Civil Procedure (Motion in Civil Cases, Rule 15), Arbues, 2018-2019
G.R. No. 123340. August 29, 2002 LUTGARDA CRUZ v CA
Facts:
Lutgarda Cruz was charged with the crime of “Estafa through Falsification of
Public Document” before the Manila RTC. Petitioner executed before a Notary Public in
the City of Manila an Affidavit of Self-Adjudication of a parcel of land stating that she
was the sole surviving heir of the registered owner when in fact she knew there were
other surviving heirs. She was acquitted but appealed the civil aspect of the case.
Petitioner submits that the CA erred in sustaining the trial courts finding that
the City Prosecutor was not duly and timely furnished with petitioners motion for
reconsideration of February 7, 1994. Petitioner asserts that both copies of the motion for
reconsideration were sent to the trial court and the City Prosecutor by registered mail on
February 10, 1994. Petitioner relies on jurisprudence that the date of mailing is the date
of filing, arguing that the date of mailing of both motions was on February 10, 1994.
Petitioner maintains that the motion was properly filed within the 15-day period, citing
the registry return card which shows actual receipt on February 22, 1994 by the City
Prosecutor of a copy of the motion.
The CA, noting that petitioner received a copy of the decision on January 28,
1994, stated that petitioner had until February 12, 1994 to appeal the decision or file a
motion for reconsideration. The CA ruled that petitioner, by filing a motion for
reconsideration without any proof of service, merely filed a scrap of paper and not a
motion for reconsideration. Hence, the reglementary period of petitioner to appeal
continued to run and lapsed after the 15-day period, making the trial courts decision
final and executory.
Issue:
WON petitioners motion for reconsideration dated February 7, 1994 complied
with the mandatory requirements of Section 6, Rule 15 on proof of service.
Held: No.
Non-compliance with Sections 4, 5 and 6 of Rule 15 is a fatal defect. The
well-settled rule is that a motion which fails to comply with Sections 4, 5, and 6 of Rule
15 is a useless piece of paper and does not stop the running of the reglementary period
for filing the requisite pleading.
From the language of the Sec.6, Rule 15, proof of service is mandatory.
Without such proof of service to the adverse party, a motion is nothing but an empty
formality deserving no judicial cognizance. Section 13 of Rule 13 further requires that if
service is by registered mail, proof of service consists of the affidavit of the person
mailing and the registry receipt, both of which must be appended to the motion. Absent
one or the other, or worse both, there is no proof of service.
1
In the instant case, an examination of the record shows that petitioner received
a copy of the trial courts decision of January 17, 1994 on January 28, 1994. Within the
reglementary period to appeal, petitioner filed on February 10, 1994, by registered mail,
a motion for reconsideration. However, petitioner failed to attach both the affidavit and
the registry receipt to the motion for reconsideration as required by the Rules.
The defect of the motion is apparent on its face and the MR was a mere scrap
of paper as it did not contain the required proof of service.
However, petitioner is contesting that part of the decision of the trial court
finding him civilly liable even as he is acquitted from the criminal charge on reasonable
doubt. This raises the issue of whether the public prosecutor is the only proper party to
be served with petitioners motion for reconsideration. The present Rules do not require
the accused to serve a copy of his motion for reconsideration on the offended party who
may not be represented by a private counsel. The Rules require service only on the
public prosecutor if the offended party is not represented by a private counsel.
A judgment of acquittal is immediately final and executor. However, either the
offended party or the accused may appeal the civil aspect of the judgment despite the
acquittal of the accused. The public prosecutor has no interest in appealing the civil
aspect of a decision acquitting the accused. His job ends with the acquittal.
The real parties in interest in the civil aspect of a decision are the offended
party and the accused. Thus, any appeal or motion for reconsideration of the civil aspect
of a decision in a criminal case must be served on the other real party in interest. If the
offended party appeals or moves for reconsideration, the accused is necessarily served a
copy of the pleading through his counsel.
If the accused appeals or moves for reconsideration, a lacuna arises if the
offended party is not represented by a private counsel. In such a situation, under the
present Rules only the public prosecutor is served the notice of appeal or a copy of the
motion for reconsideration. To fill in this lacuna in the present Rules, we require that
henceforth if the accused appeals or moves for reconsideration, he should serve a copy
of his pleading on the offended party himself if the latter is not represented by a private
counsel. This is in addition to service on the public prosecutor who is the counsel of
record of the State.
In the instant case, the Court notes that petitioner did not serve a copy of her
motion for reconsideration on the offended party who was not represented by a private
counsel in the trial court. In the interest of justice, and considering that the present Rules
are silent on the matter, it is only fair to give petitioner a period of five days from receipt
of this decision within which to serve a copy of her motion for reconsideration on the
offended party.
