Republic of the Philippines

Court of Appeals
Manila

SPECIAL FIFTEENTH DIVISION

ANNALIZA L. SALEM, CA-G.R. SP NO. 95181 Petitioner, Members: GUEVARA-SALONGA, -versus- Chairman *GUARIA, III, and GARCIA, JJ.: CITADEL CATCHUELA and Hon. Promulgated: AFABLE E. CAJIGAL, as Presiding Judge of Branch 96, Regional Trial Court of Quezon City, Respondents. ____________ xxxx--------------------------------------------------------------------------------xxxx

DECISION
GUEVARA-SALONGA, J.:
The Case Assailed in the present Petition for Certiorari with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction is the Order of Default against petitioner issued by public respondent
*

Vice Justice Vicente Q. Roxas per Office Order No. 46-07-RTR dated February 15,2007.

CA-G.R. SP NO. 95181 2 DECISION =================== allegedly with grave abuse of discretion amounting to lack or excess of jurisdiction, as well as the Resolution denying a reconsideration thereof. The Facts Citadel Catchuela [private respondent] filed a complaint for sum of money with prayer for a writ of preliminary attachment against Annaliza L. Salem [petitioner] with the Regional Trial Court of Quezon City. Allegedly, her residence is at No. 11 Primrose Street, Greenland Subdivision, Cainta, Rizal and that petitioners address is at No. 33, 11th Street, Youngstown Village, Cainta, Rizal.

As prayed for, on 22 November 2005, public respondent issued a Writ1 of Preliminary Attachment following an Order granting the writ of preliminary attachment against the properties of petitioner. On November 25, 2005, private respondent filed an Ex-Parte Motion to Amend Complaint with Attached Amended Complaint which was granted in an Order dated 2 December 2005. After being duly served with summons on 24 November 2005, petitioner filed on 5 December 2005 a Motion to Dismiss and to Return2 on the ground that venue was improperly laid. Upon opposition of private respondent, public respondent denied the motion for being moot and academic in its Order3 dated 21 February 2006 in view of the admission of private respondents amended complaint. The order of denial was received by petitioner on 15 March 2006.
1

Annex B, p. 11, Rollo.

2

Annex E, pp. 16-17, ibid.

3

Annex H, p.20, ibid.

CA-G.R. SP NO. 95181 3 DECISION =================== On 2 February 2006, petitioner was served with summons and a copy of the amended complaint. For failure to file an answer within the fifteen day reglementary period, on 21 March 2006, private respondent filed a Motion to Declare Defendant in Default. On 28 March 2006, petitioner filed an Answer with Counterclaim to the Amended Complaint. In an Order dated 7 April 2006, public respondent granted the motion declaring petitioner in default for failure to file a responsive pleading within fifteen (15) days from service of summons and allowing private respondent to present her evidence ex parte. The motion for reconsideration thereof was denied in a Resolution dated 23 May 2006. Hence, this present recourse. The Issues In support of her petition, petitioner maintains that the filing of the answer was within the reglementary period provided under Section 4, Rule 16 of the Rules of Court. Relying on the case of Trajano, et al. vs. Cruz4, she alleges that it was a grave abuse of discretion to declare her in default despite the filing of the answer

before she was declared in default and no prejudice was caused to private respondent. In her Comment, private respondent argues that petitioner's Answer was filed out of time and that the instant petition for certiorari is procedurally flawed as petitioner did not avail of other plain,adequate and speedy available legal remedies for a party declared in default.
4

L-47070, Dec. 29, 1977, also Indiana Aerospace University vs. CHED, 356 SCRA 367.

CA-G.R. SP NO. 95181 4 DECISION =================== In a nutshell, the issues for resolution are: 1) Whether the answer of petitioner was filed before the court a quo within the reglementary period of fifteen (15) days as provided under the Rules of Court; and 2) Whether the present petition for certiorari is the proper remedy to assail the resolution denying the order of default. The Court's Ruling The petition is devoid of merit. Before going over the merits of the petition, We shall delve first on the procedural issue. At the outset, We stress that pursuant to Section 3(b), Rule 9 of the Rules of Court, the proper remedy against an order of default would have been a Motion to Set Aside the Order of Default, and not a motion for reconsideration, viz:
Sec. 3 (b) Relief from order of default.- A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to file answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense . In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (Underscoring supplied)

