summons.
Under the circumstances, and further considering that the defendants herein have not yet filed their Answers nor
any pleading, the plaintiffs has [sic] the right to out rightly [sic] cause the dismissal of the Complaint pursuant
to Section 2, Rule 17 of the 1997 Rules of Civil Procedure without prejudice. Thereby, and as prayed for, this
case is hereby ordered DISMISSED without prejudice.
SO ORDERED.78 (Emphasis supplied)
When respondents filed the third case on substantially the same claim, there was already one prior dismissal at
the instance of the plaintiffs and one prior dismissal at the instance of the defendants. While it is true that there
were two previous dismissals on the same claim, it does not necessarily follow that the re-filing of the claim
was barred by Rule 17, Section 1 of the Rules of Civil Procedure. The circumstances surrounding each
dismissal must first be examined to determine before the rule may apply, as in this case.
Even assuming for the sake of argument that the failure of Atty. Mirardo Arroyo Obias to file the appropriate
pleading in the first case came under the purview of Rule 17, Section 3 of the Rules of Civil Procedure, the
dismissal in the second case is still considered as one without prejudice. In Gomez v. Alcantara:79
The dismissal of a case for failure to prosecute has the effect of adjudication on the merits, and is necessarily
understood to be with prejudice to the filing of another action, unless otherwise provided in the order of
dismissal. Stated differently, the general rule is that dismissal of a case for failure to prosecute is to be regarded
as an adjudication on the merits and with prejudice to the filing of another action, and the only exception is
when the order of dismissal expressly contains a qualification that the dismissal is without
prejudice.80 (Emphasis supplied)
In granting the dismissal of the second case, the trial court specifically orders the dismissal to be without
prejudice. It is only when the trial courts order either is silent on the matter, or states otherwise, that the
dismissal will be considered an adjudication on the merits.
However, while the dismissal of the second case was without prejudice, respondents act of filing the third case
while petitioners motion for reconsideration was still pending constituted forum shopping.
The rule against forum shopping and the "twin-dismissal rule"
In Yap v. Chua:81
Forum shopping is the institution of two or more actions or proceedings involving the same parties for the same
cause of action, either simultaneously or successively, on the supposition that one or the other court would make
a favorable disposition. Forum shopping may be resorted to by any party against whom an adverse judgment or
order has been issued in one forum, in an attempt to seek a favorable opinion in another, other than by appeal or
a special civil action for certiorari. Forum shopping trifles with the courts, abuses their processes, degrades the
administration of justice and congest court dockets. What iscritical is the vexation brought upon the courts and
the litigants by a party who asks different courts to rule on the same or related causes and grant the same or
substantially the same reliefs and in the process creates the possibility of conflicting decisions being renderedby
the different fora upon the same issues. Willful and deliberate violation of the rule against forum shopping is a
ground for summary dismissal of the case; it may also constitute direct contempt.
To determine whether a party violated the rule against forum shopping, the most important factor toask is
whether the elements of litis pendentiaare present, or whether a final judgment in one case will amount to res
judicatain another; otherwise stated, the test for determining forum shopping is whether in the two (or more)
cases pending, there is identity of parties, rights or causes of action, and reliefs sought.82 (Emphasis supplied)
When respondents filed the third case, petitioners motion for reconsideration of the dismissal of the second
case was still pending. Clearly, the order of dismissal was not yet final since it could still be overturned upon
reconsideration, or even on appeal to a higher court.
Moreover, petitioners were not prohibited from filing the motion for reconsideration. This court has already
stated in Narciso v. Garcia83 that a defendant has the right to file a motion for reconsideration of a trial courts
order denying the motion to dismiss since "[n]o rule prohibits the filing of such a motion for
reconsideration."84 The second case, therefore, was still pending when the third case was filed.
The prudent thing that respondents could have done was to wait until the final disposition of the second case
before filing the third case. As it stands, the dismissal of the second case was without prejudice to the re-filing
of the same claim, in accordance with the Rules of Civil Procedure. In their haste to file the third case, however,
they unfortunately transgressed certain procedural safeguards, among which are the rules on litis pendentiaand
res judicata.
In Yap:
Litis pendentiaas a ground for the dismissal of a civil action refers to that situation wherein another action is
pending between the same parties for the same cause of action, such that the second action becomes
unnecessary and vexatious. The underlying principle of litis pendentia is the theory that a party is not allowed to
vex another more than once regarding the same subject matter and for the same cause of action. This theory is
founded on the public policy that the same subject matter should not be the subject of controversy incourts more
than once, in order that possible conflicting judgments may be avoided for the sake of the stability of the rights
and status of persons.
The requisites of litis pendentiaare: (a) the identity of parties, or at least such as representing the same interests
in both actions; (b) the identity of rights asserted and relief prayed for, the relief being founded on the same
facts; and (c) the identity of the two cases such that judgment in one, regardless ofwhich party is successful,
would amount to res judicatain the other.85 (Emphasis supplied)
There is no question that there was an identity of parties, rights, and reliefs in the second and third cases. While
