Remedial Law Review Notes

REMEDIAL LAW REVIEW (ATTY.
TRANQUIL SALVADOR III)

PRELIMINARY CONFERENCE (Missing Case)
Montemayor v. Bermejo
A.M. No. MTJ-04-1535, March 12, 2004 | Abu
FACTS:
The instant administrative case traces its roots from an
unlawful detainer case filed by plaintiffs Montemayor against Marco.
The case was raffled to respondent Judge Bermejo. Pre-trial
conference was held on May 20, 2002. No settlement was reached.
Judge Bermejo issued a Pre-Trial Order on the same date and
directed the parties to submit their respective position papers within
10 days from receipt of the Order, after which, the case shall be
deemed submitted for decision. Plaintiffs submitted their Position
Paper on June 13, 2002. More than a month later, they filed
a Motion for Early Resolution dated July 30, 2002. The defendant
submitted her Position Paper only on Aug 14, 2002. The plaintiffs
then filed a 2nd Motion for Early Resolution on Sept 6, 2002. The case
was declared submitted for decision on Sept 23. On Oct
10, Judgment was rendered in favor of the plaintiffs. On Dec 12,
2002, the plaintiffs filed their first Motion for Execution. On Dec 20,
2002, the defendant filed a Notice of Appeal.
Subsequently, the plaintiffs filed a Second Motion for
Execution dated Dec 26, 2002 and a Motion to Require Defendants
Counsel to Inform the Court the Date He Received a Copy of the
Judgment. Judge Bermejo did not act on either motion.
In his Order dated Jan 6, 2003, respondent Judge gave due
course to the defendants appeal and required the latter to post a
supersedeas bond in the amount of P587,500.00 within 10 days
from receipt thereof.
On Jan 21, 2003, the plaintiffs filed their Third Motion for
Execution and a Second Motion to Require Defendants Counsel to
Inform the Court the Date He Received a Copy of the Judgment.
Meanwhile, Judge Bermejo issued an Order dated March 12,
2003, stating that the Motion for Execution dated Decr 12, 2002,
was not resolved because the day it was set for hearing was not a
motion day and because there was no proof that the defendant had
already received a copy of the Judgment. Further, the Second
Motion for Execution was not acted upon considering that the
defendant filed a Notice of Appeal. Anent the Motion to Require
Defendants Counsel to Inform the Court the Date He Received a

Copy of the Judgment, the same was not acted upon because the
court was then conducting a semestral inventory of its pending
cases. Finally, the Third Motion for Execution was deemed submitted
for resolution.
On April 24, 2003, the defendant filed an Urgent Motion for
Extension claiming that she only had until April 21, 2003 within
which to post a supersedeas bond and praying for an extension of
10 days, or until May 1, 2003, to post the bond. Respondent Judge
granted the motion and gave the defendant until May 5, 2003 within
which to post a supersedeas bond.
Upon the defendants posting of a supersedeas bond, Judge
Bermejo directed the Clerk of Court to transmit the entire records of
the case to the Regional Trial Court.
Montemayor filed with the Office of the Court Administrator
(OCA) the instant Administrative Complaint charging Judge Bermejo
with gross incompetence and inefficiency, gross ignorance of the
law, and gross misconduct.
Montemayor asserts that the respondent Judge failed to
decide the case within the period provided under Section 11, Rule
70. He stresses that even if the defendant received a copy of
the Judgment only on Dec 5, 2002, still, Judge Bermejo should have
reckoned the period to appeal from the time the defendants
counsel received a copy of the Judgment and not when the
defendant received it herself. Montemayor also faults the
respondent Judge for granting the defendants Urgent Motion for
Extension to post a supersedeas bond in violation of Section 13,
Rule 70.
In his Comments, he explains that he did not act on the
plaintiffs Motion for Early Resolution dated July 30, 2002 because
there was yet no proof that the defendant already received the
Order of May 20, 2002 requiring the parties to submit their
respective position papers. Hence, the Judgment rendered on
October 10, 2002 was well within the prescribed period of 30 days
under the 1991 Revised Rule on Summary Procedure. (Take note
that the defendant filed her position paper on Aug 14.)
Judge
Bermejo
rationalizes
the
granting
of
the
defendants Urgent Motion for Extension of time to post a
supersedeas bond since the bond had already been processed and
was ready for signature, but the signatories and approving officials
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REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

of the bonding company were not available because of the Lenten
season. He maintains that the said motion for extension is not a
prohibited pleading under the Rules of Court, and that the granting
thereof was made in good faith and in the interest of justice.
The OCA submitted its Report and Recommendation finding
merit in the complaint and recommending that Judge Bermejo be
fined in the amount of P5,000.00 for failing to decide the case within
the period fixed by law.
ISSUE:
Whether Judge Bermejo must be held administratively liable for not
failing to decide the case within the period prescribed by law.
HELD:
Section 11, Rule 70 provides a period of 30 days for the court

to render judgment in forcible entry and unlawful detainer cases.
This period shall be counted from the receipt of the affidavits and
position papers, or the expiration of the period for filing the same.
Clearly, the reckoning point from which the mandatory period
for rendition of judgment should be computed is the receipt of the
last affidavits and position papers of the parties, or the expiration of
the period for filing the same, not from the issuance of the order by
the judge deeming the case submitted for resolution.
The records do not reveal when the parties received Judge
Bermejos Order requiring them to submit their respective affidavits
and position papers. Assuming, however, that the court received the
defendants Position Paper on Aug 14, 2002, as respondent Judge
claims, judgment should have been rendered on Sept 13, 2002.
Instead, the decision was dated Oct 10, 2002, or nearly a month
after the lapse of the mandatory period for rendition of judgment
and almost two months from the receipt of the defendants Position
Paper. Plainly, Judge Bermejo is guilty of delay and, thus,
administratively liable.
Section 19, Rule 70 of the Rules of Court, states: "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." The judgment is
executed immediately in favor of the plaintiff, as a matter of right, to
prevent further damage arising from the loss of possession.
In case the defendant does not file any supersedeas bond or
did not make any monthly deposit, the plaintiff would be entitled as
a matter of right to the immediate execution of the inferior courts
judgment. In such a case the execution is mandatory, the duty of
the court in this respect being "ministerial and imperative."
In this case, Judge Bermejo did not order the immediate
execution of the Judgment. On the contrary, he even ordered
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defendant to file a supersedeas bond, which, in any event, should
have been posted within the period to file an appeal.
The records show that on Jan 6, 2003, Judge Bermejo granted
the defendant 10 days from receipt of the Order giving due course
to the Notice of Appeal to post a supersedeas bond. Assuming that
the defendant received a copy of the Judgment only on Dec 5, 2002,
the period granted was way beyond the 15-day period for perfecting
an appeal.
More than three months after, the defendant filed an Urgent
Motion for Extension, asking for 10 more days to post the same.
Moreover, the Urgent Motion for Extension was filed only on April 24,
2003 or three days after her alleged last day to post the bond on
April 21, 2003, in violation of the rule that motions for extension
must be filed prior to the expiration of the period sought to be
extended. Compounding the erroneous admission of said motion for
extension,
Judge
Bermejo,
on
the
same
day,
issued
an Order allowing the defendant an additional extension of 15
days, more than the 10 days she initially asked for.
Judge Bermejo is held guilty of delay in the rendition of
judgment (fine 5,000) and of impropriety (fine 10,000).
throw away from the office of petitioners counsel, with an estimate

distance of about 200 meters more or less. Petitioner further alleged
that the post office was about ten (10) times farther from the office
of defendents counsel. Public respondent Judge Bautista-Ricafort
issued an order denying, for lack of merit, petitioners motion to
expunge the Answer (with Counterclaims) and to declare private
respondents in default.
PLEADINGS (Missing cases)

Solar Team Entertainment v. Ricafort
293 SCRA 661 | Andres
FACTS:
Petitioner, as plaintiff, filed before the RTC in Paranaque a

complaint for recovery of possession and damages with prayer for a
writ of replevin against herein private respondents. The case was
docketed as Civil Case No. 97-0304 and was assigned to public
respondent Judge Helen Bautista-Ricafort. Private respondents, as
defendants, filed their Answer (with Counterclaims). A copy thereof
was furnished counsel for petitioner by registered mail; however, the
pleading did not contain any written explanation as to why service
was not made personally upon petitioner-plaintiff. Petitioner filed a
motion to expunge the Answer (with Counterclaims) and to declare
herein private respondents in default, alleging therein that the latter
did not observe the mandate of the aforementioned Section 11,
especially since the office of defendants counsel is just a stone
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ISSUE:
W/N Judge Bautista-Ricafort committed GAD when she admitted
private respondents' "Answer (with Counterclaims)" notwithstanding
violation of Section 11, Rule 13.
HELD:
No. Section 11 of Rule 13, service and filing of pleadings and
other papers must, whenever practicable, be done personally; and if
made through other modes, the party concerned must provide a
written explanation as to why the service or filing was not done
personally.
Personal service and filing is the general rule, and resort to
other modes of service and filing, the exception. Henceforth,
whenever personal service or filing is practicable, in light of the
circumstances of time, place and person, personal service or filing is
mandatory. Only when personal service or filing is not practicable
may resort to other modes be had, which must then be
accompanied by a written explanation as to why personal service or
filing was not practicable to begin with. In adjudging the plausibility
of an explanation, a court shall likewise consider the importance of
the subject matter of the case or the issues involved therein, and
the prima facie merit of the pleading sought to be expunged for
violation of Section 11. This Court cannot rule otherwise, lest we
allow circumvention of the innovation introduced by the 1997 Rules
in order to obviate delay in the administration of justice.
Here, the proximity between the offices of opposing counsel
was established; moreover, that the office of private respondents
counsel was ten times farther from the post office than the distance
separating the offices of opposing counsel. Of course, proximity
would seem to make personal service most practicable, but
exceptions may nonetheless apply. For instance, where the adverse
party or opposing counsel to be served with a pleading seldom
reports to office and no employee is regularly present to receive
pleadings, or where service is done on the last day of the
reglementary period and the office of the adverse party or opposing
counsel to be served is closed, for whatever reason.
Returning, however, to the merits of this case, in view of the
proximity between the offices of opposing counsel and the absence
of any attendant explanation as to why personal service of the
answer was not effected, indubitably, private respondents counsel
violated Section 11 of Rule 13 and the motion to expunge was prima

facie meritorious. However, the grant or denial of said motion
nevertheless remained within the sound exercise of the trial courts
discretion. Thus, as guided by Section 6, Rule 1 of the 1997 Rules of
Civil Procedure, which ordains that the Rules shall be liberally
construed in order to promote their objective of securing a just,
speedy and inexpensive disposition of every action or proceeding,
as well as by the dictum laid down in Alonso v. Villamor, 16 Phil. 315
[1910], the trial court opted to exercise its discretion in favor of
admitting the Answer (with Counterclaims), instead of expunging it
from the record.
To our mind, if motions to expunge or strike out pleadings for
violation of Section 11 of Rule 13 were to be indiscriminately
resolved under Section 6 of Rule 1 or Alonzo v. Villamor and other
analogous cases, then Section 11 would become meaningless and
its sound purpose negated. Nevertheless, we sustain the challenged
ruling of the trial court, but for reasons other than those provided for
in the challenged order (The 1997 Rules of Civil Procedure took
effect only on 1 July 1997, while the questioned Answer (with
Counterclaims) was filed only on 8 August 1997, or on the 39 th day
following the effectivity of the 1997 Rules).
Musa v. Amor
G. R. No. 141396, April 9, 2002 | Ang
FACTS:
Rosario Dasig, administratrix of her son's landholdings while
the latter migrated to the United States, sold the property to
respondent Sylvia Amor. This prompted petitioners, claiming to be
tenants of the landholding, to file a case for redemption with the
Department of Agrarian Reform Regional Adjudicator. Petitioners
subsequently filed a complaint for annulment of sale against
respondent. The Regional Adjudicator of the DAR ruled in favor of
petitioners and declared them as tenants of the subject landholding
and nullified the deed of absolute sale between Rosario Dasig and
respondent. The DARAB modified the ruling a bit, saying that they
were bona fide tenants. The Court of Appeals however reversed the
DARAB. The petitioners argued that the CA should have dismissed
respondents petition for failure to cite an explanation for the mode
of service.
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ISSUE:
W/N the Court of Appeals should not have given due course to the
petition because the respondent failed to attach thereto a written
explanation why personal service was not done
HELD:
The failure to explain why personal service was not done is

not cause for dismissal.
The service and filing of pleadings must be done personally
whenever practicable. In the present case, personal service would
not be practicable. Considering the distance between the Court of
Appeals and Donsol, Sorsogon where the petition was posted,
clearly, service by registered mail would have entailed considerable
time, effort and expense. A written explanation why service was not
done personally might have been superfluous.
In any case, as the rule is so worded with the use of "may,"
signifying permissiveness, a violation thereof gives the court
discretion whether or not to consider the paper as not filed. While
it is true that procedural rules are necessary to secure an orderly
and speedy administration of justice, rigid application of Section 11,
Rule 13 may be relaxed in this case in the interest of substantial
justice.
Lapid v. Laurea
G. R. No. 139607, October 28, 2002 | Angliongto
FACTS:
Spouses Lapid are the parents of Christopher B. Lapid, who
was a Grade 1 pupil of St. Therese of the Child Jesus. He was
suspended for five days effective on 6 November 1997. The Lapids
filed a letter-complaint with the DECS.
At the hearing, they
demanded a written retraction and a public apology from the school
officials, but the latter refused.
On May 8, 1998, the Lapids filed a complaint for damages
against St. Therese and its directress, teacher-in-charge, guidance
counselor and principal before the Malabon RTC. According to the
Lapids, the schools malicious imputation against their son tarnished
their good name and reputation.
In their answer, the school officials stated that as early as

June 1997, Ms. Cruz had been sending them letters regarding
Christophers mischief in school. According to them, Christopher had
committed serious infractions when he hurt not only his classmates
but also his classroom teacher, Ms. Cruz, and one school employee.
They also averred that on several occasions, the parents of students
offended by Christopher lodged complaints with the school against
Christopher, urging the administration to impose appropriate
disciplinary action on him. After most of these incidents, Ms. Cruz
had called up the Lapids house to acquaint them with these
complaints. Said phone calls were received, often by Mrs. Gloria
Manapat Bautista, grandmother and guardian de facto of
Christopher. All their efforts to reach the Lapid spouses personally
turned out to be futile.
On November 18, 1998, the Lapids filed a motion to declare
St. Therese as in default, which was denied by the trial court. MR
was likewise denied. They filed a petition for certiorari with the
Court of Appeals, which dismissed the petition for failure to indicate
the material date, particularly the date of filing of motion for
reconsideration with the RTC, as required by Supreme Court Circular
No. 39-98, amending Section 3 of Rule 46 of the 1997 Rules of Civil
Procedure. The Lapids filed an MR of the CA resolution, but still
without indicating the date as to when their MR of the RTC order was
filed. CA denied the MR.
ISSUE:
W/N the CA erred in dismissing the petition for certiorari filed by the
Lapids on the ground of formal and procedural deficiency, i.e., their
failure to state a material date in their petition for certiorari.
HELD:
No. SC found no reversible error in the assailed resolutions of

the CA because in filing a special civil action for certiorari without
indicating the requisite material date thereon, the Lapids violated
basic tenets of remedial law, particularly Rule 65 of the Rules of
Court.
There are three material dates that must be stated in a
petition for certiorari brought under Rule 65. First, the date when
notice of the judgment or final order or resolution was received;
second, the date when a motion for new trial or for reconsideration
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was filed; and third, the date when notice of the denial thereof was
received. The petition filed with the CA failed to indicate the second
date, particularly the date of filing of their motion for
reconsideration. As explicitly stated in the Rule, failure to comply
with any of the requirements shall be sufficient ground for the
dismissal of the petition.
spouses failure to file an answer was due to their own negligence,

considering that they continued to participate in the proceedings
without filing an answer. There was also nothing in the records to
show that the Cerezo spouses actually offered a reasonable
settlement to Tuazon. Undaunted, the spouses filed a Petition for
Annulment of Judgment, which was still denied
DEFAULTS AND AMENDMENTS