 Civil Procedure (Motion in Civil Cases, Rule 15), Arbues, 2018-2019
ALFREDO G. BOISER v JUDGE JOSE Y. AGUIRRE
A.M. No. RTJ-04-1886. May 16, 2005
Facts:
Complainant Alfredo Boiser was the plaintiff in an ejectment case filed before
the MTC Himamaylan. On 11 July 2003, the MTC rendered a decision in favor of
complainant. The case was appealed to the RTC Negros Occidental. On 15 October
2003, defendant-appellant Salvador Julleza filed a motion to release bond on the ground
that the MTC of Hinigaran in its decision dated 11 July 2003, had already resolved the
writ of preliminary injunction without mentioning the applicants liability. On 16
October 2003, respondent judge granted the motion.
Complainant alleged that the issuance by respondent judge of the Order dated
16 October 2003 is indicative of his ignorance of the law considering that the motion did
not state that he was furnished a copy of the motion thereby depriving him of his right to
due process. He also averred that the motion was a mere scrap of paper for failure to
state the time and date of hearing.
The Office of the Court Administrator (OCA), despite the withdrawal of the
complaint against Judge Aguirre, recommended the conviction of the latter to the SC.
The SC remanded the case to CA. The CA proceeded with the case because the
desistance of the complainant does not warrant the dropping of an administrative case.
Issue:
WON the lack of notice of hearing and proof of service of the questioned
motion divest the judge to rule on the case.
Held: Yes.
The Rules of Court requires that every motion must be set for hearing by the
movant, except those motions which the court may act upon without prejudicing the
rights of the adverse party. The notice of hearing must be addressed to all parties and
must specify the time and date of the hearing, with proof of service as provided in
Sections 4, 5 and 6 of Rule 15 of the 1997 Rules on Civil Procedure.
It appears that the Motion to Release Bond was defective as it did not have a
proper notice of hearing. The date and time of the hearing were not specified. Neither
complainant nor his counsel was furnished a copy thereof. These were never
controverted by respondent judge.
A motion without notice of hearing is pro forma, a mere scrap of paper. It
presents no question which the court could decide. The court has no reason to consider it
and the clerk has no right to receive it. The rationale behind the rule is plain: unless the
movant sets the time and place of hearing, the court will be unable to determine whether
the adverse party agrees or objects to the motion, and if he objects, to hear him on his
objection, since the rules themselves do not fix any period within which he may file his
2
reply or opposition. The objective of the rule is to avoid a capricious change of mind in
order to provide due process to both parties and ensure impartiality in the trial.
Also, without proof of service to the adverse party, a motion is nothing but an
empty formality deserving no judicial cognizance. The rule mandates that the same shall
not be acted upon by the court. Proof of service is mandatory.
As can be seen the law involved is simple and elementary, lack of conversance
therewith constitutes gross ignorance of the law. Judges are expected to exhibit more
than just cursory acquaintance with statutes and procedural laws. They must know the
laws and apply them properly in all good faith. Judicial competence requires no less.
G.R. NO. 172588 : March 13, 2013
ISABEL N. GUZMAN v ANIANO N. GUZMAN
Facts:
We resolve the petition for review on certiorari, filed by petitioner Isabel N.
Guzman, assailing the February 3, 2006 decision and the April 17, 2006 resolution of
the CA. The CA decision dismissed the petitioner's petition for certiorari for being the
wrong mode of appeal and for lack of merit. The CA resolution denied the petitioner's
motion for reconsideration for lack of merit. Petition denied.
On June 15, 2000, the petitioner filed with the MTC of Tuguegarao City a
complaint for ejectment against her children, respondents Aniano N. Guzman and
Primitiva G. Montealto. The petitioner alleged that the respondents occupied the land by
tolerance; the respondents did not comply with her January 17, 2000 written demand to
vacate the property; and subsequent barangay conciliation proceedings failed to settle
the differences between them. Respondents alleged that the petitioner engaged in forum
shopping since she already raised the issue of ownership in a petition for cancellation of
adverse claim against the respondents, pending with the RTC of Tuguegarao City.
In a November 27, 2002 decision, the MTC found the petitioner to be the
lawful owner of the land and that the petitioner committed no forum shopping since she
asserted ownership only to establish her right of possession.
 Civil Procedure (Motion in Civil Cases, Rule 15), Arbues, 2018-2019
The respondents appealed to the RTC of Tuguegarao City and ruled in favor
of the respondents. On June 16, 2005, the petitioner received a copy of the RTC
decision. On June 30, 2005, the petitioner filed her first motion for reconsideration. In
its July 6, 2005 order, the RTC denied the petitioner's motion for reconsideration for
lack of the required notice of hearing. The petitioner, instead of filing an appeal, filed 2
more MR.