it may be true that the trial court already dismissed the second case when the third case was filed, it failed to
take into account that a motion for reconsideration was filed in the second case and, thus, was still pending.
Considering that the dismissal of the second case was the subject of the first certiorari case and this present
petition for review, it can be reasonably concluded that the second case, to this day, remains pending.
Hence, when respondents filed the third case, they engaged in forum shopping. Any judgment by this court on
the propriety of the dismissal of the second case will inevitably affect the disposition of the third case.
This, in fact, is the reason why there were two different petitions for certiorari before the appellate court. The
omnibus order dated July 30, 2004 denied two pending motions by petitioners: (1) the motion for
reconsideration in the second case and (2) the motion to dismiss in the third case. Since petitioners are barred
from filing a second motion for reconsideration of the second case, the first certiorari case was filed before the
appellate court and is now the subject of this review. The denial of petitioners motion for reconsideration in the
third case, however, could still be the subject of a separate petition for certiorari. That petition would be based
now on the third case, and not on the second case.
This multiplicity of suits is the veryevil sought to be avoided by the rule on forum shopping. In Dy v. Mandy
Commodities Co., Inc.,86 the rule is that:
Once there is a finding of forum shopping, the penalty is summary dismissal not only of the petition pending
before this Court, but also of the other case that is pending in a lower court. This is so because twin dismissal is
a punitive measure to those who trifle with the orderly administration of justice.87 (Emphasis supplied)
The rule originated from the 1986 case of Buan v. Lopez, Jr.88 In Buan, petitioners filed a petition for
prohibition with this court while another petition for prohibition with preliminary injunction was pending before
the Regional Trial Court of Manila involving the same parties and based on the same set of facts. This court, in
dismissing both actions, stated:
Indeed, the petitioners in both actions . . . have incurred not only the sanction of dismissal oftheir case before
this Court in accordance with Rule 16 of the Rules of Court, but also the punitive measure of dismissal of both
their actions, that in this Court and that in the Regional Trial Court as well. Quite recently, upon substantially
identical factual premises, the Court en banchad occasion to condemn and penalize the act of litigants of filing
the same suit in different courts, aptly described as "forum shopping[.]"89
The rule essentially penalizes the forum shopper by dismissing all pending actions on the same claim filed in
any court. Accordingly, the grant of this petition would inevitably result in the summary dismissal of the third
case. Any action, therefore, which originates from the third case pending with any court would be barred by res
judicata.
Because of the severity of the penalty of the rule, an examination must first be made on the purpose of the
rule.1wphi1Parties resort to forum shopping when they file several actions of the same claim in different
forums in the hope of obtaining a favorable result. It is prohibited by the courts as it "trifle[s] with the orderly
administration of justice."90
In this case, however, the dismissal of the first case became final and executory upon the failure of
respondentscounsel to file the appropriate pleading. They filed the correct pleading the second time around but
eventually sought its dismissal as they"[suspected] that their counsel is not amply protecting their interests as
the case is not moving for almost three (3) years."91 The filing of the third case, therefore, was not precisely for
the purpose of obtaining a favorable result butonly to get the case moving, in an attempt to protect their rights.
It appears that the resolution on the merits of the original controversy between the parties has long beenmired in
numerous procedural entanglements. While it might be more judicially expedient to apply the "twin-dismissal
rule" and disallow the proceedings in the third case to continue, it would not serve the ends of substantial
justice. Courts of justice must always endeavor to resolve cases on their merits, rather than summarily dismiss
these on technicalities: [C]ases should be determined on the merits, after all parties have been given full
opportunity to ventilate their causes and defenses, rather than on technicalities or procedural imperfections. In
that way, the ends of justice would be served better. Rules of procedure are mere tools designed to expedite the
decision or resolution of cases and other matters pending in court. A strict and rigid application of rules,
resulting in technicalities that tend to frustrate rather than promote substantial justice, must be avoided.In fact,
Section 6 of Rule 1 states that the Rules [on Civil Procedure] shall be liberally construed in order to promote
their objective of ensuring the just, speedy and inexpensive disposition of every action and
proceeding.92 (Emphasis supplied)
The rule on forum shopping will not strictly apply when it can be shown that (1) the original case has been
dismissed upon request of the plaintiff for valid procedural reasons; (2) the only pending matter is a motion for
reconsideration; and (3) there are valid procedural reasons that serve the goal of substantial justice for the fresh
new case to proceed.
The motion for reconsideration filed in the second case has since been dismissed and is now the subject of a
petition for certiorari. The third case filed apparently contains the better cause of action for the plaintiffs and is
now being prosecuted by a counsel they are more comfortable with. Substantial justice will be better served if
respondents do not fall victim to the labyrinth in the procedures that their travails led them. It is for this reason
that we deny the petition. WHEREFORE, the petition is DENIED. The Regional Trial Court of Manila, Branch
6 is ordered to proceed with Civil Case No. 02-105251 with due and deliberate dispatch.
SO ORDERED.
EDGARDO PINGA, G.R. No. 170354