Cerezo v. Tuazon
G.R. No. 141538, March 23, 2004 | Aquino
ISSUE:
Whether Cerezo was wrongfully declared in default.
Whether a Petion for Annulment of Judgment was the proper remedy
after Cerezo was declared in default.
FACTS:
HELD:
A passenger bus collided with a tricycle. Tuazon, the tricycle

driver filed an action for damages against the Mr. Cerezo, owner of
the bus, her husband Atty. Cerezo and Foronda, the bus driver.
Tuazon filed a motion to litigate as a pauper. The TC issued
summons against the Cerezo spouses at the Makati address stated
in the complaint but the summons was returned unserved as they
no longer held office nor resided in Makati. An alias summons was
sevred to the office of Atty. Cerezo in Tarlac, who was then working
as Tarlac Provincial Prosecutor.
The records show that the Cerezo spouses diligently
participated in the TC proceedings. The TC issued an order ruling
that it was satisfied that Tuazon qualified to prosecute his case as a
pauper litigant but denied the Cerezos prayer requiring new
summons to be served to the defendants. The Cerezo spouses filed
an MR, which the court denied. The TC issued an order directing the
Cerezo spouses to file their answer within 15 days from receipt of
the order. The Cerezo spouses DID NOT file an answer. Tuazon filed a
motion to declare the Cerezo spouses in default so the TC issued an
order declaring the Cerezo spouses in default and authorizing
Tuazon to present his evidence. After considering Tuazons
testimonial and documentary evidence, the TC ruled in Tuazons
favor and held Mrs. Cerezo solely liable for her employees
negligence.
Cerezo filed a Petition for Relief from Judgment which the TC
refused to grant the petition stating that Cerezo should have availed
of the remedy of appeal. Cerezo filed a Petition for Certiorari with
the CA, which was likewise denied. The CA ruled that the Cerezo
No. Records show that the petitioner previously filed with the
lower court a Petition for Relief from Judgment on the ground that
they were wrongfully declared in default while waiting for an
amicable settlement of the complaint for damages. The court a quo
correctly ruled that such petition is without merit. The defendant
spouses admit that during the initial hearing they appeared before
the court and even mentioned the need for an amicable settlement.
Thus, the lower court acquired jurisdiction over the defendant
spouses.
Therefore, petitioner having availed of a petition for relief,
the remedy of an annulment of judgment is no longer available. The
proper action for the petitioner is to appeal the order of the lower
court denying the petition for relief.
An examination of the records of the entire proceedings
shows that three lawyers filed and signed pleadings on behalf of
Mrs. Cerezo, namely, Atty. Daga, Atty. Valera, and Atty. Cerezo.
Despite their number, Mrs. Cerezos counsels failed to avail of the
proper remedies.It is either by sheer ignorance or by malicious
manipulation of legal technicalities that they have managed to delay
the disposition of the present case, to the detriment of pauper
litigant Tuazon.
Lina v. Court of Appeals enumerates the remedies available
to a party declared in default:
1. The defendant in default may, at any time after discovery
thereof and before judgment, file a motion under oath to set
aside the order of default on the ground that his failure to
answer was due to fraud, accident, mistake or excusable
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negligence, and that he has a meritorious defense (Sec. 3,
Rule 18 [now Sec. 3(b), Rule 9]);
2. If the judgment has already been rendered when the
defendant discovered the default, but before the same has
become final and executory, he may file a motion for new
trial under Section 1 (a) of Rule 37;
3. If the defendant discovered the default after the judgment
has become final and executory, he may file a petition for
relief under Section 2 [now Section 1] of Rule 38; and
4. He may also appeal from the judgment rendered against him
as contrary to the evidence or to the law, even if no petition
to set aside the order of default has been presented by him
(Sec. 2, Rule 41). (Emphasis added)
Moreover, a petition for certiorari to declare the nullity of a
judgment by default is also available if the trial court improperly
declared a party in default, or even if the trial court properly
declared a party in default, if grave abuse of discretion attended
such declaration.
Mrs. Cerezo admitted that she received a copy of the TCs
decision on 25 June 1995. Based on this admission, Mrs. Cerezo had
at least three remedies at her disposal: an appeal, a motion for new
trial, or a petition for certiorari.
Mrs. Cerezo could have appealed under Rule 4 1from the
default judgment within 15 days from notice of the judgment. She
could have availed of the power of the CA to try cases and conduct
hearings, receive evidence, and perform all acts necessary to
resolve factual issues raised in cases falling within its appellate
jurisdiction.
Mrs. Cerezo also had the option to file under Rule 37 a
motion for new trial within the period for taking an appeal.If the trial
court grants a new trial, the original judgment is vacated, and the
action will stand for trial de novo.The recorded evidence taken in the
former trial, as far as the same is material and competent to
establish the issues, shall be used at the new trial without retaking
the same.
Mrs. Cerezo also had the alternative of filing under Rule 65 a
petition for certiorari assailing the order of default within 60 days
from notice of the judgment.An order of default is interlocutory, and
an aggrieved party may file an appropriate special civil action under
Rule 65. In a petition for certiorari, the appellate court may declare
void both the order of default and the judgment of default.
Clearly, Mrs. Cerezo had every opportunity to avail of these
remedies within the reglementary periods provided under the Rules
of Court. However, Mrs. Cerezo opted to file a petition for relief from
judgment, which is available only in exceptional cases. A petition for
relief from judgment should be filed within the reglementary period
of 60 days from knowledge of judgment and six months from entry
of judgment, pursuant to Rule 38 of the Rules of Civil Procedure.
Evidently, there was no fraud, accident, mistake, or excusable
negligence that prevented Mrs. Cerezo from filing an appeal, a
motion for new trial or a petition for certiorari. It was error for her to
avail of a petition for relief from judgment.
Social Security System v. Chavez
G.R. No. 151259, October 13, 2004 | Atadero
FACTS:
Private Respondents spouses Obedencio sued the SSS at the
Cagayan de Oro RTC for Specific Performance. They wanted the SSS
to cancel the mortgage on their properties, give them back the titles
to the properties, and to pay damages and legal expenses. The SSS
timely filed its answer with counterclaim, alleging that the
Obedencios still had unpaid obligations of around 48k.
A pre-trial conference was scheduled on Feb. 16, 1995, but
was reset to April 18, 1995 because the judge was indisposed. On
the latter date, the SSS lawyer was unable to attend. The
Obedencios successfully moved on that day to declare the SSS in
default and to be allowed to present evidence ex parte.
The SSS filed a Motion for Reconsideration praying for the
lifting of the order of default. This was denied by the RTC in an order
dated May 22, 1995. The SSS appealed this order to the CA by way
of a Petition for Certiorari. The CA dismissed the petition for SSS
failure to meet the requirements of the Rules of Court. According to
the CA, a motion to lift order of default should be under oath,
verified and accompanied with an affidavit of merit SSS motion to
lift order of default was neither under oath nor accompanied by an
affidavit of merit. MR denied by CA.
The SSS elevates the case to the SC, asking for the liberal
construction of the rules, claiming that the strict, rigid and arbitrary
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application thereof denied it a reasonable opportunity to present its
meritorious defense, refute the evidence of the private respondents,
present its own, and exercise his right to due process. The SSS
claims its Motion for Reconsideration was in substantial compliance
with the rules whether or not it was verified with an affidavit of merit
since the form of the motion by which the default was sought to be
lifted is secondary and the requirements of the Rules of Court need
not be strictly complied with, unlike in cases of default for failure to
answer.
ISSUE:
W/N the default order of the lower court should be lifted, so that
substantial justice would prevail over technical rules.
HELD:
No. The SSS failed to comply with 2 rules not appearing at
pre-trial and filing a motion for reconsideration to lift the order of
default that lacked verification, notice of hearing, and affidavit of
merit. If not accompanied by affidavits of merit, the trial court has
no authority to consider the same. A motion to lift an order of
default is fatally flawed and the trial court has no authority to
consider the same where it was not under oath and unaccompanied
by an affidavit of merit. In effect, the petitioner failed to set aside
the order of default and must suffer the consequences thereof.
Procedural rules are not to be disregarded or dismissed
simply because their non-observance may have resulted in prejudice
to a partys substantive rights. Like all rules they are to be followed,
except only when for the most persuasive of reasons they may be
relaxed to relieve a litigant of an injustice not commensurate with
the degree of his thoughtlessness in not complying with the
procedure prescribed. Here, the petitioner has not shown any
persuasive reason why he should be exempt from abiding by the
rules. Accordingly, the order declaring the petitioner in default and
the denial of the motion to lift the order of default are juridically
unassailable.
All is not lost for the SSS the law still requires the plaintiffs
(Obedencios) to substantiate the allegations in their complaint.
Further, the court will consider the pleadings (answer, pre-trial brief)
of the SSS in deciding if the Obedencios claim is meritorious.
Ng v. Soco
G. R. No. 149432, May 9, 2002 | Atcheco

FACTS:
Petitioners (Spouses Ng) are the owners of Jos Chicken

Barbecue (Chicken Inato) secret recipe, which is used by petitioners
chain of restaurants. They entered into a partnership agreement
with respondents (Spouses Soco) to operate the Socos Manokan
Nook Restaurant. The agreement provided that in the event of the
dissolution of the partnership, respondents shall lose the right to use
the secret recipe and ownership thereof shall revert back to
petitioners. Not long after, the partnership was dissolved. Petitioners
believed that respondents continued to operate the same business,
so they filed a complaint for accounting, injunction and damages
with writ of preliminary injunction and TRO against respondents.
During the hearing for the issuance of preliminary injunction, they
filed a motion to admit amended complaint to include Garcia,
respondents nephew, because they learned that Garcia was
operating a restaurant named Manokan sa Sugbu and they believed
he was a dummy of the respondents. The trial court denied the
motion, saying that the amendment not only requires or compels
the respondents to change their defense but also subjects them to
all the acts, knowledge, admission and omissions of Garcia. The CA
affirmed, holding that the amendment is substantial and has the
effect of changing the theory of the case, and that Garcia is not an
indispensable party. MR was denied. Petitioners filed a petition for
review on certiorari.
ISSUE:
Whether the amended complaint which seeks to include the dummy
of respondents could not be admitted because petitioners theory of
the case will change and that the dummy is not an indispensable
party.
HELD:
Under Sections 2 and 3 of Rule 10 of the Rules of Court,
formal and substantial amendments to a pleading may be made at
anytime before a responsive pleading has been filed. Such
amendment is a matter of right. Thereafter, and during trial,
amendments may only be done with the permission of the court.
Amendments are not proper and should be denied when delay
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would arise, or when amendments would result in a change of cause
of action or theory of the case, or would be inconsistent with the
allegations in the original complaint.
The trial court did not commit any grave abuse of discretion
in denying petitioners amended complaint. The admission thereof
was clearly not a matter of right on the part of petitioners as they
sought the same only after a responsive pleading (an answer) had
already been filed by respondents. The matter was thus within the
discretion of the trial court. And, as consistently held by the Court,
the granting of leave to file amended pleadings is a matter
peculiarly within the sound discretion of the trial court and such
discretion would not normally be disturbed on appeal except when
evident abuse thereof is apparent, none of which has been shown
in this case.
Remington Industrial Sales Corp. v. Court of Appeals
G. R. No. 133657, May 29, 2002 | Bautista
FACTS:
Petitioner Remington filed a complaint for sum of money and

damages arising from breach of contract against Industrial Steels,
Ltd. (ISL), with Ferro Trading GMBH and respondent British Steel as
alternative defendants.
ISL and respondent British Steel separately moved for the
dismissal on the ground that it failed to state a cause of action
against them. The trial court denied their motions to dismiss and the
MRs. ISL filed an answer. Respondent British Steel filed a petition for
certiorari (Rule 65) before the Court of Appeals stating that the
complaint did not contain a single averment that respondent
committed any act or is guilty of any omission in violation of
petitioners legal rights.
Meanwhile, petitioner sought to amend its complaint by
incorporating therein additional factual allegations constitutive of its
cause of action against respondent under rule 10, section 2.
Petitioner also manifests to the CA about the motion to amend and
prayed that the proceedings in the CA be suspended.
The trial court admitted the amended complaint. Then the CA
ruled on the petition dismissing the action against respondent for
failure to state a cause of action.
ISSUE:
Did the CA correctly order the dismissal of the complaint for failure
to state a cause of action, despite the fact that petitioner exercised
its right to amend the defective complaint under Section 2, Rule 10
of the Rules of Court? Or stated differently, can a complaint still be
amended as a matter of right before an answer has been filed, even
if there was a pending proceeding for its dismissal before the higher
court?
HELD:
No. The complaint may still be amended as a matter of right.
Section 2, Rule 10 of the Revised Rules of Court explicitly
states that a pleading may be amended as a matter of right before a
responsive pleading is served. This only means that prior to the
filing of an answer, the plaintiff has the absolute right to amend the
complaint whether a new cause of action or change in theory is
introduced.
It cannot be said that the defendants rights have been
violated by changes made in the complaint if he has yet to file an
answer thereto. In such an event, the defendant has not presented
any defense that can be altered or affected by the amendment of
the complaint in accordance with Section 2 of Rule 10.
The right to amend the complaint before an answer has been
served is not precluded by the filing of a motion to dismiss or any
other proceeding contesting its sufficiency. Otherwise, the right to
amend a pleading under Section 2, Rule 10 will be rendered
nugatory and ineffectual, since all that a defendant has to do to
foreclose this remedial right is to challenge the adequacy of the
complaint before he files an answer.
Moreover, amendment of pleadings is favored and should be
liberally allowed in the furtherance of justice in order to determine
every case as far as possible on its merits without regard to
technicalities.
The fact that the other defendants below has filed their
answers to the complaint does not bar petitioners right to amend
the complaint as against respondent British Steel. In a case where
some but not all the defendants have answered, the plaintiff may
still amend its complaint once, as a matter of right, in respect to
claims asserted solely against the non-answering defendant, but not
as to claims asserted against the other defendants.
Ateneo Law 4A 2011 | AY 2010-2011 9