On August 8, 2005, the petitioner filed a Rule 65 petition for certiorari with
the CA which was dismissed on February 6, 2006.
Issue:
WON the filing of second MR suspends the reglementary period for appeal.
Held: No.
The petitioner's resort to a Rule 65 petition for certiorari to assail the RTC
decision and orders is misplaced. When the RTC issued its decision and orders, it did so
in the exercise of its appellate jurisdiction; the proper remedy therefrom is a Rule 42
petition for review. Instead, the petitioner filed a second motion for reconsideration and
thereby lost her right to appeal; a second motion for reconsideration being a prohibited
pleading pursuant to Section 5, Rule 37 of the Rules of Court. The petitioner's
subsequent motions for reconsideration should be considered as mere scraps of paper,
not having been filed at all, and unable to toll the reglementary period for an appeal.
The RTC decision became final and executory after 15 days from receipt of
the denial of the first motion for reconsideration. It is elementary that once a decision
becomes final and executory, it is "immutable and unalterable, and can no longer be
modified in any respect, even if the modification is meant to correct what is perceived to
be an erroneous conclusion of fact or law, and regardless of whether the modification is
attempted to be made by the court rendering it or by the highest court of the land." Thus,
the RTC decision, even if allegedly erroneous, can no longer be modified.
Apparently, to resurrect her lost appeal, the petitioner filed a Rule 65 petition
for certiorari, imputing grave abuse of discretion on the RTC for deciding the case
against her. Certiorari, by its very nature, is proper only when appeal is not available to
the aggrieved party; the remedies of appeal and certiorari are mutually exclusive, not
alternative or successive. It cannot substitute for a lost appeal, especially if one's own
negligence or error in one's choice of remedy occasioned such loss or lapse.
3
G.R. No. 181354, February 27, 2013 SIMON FLORES v PEOPLE
Facts:
This is a petition for review on certiorari under Rule 45 of the Rules of Court,
seeking to annul and set aside the August 27, 2004 Decision of the Sandiganbayan
finding petitioner Simon A. Flores guilty beyond reasonable doubt of the crime of
Homicide, and its November 29, 2007 Resolution denying his motion for
reconsideration. Petition denied.
On August 27, 2004, after due proceedings, the Sandiganbayan issued the
assailed decision finding Flores guilty of the murder of Jesus with an armalite rifle
(M16) which resulted in his death. According to the Sandiganbayan, there was no reason
to doubt the testimonies of the said witnesses who appeared to have no ill motive to
falsely testify against Flores.
Flores filed a motion for the reconsideration. As the motion did not contain
any notice of hearing, the Prosecution filed its Motion to Expunge from the Records
Accused Motion for Reconsideration. In its Resolution, dated November 29, 2007, the
Sandiganbayan denied the motion for being a mere scrap of paper as it did not contain a
notice of hearing.
Flores claims that the outright denial of his motion for reconsideration by the
Sandiganbayan on a mere technicality amounts to a violation of his right to due process.
The dismissal rendered final and executory the assailed decision which was replete with
baseless conjectures and conclusions that were contrary to the evidence on record. He
points out that a relaxation of procedural rules is justified by the merits of this case as
the facts, viewed from the proper and objective perspective, indubitably demonstrate
self-defense on his part.
Issue:
WON the outright dismissal of the petition due to mere technicality is a
violation of due process.
Held: No.
Flores argues that he fully complied with the requirements of Section 2 of
Rule 37 and Section 4 of Rule 121 of the Rules of Court when the motion itself was
served upon the prosecution and the latter, in fact, admitted receiving a copy. For Flores,
such judicial admission amounts to giving due notice of the motion which is the intent
behind the said rules. He further argues that a hearing on a motion for reconsideration is
not necessary as no further proceeding, such as a hearing, is required under Section 3 of
Rule 121.
Flores argument fails to persuade this Court.
 Civil Procedure (Motion in Civil Cases, Rule 15), Arbues, 2018-2019
Section 5, Rule 15 of the Rules of Court reads:
SECTION 5. Notice of hearing. The notice of hearing shall be addressed to
all parties concerned, and shall specify the time and date of the hearing which
must not be later than ten (10) days after the filing of the motion.
Section 2, Rule 37 provides:
SEC. 2. Contents of motion for new trial or reconsideration and notice thereof.
The motion shall be made in writing stating the ground or grounds
therefore, a written notice of which shall be served by the movant on the
adverse party.
A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal.