Petitioner,
Present:
QUISUMBING, J.,
- versus - Chairperson,
CARPIO,
CARPIO MORALES,
THE HEIRS OF GERMAN TINGA, and
SANTIAGO represented by VELASCO, JR. JJ.,
FERNANDO SANTIAGO,
Respondents.
Promulgated:
June 30, 2006
x--------------------------------------------------------------------------------x
DECISION
TINGA, J.:
The constitutional faculty of the Court to promulgate rules of practice and procedure [1] necessarily carries the
power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court.
One of the notable changes introduced in the 1997 Rules of Civil Procedure is the explicit proviso that if a
complaint is dismissed due to fault of the plaintiff, such dismissal is without prejudice to the right of the
defendant to prosecute his counterclaim in the same or in a separate action. [2] The innovation was instituted in
spite of previous jurisprudence holding that the fact of the dismissal of the complaint was sufficient to justify
the dismissal as well of the compulsory counterclaim.[3]
In granting this petition, the Court recognizes that the former jurisprudential rule can no longer stand in
light of Section 3, Rule 17 of the 1997 Rules of Civil Procedure.
The relevant facts are simple enough. Petitioner Eduardo Pinga was named as one of two defendants in a
complaint for injunction[4] filed with Branch 29 of the Regional Trial Court (RTC) [5] of San Miguel, Zamboanga
del Sur, by respondent Heirs of German Santiago, represented by Fernando Santiago. The Complaint [6] dated 28
May 1998 alleged in essence that petitioner and co-defendant Vicente Saavedra had been unlawfully entering
the coco lands of the respondent, cutting wood and bamboos and harvesting the fruits of the coconut trees
therein. Respondents prayed that petitioner and Saavedra be enjoined from committing acts of depredation on
their properties, and ordered to pay damages.
In their Amended Answer with Counterclaim, [7] petitioner and his co-defendant disputed respondents ownership
of the properties in question, asserting that petitioners father, Edmundo Pinga, from whom defendants derived
their interest in the properties, had been in possession thereof since the 1930s. [8] They alleged that as far back as
1968, respondents had already been ordered ejected from the properties after a complaint for forcible entry was
filed by the heirs of Edmundo Pinga. It was further claimed that respondents application for free patent over the
properties was rejected by the Office of the President in 1971. Defendants in turn prayed that owing to
respondents forcible re-entry in the properties and the irresponsible and reckless filing of the case, they be
awarded various types of damages instead in amounts totaling P2,100,000 plus costs of suit.[9]
By July of 2005, the trial of the case had not yet been completed. Moreover, respondents, as plaintiffs, had
failed to present their evidence. It appears that on 25 October 2004, the RTC already ordered the dismissal of
the complaint after respondents counsel had sought the postponement of the hearing scheduled then.
[10]
However, the order of dismissal was subsequently reconsidered by the RTC in an Order dated 9 June 2005,
which took into account the assurance of respondents counsel that he would give priority to that case.[11]
At the hearing of 27 July 2005, plaintiffs counsel on record failed to appear, sending in his stead a
representative who sought the postponement of the hearing. Counsel for defendants (who include herein
petitioner) opposed the move for postponement and moved instead for the dismissal of the case. The RTC noted
that it was obvious that respondents had failed to prosecute the case for an unreasonable length of time, in fact
not having presented their evidence yet. On that ground, the complaint was dismissed. At the same time, the
RTC allowed defendants to present their evidence ex-parte.[12]
Respondents filed a Motion for Reconsideration [13] of the order issued in open court on 27 July 2005,
opting however not to seek that their complaint be reinstated, but praying instead that the entire action be
dismissed and petitioner be disallowed from presenting evidence ex-parte. Respondents claimed that the order
of the RTC allowing petitioner to present evidence ex-parte was not in accord with established jurisprudence.
They cited cases, particularly City of Manila v. Ruymann[14] and Domingo v. Santos,[15]which noted those
instances in which a counterclaim could not remain pending for independent adjudication.
On 9 August 2005, the RTC promulgated an order granting respondents Motion for Reconsideration and
dismissing the counterclaim, citing as the only ground therefor that there is no opposition to the Motion for
Reconsideration of the [respondents].[16] Petitioner filed a Motion for Reconsideration, but the same was denied
by the RTC in an Order dated 10 October 2005.[17] Notably, respondents filed an Opposition to Defendants
Urgent Motion for Reconsideration, wherein they argued that the prevailing jurisprudential rule [18] is that
compulsory counterclaims cannot be adjudicated independently of plaintiffs cause of action, and a conversu, the
dismissal of the complaint carries with it the dismissal of the compulsory counterclaims.[19]
The matter was elevated to this Court directly by way of a Petition for Review under Rule 45 on a pure
question of law, the most relevant being whether the dismissal of the complaint necessarily carries the dismissal
of the compulsory counterclaim.
We hold that under Section 3, Rule 17 of the 1997 Rules of Civil Procedure, the dismissal of the
complaint due to the fault of plaintiff does not necessarily carry with it the dismissal of the counterclaim,
compulsory or otherwise. In fact, the dismissal of the complaint is without prejudice to the right of defendants
to prosecute the counterclaim.
On a prefatory note, the RTC, in dismissing the counterclaim, did not expressly adopt respondents
argument that the dismissal of their complaint extended as well to the counterclaim. Instead, the RTC justified
the dismissal of the counterclaim on the ground that there is no opposition to [plaintiffs] Motion for
Reconsideration [seeking the dismissal of the counterclaim].[20] This explanation is hollow, considering that
there is no mandatory rule requiring that an opposition be filed to a motion for reconsideration without need for
a court order to that effect; and, as posited by petitioner, the failure to file an opposition to the Plaintiffs Motion
for Reconsideration is definitely not one among the established grounds for dismissal [of the counterclaim].
[21]
Still, the dismissal of the counterclaim by the RTC betrays at very least a tacit recognition of respondents
argument that the counterclaim did not survive the dismissal of the complaint. At most, the dismissal of the
counterclaim over the objection of the defendant (herein petitioner) on grounds other than the merits of the
counterclaim, despite the provisions under Rule 17 of the 1997 Rules of Civil Procedure, constitutes a debatable
question of law, presently meriting justiciability through the instant action. Indeed, in reviewing the assailed
orders of the RTC, it is inevitable that the Court consider whether the dismissal of the complaint, upon motion
of the defendant, on the ground of the failure to prosecute on plaintiffs part precipitates or carries with it the
dismissal of the pending counterclaims.
Our core discussion begins with Section 3, Rule 17 of the 1997 Rules of Civil Procedure, which states:
SEC. 3. Dismissal due to fault of plaintiff.If, for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute
his action for an unreasonable length of time, or to comply with these Rules or any order of the
court, the complaint may be dismissed upon motion of defendant or upon the court's own motion,
without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the effect of an adjudication upon the merits, unless
otherwise declared by the court.
The express qualification in the provision that the dismissal of the complaint due to the plaintiffs fault, as in the
case for failure to prosecute, is without prejudice to the right of the defendant to prosecute his counterclaim in
the same or separate action. This stands in marked contrast to the provisions under Rule 17 of the 1964 Rules of
Court which were superseded by the 1997 amendments. In the 1964 Rules, dismissals due to failure to
prosecute were governed by Section 3, Rule 17, to wit:
SEC. 3. Failure to prosecute. If plaintiff fails to appear at the time of the trial, or to prosecute his
action for an unreasonable length of time, or to comply with these rules or any order of the court,
the action may be dismissed upon motion of the defendant or upon the courts own motion. This
dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by
court.
Evidently, the old rule was silent on the effect of such dismissal due to failure to prosecute on the pending
counterclaims. As a result, there arose what one authority on remedial law characterized as the nagging question
of whether or not the dismissal of the complaint carries with it the dismissal of the counterclaim.
[22]
Jurisprudence construing the previous Rules was hardly silent on the matter.
In their arguments before the RTC on the dismissal