Philippine Export and Foreign Loan Guarantee Corporation v.
Philippine Infrastructures, Inc.
G.R. No. 120384, January 13, 2004 | Canilao
FACTS:
Philippine Export and Foreign Loan Guarantee Corporation
(PX) filed a complaint for a sum of money against Philippine
Infrastructure Inc. (PII). It alleges that PX issued 5 separate letters of
guarantee in favor of PNB as security for various credit
accommodations extended by PNB to PII. PII and other parites
executed a Deed of Undertaking binding themselves to pay or
reimburse PX which PX may pay on account of the guarantees. PNB
demanded for the payment of P20,959,529 which PX paid after PII
and the other parties refused to pay it. During trial, PX presented
Roberto Termulo, the treasury department manager, who testified
that PX paid the said amount. PX also presented a debit memo to
prove such payment. Consequently, petitioner filed a motion to
amend the complaint to conform to the evidence. The court then
dismissed the case without prejudice on the ground of failure of the
complaint to state a cause of action. PX then appealed under rule
45.
ISSUE:
1. Whether an order dismissing a petition without prejudice should
be appealed by way of an ordinary appeal.
2. Whether PX can amend the complaint to confor to evidence.
HELD:
1. No. No appeal may be taken from an order dismissing an action
without prejudice. However, it may be subject of a special civil
action for certiorari under rule 65.
2. (related issue) Yes. Respondents contend that the amendment
would introduce a subsequently acquired cause of action as
there was none at the time the original complaint was filed. This
is untenable. The amendment was sought after PX had already
presented evidence, specifically when it presented the testimony
of the treasury manager and the debit memo. Respondents
contend that since they had already alleged the failure of the
complaint to state a cause of action as an affirmative defense in

their action, there was no need to object at the time the
evidence was presented. Respondents failure to object to the
evidence at the time it was presented is fatal to their cause
inasmuch as whatever perceived defect the complaint had was
cured by the introduction of PXs evidence.
SERVICE OF PLEADINGS
Payongayong v. Court of Appeals
G.R. No. 144576, May 28, 2004 | Castillo
FACTS:
Mendoza Mortgaged a parcel of land to the Meralco

Employees Savings and Loan Association (MESALA), which was duly
annotated in its title. Later Mendoza executed a deed of sale with
assumption mortgage over the same land in favor of petitioners,
spouses Payongayong. Without the knowledge of the petitioners,
Mendoza took a second mortgage with MESALA over the same
property. Then, Mendoza executed a Deed of Absolute Sale over the
same land in favor of private respondents, spouses Salvador. The
respondents then caused the cancellation of Mendozas title and the
issuance of a TCT in their name. When petitioners found out, they
filed a complaint for annulment of deed of absolute sale and transfer
certificate of title with recovery of possession and damages against
spouses Mendoza and respondents before the RTC of QC. The case
was archived because of failure to locate spouses Mendoza. A
motion for revival of the case against respondents and its dismissal
against Mendoza was later granted by the RTC. A decision was
rendered in favor of respondents. CA affirmed.
ISSUE:
Whether the petition should be allowed on the ground that the
petition was not accompanied by a written explanation why service
was not done personally.
HELD:
The petition which was filed by registered mail was not

accompanied by a written explanation why such service was not
done personally, in contravention of Section 11, Rule 13 of the Rules
Ateneo Law 4A 2011 | AY 2010-2011 10

of Court. That provision requires personal service of pleadings and
papers whenever practicable. If made through other modes, the
party concerned must provide a written explanation why it was not
done personally. The provision is mandatory in nature and it even
gives the court the discretion to consider a pleading or paper as not
filed if no such explanation is made.
Strictest compliance is
mandated, lest this provision be rendered meaningless and its
sound purpose negated.
United Pulp and Paper Co. v. United Pulp and Paper ChapterFFW
G.R. No. 141117, March 15, 2004 | Casuela
FACTS:
Teodorico Simbulan was promoted with a corresponding
salary increase. Respondent union, on behalf of Simbulan,
questioned the salary increase, maintaining that Simbulan was
entitled to a higher salary increase based on their CBA. The case
was submitted to the grievance machinery, but failed to settle.
Thus, the matter was elevated to the Voluntary Arbitrators, which
rendered a decision favourable to Simbulan.
IMPT PART: Petitioner filed with the CA a petition for review,
assailing the decision of the Voluntary Arbitrators. The CA dismissed
the petition outright for being insufficient in form, stating:
1. The verification and certification of non-forum shopping was
signed only by counsel for petitioner corporation rather than by
a duly-authorized officer
2. The affidavit of service is inadequate, as the registry receipts
evidencing mailing of copies of the petition were not attached
3. There was no mandatory written explanation required under sec.
11, Rule 13.
Petitioner filed a petition for review on certiorari alleging that
the CAs seriously erred in dismissing the case because of mere
technicalities.
ISSUE:
Did the CA err in dismissing the case?
HELD:
No. Under section 5 , Rule 7, the plaintiff or principal party

shall certify under oath in the complaint or other initiatory pleading
that he has not commenced any action involving the same issues in
any court, tribunal or quasi-judicial agency. In this case, only the
petitioners counsel signed the certification against forum shopping
and there was no showing that he was authorized by the petitioner
to do so.
The petitioners failure to attach with the petition a written
explanation why the service or filing was not done personally
violates section 11, Rule 13. Where no explanation is offered to
justify the service of pleadings by other modes, the discretionary
power of the court to expunge the pleading becomes mandatory.
The rules of procedure exists for a purpose, and to disregard
such rules in the guise of liberal construction would be to defeat
such purpose.
SUMMONS
Maximo v. Montalban
22 SCRA 1077 | Chavez
FACTS:
Montalban commenced suit against Fr. Maximo who was
residing at the parish church in Rizal. Plaintiffs' cause of action
sprang from a car accident which occurred at Padre Faura St.,
Manila. Paul Montalban, son of plaintiffs, suffered injuries. On the
same day that the complaint was filed, summons was served on
defendant Fr. Maximo at the church in Rizal, through Fr. Bautista a
priest in the same church.
Fr. Bautista sent a letter to the Clerk of Court of the CFI of
Manila, informing him that Fr. Maximo left for Europe, and will be
back on the 1st week of November. Actually, Fr. Maximo returned
about the 2nd week of October, 1958. The LC declared defendant
in default and rendered judgment sentencing defendant to pay
Montalban damages. Plaintiffs wrote Fr. Maximo, at the Church,
requesting prompt compliance. Defendant answered the letter
expressing regret that he could not comply with plaintiffs' request,
because he was not aware of the civil case, and that, in the criminal
action arising out of the same incident, he was acquitted. Sheriff of
Rizal notified defendant and demanded payment. The Sheriff's
Ateneo Law 4A 2011 | AY 2010-2011 11

return shows that in response to such demand, defendant alleged
that he was then "financially hard up" and that the Sheriff found no
property that could be subject to execution. The Deputy Sheriff
attached and levied on a residential house located in Caloocan City
and purportedly belonging to defendant.
2 years and 2 months after defendant admittedly learned of
the LCs decision, defendant filed a verified motion in the same case
praying for the annulment of the entire proceedings. His ground is
this: Summons was not duly served upon him "as provided under
Sec. 7, Rule 7 of the Rules of Court;" accordingly, the LC "did not
acquire jurisdiction over his person"; and "the trial and decision by
default" are "null and void." Court denied.
ISSUE:
W/N summons in a suit in personam against a resident of the
Philippines temporarily absent therefrom may be validly effected by
substituted service under Section 8, Rule 14, (formerly Section 8,
Rule 7) of the Rules of Court.
HELD:
Yes. Plaintiffs argue that if the ordinary method prescribed by
the rules that is, personal service under Section 7, Rule 14, is not
feasible, then the substituted service in Section 8 aforesaid comes
into play. Defendant advances the theory that where defendant was
temporarily abroad, the sole and exclusive method of service of
summons in a case in personam is that set forth in Section 18, Rule
14 of the Rules (formerly Section 18, Rule 7).
Substituted service such as one contemplated in Section 8
upon a temporarily absent resident, it has been held, is wholly
adequate to meet the requirements of due process. The
constitutional requirement of due process exacts that the service be
such as may be reasonably expected to give the notice desired.
Once the service provided by the rules reasonably accomplishes
that end, the requirement of justice is answered; the traditional
notions of fair play are satisfied; due process is served.
In American jurisprudence, whether a defendant be in
another state under the federal system or is abroad in Europe,
substituted service is still considered to be valid. Milliken vs. Meyer
states: "Its adequacy so far as due process is concerned is
dependent on whether or not the form of substituted service
provided for such cases and employed is reasonably calculated to

give him actual notice of the proceedings and an opportunity to be
heard.
When the framers of our Rules adapted Section 8, it is to be
implied that they intended to give the provision the same meaning.
Section 8 is to be viewed in the same context it is understood in the
American legal system. The word "defendant" in that provision is to
be construed as including any resident of this country. By
comparative construction, Section 8 is to be applied to all resident
defendants without distinction as to whether he is physically
present in this country or not.
Chief Justice Moran states: "Since the defendant is residing in
the Philippines, jurisdiction over his person may be acquired by
Philippine courts by substituted service of summons under section 8.
But extra-territorial service is allowed also by leave of court
according to the above provision." Justice Martin regards the word
"residence" in Section 8 as "the place where the person named in
the summons is living at the time when the service is made, even
though he may be temporarily out of the state at the time."
Under the rules, a plaintiff, in the initial stage of suit, is
merely required to know the defendant's "dwelling house or
residence" or his "office or regular place of business" and no
more. He is not asked to investigate where a resident defendant
actually is at the precise moment of filing suit. Once defendant's
dwelling house or residence or office or regular place of business is
known, he can expect valid service of summons to be made on
"some person of suitable age and discretion then residing" in
defendant's dwelling house or residence, or on "some competent
person in charge" of his office or regular place of business. By the
terms of the law, plaintiff is not even duty-bound to see to it that the
person upon whom service was actually made delivers the summons
to defendant or inform him about it. The law presumes that for him.
It is immaterial then that defendant does not in fact receive
actual notice. This will not affect the validity of the service.
Accordingly, the defendant may be charged by a judgment in
personam as a result of legal proceedings upon a method of service
which is not personal, "which in fact may not become actual notice
to him," and which may be accomplished in his lawful absence from
the country. For, the rules do not require that papers be served on
Ateneo Law 4A 2011 | AY 2010-2011 12

defendant personally or a showing that the papers were delivered to
defendant by the person with whom they were left.
A man temporarily absent from this country leaves a definite
place of residence, to which any inquiry about him may be directed
and where he is bound to return. Where one temporarily absents
himself, he leaves his affairs in the hands of one who may be
reasonably expected to act in his place and stead. It is usual for
such a man to leave at his home or with his business associates
information as to where he may be contacted in the event a
question that affects him crops up. If he does not do what is
expected of him, and a case comes up in court against him, he
cannot in justice raise his voice and say that he is not subject to the
processes of our courts. He cannot stop a suit from being filed
against him upon a claim that he cannot be summoned at his
dwelling house or residence or his office or regular place of
business. Not that he cannot be reached within a reasonable time to
enable him to contest a suit against him. There are now advanced
facilities of communication.
In practical terms, we perceive that in suits in personam
the more circuitous procedure delineated in Sections 17 and 18 is
resorted to by a plaintiff if defendant's dwelling house or residence
or place of business in this country is not known; or, if known,
service upon him cannot be had thereat upon the terms of Section
8. Here, since personal service is impossible, resort to substituted
service becomes a necessity. A comparison between the service in
Section 8 and that in Sections 17 and 18 is beside the point. They
both provide for substituted service.
Samarino v. Ralu
G. R. No. 131482, July 3, 2002 | Cukingnan
FACTS:
On January 25, 1996, respondents instituted against
petitioner Regalado P. Samartino a complaint for ejectment at the
Trial Court of Noveleta, Cavite.
They alleged that during the lifetime of Filomena Bernardo
(wife of the respondent), she leased her share in the property to
petitioner for a period of five years counted from 1986; that the said
lease expired and was not extended thereafter; and that petitioner
refused to vacate the property despite demands therefor.
Summons was served on Roberto Samartino, brother of

petitioner since the petitioner was confined at the National Bureau
of Investigation Treatment and Rehabilitation Center (NBI-TRC).
The trial court, despite the written certification from NBI-TRC,
granted respondents motion to declare petitioner in default and
ordered them to present evidence ex-parte, eventually ruling for the
respondents.
After learning of the adverse decision against him,
petitioners counsel filed with the Regional Trial Court of Cavite City,
Branch 16, a motion to set aside judgment and after this and denied
motions for reconsideration, appealed to the SC.
ISSUE:
W/N summons was properly done considering the petitioner was
confined for rehabilitation and whether substituted summons was
proper.
HELD:
No. In actions in personam, summons on the defendant must
be served by handing a copy thereof to the defendant in person, or,
if he refuses to receive it, by tendering it to him. If efforts to serve
the summons personally to defendant is impossible, service may be
effected by leaving copies of the summons at the defendants
dwelling house or residence with some person of suitable age and
discretion residing therein, or by leaving the copies at the
defendants office or regular place of business with some competent
person in charge thereof. Otherwise stated, service of summons
upon the defendant shall be by personal service first and only when
the defendant cannot be promptly served in person will substituted
service be availed of.
Clearly, the above return failed to show the reason why
personal service could not be made. It failed to state that prompt
and personal service on the defendant was rendered impossible. It
was not shown that efforts were made to find the defendant
personally and that said efforts failed. As stated above, these
requirements are indispensable because substituted service is in
derogation of the usual method of service. It is an extraordinary
method since it seeks to bind the defendant to the consequences of
a suit even though notice of such action is served not upon him but
Ateneo Law 4A 2011 | AY 2010-2011 13

upon another whom law could only presume would notify him of the
pending proceedings.
Furthermore, nowhere in the return of summons or in the
records of this case is it shown that petitioners brother, on whom
substituted service of summons was effected, was a person of
suitable age and discretion residing at petitioners residence.
There being no valid substituted service of summons, the
trial court did not acquire jurisdiction over the person of petitioner.
Romualdez-Liocaros v. Licaros
G. R. No. 150656, April 29, 2003 | Dela Cuesta
FACTS:
This case arose when spouses Abelardo and Margarita