Section 4, Rule 121 states:
SEC. 4. Form of motion and notice to the prosecutor. The motion for a new
trial or reconsideration shall be in writing and shall state the grounds on which
it is based. Notice of the motion for new trial or reconsideration shall be given
to the prosecutor.
As correctly stated by the Office of the Special Prosecutor (OSP), Sec. 2 of
Rule 37 and Sec. 4 of Rule 121 should be read in conjunction with Sec. 5 of Rule 15 of
the Rules of Court. Basic is the rule that every motion must be set for hearing by the
movant except for those motions which the court may act upon without prejudice to the
rights of the adverse party. The notice of hearing must be addressed to all parties and
must specify the time and date of the hearing, with proof of service.
This Court has indeed held, time and again, that under Sections 4 and 5 of
Rule 15 of the Rules of Court, the requirement is mandatory. Failure to comply with the
requirement renders the motion defective. 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.
In this case, as Flores committed a procedural lapse in failing to include a
notice of hearing, his motion was a worthless piece of paper with no legal effect
whatsoever. Thus, his motion was properly dismissed by the Sandiganbayan.
4
JUDGE ALMA CRISPINA B. COLLADO-LACORTE v EDUARDO RABENA
A.M. No. P-09-2665 August 4, 2009
Facts:
The instant case arose from a letter complaint sent to the Office of the Court
Administrator (OCA) dated 13 February 2008 by Presiding Judge Francisco A. Ante, on
the improper service of summons made by Ernesto R. Rabena, Process Server, which
was raffled off to Judge Alma Crispina B. Collado-Lacorte.
According to Judge Collado-Lacorte, the Officers Return dated 18 February
2008 revealed that summons upon defendants Rowell Mark D. Abero and Ernesto R.
Rabena were served, through substituted service, upon Elvira Abero and Anita Rabena,
respectively. The service was made without stating in the Return the facts and
circumstances surrounding the failed personal service; the date and time of the attempts
on personal service; the inquiries made to locate the defendants; the names of the
occupants of the defendants alleged residence, and all other acts done, though futile, to
serve the summons on defendants. Hence, the substituted service on the defendants was
improper, as it failed to comply with the requirements prescribed by the Rules of Court.
In the 16 September 2008 Order, the Return of Service of Summons of
Process Server Eduardo R. Rabena states:
The undersigned respectfully returned to the Hon. Court, Metropolitan Trial
Court, First Judicial Region, Branch 51, Caloocan City the herein summons on
the person of MR. ERNESTO RABENA was duly notified and received by his
sister Anita Rabena, as evidenced by her signature appearing on the face of the
herein summons.
The undersigned respectfully returned to the Hon. Court, Metropolitan Trial
Court, Branch 51, Caloocan City the herein summons on the person of
ROWELL MARK D. ABERO was duly notified and received by his mother
Mrs. Elvira Abero, as evidenced by her signature appearing on the face of the
herein summons.
Issue:
WON there was a proper substituted service of summons by the process
server.
Held: No.
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
 Civil Procedure (Motion in Civil Cases, Rule 15), Arbues, 2018-2019

reasonable period, then substituted service can be resorted to. While substituted service sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of
of summons is permitted, it is extraordinary in character and in derogation of the usual service can be confirmed or accepted.
method of service. Hence, it must faithfully and strictly comply with the prescribed
requirements and circumstances authorized by the rules. Indeed, compliance with the (2) Specific Details in the Return
rules regarding the service of summons is as much important as the issue of due process
of jurisdiction. The sheriff must describe in the Return of Summons the facts and
circumstances surrounding the attempted personal service. The efforts made to find the
The requirement for substituted service, as provided by in Section 8, Rule 14 defendant and the reasons behind the failure must be clearly narrated in detail in the
can be broken down in the following: 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
(1) Impossibility of Prompt Personal Service 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
The party relying on substituted service or the sheriff must show that Return of Summons on Substituted Service prescribed in the Handbook for Sheriffs
defendant cannot be served promptly or there is impossibility of prompt service. Section published by the Philippine Judicial Academy requires a narration of the efforts made to
8, Rule 14 provides that the plaintiff or the sheriff is given a reasonable time to serve the find the defendant personally and the fact of failure. Supreme Court Administrative
summons to the defendant in person, but no specific time frame is mentioned. Circular No. 5 dated November 9, 1989 requires that impossibility of prompt service
Reasonable time is defined as so much time as is necessary under the circumstances for should be shown by stating the efforts made to find the defendant personally and the
a reasonably prudent and diligent man to do, conveniently, what the contract or duty failure of such efforts, which should be made in the proof of service.
requires that should be done, having regard for the rights and possibility of loss, if any
[,] to the other party. 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. 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