of the counterclaim, respondents cited in support City of Manila v.
Ruymann,[23] Domingo v. Santos,[24] Belleza v. Huntington,[25] and Froilan v. Pan Oriental Shipping Co.,[26] all of
which were decided more than five decades ago. Notably though, none of the complaints in these four cases
were dismissed either due to the fault of the plaintiff or upon the instance of the defendant.[27]
The distinction is relevant, for under the previous and current incarnations of the Rules of Civil
Procedure, it is Section 3, Rule 17 that governs the dismissals due to the failure of the plaintiff to prosecute the
complaint, as had happened in the case at bar. Otherwise, it is Section 2, Rule 17, which then, and still is now,
covered dismissals ordered by the trial court upon the instance of the plaintiff. [28] Yet, as will be seen in the
foregoing discussion, a discussion of Section 2 cannot be avoided as the postulate behind that provision was
eventually extended as well in cases that should have properly been governed by Section 3.
Even though the cases cited by respondents involved different factual antecedents, there exists more appropriate
precedents which they could have cited in support of their claim that the counterclaim should have been
dismissed even if the dismissal of the complaint was upon the defendants motion and was predicated on the
plaintiffs fault. BA Finance Corp. v. Co[29] particularly stands out in that regard, although that ruling is itself
grounded on other precedents as well. Elucidation of these cases is in order.
On the general effect of the dismissal of a complaint, regardless of cause, on the pending counterclaims,
previous jurisprudence laid emphasis on whether the counterclaim was compulsory or permissive in character.
The necessity of such distinction was provided in the 1964 Rules itself, particularly Section 2, Rule 17, which
stated that in instances wherein the plaintiff seeks the dismissal of the complaint, if a counterclaim has been
pleaded by a defendant prior to the service upon him of the plaintiffs motion to dismiss, the action shall not be
dismissed against the defendants objection unless the counterclaim can remain pending for independent
adjudication by the court.[30] The
vaunted commentaries of Chief Justice Moran, remarking on Section 2, Rule 17, noted that [t]here are instances
in which a counterclaim cannot remain pending for independent adjudication, as, where it arises out of, or is
necessarily connected with, the transaction or occurrence which is the subject matter of the opposing partys
claim.[31]
This view expressed in Morans Commentaries was adopted by the Court in cases where the application of
Section 2, Rule 17 of the 1964 Rules of Court was called for, such as in Lim Tanhu v. Ramolete,[32] and Dalman
v. City Court of Dipolog City.[33] The latter case warrants brief elaboration. Therein, the plaintiff in a civil case
for damages moved for the withdrawal of her own case on the ground that the dispute had not been referred to
the barangay council as required by law. Over the objection of the defendant, who feared that her own
counterclaim would be prejudiced by the dismissal, plaintiffs motion was granted, the complaint and the
counterclaim accordingly dismissed by the trial court. The Court refused to reinstate the counterclaim, opining
without elaboration, [i]f the civil case is dismissed, so also is the counterclaim filed therein. [34] The
broad nature of that statement gave rise to the notion that the mandatory
dismissal of the counterclaim upon dismissal of the complaint applied regardless of the cause of the complaints
dismissal.[35]
Notably, the qualification concerning compulsory counterclaims was provided in Section 2, Rule 17 of the 1964
Rules, the provision governing dismissals by order of the court, and not Section 3, Rule 17. As stated earlier,
Section 3, which covered dismissals for failure to prosecute upon motion of the defendant or upon motu
proprio action of the trial court, was silent on the effect on the counterclaim of dismissals of such nature.
Spouses Sta. Maria, Jr. v. Court of Appeals,[36] decided in 1972, ostensibly supplied the gap on the effect on the
counterclaim of complaints dismissed under Section 3. The defendants therein successfully moved before the
trial court for the dismissal of the complaint without prejudice and their declaration in default on the
counterclaim after plaintiffs therein failed to attend the pre-trial. After favorable judgment was rendered on the
counterclaim, plaintiffs interposed an appeal, citing among other grounds, that the counterclaim could no longer
have been heard after the dismissal of the complaint. While the Court noted that the adjudication of the
counterclaim in question does not depend upon the adjudication of the claims made in the complaint since they
were virtually abandoned by the non-appearance of the plaintiffs themselves, it was also added that [t]he
doctrine invoked is not available to plaintiffs like the petitioners, who prevent or delay the hearing of their own
claims and allegations.[37] The Court, through Justice JBL Reyes, noted:
The doctrine that the complaint may not be dismissed if the counterclaim cannot be
independently adjudicated is not available to, and was not intended for the benefit of, a
plaintiff who prevents or delays the prosecution of his own complaint. Otherwise, the trial of
counterclaims would be made to depend upon the maneuvers of the plaintiff, and the rule would
offer a premium to vexing or delaying tactics to the prejudice of the counterclaimants. It is in the
same spirit that we have ruled that a complaint may not be withdrawn over the opposition of the
defendant where the counterclaim is one that arises from, or is necessarily connected with, the
plaintiffs action and cannot remain pending for independent adjudication.[38]
There is no doubt that under the 1964 Rules, the dismissal of a complaint due to the failure of the
plaintiff to appear during pre-trial, as what had happened in Sta. Maria, fell within the coverage of Section 3,
Rule 17. On the other hand, Section 2 was clearly limited in scope to those dismissals sustained at the instance
of the plaintiff.[39]Nonetheless, by the early 1990s, jurisprudence was settling on a rule that compulsory
counterclaims were necessarily terminated upon the dismissal of the complaint not only if such dismissal was
upon motion of the plaintiff, but at the instance of the defendant as well. Two decisions from that period stand
out in this regard, Metals Engineering Resources Corp. v. Court of Appeals[40] and International Container
Terminal Services v. Court of Appeals.[41]
In Metals, the complaint was expunged from the record after the defendant had filed a motion for
reconsideration of a trial court order allowing the filing of an amended complaint that corrected a jurisdictional
error in the original complaint pertaining to the specification of the amount of damages sought. When the
defendant was nonetheless allowed to present evidence on the counterclaim, the plaintiff assailed such
allowance on the ground that the counterclaim was compulsory and could no longer remain pending for
independent adjudication. The Court, in finding for the plaintiff, noted that the counterclaim was indeed
compulsory in nature, and as such, was auxiliary to the proceeding in the original suit and derived its
jurisdictional support therefrom.[42] It was further explained that the doctrine was in consonance with the
primary objective of a counterclaim, which was to avoid and prevent circuitry of action by allowing the entire
controversy between the parties to be litigated and finally determined in one action, and to discourage
multiplicity of suits.[43] Also, the Court noted that since the complaint was dismissed for lack of jurisdiction, it
was as if no claim was filed against the defendant, and there was thus no more leg for the complaint to stand on.
[44]
In International Container, the defendant filed a motion to dismiss which was granted by the trial court.
The defendants counterclaim was dismissed as well. The Court summarized the key question as what is the
effect of the dismissal of a complaint ordered at the instance of the defendant upon a compulsory counterclaim
duly raised in its answer.[45] Then it ruled that the counterclaim did not survive such dismissal. After classifying
the counterclaim therein as compulsory, the Court noted that [i]t is obvious from the very nature of the
counterclaim that it could not remain pending for independent adjudication, that is, without adjudication by the
court of the complaint itself on which the counterclaim was based.[46]
Then in 1993, a divided Court ruled in BA Finance that the dismissal of the complaint for
nonappearance of plaintiff at the pre-trial, upon motion of the defendants, carried with it the dismissal of their
compulsory counterclaim.[47] The Court reiterated the rule that a compulsory counterclaim cannot remain
pending for independent adjudication by the court as it is auxiliary to the proceeding in the original suit and
merely derives its jurisdictional support therefrom.[48] Express reliance was made on Metals, International
Container, and even Dalman in support of the majoritys thesis. BA Finance likewise advised that the proper
remedy for defendants desirous that their counterclaims not be dismissed along with the main complaint was for
them to move to declare the plaintiffs to be non-suited on their complaint and as in default on their compulsory
counterclaim, instead of moving for the dismissal of the complaint.[49]
Justice Regalado, joined by Chief Justice Narvasa, registered a strong objection to the theory of the
majority. They agreed that the trial court could no longer hear the counterclaim, but only on the ground that
defendants motion to be allowed to present evidence on the counterclaim was filed after the order dismissing
the complaint had already become final. They disagreed however that the compulsory counterclaim was
necessarily dismissed along with the main complaint, pointing out that a situation wherein the dismissal of the
complaint was occasioned by plaintiffs failure to appear during pre-trial was governed under Section 3, Rule 17,
and not Section 2 of the same rule. Justice Regalado, who ironically penned the decision in Metals cited by the
majority, explained:
Turning back to Rule 17, it is readily apparent that Sections 2 and 3 thereof envisage
different factual and adjective situations. The dismissal of the complaint under Section 2 is
at the instance of plaintiff, for whatever reason he is minded to move for such dismissal,
and, as a matter of procedure, is without prejudice unless otherwise stated in the order of
the court or, for that matter, in plaintiff's motion to dismiss his own complaint. By reason
thereof, to curb any dubious or frivolous strategy of plaintiff for his benefit or to obviate possible
prejudice to defendant, the former may not dismiss his complaint over the defendant's objection
if the latter has a compulsory counterclaim since said counterclaim would necessarily be divested
of juridical basis and defendant would be deprived of possible recovery thereon in that same
judicial proceeding.
Section 3, on the other hand, contemplates a dismissal not procured by plaintiff,