Licaros executed an Agreement of Separation of Properties and filed
a petition for the dissolution of the conjugal partnership of gains.
The trial court granted the petition and approved the separation of
property agreement. Thereafter, Abelardo commenced a civil case
for the declaration of nullity of his marriage with Margarita based on
psychological incapacity. As Margarita was then residing at 96
Mulberry Lane, Atherton, California, U.S.A., Abelardo initially moved
that summons be served through the International Express Courier
Service. The court a quo denied the motion. Instead, it ordered that
summons be served by publication in a newspaper of general
circulation once a week for three (3) consecutive weeks, at the same
time furnishing respondent a copy of the order, as well as the
corresponding summons and a copy of the petition at the given
address in the United States through the Department of Foreign
Affairs, all at the expense of Abelardo. Consequently, the trial court
declared the marriage between Abelardo and Margarita null and
void. In this petition, Margarita attacked the validity of the service
of summons on her and the judgment dissolving the conjugal
partnership of gains.
ISSUE:
Was Summons validly served on Margarita Romualdez Licaros?
HELD:
Actions in personam and actions in rem or quasi in rem differ
in that actions in personam are directed against specific persons
and seek personal judgments. On the other hand, actions in

rem or quasi in rem are directed against the thing or property or
status of a person and seek judgments with respect thereto as
against the whole world.
At the time Abelardo filed the petition for nullity of the
marriage in 1991, Margarita was residing in the United States. She
left the Philippines in 1982 together with her two children. The trial
court considered Margarita a non-resident defendant who is not
found in the Philippines. Since the petition affects the personal
status of the plaintiff, the trial court authorized extraterritorial
service of summons under Section 15, Rule 14 of the Rules of Court.
The term "personal status" includes family relations, particularly the
relations between husband and wife.
Under Section 15 of Rule 14 of the Rules of Court, a
defendant who is a non-resident and is not found in the country may
be served with summons by extraterritorial service in four instances:
(1) when the action affects the personal status of the plaintiff; (2)
when the action relates to, or the subject of which is property within
the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent; (3) when the relief demanded
consists, wholly or in part, in excluding the defendant from any
interest in property located in the Philippines; or (4) when the
property of the defendant has been attached within the Philippines.
In these instances, extraterritorial service of summons may
be effected under any of three modes: (1) by personal service out of
the country, with leave of court; (2) by publication and sending a
copy of the summons and order of the court by registered mail to
the defendant's last known address, also with leave of court; or (3)
by any other means the judge may consider sufficient. Applying the
foregoing rule, the trial court required extraterritorial service of
summons to be effected on Margarita. The trial court's prescribed
mode of extraterritorial service does not fall under the first or
second mode specified in Section 15 of Rule 14, but under the third
mode. This refers to 'any other means that the judge may consider
sufficient."
The Court further ruled that it is bound by the factual findings
of the trial and appellate courts that the parties freely and
voluntarily executed the petition for dissolution of the conjugal
partnership of gains and the agreement of separation of properties
and that there was no showing of coercion or fraud. The Court will
Ateneo Law 4A 2011 | AY 2010-2011 14

not examine the evidence introduced by the parties below to
determine if the trial and appellate courts correctly assessed and
evaluated the evidence on record. The decision of the Court of
Appeals was affirmed.
Ancheta v. Ancheta
G.R. No. 145370, March 4, 2004 | Dina
FACTS:
Rodolfo-Respondent and Marietta-Petitioner got married and

had 8 children. After 33 years, respondent left and abandoned the
petitioner and their children; hence, petitioner filed with the RTC of
Makati, against the respondent for the dissolution of their conjugal
partnership and judicial separation of property. At that time, the
petitioner was renting a house in BF Homes, Almanza, Las Pias,
Metro Manila. While the case was pending, the parties executed a
compromise agreement adjudicating to the petitioner a parcel of
land located at Bancal, Carmona, Cavite. The petitioner, with the
knowledge of the respondent, henceforth resided in the said
property. A year after, the respondent wanted to remarry, thus, he
filed a case to declare the nullity of his marriage with the petitioner
on the ground of PI. Although the respondent knew that the
petitioner was already residing at the resort in Bancal, Carmona,
Cavite, he, nevertheless, alleged in his petition that the petitioner
was residing at BF Homes, Almanza, Las Pias, Metro Manila, "where
she may be served with summons. The clerk of court issued
summons to the petitioner at the address stated in the petition. The
sheriff served the summons and a copy of the petition by
substituted service on the petitioners son, Venancio, at his
residence in Bancal, Carmona, Cavite. The petitioner failed to file an
answer and was declared in default which resulted in the
presentation of the respondents evidence ex parte. The RTC
declared the marriage void ab initio. Then, the petitioner filed a
verified petition against the respondent with the CA under Rule 47
for the annulment of the order of the RTC alleging lack of jurisdiction
over her person and perpetration of extrinsic fraud. CA dismissed
the petition.
ISSUE:
W/N there is a valid service of summons Invalid
W/N the CA erred in dismissing the petition of the petitioner Yes

HELD:
An original action in the CA under Rule 47 to annul a

judgment or final order or resolution in civil actions of the RTC may
be based on two grounds: (a) extrinsic fraud; or (b) lack of
jurisdiction. The SC ruled that the CA erred in dismissing the petition
because it failed to take note from the material allegations of the
petition, that the petition was based not only on extrinsic fraud but
also on lack of jurisdiction over the person of the petitioner, on her
claim that the summons and the copy of the complaint were not
served on her.
In Paramount Insurance Corporation v. Japzon, it was said
that jurisdiction is acquired by a trial court over the person of the
defendant either by his voluntary appearance in court and his
submission to its authority or by service of summons. The service of
summons and the complaint on the defendant is to inform him that
a case has been filed against him and, thus, enable him to defend
himself. He is, thus, put on guard as to the demands of the plaintiff
or the petitioner. Without such service in the absence of a valid
waiver renders the judgment of the court null and void. Jurisdiction
cannot be acquired by the court on the person of the defendant
even if he knows of the case against him unless he is validly served
with summons.
Summons and complaint may be served on the defendant
either by handing a copy thereof to him in person, or, if he refuses
to receive and sign for it, by tendering it to her. However, if there is
impossibility of prompt service of the summons personally on the
defendant despite diligent efforts to find him, service of the
summons may be effected by substituted service as provided in
Section 7, Rule 14.
In Miranda v. CA, it was held that the modes of service should
be strictly followed in order that the court may acquire jurisdiction
over the person of the defendant. Thus, it is only when a defendant
cannot be served personally within a reasonable time that
substituted service may be made by stating the efforts made to find
him and personally serve on him the summons and complaint and
the fact that such effort failed. This statement should be made in
the proof of service to be accomplished and filed in court by the
sheriff. This is necessary because substituted service is a derogation
Ateneo Law 4A 2011 | AY 2010-2011 15

of the usual method of service. It has been held that substituted
service of summons is a method extraordinary in character; hence,
may be used only as prescribed and in the circumstances
categorized by statutes.
Gomez v. Court of Appeals
G.R. No. 127692, March 10, 2004 | Dizon
FACTS:
The Gomez spouses filed an action for specific performance

and/or rescission against the heirs of Jesus Trocino and his surviving
spouse, Caridad Trocino. The spouses Trocino refused to convey
ownership of two parcels of land to petitioners, hence, the
complaint.
On January 10, 1992, the Cebu RTCs Process Server served
summons on respondents, in the manner described in his "Return of
Service," stating that summons and copies of the complaint were
served to the defendants Jacob, Jesus Jr., Adolfo, Mariano,
Consolacion, Alice, Racheal thru defendant Caridad Trocino at their
given address at Cebu City. On January 27, 1992, the defendants,
through their counsel Atty. Expedito P. Bugarin, filed their Answer.
Defendant Caridad A. Trocino, respondents mother, verified said
pleading. The RTC rendered judgment in favor of the Gomez
spouses. Respondents Adolfo and Mariano Trocino filed with the
Court of Appeals, a petition for the annulment of the judgment
rendered by the RTC-Cebu alleging that the trial courts decision is
null and void on the ground that it did not acquire jurisdiction over
their persons as they were not validly served with a copy of the
summons and the complaint. According to them, at the time
summons was served on them, Adolfo Trocino was already in Ohio,
U.S.A., while Mariano Trocino was in Talibon, Bohol, and has been
residing there since 1986. They also refuted the receipt of the
summons by Caridad A. Trocino, and the representation made by
Atty. Bugarin in their behalf. The CA granted the petition and
annulled the RTCs decision.
ISSUE:
W/N summonses were effectively served on all respondents.
HELD:
NO. Summons is a writ by which the defendant is notified of

the action brought against him. Service of such writ is the means by
which the court acquires jurisdiction over his person. Any judgment
without such service in the absence of a valid waiver is null and
void.
To resolve whether there was valid service of summons on
respondents, the nature of the action filed against them must first
be determined. As the Court explained in Asiavest Limited vs. Court
of Appeals, it will be helpful to determine first whether the action is
in personam, in rem, or quasi in rem because the rules on service of
summons under Rule 14 apply according to the nature of the action.
In actions in personam, summons on the defendant must be
served by handing a copy thereof to the defendant in person, or, if
he refuses to receive it, by tendering it to him. This is specifically
provided in Section 7, Rule 14 of the Rules of Court. When the
defendant in an action in personam is a non-resident who does not
voluntarily submit himself to the authority of the court, personal
service of summons within the State is essential to the acquisition of
jurisdiction over his person. This cannot be done if the defendant is
not physically present in the country, and thus, the court cannot
acquire jurisdiction over his person and therefore cannot validly try
and decide the case against him. An exception was accorded in
Gemperle vs. Schenker wherein service of summons through the
non-residents wife, who was a resident of the Philippines, was held
valid, as the latter was his representative and attorney-in-fact in a
prior civil case filed by the non-resident, and the second case was
merely an offshoot of the first case.
Meanwhile, in actions in rem or quasi in rem, jurisdiction over
the person of the defendant is not a prerequisite to confer
jurisdiction on the court provided that the court acquires jurisdiction
over the res, although summons must be served upon the defendant
in order to satisfy the due process requirements. Thus, where the
defendant is a non-resident who is not found in the Philippines, and
(1) the action affects the personal status of the plaintiff; (2) the
action relates to, or the subject matter of which is property in the
Philippines in which the defendant has or claims a lien or interest;
(3) the action seeks the exclusion of the defendant from any interest
in the property located in the Philippines; or (4) the property of the
defendant has been attached in the Philippines, summons may be
served extraterritorially by (a) personal service out of the country,
Ateneo Law 4A 2011 | AY 2010-2011 16

with leave of court; (b) publication, also with leave of court; or (c)
any other manner the court may deem sufficient.
In the present case, petitioners cause of action is anchored
on the claim that the spouses Jesus and Caridad Trocino reneged on
their obligation to convey ownership of the two parcels of land
subject of their sale. Thus, petitioners pray in their complaint that
the spouses Trocino be ordered to execute the appropriate deed of
sale and that the titles be delivered to them; or in the alternative,
that the sale be revoked and rescinded. The action instituted by
petitioners affect the parties alone, not the whole world. Hence, it is
an action in personam, i.e., any judgment therein is binding only
upon the parties properly impleaded.
Contrary to petitioners belief, the complaint they filed for
specific performance and/or rescission is not an action in rem. While
it is a real action because it affects title to or possession of the two
parcels of land, it does not automatically follow that the action is
already one in rem. In Hernandez vs. Rural Bank of Lucena, Inc., the
Court made the following distinction: In a personal action, the
plaintiff seeks the recovery of personal property, the enforcement of
a contract or the recovery of damages. In a real action, the plaintiff
seeks the recovery of real property, or, as indicated in section 2(a)
of Rule 4, a real action is an action affecting title to real property or
for the recovery of possession, or for partition or condemnation of,
or foreclosure of a mortgage on, real property. An action in
personam is an action against a person on the basis of his personal
liability, while an action in rem is an action against the thing itself,
instead of against the person. Hence, a real action may at the same
time be an action in personam and not necessarily an action in rem.
The objective sought in petitioners complaint was to
establish a claim against respondents for their alleged refusal to
convey to them the title to the two parcels of land that they
inherited from their father, Jesus Trocino, who was one of the sellers
of the properties to petitioners. Hence, to repeat, the case is an
action in personam because it is an action against persons, namely,
herein respondents, on the basis of their personal liability. As such,
personal service of summons upon the defendants is essential in
order for the court to acquire of jurisdiction over their persons.
A distinction, however, must be made with regard to service
of summons on respondents Adolfo Trocino and Mariano Trocino.
Adolfo Trocino, as records show, is already a resident of Ohio, U.S.A.
for 25 years. Being a non-resident, the court cannot acquire

jurisdiction over his person and validly try and decide the case
against him. On the other hand, Mariano Trocino has been in Talibon,
Bohol since 1986. To validly acquire jurisdiction over his person,
summons must be served on him personally, or through substituted
service, upon showing of impossibility of personal service. Such
impossibility, and why efforts exerted towards personal service
failed, should be explained in the proof of service. The pertinent
facts and circumstances attendant to the service of summons must
be stated in the proof of service or Officers Return. Failure to do so
would invalidate all subsequent proceedings on jurisdictional
grounds.
In the present case, the process server served the summons
and copies of the complaint on respondents Jacob, Jesus, Jr., Adolfo,
Mariano, Consolacion, Alice and Racheal, through their mother,
Caridad Trocino. The return did not contain any particulars as to the
impossibility of personal service on Mariano Trocino within a
reasonable time. Such improper service renders the same
ineffective. Moreover, inasmuch as the sheriffs return failed to state
the facts and circumstances showing the impossibility of personal
service of summons upon respondents within a reasonable time,
petitioners should have sought the issuance of an alias summons.
Under Section 5, Rule 14 of the Rules of Court, alias summons may
be issued when the original summons is returned without being
served on any or all of the defendants. Petitioners, however, did not
do so, and they should now bear the consequences of their lack of
diligence.
The fact that Atty. Expedito Bugarin represented all the
respondents without any exception does not transform the
ineffective service of summons into a valid one. It does not
constitute a valid waiver or even a voluntary submission to the trial
courts jurisdiction. There was not even the slightest proof showing
that respondents authorized Atty. Bugarins appearance for and in
their behalf. The records show that in all the pleadings which
required verification, only Caridad Trocino signed the same. There
was never a single instance where defendant heirs signed the
pleading. The fact that a pleading is signed by one defendant does
not necessarily mean that it is binding on a co-defendant.
Since the defendant heirs are co-defendants, the trial court
should have verified the extent of Atty. Bugarins authority when
Ateneo Law 4A 2011 | AY 2010-2011 17

petitioners failed to appear as early as the pre-trial stage, where the
parties are required to appear. The absence of the defendant heirs
should have prompted the trial court to inquire from the lawyer
whether he was also representing the other petitioners. As codefendant and co-heirs over the disputed properties, the defendant
heirs had every right to be present during the trial. Only Caridad
Trocino appeared and testified on her own behalf. All the defenses
raised were her own, not the defendant heirs.
Consequently, the judgment sought to be executed against
respondents were rendered without jurisdiction as there was neither
a proper service of summons nor was there any waiver or voluntary
submission to the trial courts jurisdiction. Hence, the same is void,
with regard to private respondents except Caridad Trocino. It must
be pointed out that while it was the spouses Jesus and Caridad
Trocino who sold the properties to petitioners, their right to proceed
against Jesus Trocino when he died was passed on to his heirs, which
includes respondents and Caridad Trocino. When the process server
personally served the summons on Caridad Trocino, the trial court
validly acquired jurisdiction over her person alone. Hence, the trial
courts decision is valid and binding with regard to her, but only in
proportion to Caridad Trocinos share.
MOTIONS
National Commercial Bank of Saudi Arabia v. Court of
Appeals
G. R. No. 124267, January 31, 2003 | Enriquez
FACTS:
National Commercial Bank of Saudi Arabia (NCBSA) filed a

case against Philippine Banking Corporation (PBC) in the Regional
Trial Court (RTC) of Makati to recover "the duplication in the payment
of the proceeds of a letter of credit [NCBSA] has issued . . . brought
about by the fact that both the head office and the Makati branch of
[PBC, the negotiating bank,] collected the proceeds of the letter of
credit."
The RTC of Makati rendered a decision in favor of NCBSA. PBC
received a copy of the decision. It filed a Motion for Reconsideration.
The motion, however, did not contain a notice of hearing. NCBSA
filed a Manifestation pointing out that PBC's Motion for
Reconsideration did not contain any notice of hearing. NCBSA filed a