CA-G.R. SP NO. 95181 5

DECISION =================== Moreover, jurisprudence holds that the remedies available to a party declared in default are as follows: (1) a motion to set aside the order of default under Section 3(b), Rule 9 of the Rules of Court, if the default was discovered before judgment could be rendered; (2) a motion for new trial under Section 1(a) of Rule 37, if the default was discovered after judgment but while appeal is still available; (3) a petition for relief under Rule 38, if judgment has become final and executory; and (4) an appeal from the judgment under Section 1, Rule 41, even if no petition to set aside the order of default has been resorted to. These remedies are available only to a party who has been validly declared in default. Undeniably, petitioner's motion for reconsideration filed before the court a quo was not the appropriate legal remedy to assail the order of default issued against her. Even if We treat the same as a motion to set aside the order of default, the same is procedurally flawed as it does not allege that her failure to file the answer on time was due to fraud, accident, mistake or excusable negligence and that she has a meritorious defense. Petitioner has the burden of showing such diligence that would justify her being excused from not filing the answer within the reglementary period as provided by the Rules of Court. Otherwise, the rules for an orderly and expeditious procedure would be rendered meaningless. Thus, unless, it is shown that she had a justifiable reason for the delay, the court will not ordinarily exercise its discretion in her favor. In any event, petitioner's argument that she had filed her answer within the fifteen (15) day reglementary period and the denial of her motion for reconsideration is a grave abuse of discretion, is untenable. The argument that after denial of her motion to dismiss she has the remaining period within which to file her answer, is misplaced. What was sought to be dismissed is the original complaint for sum of money with prayer for preliminary attachment, not the amended one, but the motion was denied in view of the admission of the amended complaint via an Order dated 2 December CA-G.R. SP NO. 95181 6 DECISION =================== 2005. Thus, there is a query as to the reckoning point from which to count the fifteen (15) day reglementary period to file an answer.

Should it be from receipt of the order denying the motion to dismiss or from receipt of a copy of the amended complaint? Admittedly, petitioner's responsive pleading, Answer with Counterclaim, was for the Amended Complaint. Inevitably, the fifteen (15) day period shall be counted from service of the amended complaint to the petitioner. Thus, Section 4, Rule 16 of the Rules of Court which is the law applicable in the instant case explicitly provides:
If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period. (Emphasis ours)

It bears to stress that petitioner filed her Answer with Counterclaim on the Amended Complaint on 28 March 2006 which is clearly beyond the fifteen (15) day reglementary period as she was served with summons and a copy of the said complaint on 22 February 2006. More than fifteen days had already elapsed by the time she filed her answer. Without a doubt, it was filed out of time as the last day to file the same was on 9 March 2006. Consequently, she can be declared in default pursuant to Section 3, Rule 95 of the Rules of Court.
5

Sec. 3. Default; declaration thereof.- 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.

CA-G.R. SP NO. 95181 7 DECISION =================== Even granting arguendo that the fifteen day period should be counted from receipt of the order denying the motion to dismiss, the petition must still fail. Following the first sentence of Section 4, Rule 16 of the Rules of Court as stated above, when petitioner received the order of denial on 15 March 2006, she had until 20 March 2006 within which to file a responsive pleading, as eleven (11) days have been consumed when he filed the motion to dismiss on 5 December 2005 after receipt of a copy of the original complaint on 24 November 2005. Accordingly, the public respondent did not gravely abuse his discretion in declaring petitioner in default and allowing private

respondent to present evidence ex parte pursuant to Section 4, Rule 16 in relation to Section 3(b), Rule 9 of the 1997 Rules of Civil Procedure. The case of Trajano et al vs. Cruz relied upon by petitioner is not at squares with the instant case. The nullity of the order of default therein was basically premised on the fact that there was no obstinate refusal or inordinate neglect on the part of respondent in complying with the orders of the court. Stated otherwise, respondent's failure to file its Answer was found to be due to excusable negligence. Such circumstance is not obtaining in the case at bench. WHEREFORE, the foregoing considered, the petition is DISMISSED. SO ORDERED. JOSEFINA GUEVARA-SALONGA Associate Justice WE CONCUR: MARIO L. GUARIA, III RAMON R. GARCIA Associate Justice Associate Justice CA-G.R. SP NO. 95181 8 DECISION ===================

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. JOSEFINA GUEVARA-SALONGA Associate Justice Chairman, Special Fifteenth Division