albeit justified by causes imputable to him and which, in the present case, was petitioner's
failure to appear at the pre-trial. This situation is also covered by Section 3, as extended by
judicial interpretation, and is ordered upon motion of defendant or motu proprio by the
court. Here, the issue of whether defendant has a pending counterclaim, permissive or
compulsory, is not of determinative significance. The dismissal of plaintiff's complaint is
evidently a confirmation of the failure of evidence to prove his cause of action outlined
therein, hence the dismissal is considered, as a matter of evidence, an adjudication on the
merits. This does not, however, mean that there is likewise such absence of evidence to
prove defendant's counterclaim although the same arises out of the subject matter of the
complaint which was merely terminated for lack of proof. To hold otherwise would not only
work injustice to defendant but would be reading a further provision into Section 3 and
wresting a meaning therefrom although neither exists even by mere implication. Thus
understood, the complaint can accordingly be dismissed, but relief can nevertheless be granted as
a matter of course to defendant on his counterclaim as alleged and proved, with or without any
reservation therefor on his part, unless from his conduct, express or implied, he has virtually
consented to the concomitant dismissal of his counterclaim.[50]
Justice Regalado also adverted to Sta. Maria and noted that the objections raised and rejected by the Court
therein were the same as those now relied upon by the plaintiff. He pointed out that Dalman and International
Container, both relied upon by the majority, involved the application of Section 2, Rule 17 and not Section 3,
which he insisted as the applicable provision in the case at bar.[51]
The partial dissent of Justice Regalado in BA Finance proved opportune, as he happened then to be a member of
the Rules of Court Revision Committee tasked with the revision of the 1964 Rules of Court. Just a few months
after BA Finance was decided, Justice Regalado proposed before the Committee an amendment to Section 3,
Rule 17 that would explicitly provide that the dismissal of the complaint due to the fault of the plaintiff shall be
without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action.
The amendment, which was approved by the Committee, is reflected in the minutes of the meeting of the
Committee held on 12 October 1993:
[Justice Regalado] then proposed that after the words upon the courts own motion in the
th
6 line of the draft in Sec. 3 of Rule 17, the following provision be inserted: without prejudice
to the right of the defendant to prosecute his counterclaim in the same or in a separate
action. The Committee agreed with the proposed amendment of Justice Regalado.
Justice Herrera observed that under Secs. 1 to 3 of Rule 17, it is not the action that is dismissed
but the complaint. He asked whether there is any distinction between complaint and
action.Justice Regalado opined that the action of the plaintiff is initiated by his complaint.
Justice Feria then suggested that the dismissal be limited to the complaint[.] Thus, in the
1st line of Sec. 1, the words An action will be changed to a complaint; in the 2 nd line of Sec. 2,
the words an action will be changed to a complaint and in Sec. 3, the word action on the
5th line of the draft will be changed to complaint. The Committee agreed with Justice Ferias
suggested amendments.
CA Pao believed that there is a need to clarify the counterclaim that the defendant will
prosecute, whether it is permissive or compulsory or all kinds of counterclaims.
Justice Regalado opined that there is no need of making a clarification because it is already
understood that it covers both counterclaims.[52]
It is apparent from these minutes that the survival of the counterclaim despite the dismissal of the complaint
under Section 3 stood irrespective of whether the counterclaim was permissive or compulsory. Moreover, when
the Court itself approved the revisions now contained in the 1997 Rules of Civil Procedure, not only did Justice
Regalados amendment to Section 3, Rule 17 remain intact, but the final version likewise eliminated the
qualification formerly offered under Section 2 on counterclaims that can remain pending for independent
adjudication by the court.[53] At present, even Section 2, concerning dismissals on motion of the plaintiff, now
recognizes the right of the defendant to prosecute the counterclaim either in the same or separate action
notwithstanding the dismissal of the complaint, and without regard as to the permissive or compulsory nature of
the counterclaim.
In his commentaries on the 1997 Rules of Civil Procedure, Justice Regalado expounds on the effects of the
amendments to Section 2 and 3 of Rule 17:
2. Under this revised section [2], where the plaintiff moves for the dismissal of his complaint to
which a counterclaim has been interposed, the dismissal shall be limited to the complaint. Such
dismissal shall be without prejudice to the right of the defendant to either prosecute his
counterclaim in a separate action or to have the same resolved in the same action. Should he opt
for the first alternative, the court should render the corresponding order granting and reserving
his right to prosecute his claim in a separate complaint. Should he choose to have his
counterclaim disposed of in the same action wherein the complaint had been dismissed, he must
manifest such preference to the trial court within 15 days from notice to him of plaintiffs motion
to dismiss.These alternative remedies of the defendant are available to him regardless of
whether his counterclaim is compulsory or permissive. A similar alternative procedure, with
the same underlying reason therefor, is adopted in Sec. 6, Rule 16 and Sec. 3 of this Rule,
wherein the complaint is dismissed on the motion of the defendant or, in the latter instance, also
by the court motu proprio.
xxxx
2. The second substantial amendment to [Section 3] is with respect to the disposition of the
defendants counterclaim in the event the plaintiffs complaint is dismissed. As already observed,
he is here granted the choice to prosecute that counterclaim in either the same or a separate
action. x x x x
3. With the aforestated amendments in Secs. 2 and 3 laying down specific rules on the