Motion for Writ of Execution of the decision of the trial court. On
even date, PBC filed a Motion to Set "Motion for Reconsideration" for
Hearing alleging as follows:
2. The Motion for Reconsideration raised both questions of
facts and law arising from the erroneous findings made by
the Honorable Court in the said Decision;
3. In order that defendant can fully amplify and expound on
the issues raised on the said motions, there is a need to set
the Motion for Hearing.
The trial court struck from the records of the case PBC's
Motion for Reconsideration of its decision and granted NCBSA's
Motion for Writ of Execution.
PBC assailed before the Court of Appeals via Petition for
Certiorari the trial court's Order.
The Court of Appeals dismissed PBC's Petition for Certiorari.
But later set aside its decision the Court of Appeals held in its
Amended Decision:
. . . [T]o deny petitioner's motion for reconsideration on the
ground of failure to contain a notice of hearing is too harsh
an application of procedural rules especially so when
petitioner has filed a motion to set the motion for
reconsideration for hearing and had furnished private
respondent a copy of the motion, a fact which is not denied
by the latter.19
NCBSA thus comes to this Court assailing the Court of
Appeals Amended Decision.
Issue:
W/N the rule that a motion filed without the requisite notice of
hearing is a useless piece of paper with no legal effect be relaxed.
HELD:
No. The requirement of notice under Sections 4 and 5, Rule

15 in connection with Section 2, Rule 37 of the Revised Rules of
Court is mandatory. The absence of a notice of hearing is fatal and,
in cases of motions to reconsider a decision, the running of the
period to appeal is not tolled by their filing or pendency. In the case
at bar, it is not disputed that PBC's Motion for Reconsideration of the
Ateneo Law 4A 2011 | AY 2010-2011 18

decision of the trial court did not contain the requisite notice of
hearing.
In an attempt to cure the defect, PBC filed on Motion to Set
the "Motion for Reconsideration" for Hearing 9 days after the period
for filing the Notice of Appeal had expired.
The motion for reconsideration, however, being fatally
defective for lack of notice of hearing, cannot be cured by a belated
filing of a notice of hearing. More so in the case at bar where the
Motion to Set the "Motion for Reconsideration" was filed after the
expiration of the period for filing an appeal.
Ong Yong v. Tiu
G. R. No. 1444476, April 8, 2003 | Escosia
FACTS:
In 1994, the construction of the Masagana Citimall in Pasay

City was threatened with stoppage and incompletion when its
owner, the First Landlink Asia Development Corporation (FLADC),
which was owned by the Tius, encountered dire financial difficulties.
It was heavily indebted to (PNB) for P190 million. To stave off
foreclosure of the mortgage on the two lots where the mall was
being built, the Tius invited the Ongs, to invest in FLADC. Under the
Pre-Subscription Agreement they entered into, the Ongs and the
Tius agreed to maintain equal shareholdings in FLADC: the Ongs
were to subscribe to 1M shares at a par value of P100.00 each while
the Tius were to subscribe to an additional 549,800 shares at
P100.00 each in addition to their already existing subscription of
450,200 shares. Furthermore, they agreed that the Tius were
entitled to nominate the Vice-President and the Treasurer plus 5
directors while the Ongs were entitled to nominate the President,
the Secretary and 6 directors (including the chairman) to the board
of directors of FLADC. Moreover, the Ongs were given the right to
manage and operate the mall. Accordingly, the Ongs paid P100M in
cash for their subscription to 1M shares of stock. The Ongs paid in
another P70M to FLADC and P20M to the Tius over and above their
P100M investment, the total sum of which (P190M) was used to
settle the P190 million mortgage indebtedness of FLADC to PNB. The
business harmony between the Ongs and the Tius in FLADC,
however, was shortlived because the Tius, on 23 February 1996,
rescinded the Pre-Subscription Agreement.
The Tius accused the Ongs of (1) refusing to credit to them

the FLADC shares covering their real property contributions; (2)
preventing David S. Tiu and Cely Y. Tiu from assuming the positions
of and performing their duties as Vice-President and Treasurer,
respectively, and (3) refusing to give them the office spaces agreed
upon. After hearing, the SEC, through then Hearing Officer Rolando
G. Andaya, Jr., issued a decision confirming the rescission sought by
the Tius. The SEC en banc confirmed the rescission of the PreSubscription Agreement but reverted to classifying the P70 million
paid by the Ongs as premium on capital and not as a loan or
advance to FLADC, hence, not entitled to earn interest.
Their MR to the CA having been denied, both parties filed
separate petitions for review before the Supreme Court. The SC
affirmed the assailed decision of the CA but with the modifications
that the P20 million loan extended by the Ongs to the Tius shall earn
interest at 12% per annum to be computed from the time of judicial
demand which is from 23 April 1996; that the P70 million advanced
by the Ongs to the FLADC shall earn interest at 10% per annum to
be computed from the date of the FLADC Board Resolution which is
19 June 1996; and that the Tius shall be credited with 49,800 shares
in FLADC for their property contribution, specifically, the 151 sq. m.
parcel of land. The Court affirmed the fact that both the Ongs and
the Tius violated their respective obligations under the PreSubscription Agreement.
The Tius filed to the SC Motion for Issuance of a Writ of
Execution on the grounds that: (a) the SEC order had become
executory as early as September 11, 1998 pursuant to Sections 1
and 12, Rule 43 of the Rules of Court; (b) any further delay would be
injurious to the rights of the Tius since the case had been pending
for more than six years; and (c) the SEC no longer had quasi-judicial
jurisdiction under RA 8799 (Securities Regulation Code).
The Ongs filed their opposition, contending that the SEC
order was not yet final and executory; that no good reason existed
to issue a warrant of execution; and that, pursuant to Section 5.2 of
RA 8799, the SEC retained jurisdiction over pending cases involving
intra-corporate disputes already submitted for final resolution upon
the effectivity of the said law. Also, the Ongs filed their own Motion
for Partial Reconsideration, raising two main points: (a) that specific
performance and not rescission was the proper remedy under the
premises; and (b) that, assuming rescission to be proper, the subject
Ateneo Law 4A 2011 | AY 2010-2011 19

decision of this Court should be modified to entitle movants to their
proportionate share in the mall.
The Tius, in their opposition to the Ongs MR, counter that
the arguments therein are a mere re-hash of the contentions in the
Ongs petition for review and previous MR of the CAs decision, and
is therefore pro-forma and did not prevent the Decision of the SC
from attaining finality.
ISSUE:
W/N the Ongs MR should be granted.
HELD:
Yes. After a thorough re-examination of the case, the Court
found that its Decision of February 1, 2002 overlooked certain
aspects which, if not corrected, will cause extreme and irreparable
damage and prejudice to the Ongs, FLADC and its creditors.
The procedural rule on pro-forma motions pointed out by the
Tius should not be blindly applied to meritorious motions for
reconsideration. As long as the same adequately raises a valid
ground (i.e., the decision or final order is contrary to law), the SC
has to evaluate the merits of the arguments to prevent an unjust
decision from attaining finality. In Security Bank and Trust Company
vs. Cuenca, the SC ruled that a motion for reconsideration is not proforma for the reason alone that it reiterates the arguments earlier
passed upon and rejected by the appellate court. A movant may
raise the same arguments, if only to convince the SC that its ruling
was erroneous. Moreover, the rule (that a motion is pro-forma if it
only repeats the arguments in the previous pleadings) will not apply
if said arguments were not squarely passed upon and answered in
the decision sought to be reconsidered. In the case at bar, no ruling
was made on some of the petitioner Ongs arguments. For instance,
no clear ruling was made on why an order distributing corporate
assets and property to the stockholders would not violate the
statutory preconditions for corporate dissolution or decrease of
authorized capital stock. Thus, it would serve the ends of justice to
entertain the subject motion for reconsideration since some
important issues therein, although mere repetitions, were not
considered or clearly resolved by the SC.
In the of the Petition for Habeas Corpus of Benjamin Vergara

v. Gedorio
G. R. No. 154037, April 30, 2003 | Estorninos
FACTS:
The petitioners are several lessees of a piece of property

being leased by a certain Mr. Taripe. In a separate matter, the
administrator of the estate of a deceased person included this same
piece of property in the inventory of the estate. After due hearing
by the probate court, the RTC judge issued an order to the lessees to
pay monthly rentals to the Special Administrator of the estate,
rather than Mr. Taripe.
Confused, they refused to pay the
Administrator and were arrested for Indirect Contempt.
The argument of the lessees is that they were not notified of
the motion submitted by the administrator submitting an inventory
of the estate. Thus, they claim that they could not be bound by the
judgment on the inventory due to lack of notice amounting to lack of
due process. On the contrary, the Special Administrator presented
an affidavit by counsel certifying that there was service by
registered mail. He also presented registry receipts.
ISSUE:
Was there proper notification of the motion to the lessees?
HELD:
No, notification was improper.

The one alleging service of notice must prove the fact of
service. While the affidavit and registry receipts proved that the
lessees were served copies of the motion, it does not follow that
they in fact received the motion. The Administrator failed to present
the registry return cards showing that the lessees actually received
the motion. Also, registry receipts and return receipts do not prove
themselves; they must be properly authenticated. Finally, he did
not present the certification of the postmaster that the notice was
duly issued and delivered to the lessees.
(Note: the court, however, found that while there was no proof of
service of the notice, there was proof of actual knowledge of the
courts orders to redirect payments of rentals, since they admitted
that they received such notices, in their letters submitted to court.)
Ateneo Law 4A 2011 | AY 2010-2011 20

Gan v. Reyes
G. R. No. 145527, May 28, 2002 | Fortea
FACTS:
Quite apprehensive that she would not be able to send to
school her three 3-year old daughter Francheska Joy S. Pondevida,
Bernadette S. Pondevida wrote petitioner Augustus Caezar R.
Gan demanding support for their "love child." Petitioner, in his reply,
denied paternity of the child. An exasperated Bernadette thereafter
instituted in behalf of her daughter a complaint against petitioner
for support with prayer for support pendente lite.
Petitioner moved to dismiss on the ground that the complaint
failed to state a cause of action. He argued that since Francheska's
certificate of birth indicated her father as "UNKNOWN," there was no
legal or factual basis for the claim of support. His motion was
denied. Despite denial of his motion, petitioner failed to file his
answer within the reglementary period. On 19 January 2000 private
respondent moved that petitioner be declared in default, which
motion was granted. In its Order declaring petitioner in default the
trial court noted that petitioner's Motion to Admit Answer was filed
more than ninety (90) days after the expiration of the reglementary
period.
After finding that the claim of filiation and support was
adequately proved, the trial court rendered its Decision on 12 May
2000 ordering petitioner to recognize private respondent Francheska
Joy S. Pondevida as his illegitimate child and support her
with P20,000.00 every month to be paid on or before the 15th of
each month starting 15 April 2000. Likewise petitioner was also
ordered to pay the accumulated arrears from the day she was born,
attorney's fees and expenses of litigation, plus P20,000.00 on or
before the 15th of every month from 15 May 2000 as
alimony pendente lite should he desire to pursue further remedies
against private respondent.
Private respondent moved for execution of the judgment of
support, which the trial court granted by issuing a writ of execution,
citing as reason Francheska's immediate need for schooling.
Pursuant to the writ, the sheriff levied upon a motor vehicle, a
Honda City, registered in the name of "A.B. Leasing & Fin. Corp.,
Leased to: G & G Trading," and found within the premises of
petitioner's warehouse in Caloocan City.
Petitioner appealed to the CA but his petition was denied with

the ratiocination that judgements for support are immediately
executory and cannot be stayed by an appeal.
ISSUE:
Was there GADLEJ on the part of the trial court in its issuance of the
writ of execution?
HELD:
No. Section 4, Rule 39, of the Rules of Court clearly states

that, unless ordered by the trial court, judgments in actions for
support are immediately executory and cannot be stayed by an
appeal. This is an exception to the general rule which provides that
the taking of an appeal stays the execution of the judgment and that
advance executions will only be allowed if there are urgent reasons
therefor. The aforesaid provision peremptorily calls for immediate
execution of all judgments for support and makes no distinction
between those which are the subject of an appeal and those which
are not. To consider then petitioner's argument that there should be
good reasons for the advance execution of a judgment would violate
the clear and explicit language of the rule mandating immediate
execution.
The court also found the petitioners attempts to delay the
execution. As the records show, in partial fulfilment of the writ of
execution, petitioner surrendered a sedan which was not his and
was later ordered to be released to a third party who laid claim over
the vehicle.
Moreover, the Court finds no useful purpose to dwell on
petitioners arguments concerning the validity of the judgment by
default and the paternity issue. It s not for the SC at this instance to
review or revise the decision of the RTC. In all cases involving a
child, his paramount interest and welfare are always the paramount
concerns.
Mutilan v. Andiong
Adm. Matter No. RTJ-00-1581, July 2, 2002 | Garcia-Morera
Gochan v. Gochan
G. R. No. 143089, February 27, 2003 | Grapilon
Ateneo Law 4A 2011 | AY 2010-2011 21

FACTS:
Allegations and perceptions of bias from the mere tenor and

language of a judge is insufficient to show prejudgment. Allowing
inhibition for these reasons would open the floodgates to abuse.
Unless there is concrete proof that a judge has a personal interest in
the proceedings, and that his bias stems from an extra-judicial
source, this Court shall always commence from the presumption
that a magistrate shall decide on the merits of a case with an
unclouded vision of its facts
This is a Petition for Review on Certiorari under Rule 45 of the
Resolution of the Court of Appeals (CA) granting that Judge Dicdican
should inhibit himself from the civil case (Complaint for Specific
Performance and Damages) based on bias and partiality.
Basically, Judge Dicdican denied the several motions
of the respondents and since they believe that the Judge
was biased and partial, the Judge ruled against them.
On Appeal, The CA opined that the apprehensions of
respondents about the bias or partiality of Judge Dicdican in favor of
petitioners were well-founded.
The CA based its ruling on the following circumstances
pointed out by respondents:
1. Judge Dicdican denied the Motion to Hear Affirmative Defenses
filed by respondents, but in the same Order ruled on its merits
without giving them an opportunity to be heard.
2. The above Order of the judge was too well-prepared to be
extemporaneous, leading respondents to suspect that he was
bent on deciding the case in favor of petitioners.
3. Without indicating for the record respondents objections, Judge
Dicdican admitted all exhibits of petitioners and even allowed
their witnesses to answer all questions, even if he had not yet
resolved the applicability of the Statute of Frauds.
4. The judge denied respondents requests for postponements,
which were reasonable and justified under the circumstances.
Further, during the April 28, 1999 hearing, he allowed petitioners
to present their witnesses even in the absence of respondents
counsel. And, knowing that the counsel was absent when those
witnesses testified in the previous hearing, the judge forced him
to cross-examine them in the subsequent April 30, 1999 hearing.
5. During the hearing for respondents Motion for Inhibition, the
judge started to hear the case before the scheduled time.
6. Judge Dicdican issued a Pretrial Order stating that the possibility

of a compromise was "nil" despite the pretrial manifestation of
respondents counsel that the parties were willing to explore the
possibility of a compromise.
ISSUE:
1. Whether respondents are guilty of forum shopping.
2. Whether Judge Dicdican should have inhibited himself.
Ateneo Law 4A 2011 | AY 2010-2011 22

HELD:
1. NO.
2. The Petition is meritorious insofar as the second issue is
concerned. Judge Dicdican need not inhibit himself. A judge
may, in the exercise of his sound discretion, disqualify himself from
sitting in a case, for just or valid reasons other than those
mentioned above.
The Rules contemplate two kinds of inhibition: compulsory
and voluntary. The instances mentioned in the first paragraph of the
cited Rule conclusively presume that judges cannot actively and
impartially sit in a case. The second paragraph, which embodies
voluntary inhibition, leaves to the discretion of the judges concerned
whether to sit in a case for other just and valid reasons, with only
their conscience as guide.
The Supreme Court has said that bias and prejudice, to be
considered valid reasons for the voluntary inhibition of judges, must
be proved with clear and convincing evidence
Denial of Respondents Motion to Hear Affirmative Defenses
The fact that respondents Motion for Hearing was denied
does not by itself show bias and partiality. Clearly, Judge Dicdican
based his denial on the Rules of Court, according to which a
preliminary hearing on affirmative defenses is indeed discretionary
on the part of a judge. Thus, Judge Dicdican cannot be charged with
bias and partiality, merely on the basis of his decision not to grant a
motion for a preliminary hearing.
Judge Dicdicans Order denying respondents Motion for
Hearing was based on the pleadings filed by both parties.
Respondents filed their Motion to Hear Affirmative Defenses, while
petitioners filed their Comment to the Motion. Thus, it cannot be
said that respondent judge arbitrarily ruled thereon. He thereafter
allowed the respondents and petitioners to file their Motion for
Reconsideration and Opposition, respectively, before deciding on the
matter again.
Character of the Order Denying Respondents Motion
Respondents further argue that before hearing their Motion
to Hear Affirmative Defenses, Judge Dicdican had already prepared
an Order denying their plea. This is an allegation that they have not
been able to prove. We cannot rely merely on their submissions that

he was in fact bent on ruling against them.
The argument that the Order of Judge Dicdican was too
scholarly to be extemporaneous is merely the conjecture of
respondents. This characterization does not show in any way that he
was biased or partial. Besides, as earlier adverted to, both the
Motion and the Comment thereto had been filed days before the
hearing thereon. It is not unusual -- in fact, it is expected -- that the
judge would study the Motion and the Comment filed before him. If
he prepared well for the arguments, he should be commended, not
faulted.
Admission of Petitioners Exhibits Without indicating Respondents
Objections
We cannot see how such an Order would translate to bias
and partiality. Respondents argue the judge should have indicated
their objections for the record. But it is clear that he indeed allowed
them to file their Comment/Objections to petitioners Formal Offer. It
is enough that he allowed both parties to be heard, and that he
decided based on their submissions.
Respondents have not shown that they were in any way
denied their right to object to questions propounded in the course of
the hearing. They simple did not raise any objections.
Denial of Requests for Postponement and the Forced CrossExamination of Witnesses
A motion for continuance or postponement is not a matter of
right, but a request addressed to the sound discretion of the court.
Parties asking for postponement have absolutely no right to assume
that their motions would be granted. Thus, they must be prepared
on the day of the hearing
Moreover, respondents cannot claim that all their requests
were turned down by Judge Dicdican. This Court takes notice of the
fact that respondents asked for an extension of time to file their
answer and later asked for two postponements of the pretrial. In
fact, when the pretrial was finally set for August 11, 1998, they then
filed their Motion to Hear Affirmative Defenses. And when the judge
denied it, they again asked for a postponement of the pretrial, a
request that was readily granted by the trial court.
Ateneo Law 4A 2011 | AY 2010-2011 23

What further militates against respondents counsel is his
excuse that he was informed by a court personnel that his Motion to
Reset had been granted. Supposedly because of this information, the
counsel was under the impression that there would be no hearing on
the last scheduled date. His assumption that his motion to reset
would be granted was bad enough. What was worse was that, in
following up the proceedings of the case, he relied on the
unauthorized communication of an unidentified court personnel. He
could have easily verified if there was a hearing, and what
transpired if it indeed there was one. This is the duty imposed upon
lawyers.
Declaration of the Absence of the Possibility of a Compromise
From the time the original Complaint was filed up to the date
of the pretrial, the parties had more than seven months to enter into
a compromise agreement. This was more than sufficient time. It
escapes this Court why, exactly on the day of the pretrial,
respondents suddenly informed the court that it was exploring the
possibility of a settlement. Besides, their absence during the pretrial
negated the sincerity of their desire to enter into a settlement.
East Asia Traders, Inc. v. Republic
G.R. No.152947, July 7, 2004 | Gregorio
Petilla v. Court of Appeals
G.R. No. 150792, March 3, 2004 | Gregorio
Alvarez v. Diaz
A.M. No. MTJ-00-1283, March 3, 2004 | Jalipa
FACTS:
Administrative case against Judge Diaz (MeTC Judge, Quezon

City). Garcia spouses filed a case for forcible entry against the
Alvarez. Diaz decided the case for the Garcia spouses and ordered
Alvarez to vacate the premises and remove improvements. Alvarez
received the decision and filed a notice of appeal and paid appellate
docket fees. Diaz denied the appeal for non-payment of docket fees
and granted the writ of execution after motion for demolition of
buildings. The buildings were demolished, nevertheless, AFTER the
demolition of the buildings, Judge Diaz reconsidered his decision
denying the appeal because he belatedly received photocopies of

the receipt of payment of appellate docket fees, appeal was
granted.
ISSUE:
W/N Judge Diaz was correct in granting the motion for execution.
HELD:
No. A judge may motu proprio dismiss complainant's notice
of appeal in accordance with Section 13, Rule 41 of the Rules of
Court which provides that "prior to the transmittal of the original
record or the record on appeal to the appellate court, the trial court
may motu proprio, or on motion, dismiss the appeal for having been
taken out of time.
Judge Diaz was correct in granting plaintiff's Motion for
Execution on February 3, 1998 on the grounds that (1) there was no
perfected Notice of Appeal and (2) as admitted by the complainant
himself, there was no payment of the supersedeas bond.
However, even if there was no perfected Notice of Appeal
and payment of the supersedeas bond, respondent judge should not
have granted plaintiff's Motion for Execution because it was fatally
defective under Rule 15 Section 5 of the Rules of Court. 1
It is well-settled that any motion with a notice of hearing that
is not addressed to all parties, in violation of Section 5, Rule 15 of
the Rules of Court, is a mere scrap of paper which should not be
accepted for filing and, if filed, is not entitled to judicial cognizance.
In this case, the otice was only addressed to the Clerk of Court.
Furthermore, no proof of service was ever presented to the
Court.
University of Immaculate Concepcion v. Secretary of Labor
and Employment
G.R. No. 143557, June 25, 2004 | Lantion
FACTS:
Sec. 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.
Ateneo Law 4A 2011 | AY 2010-2011 24

Respondent DOLE Engineer Avinante sent to petitioner
university a notice requesting inspection of various documents but
was repeatedly denied by petitioner. Petitioner filed a motion
seeking to enjoin the inspection of records. This led Avinante to
issue a notice of inspection results specifying labor law, safety, and
health violations. The DOLE Regional Director issued an order finding
petitioner liable for violation of said laws. DOLE Secretary affirmed.
Petitioners filed a motion for reconsideration but was denied.
Petitioners filed a second motion for reconsideration, but it was
merely noted without action, the same being prohibited.
Petitioner filed a petition for review on certiorari, which was
dismissed by the CA for being late. The CA held: only one
motion for reconsideration of the judgment, order or
resolution assailed is allowed for purposes of interrupting
the sixty (60) day period for filing a petition for certiorari.
Inasmuch that petitioners allowed four (4) days to lapse from receipt
of the Order dated May 2, 1997 before filing a motion for
reconsideration thereof, they had only fifty-six (56) days left
from May 5, 1998, when they received a copy of the order dated
April 23, 1998 denying said motion for reconsideration, or until
June 30, 1998, within which to file the petition for certiorari.
However, it was only on May 13, 1999 that the instant petition
was filed. Petitioners argue a second motion for reconsideration is
allowed for purposes of tolling the period within which to file a
petition for certiorari.
ISSUE:
W/N CA erred in dismissing the petition for being filed out of time.
HELD:
Yes. Certiorari, being an extraordinary remedy, the party who
seeks to avail of the same must strictly observe the rules laid down
by law. The remedy of an aggrieved party in a Decision or Resolution
of the Secretary of the DOLE is to timely file a motion for
reconsideration and then seasonably file a special civil action for
certiorari under Rule 65 within 60 days from receipt of DOLE Secs
denial of the MR.
In the instant petition, it may be recalled that upon receipt on
May 5, 1998 of the April 23, 1998 Order of the Office of the DOLE
Secretary denying their motion for reconsideration, petitioners, on
May 20, 1998, filed a second motion for reconsideration, a

prohibited motion. It was only on May 13, 1999 that petitioners filed
a petition for certiorari. Clearly, petitioners incurred a delay of
almost one year.
Even if petitioners second motion is in order,
however, it is a pro forma motion. As aptly stated by the Court
of Appeals, "the second motion for reconsideration filed by
petitioners was a mere reiteration of the arguments raised in
their first motion for reconsideration and passed upon in the
Order dated April 23, 1998."
In Vda de Espina vs. Abaya, we held that a second motion for
reconsideration, being pro-forma, does not suspend the period to file
a petition for certiorari, thus:
"The grounds stated in said motion being in reiteration
of the same grounds alleged in his first motion, the
same is pro-forma. Furthermore, the second motion for
reconsideration
has
not
stated
new
grounds considering that the alleged failure of the Clerk of
Court to set plaintiffs' motion for reconsideration, although
seemingly a different ground than those alleged in their first
motion for reconsideration, is only incidental to the issues
raised in their first motion for reconsideration, as it only
refers to the right of plaintiffs' counsel to argue his motion in
court just to amplify the same grounds already denied by the
court.Therefore, it is very evident that the second
motion for reconsideration being pro-forma did not
suspend the running of the period of filing a petition
for certiorari or appeal, as the case may be."
PRE-TRIAL
Saguid v. Court of Appeals
G. R. No. 150611, June 10, 2003 | Lo
Republic of the Philippines v. Court of Appeals
G. R. No. 116463, June 10, 2003 | Lugtu
FACTS:
Private respondent Navotas Industrial Corporation (NIC) is a
corporation engaged in dredging operations throughout the
Ateneo Law 4A 2011 | AY 2010-2011 25

Philippines. The Petitioner, DPWH, awarded NIC P194,454,000.00
worth of dredging work in four contracts for completion within 350
calendar days.
NIC contends that it accomplished 95.06 percent of the
required total volume of work or P184,847,970.00 worth of services
based on an alleged evaluation by DPWH. However, it maintains that
DPWH paid only 79.22 percent of the accomplished work, leaving a
balance ofP30,799,676.00.
On 20 September 1988, NIC filed a complaint for sum of
money with the Malabon trial court against the Republic of the
Philippines, thru the DPWH.
In its Answer, petitioner contends that NIC is not entitled to
the amount claimed. It is alleged that the DPWH fact-finding
committee discovered that the dredging contracts of NIC with DPWH
were null and void. Petitioner claims that NIC worked on the project
five or six months before the award of the dredging contracts to NIC.
The contracts of NIC were awarded without any public bidding.
Moreover, DPWH discovered that NIC, through its corporate officers,
connived with some DPWH officials in falsifying certain public
documents to make it appear that NIC had completed a major
portion of the project, when no dredging work was actually
performed. Petitioner thus filed a counterclaim for the return of
the P146,962,072.47 plus interest and exemplary damages of P100
million.
Meanwhile, DPWH decided to file cases against former DPWH
Minister Hipolito, other DPWH officials, and the president of NIC for
estafa thru falsification of public documents and for violation of
Republic Act No. 3019.
Petitioner filed a motion to consolidate the sum of money
case and the estafa case, but this was denied by the lower court and
by the Court of Appeals.
On 12 September 1994, petitioner filed with the Court this
petition for review.
In its Comment, NIC seeks the dismissal of the petition on the
ground that it was not served on time. Petitioner admittedly filed
two motions for extension of time, each for fifteen days. The last day
for filing the second motion for extension was on 11 September
1994. NIC, however, asserts that a copy of the petition was sent by
registered mail to its counsel only on 12 September 1994 or a day
after the last day for filing.
ISSUE:
W/N the petition was filed on time.
HELD:
NIC harps on the fact that the petition was sent by registered
mail only on 12 September 1994, when the last day for filing was on
11 September 1994. NIC, however, overlooked one significant fact.
The last day for filing, 11 September 1994, fell on a Sunday.
Based on Section 1, Rule 22 of the Rules of Court, and as
applied in several cases, where the last day for doing any act
required or permitted by law falls on a Saturday, a Sunday, or a legal
holiday in the place where the court sits, the time shall not run until
the next working day. Thus, petitioner filed on time its petition on 12
September 1994, the next working day, following the last day for
filing which fell on a Sunday.
Leonardo v. S.T. Best, Inc.
G.R. No. 142066, February 6, 2004 | Nieves
FACTS:
S.T. Best and Leonardo et al. were owners of adjacent parcels

of land, with S.T. Bests lots forming part of a residential subdivision.
S.T. Best claims that Leonardo had been conducting quarrying
activities since 1994 without a permit and in violation of the
property boundary limits.
S.T. Best, Inc. brought an action for damages with prayer for
issuance of a writ of injunction against Criselda Leonardo, Celing
Martinez and Consuelo Germar.
S.T. Best prayed for the issuance of a TRO to restrain
Leonardos quarrying activities. The RTC issued the TRO after a
hearing, which Leonardo et al. and their counsel then, Atty. Elison G.
Natividad, failed to attend despite due notice.
Leonardo, through Atty. Natividad, claimed that the quarrying
activities were wholly undertaken by one Rolando Somera under a
contract for a minimal fee or royalty. Rolando Somera took charge of
the quarrying activities and they had no control over the operations.
Furthermore, the quarrying activities duly observed the boundary
limits of their properties.
Ateneo Law 4A 2011 | AY 2010-2011 26