disposition of counterclaims involved in the dismissal actions, the controversial doctrine
in BA Finance Corporation vs. Co, et al., (G.R. No. 105751, June 30, 1993) has been
abandoned, together with the apparent confusion on the proper application of said Secs. 2
and 3. Said sections were distinguished and discussed in the authors separate opinion in that
case, even before they were clarified by the present amendments x x x.[54]
Similarly, Justice Feria notes that the present rule reaffirms the right of the defendant to move for the dismissal
of the complaint and to prosecute his counterclaim, as stated in the separate opinion [of Justice Regalado in BA
Finance.][55] Retired Court of Appeals Justice Herrera pronounces that the amendment to Section 3, Rule 17
settles that nagging question whether the dismissal of the complaint carries with it the dismissal of the
counterclaim, and opines that by reason of the amendments, the rulings in Metals Engineering, International
Container, and BA Finance may be deemed abandoned.[56] On the effect of amendment to Section 3, Rule 17,
the commentators are in general agreement,[57]although there is less unanimity of views insofar as Section 2,
Rule 17 is concerned.[58]
To be certain, when the Court promulgated the 1997 Rules of Civil Procedure, including the amended Rule 17,
those previous jural doctrines that were inconsistent with the new rules incorporated in the 1997 Rules of Civil
Procedure were implicitly abandoned insofar as incidents arising after the effectivity of the new procedural rules
on 1 July 1997. BA Finance, or even the doctrine that a counterclaim may be necessarily dismissed along with
the complaint, clearly conflicts with the 1997 Rules of Civil Procedure. The abandonment of BA Finance as
doctrine extends as far back as 1997, when the Court adopted the new Rules of Civil Procedure. If, since then,
such abandonment has not been affirmed in jurisprudence, it is only because no proper case has arisen that
would warrant express confirmation of the new rule. That opportunity is here and now, and we thus rule that the
dismissal of a complaint due to fault of the plaintiff is without prejudice to the right of the defendant to
prosecute any pending counterclaims of whatever nature in the same or separate action. We confirm that BA
Finance and all previous rulings of the Court that are inconsistent with this present holding are now abandoned.
Accordingly, the RTC clearly erred when it ordered the dismissal of the counterclaim, since Section 3, Rule 17
mandates that the dismissal of the complaint is without prejudice to the right of the defendant to prosecute the
counterclaim in the same or separate action. If the RTC were to dismiss the counterclaim, it should be on the
merits of such counterclaim. Reversal of the RTC is in order, and a remand is necessary for trial on the merits of
the counterclaim.
It would be perfectly satisfactory for the Court to leave this matter at that. Still, an explanation of the reason
behind the new rule is called for, considering that the rationale behind the previous rule was frequently
elaborated upon.
Under Act No. 190, or the Code of Procedure in Civil Actions promulgated in 1901, it was recognized in
Section 127(1) that the plaintiff had the right to seek the dismissal of the complaint at any time before trial,
provided a counterclaim has not been made, or affirmative relief sought by the cross-complaint or answer of the
defendant.[59] Note that no qualification was made then as to the nature of the counterclaim, whether it be
compulsory or permissive. The protection of the defendants right to prosecute the counterclaim was indeed
unqualified. In City of Manila, decided in 1918, the Court explained:
By paragraph 1 [of Section 127], it will be seen that, where the defendant has interposed a
counterclaim, or is seeking affirmative relief by a cross-complaint, that then, and in that case, the
plaintiff cannot dismiss the action so as to affect the right of the defendant in his counterclaim or
prayer for affirmative relief. The reason for that exception is clear. When the answer sets up an
independent action against the plaintiff, it then becomes an action by the defendant against
the plaintiff, and, of course, the plaintiff has no right to ask for a dismissal of
the defendants action.[60]
Nonetheless, a new rule was introduced when Act No. 190 was replaced by the 1940 Rules of Court. Section 2,
Rule 30 of the 1940 Rules specified that if a counterclaim is pleaded by a defendant prior to the service of the
plaintiffs motion to dismiss, the action shall not be dismissed against the defendants objection unless the
counterclaim can remain pending for independent adjudication by the court. This qualification remained intact
when the 1964 Rules of Court was introduced. [61] The rule referred only to compulsory counterclaims, or
counterclaims which arise out of or are necessarily connected with the transaction or occurrence that is the
subject matter of the plaintiffs claim, since the rights of the parties arising out of the same transaction should be
settled at the same time.[62] As was evident in Metals, International Container and BA Finance, the rule was
eventually extended to instances wherein it was the defendant with the pending counterclaim, and not the
plaintiff, that moved for the dismissal of the complaint.
We should not ignore the theoretical bases of the rule distinguishing compulsory counterclaims from permissive
counterclaims insofar as the dismissal of the action is concerned. There is a particular school of thought that
informs the broad proposition in Dalman that if the civil case is dismissed, so also is the counterclaim filed
therein,[63] or the more nuanced discussions offered in Metals, International Container, and BA Finance. The
most potent statement of the theory may be found in Metals,[64] which proceeds from the following fundamental
premisesa compulsory counterclaim must be set up in the same proceeding or would otherwise be abated or
barred in a separate or subsequent litigation on the ground of auter action pendant, litis pendentia or res
judicata; a compulsory counterclaim is auxiliary to the main suit and derives its jurisdictional support therefrom
as it arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the
complaint;[65] and that if the court dismisses the complaint on the ground of lack of jurisdiction, the compulsory
counterclaim must also be dismissed as it is merely ancilliary to the main action and no jurisdiction remained for
any grant of relief under the counterclaim.
The first point is derived from Section 4, Rule 9, of the 1964 Rules of Court, while the two latter points are
sourced from American jurisprudence. There is no disputing the theoretical viability of these three points. In
fact, the requirement that the compulsory counterclaim must be set up in the same proceeding remains extant
under the 1997 Rules of Civil Procedure. [66] At the same time, other considerations rooted in actual practice
provide a counterbalance to the above-cited rationales.
Whatever the nature of the counterclaim, it bears the same integral characteristics as a complaint; namely a
cause (or causes) of action constituting an act or omission by which a party violates the right of another. The
main difference lies in that the cause of action in the counterclaim is maintained by the defendant against the
plaintiff, while the converse holds true with the complaint. Yet, as with a complaint, a counterclaim without a
cause of action cannot survive.
It would then seemingly follow that if the dismissal of the complaint somehow eliminates the cause(s) of the
counterclaim, then the counterclaim cannot survive. Yet that hardly is the case, especially as a general
rule. More often than not, the allegations that form the counterclaim are rooted in an act or omission of
the plaintiff other than the plaintiffs very act of filing the complaint. Moreover, such acts or omissions
imputed to the plaintiff are often claimed to have occurred prior to the filing of the complaint itself. The
only apparent exception to this circumstance is if it is alleged in the counterclaim that the very act of the
plaintiff in filing the complaint precisely causes the violation of the defendants rights. Yet even in such an
instance, it remains debatable whether the dismissal or withdrawal of the complaint is sufficient to
obviate the pending cause of action maintained by the defendant against the plaintiff. [67]
These considerations persist whether the counterclaim in question is permissive or compulsory. A compulsory
counterclaim arises out of or is connected with the transaction or occurrence constituting the subject matter of
the opposing partys claim, does not require for its adjudication the presence of third parties, and stands within
the jurisdiction of the court both as to the amount involved and the nature of the claim. [68] The fact that the
culpable acts on which the counterclaim is based are founded within the same transaction or occurrence as the
complaint, is insufficient causation to negate the counterclaim together with the complaint. The dismissal or
withdrawal of the complaint does not traverse the boundaries of time to undo the act or omission of the plaintiff
against the defendant, or vice versa. While such dismissal or withdrawal precludes the pursuit of litigation
by the plaintiff, either through his/her own initiative or fault, it would be iniquitous to similarly encumber the
defendant who maintained no such initiative or fault. If the defendant similarly moves for the dismissal of the
counterclaim or neglects to timely pursue such action, let the dismissal of the counterclaim be premised on those
grounds imputable to the defendant, and not on the actuations of the plaintiff.
The other considerations supplied in Metals are anchored on the premise that the jurisdictional foundation of the
counterclaim is the complaint itself. The theory is correct, but there are other facets to this subject that should be
taken into account as well. On the established premise that a counterclaim involves separate causes of action
than the complaint even if derived from the same transaction or series of transactions, the counterclaim could
have very well been lodged as a complaint had the defendant filed the action ahead of the complainant. [69] The
terms ancillary or auxiliary may mislead in signifying that a complaint innately possesses more credence than a
counterclaim, yet there are many instances wherein the complaint is trivial but the counterclaim is meritorious.
In truth, the notion that a counterclaim is, or better still, appears to be merely ancillary or auxiliary is chiefly the
offshoot of an accident of chronology, more than anything else.
The formalistic distinction between a complaint and a counterclaim does not detract from the fact that both of
them embody causes of action that have in their end the vindication of rights. While the distinction is necessary
as a means to facilitate order and clarity in the rules of procedure, it should be remembered that the primordial
purpose of procedural rules is to provide the means for the vindication of rights. A party with a valid cause of
action against another party cannot be denied the right to relief simply because the opposing side had the good
fortune of filing the case first. Yet this in effect was what had happened under the previous procedural rule and
correspondent doctrine, which under their final permutation, prescribed the automatic dismissal of the
compulsory counterclaim upon the dismissal of the complaint, whether upon the initiative of the plaintiff or of
the defendant.
Thus, the present rule embodied in Sections 2 and 3 of Rule 17 ordains a more equitable disposition of the
counterclaims by ensuring that any judgment thereon is based on the merit of the counterclaim itself and not on
the survival of the main complaint. Certainly, if the counterclaim is palpably without merit or suffers
jurisdictional flaws which stand independent of the complaint, the trial court is not precluded from dismissing it
under the amended rules, provided that the judgment or order dismissing the counterclaim is premised on those
defects. At the same time, if the counterclaim is justified, the amended rules now unequivocally protect such
counterclaim from peremptory dismissal by reason of the dismissal of the complaint.
WHEREFORE, the petition is GRANTED. The Orders dated 9 August 2005 and 10 October 2005 of Branch 29,
Regional Trial Court of San Miguel, Zamboanga del Sur in Civil Case No. 98-012 are SET ASIDE. Petitioners
counterclaim as defendant in Civil Case. No. 98-012 is REINSTATED. The Regional Trial Court is ORDERED
to hear and decide the counterclaim with deliberate dispatch.
SO ORDERED.