At the hearing of the application for preliminary injunction,
neither Leonardo nor their counsel were present. A pre-trial
conference was then set and they also failed to appear, so Leonardo
was declared in default.
Leonardo moved for reconsideration of the default order
claiming that they were made to believe that they had already
reached a settlement before the Mayor of Sta. Maria, Bulacan.
Because of this, Leonardo informed their counsel that they had
settled the case and from then on discontinued communicating with
him, believing in good faith that the case had already been settled.
RTC granted the motion and set another pre-trial. The pretrial was then reset 4 times because the judge had retired and no
replacement had yet been appointed.
Again Leonardo and their counsel failed to appear. They were
declared in default a 2nd time. S.T. Best presented its evidence ex
parte and a judgment was rendered in favor of S.T. Best. S.T. Best
then moved for the execution of the decision.
Leonardo filed a Petition to Annul Decision before the CA
alleging that they did not receive notice of the pre-trial conference
and were not informed by their former counsel, Atty. Natividad, of
his receipt of such notice and that their presence was required in
said proceeding. They also claimed that there was extrinsic fraud as
they learned of the decision only sometime in October 1998 through
respondents former counsel, Atty. Noel Darren C. Damian, who in
his visit to Celing Martinez house, informed them of the default
judgment and assured them that despite the decision, S.T. Best
would still settle the case amicably with them. Relying on the
assurances of Atty. Damian, Leonardo waited for whatever action
that he might take. To their surprise, they received on September
22, 1999 a copy of the Notice of Auction Sale.
CA dismissed the petition for failure to prove extrinsic fraud.
The CA also observed that Leonardo did not act with prudence and
diligence with regard to their case since they left the lawsuit entirely
in the hands of their former counsel and did not even inquire from
him about its status.
Leonardo now questions the appellate courts conclusion that
they lacked prudence and diligence in relying on the representation
of their former counsel, Atty. Elison G. Natividad. He is Leonardos
second cousin. Their blood ties assured them that Atty. Natividad
would take care of the case for them especially since they finished
only third grade elementary schooling and have very limited

knowledge of legal procedure.
ISSUE:
W/N Leonardo was negligent: Yes
W/N there was extrinsic fraud on the part of Atty. Damian: No
W/N Leonardo was denied their right to be heard: No
HELD:
Leonardo received various notices and orders of the trial

court, they did not exhibit any curiosity as to the progress of the suit
by inquiring from their counsel what the notices signified. This lack
of concern or complacency is likewise demonstrated by their
inaction when they were allegedly informed by Atty. Damian of the
judgment by default against them. They did not even seek to
confirm this piece of news with their counsel. Their total reliance on
the supposed assurance of amicable settlement by Atty. Damian
despite the judgment by default against them is unusual for and
atypical of defendants in civil cases. They failed to display the
expected degree of concern or attention to their case.
Extrinsic fraud requires that the losing party be prevented by
the prevailing party from fully exhibiting his defense before the
court. In this case, the alleged fraudulent act came after the parties
were allowed to present their evidence, or were given the
opportunity to do so, after Leonardo were declared in default for
failure to appear at the pre-trial conference, and after the
questioned decision already became final and executory and no
longer appealable.
Registry return cards bearing the signatures Atty. Natividad
prove Leonardos receipt of the notices diligently sent by the trial
court. When the trial court declared them in default for the 2 nd for
their continued failure to attend pre-trial, it did so in accordance
with Rule 18 of the 1997 Rules of Civil Procedure and with due
regard to the constitutional guarantee of due process. The trial court
gave petitioners every chance to air their side and even
reconsidered its first order declaring them in default. As they were
declared in default a 2nd time, they were not entitled to present
evidence in their behalf or to cross-examine S.T Bests witness.
Under Section 5, Rule 18 of the 1997 Rules of Civil Procedure, failure
on the part of the defendants and their counsel to appear at the pre-
Ateneo Law 4A 2011 | AY 2010-2011 27

trial shall be cause to allow the plaintiff to present his evidence ex
parte, and the court to render judgment on the basis thereof.
United Coconut Planters Bank v. Magpayo

G.R.No. 149908, May 27, 2004 | Ong
FACTS:
This is a petition for certiorari to review the decision of the
CA, which overturned the order of dismissal of the RTC of Paraaque.
Respondent filed a case for reimbursement of a sum of
money and consequent damages. After petitioners answer was
filed, pre-trial was set on September 26, 1997 at 1:30 p.m. When the
case was called, only the respondents counsel was present. Asked if
he had a special power of attorney, counsel replied that he had, but
he left it in the office. Hence, the petitioner moved to declare the
respondent non-suited, pursuant to Rule 18, Sec. 5 of the Rules of
Court. Accordingly, the trial court issued an Order of Dismissal for
failure to prosecute.
Respondent thus filed an Omnibus Motion stating therein that
he arrived at the court at around 2:00 p.m. and that he did not
intend to be late for the pre-trial, but the traffic at the South
Superhighway was heavy due to construction work. He attached
copies of two powers of attorney which were dated May 20, 1997
and September 24, 19976 respectively as proof that there indeed
was a special power of attorney executed but that respondents
counsel forgot to bring it to the pre-trial. Respondent prayed that the
dismissal order be reversed and the trial court inhibit itself from
hearing the case.
RTC found the motion unmeritorious and affirmed the
dismissal of the case. On appeal, the CA reversed, stating that the
Rules of Court is not cast in stone, and that this case did not show
either an evident scheme to delay the disposition of the case, nor a
wanton failure to observe the mandatory requirements of the rules.
The CA also gave credence to the manifestation of respondents
counsel that he had a special power of attorney from his client,
which was attached to the appeal.
ISSUE:
W/N the CAs reversal of the RTCs dismissal was in accord the Rules
of Court and jurisprudence.
HELD:
Ateneo Law 4A 2011 | AY 2010-2011 28

No. Heavy traffic as a reason for tardiness cannot be
accepted as a valid cause to warrant the relaxation of Section 4,
Rule 18 of the Rules of Civil Procedure. Moreover, the heavy traffic
referred to was not sudden or unexpected. It was caused by the
construction of the skyway along the South Superhighway. The
respondent is a resident of Paraaque and conducts his business in
Calamba, Laguna. It may be easily assumed that he had prior
knowledge of recurrent traffic buildup at the South Superhighway, as
he most surely would have been frequently traversing the same. As
such, respondents omission is one that falls short of being either
due to excusable negligence or a valid cause.
That respondents counsel was equipped with a special
power of attorney, which he allegedly forgot to bring at the pre-trial,
deserves hardly any consideration. Section 4, Rule 18, of the Rules
of Civil Procedure is clear and unambiguous. Respondents counsel,
as representative, must have appeared in respondents behalf fully
authorized in writing.
Prior to the 1997 Rules of Court, a representative was
allowed to establish the authority needed by showing either a
written special power of attorney or by competent evidence other
than the self-serving assertions of the representative. 23 Noteworthy
is the fact that Section 4, Rule 18 of the 1997 Rules of Court is a new
provision; and requires nothing less than that the representative
should appear in a partys behalf fully authorized in writing to enter
into an amicable settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations of facts and of
documents.
To uphold respondents position would be a setback to the
improvement of the old rules which the new provision wishes to
make. It defeats the purpose of the new provision, and is no better
than the situation where the counsel appeared at the pre-trial alone
and assured the court that he had authority verbally given by the
party. The rules now require the special power of attorney be in
writing because the courts can neither second-guess the specific
powers given to the representative, nor can the courts assume that
all the powers specified in Section 4 of Rule 18 are granted by the
party to his representative.
Villanueva v. Court of Appeals
G.R. No. 143286, April 14, 2004 | Ortiz
INTERVENTION
Nordic Asia Limited v. Court of Appeals
G. R. No. 1111159, June 10, 2003 | Padilla
FACTS:
A loan agreement was entered into between Nordic Asia

Limited (lenders) and Sextant Maritime (borrower), involving
US$5,300,000. The amount was used by Sextant Maritime, S.A. to
purchase the vessel M/V Fylyppa. As a security for the loan, a
mortgage over the vessel was executed. When Sextant failed to pay
its loan, extrajudicial foreclosure proceedings where instituted in the
RTC Pasay. That same day, the crew members of M/V Fylyppa also
filed a complaint for a sum of money before the RTC of Manila
against the vessel. Both Pasay and Manila RTCs issued an order for
the arrest of the vessel.
Nordic filed with RTC Manila an urgent motion for leave to
intervene in the collection case alleging that they hold and possess
a Panamanian First Preferred Ship Mortgage over the vessel M/V
Fylyppa and that their intervention is only for the purpose of
opposing the herein plaintiffs unfounded and/or grossly exaggerated
claim (in order that the intervenors share may not be diminished
substantially, or to prevent it from being diminished at all). The
court granted the motion.
ISSUE:
Is the intervention proper?
HELD:
NO. Every complaint, including a complaint-in-intervention,
must state the ultimate facts upon which a party relies for his cause
of action. The complaint-in-intervention failed to state a cause of
action because the complaint-in-intervention merely alleged that
Nordic possesses a mortgage lien and will be adversely affected by
Sextants collection case. Being just a mortgagee, the cause of
action lies with the vessel and mortgagor, and not with a coclaimant. Nordic was unable to allege what specific act or omission
by Sextant violated its right.
Ateneo Law 4A 2011 | AY 2010-2011 29

Requirements for intervention: [a] it must be shown that the
movant has legal interest in the matter in litigation; and [b]
consideration must be given as to whether the adjudication of the
rights of the original parties may be delayed or prejudiced, or
whether or not the intervenors rights may be protected in a
separate proceeding. Petitioners failed to meet both requirements.
1st requisite: Interest which entitles a person to intervene in a
suit between other parties must be in the matter in litigation and of
such direct and immediate character that the intervenor will either
gain or lose by direct legal operation and effect of the judgment.
Nordic does not own the vessel, but merely hold a mortgage lien
over it. Thus, it will neither gain or lose by direct legal operation and
effect of the judgment.
2nd requisite: Nordics rights were already protected through
their extrajudicial foreclosure proceedings. There was no exigency to
grant the intervention. On the other hand, Sextants rights have
been unduly delayed or prejudiced by the intervention.
The purpose of intervention is not to obstruct nor
unnecessarily delay the placid operation of the machinery of trial,
but merely to afford one not an original party, yet having a certain
right or interest in the pending case, the opportunity to appear and
be joined so he could assert or protect such right or interest.
judgment. Norsdics intervention is a device to defeat the order of
preference of claims enumerated in P.D. 1521.
DISCOVERY
Santos v. Philippine National Bank
G. R. No. 148218, April 29, 2002 | Posadas
FACTS:
The facts are not in dispute. Santos et.al. are the children of
the deceased Angel C. Santos. A few years after his death,
petitioners discovered that the decedent had a time deposit in PNB
which was later converted to a Premium Savings Account
amounting to almost 2M. However, when Santos tried to withdraw
from the deposit, the bank, its branch manager, disallowed the
withdrawal on the ground that a certain Bernardito Manimbo had
claimed the deposit and had in fact withdrawn considerable
amounts a few years before. PNB claimed that Manimbo had
presented (1) an Affidavit of Self-Adjudication allegedly executed by

Reyme L. Santos, one of the petitioners in this case, in which it was
made to appear that he was the sole heir of Angel C. Santos; and (2)
a Special Power of Attorney also allegedly executed by petitioner
Reyme L. Santos appointing Angel P. Santos and Bernardito
Manimbo his attorneys-in-fact.
Claiming that these documents were falsified, Santos et.al.
brought suit against PNB for recovery of the deposit in the RTC. PNB
filed their answer to the complaint, attaching mere photocopies the
Affidavit and SPA.
Santos et.al. filed a motion for the production of the originals
of the documents offered in evidence by PNB and the examination of
the documents by the NBI, but their motion was denied by the trial
court which directed them to seek the assistance of the NBI without
issuing an order to the NBI. For this reason, they wrote the NBI
requesting the examination of the documents but the NBI denied the
request, reiterating that the NBI could not examine the documents
without submission of the originals of the documents in question
and a court order for the examination of the same. They therefore
brought a special civil action for certiorari in the CA, but their action
was likewise dismissed. Hence, this petition for review on certiorari
of the decision of the Court of Appeals and its resolution denying
reconsideration.
ISSUE:
W/N the lower courts committed grave abuse of discretion in
denying the motion for the production of the originals and in not
giving the order for the examination of the same.
HELD:
Yes. The general rule, and indeed a fundamental principle of
appellate procedure, is that decisions of a trial court which lie in its
discretion will not be set aside on appeal. This is true whether the
case is civil or criminal, and whether the case is one at law or in
equity. But where the exercise of discretionary power by an inferior
court affects adversely the substantial rights of a litigant, the
exercise of such discretion becomes a proper subject of review on
appeal. Affirmative relief will be granted upon a clear showing of a
grave abuse of discretion. After all, the discretion conferred upon
trial courts is a sound discretion which should be exercised with due
Ateneo Law 4A 2011 | AY 2010-2011 30

regard to the rights of the parties and the demands of equity and
justice.
In this case, the action of the Court of Appeals, in denying
petitioners' request for the production of documents used by
respondent bank in its defense and the examination of such
documents by experts, amounts to a grave abuse of discretion on
the part of the appeals court. For contrary to the finding of the trial
court and the Court of Appeals, Santos et.al.s failure to secure
assistance from the NBI was not of their own making. A requirement
of the NBI is that if documents are the subject of litigation, the NBI
will examine them only if an order is issued by a court for their
examination. Thus, Memorandum Order No. 78, s. 1998, of the
Director of the NBI states:
2. No examination shall be conducted by the Questioned
Document Division on any document if the case is already
pending before the Prosecutor's Office or any Judicial body
without a written order coming from said body directing the
Bureau to conduct the examination;
Except for the court order and the submission of the originals
of the documents, petitioners complied with all these requirements.
They submitted a motion for examination of the documents,
together with eighteen (18) specimen signatures of petitioner
Reyme L. Santos. They expressed their willingness to replace the
materials that would be used in the examination and to pay for the
traveling expenses of the experts who would testify. Clearly, it was
up to the trial court to determine whether an inspection should take
place. The NBI merely held petitioners' request in abeyance until the
court issued an order and transmitted the specimen signatures to
the agency.
It has been held that where the requisite circumstances exist,
a party may be entitled to the production of records for inspection,
copying, and photocopying as a matter of right. The trial court was
in error in ruling that the genuineness and due execution of the
questioned documents had been admitted by petitioners, thereby
foreclosing the possibility of having the signatures subjected to
inspection and handwriting analysis and preventing petitioners from
contradicting respondents' assertion that a valid withdrawal of the
decedent's deposit had been made, when no such admission had
been made by them. PNB is thus ordered produce the originals and
the Court to direct the NBI to examine the same.
Duque v. Court of Appeals