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Rules 14-17|Page 1 of 123

GENTLE SUPREME G.R. No. 183182

The Facts and the Case

The Issue Presented

The Ruling of the Court

G.R. No. 156759 June 5, 2013

1. Defendant Allen A. Macasaet, President/Publisher of defendant AbanteTonite, at Monica Publishing

Original copy of summons is therefore, respectfully returned duly served.

Manila, September 22, 2000.

Furthermore, the CA ruled:

On January 13, 2003, the CA denied petitioners motion for reconsideration.10

Petitioners hereby submit that:

1. THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN HOLDING THAT THE

2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR BY SUSTAINING THE

The petition for review lacks merit.

G.R. No. 182153 April 7, 2014

TUNG HO STEEL ENTERPRISES CORPORATION, Petitioner,

The Factual Antecedents

The Proceedings before the RTC

The Proceedings before the CA

Ting Guans Petition before this Court

(G.R. No. 176110)

Tung Hos Petition before this Court

(G.R. No. 182153)

Respondent Ting Guans Position

(G.R. No. 182153)

This case presents to us the following issues:

1) Whether the present petition is barred by res judicata; and

The Courts Ruling

We find the petition meritorious.

A. The petition is not barred by res judicata

A. Tejero was not the proper person to receive the summons

B. Ting Guan voluntarily appeared before the trial court

III. A Final Note

LEAH PALMA, G.R. No. 165273

CORONA, J., Chairperson,

I. Substituted service of summons upon private respondent, a defendant residing in

NM ROTHSCHILD & SONS G.R. No. 175799

- versus - DEL CASTILLO, and

VILLARAMA, JR., JJ.

LEPANTO CONSOLIDATED MINING

LEONARDO-DE CASTRO, J.:

Our discussion of the issues raised by the parties follows:

Whether petitioner is a real party in interest

A name is peculiarly important as necessary to the very existence of a corporation

Propriety of the Resort to a Petition for Certiorari with the

[S]uch capricious and whimsical exercise of judgment that is equivalent to lack of

Issues more properly ventilated during the trial of the case

Jurisdiction over the person of petitioner

Undoubtedly, extraterritorial service of summons applies only where the action is in

In Domagas v. Jensen,[35] we held that:

Rules of Court that must be asserted in a motion to dismiss or by way of affirmative

[G.R. No. 136426. August 6, 1999]

G.R. No. 130974 August 16, 2006

MA. IMELDA M. MANOTOC, Petitioner,

VELASCO, JR., J.:

Ruling of the Court of Appeals

I. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR IN RENDERING THE

The Courts Ruling

We GRANT the petition.

Requirements for Substituted Service

(1) Impossibility of Prompt Personal Service

(2) Specific Details in the Return

(3) A Person of Suitable Age and Discretion