G. R. No. 125383, July 2, 2002 | Reyes
FACTS:
Petitioner Duque filed a complaint with the RTC of Valenzuela

against the Spouses Bonifacio (SB).
According to Duque, SB
negotiated certain checks in exchange for cash in the total amount
of P270,000. Duque said that the SB told her that they are holders in
due course and that the checks are fully funded. However, upon
presentation of the checks they were dishonored. Duque repeatedly
demanded the SB to pay her but they refused to honor the checks.
Petitioner Valenzuela alleged that the SB did the same thing
to her and they owe her P432,000.
The Spouses Bonifacio denied all of the allegations of the
petitioners. They also claim that upon learning that they checks
were returned to the petitioners they made arrangements for
settlement but only for the checks duly issued by them. They also
claim that "they do not owe that much" to either of the petitioners.
Several months after the Pre-trial the petitioners filed a Request for
Admission and they furnished the counsel of the Spouses Bonifacion.
They requested that the spouses admit that:
1. they negotiated with plaintiffs for valuable consideration the
checks annexed to the respective complaints;
2. defendant Edna M. Bonifacio signed separate promissory notes
dated November 23, 1987, acknowledging that she is indebted
to plaintiff Duque in the sum of Two Hundred Seventy Thousand
Pesos (P270,000.00) and to plaintiff Valenzuela Four Hundred
Thirty Two Thousand Pesos (P432,000.00), respectively; and
3. the plaintiffs in the two cases sent letters of demand to the
defendants both dated November 28, 1987 which the latter
received on December 5, 1987.
Using Rule 26 Section 1 and 2 of the Rules of Court, the RTC
issued an order saying that the spouses failure to respond is an
implied admission. The RTC found in favor of the petitioners. The
CA vacated and set aside the decision of the RTC and remanded the
case back to the court of origin.
ISSUE:
Ateneo Law 4A 2011 | AY 2010-2011 31

1. W/N the failure of the private respondents to respond to the
request for admission by the petitioners is tantamount to an
implied admission under Sections 1 and 2, Rule 26 of the Rules
of Court;
2. W/N there was personal service of the request on private
respondents.
HELD:
1. No. This particular Rule seeks to obtain admissions from the
adverse party regarding the genuineness of relevant documents
or relevant matters of fact through requests for admissions to
enable a party to discover the evidence of the adverse side
thereby facilitating an amicable settlement of the case or
expediting the trial of the same. However, if the request for
admission only serves to delay the proceeding by abetting
redundancy in the pleadings, the intended purpose for the rule
will certainly be defeated.
The RTC should have considered the spouses failure to
respond as an implied admission. Matters #1 and #3 were
already denied by the spouses in their answer. Requiring a denial
would be superflous.
Re: Matter #2, petitioners request for admission regarding
the promissory notes was defective because they did not attach
the said promissory notes to the request and the respondents
were not previously furnished a copy of the same. They failed to
comply with the requirements of section 1 Rule 26.
2. No. Records show that only the counsel of the respondents, Atty.
H.G. Domingo, Jr. was furnished copies of the requests. This is
not sufficient compliance with the Rules. According to the rules
the request for admission must served to the respondents and
not to their counsel.
Larada v. Court of Appeals

G. R. No. 102390, February 1, 2002 | Escosia
FACTS:
The Union of Filipro Employees (UFE) declared a strike on
account of alleged unfair labor practices committed by Nestle
Philippines, Inc. (Nestle) and put up a picket line in front of the
companys factory in Niugan, Cabuyao, Laguna. Subsequently, the
NLRC issued a TRO against the UFE. In order that it could transfer
its products from the Cabuyao factory to its warehouse in Taguig,
Metro Manila during the strike, Nestle hired the trucks of
the Alimagno brothers. Representatives of UFE and Nestle agreed to
allow the entry of the trucks in the compound, but in apparent bad
faith, the Francis Santos (Nestle rep) signaled both the PC
contingent to disperse the strikers at the barricades in front of the
plant gate, and the overloaded cargo trucks waiting inside the
compound to proceed with getting out of the plant. This resulted in
the arrest of 14 strikers and injuries to many others.
Now, Dr. Vied Vemir Garcia Hemedez was on his way home
from his masteral class at UP when his car collided with the sixth
ten-wheeler truck leaving the Nestle compound in full speed. The
truck also side-swept a house off the road, rammed down a beauty
parlor, and run over and killed 2 persons sitting on a bench near the
parlor facing the Iglesia ni Cristo chapel. Dr. Hemedez also died as a
result of the vehicular accident.
Subsequently, the parents of Dr. Hemedez (Hemedez
spouses) filed a complaint for damages against Nestle,
Jesus Alimagno
(owner
of
truck),
Santos
(Nestle
rep), Pacifico Galasao (driver of truck), and PC/Capt. Rey Laada. All
the defendants denied their liability in their Answer. Thereafter,
the Hemedez spouses served the defendants a request for
admission of the truth of the facts set forth in their complaint and
the genuineness of each of the documents appended thereto.
Through their respective counsel, Nestle et al. filed their verified
answer to the request for admission.
Contending that under Section 2 of Rule 26 of the Rules of
Court the parties themselves and not their counsel should
personally answer the request for admission and hence the answer
filed by their counsel in their behalf was by nature based on
hearsay, they sought the striking out of said answers. RTC denied
Ateneo Law 4A 2011 | AY 2010-2011 32

the Hemedez spouses motion to strike. On appeal, the CA granted
the motions to strike out the answers subject of the requests for
admission and declaring each of the matters requested to be
impliedly admitted, and remanding the case to the court a quo for
proper proceedings.
ISSUE:
May the counsel of a party to whom a written request for admission
is addressed under Section 1, Rule 26 of the Rules of Court, answer
such request for his client?
HELD:
Yes. Section 23 of Rule 138 provides that (a)ttorneys have
authority to bind their clients in any case by any agreement in
relation thereto made in writing, and in taking appeals, and in all
matters of ordinary judicial procedure x x x .
Thus, when Rule 26 states that a party shall respond to the
request for admission, it should not be restrictively construed to
mean that a party may not engage the services of counsel to make
the response in his behalf.
In this case, neither is there a showing that petitioners Nestle
and Santos did not authorize their respective counsel to file in their
behalf the respective answers requested of them by private
respondents in the latters written request for admission. There is no
reason to strictly construe the phrase the party to whom the
request is directed to refer solely or personally to the petitioners
themselves.
Moreover, the subject matters of the request for admission
are the same as the ultimate facts alleged in the complaint for which
private respondents have filed their respective answers. A party
should not be compelled to admit matters of fact already admitted
by his pleading and concerning which there is no issue, nor should
he be required to make a second denial of those already denied in
his answer to the complaint. A request for admission is not intended
to merely reproduce or reiterate the allegations of the requesting
partys pleading but should set forth relevant evidentiary matters of
fact, or documents described in and exhibited with the request,
whose purpose is to establish said partys cause of action or
defense. Unless it serves that purpose, it is pointless, useless, and
a mere redundancy.
The rule on admission as a mode of discovery is intended to

expedite trial and to relieve parties of the costs of proving facts
which will not be disputed on trial and the truth of which can be
ascertained by reasonable inquiry. Thus, if the request for
admission only serves to delay the proceedings by abetting
redundancy in the pleadings, the intended purpose for the rule will
certainly be defeated. Moreover, Sec. 1 of Rule 26 requires that the
request for admission must be served directly upon the party
requested. Otherwise, that party cannot be deemed to have
admitted the genuineness of any relevant matters of fact set forth
therein on account of failure to answer the request for admission. It
is thus unfair and unreasonable for private respondents to expect
the petitioners to answer the requests for admission that they in fact
did not personally receive. Private respondents failure to serve
copies of the request for admission directly upon the petitioners
themselves suffices to warrant denial of the motion to strike out
petitioners responses to said request.
The application of the rules on modes of discovery rests upon
the sound discretion of the court. In the same vein, the
determination of the sanction to be imposed upon a party who fails
to comply with the modes of discovery rests on the same sound
judicial discretion. It is the duty of the courts to examine thoroughly
the circumstances of each case and to determine the applicability of
the modes of discovery, bearing always in mind the aim to attain an
expeditious administration of justice.
Jonathan Landoil International Co., Inc. v. Mangudadatu
G.R. No. 1550110, August 16, 2004 | Saranillo
FACTS:
Respondent-spouses filed a case for damages against the
Petitioner. Petitioner filed a MTD but was dismissed so they filed
their Answer. They submitted their pre-trial briefs. However, trial
was conducted but Petitioner was declared in default for failure to
appear during trial. Petitioner received a decision of the RTC but it
filed a Motion for New Trial and Change of Venue. However, RTC
denied such motion. Petitioner received a copy of a Writ of Execution
but it contends that it did not receive a copy of the decision denying
Motion for New Trial, hence it filed a Motion to Quash the Writ.
Petitioner's lawyers withdrew as its lawyer and another law firm filed
Ateneo Law 4A 2011 | AY 2010-2011 33

its appearances for Petitioner with a Supplement to their Motion to
Quash contendiong that it never received the decision of the RTC as
regards the Motion for New Trial with the affidavits of Petitioner's old
lawyers attesting that they never received the decision. So
Petitioner served to Respondent a Notice to Take Deposition Upon
Oral Examinations of the Old Lawyers. REspondent moved to strike
the Notice to Take Deposition. However, despite the Oral Deposition
of the Old Lawyers submitted, the RTC still upheld the Writ of
Execution.
ISSUE:
W/N Petitioner is allowed Deposition Pending Action.
HELD:
YES. Deposition may be made after the trial court has
acquired jurisdiction over over any defendant or over property that
is the subject of the action; or, without such leave, after an answer
has been served. However, deposition may also be taken during trial
under Rule 23 Section 4.
In this case, the witnesses whose testimony was taken
through deposition lived in Metro Manila which was more than 100
kilometers away from Sultan Kudarat. However, the Petitioner, even
if deposition was allowed, was still not able to substantiate its claim
as regards non-receipt of the order.
Manzano v. Despabiladares
G.R.No. 148786, December 16, 2004 | Sia
FACTS:
In 1989, respondent Luz Despabiladeras obtained on credit

from petitioner Roger Manzano various construction materials which
she used in her construction project at the Camarines Sur
Polytechnic Colleges (CSPC). Petitioner claims that the materials
costs around P307K of which only P130K was paid by respondent
despite payment by CSPC for the project. Petitioner filed a sum of
money claim with damages in the RTC of Iriga City, in her answer
with counterclaim respondent alleged that petitioner substantially
altered the cost of materials and that she made additional payments
via two checks (+P57K). In his reply, petitioner alleges that the
checks represented payment for other obligations.
The issues were joined and in the pre-trial, both parties

agreed that petitioner shall make an offer to stipulate to
respondent to determine the cost of the materials in dispute and the
latter will state her comment or objections. Instead of making an
offer to stipulate, petitioner filed a request for admission asking
respondent to admit within 15 days that (1. That respondent
received the materials from petitioner and 2. Of the P307K, only
P130K was paid by respondent). Respondent did not answer. RTC
ordered the requested facts be admitted confirmed and later on
ruled in favor of petitioner. CA set aside the decision of the RTC
ISSUE:
What is the legal consequence when a request for admission of
material and relevant facts pursuant to Rule 26 is not answered
under oath within the period stated in the Rules by a party litigant
served therefore?
HELD:
It is deemed to have been admitted. The agreement of the
parties during the pre-trial conference was that "the petitioner shall
submit an offer to stipulate showing an itemized list of
construction materials delivered to the respondent together with the
cost claimed by the petitioner within fifteen 15 days furnishing copy
thereof to the respondent who will state her objections if any, or
comment thereon within the same period of time." In substantial
compliance with said agreement, petitioner chose to instead file
a request for admission, a remedy afforded by a party under Rule
26.
Respondent having failed to discharge what is incumbent
upon her under Rule 26, that is, to deny under oath the facts
bearing on the main issue contained in the "Request for Admission,"
she was deemed to have admitted that she received the
construction materials, the cost of which was indicated in the
request and was indebted to petitioner in the amount
of P184,610.50
(P314,610.50
less
the
partial
payment
of P130,000.00).
During the trial, however, petitioner admitted that aside from
the P130,000.00 partial payment, he had received a total
of P122,000.00 (P97,000.00 plus P25,000.00). Respondent thus had
a remaining balance of P62,610.50.
Ateneo Law 4A 2011 | AY 2010-2011 34

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REMEDIAL LAW REVIEW (ATTY.

TRANQUIL SALVADOR III)

Defendants Counsel to Inform the Court the Date He Received a

Ateneo Law 4A 2011 | AY 2010-2011 1

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

Section 11, Rule 70 provides a period of 30 days for the court

Ateneo Law 4A 2011 | AY 2010-2011 2

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

throw away from the office of petitioners counsel, with an estimate

PLEADINGS (Missing cases)

Petitioner, as plaintiff, filed before the RTC in Paranaque a

Ateneo Law 4A 2011 | AY 2010-2011 3

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

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

Ateneo Law 4A 2011 | AY 2010-2011 4

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

The failure to explain why personal service was not done is

In their answer, the school officials stated that as early as

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

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REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

spouses failure to file an answer was due to their own negligence,

DEFAULTS AND AMENDMENTS

A passenger bus collided with a tricycle. Tuazon, the tricycle

Ateneo Law 4A 2011 | AY 2010-2011 6

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

Ateneo Law 4A 2011 | AY 2010-2011 7

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

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

Petitioners (Spouses Ng) are the owners of Jos Chicken

Ateneo Law 4A 2011 | AY 2010-2011 8

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

Petitioner Remington filed a complaint for sum of money and

Ateneo Law 4A 2011 | AY 2010-2011 9

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

complaint to state a cause of action as an affirmative defense in

Mendoza Mortgaged a parcel of land to the Meralco

The petition which was filed by registered mail was not

Ateneo Law 4A 2011 | AY 2010-2011 10

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

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

Ateneo Law 4A 2011 | AY 2010-2011 11

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

provided for such cases and employed is reasonably calculated to

Ateneo Law 4A 2011 | AY 2010-2011 12

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

Summons was served on Roberto Samartino, brother of

Ateneo Law 4A 2011 | AY 2010-2011 13

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

This case arose when spouses Abelardo and Margarita

and seek personal judgments. On the other hand, actions in

Ateneo Law 4A 2011 | AY 2010-2011 14

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

Rodolfo-Respondent and Marietta-Petitioner got married and

W/N the CA erred in dismissing the petition of the petitioner Yes

An original action in the CA under Rule 47 to annul a

Ateneo Law 4A 2011 | AY 2010-2011 15

REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

The Gomez spouses filed an action for specific performance

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

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REMEDIAL LAW REVIEW (ATTY. TRANQUIL SALVADOR III)

for 25 years. Being a non-resident, the court cannot acquire

Ateneo Law 4A 2011 | AY 2010-2011 17