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G.R. No. 193650, October 08, 2014
The case is a Petition for Review on Certiorari which assails the July 28, 2009 Amended Decision of the Court of
Appeals as well as its August 23, 2010 Resolutiondenying reconsideration of the assailed amended judgment which
arose from a complaint for specific performance and/or sum of money and damages with prayer for the issuance of
writs of preliminary attachment and preliminary injunction filed by petitioners against respondent bank.
During the Pre-Trial conference defendant Bank manifested [its] intention of settling the case amicably and several
attempts to explore the said settlement [were] made as per records of the case. In the last pre-trial hearing however,
only the plaintiffs-petitioners and their counsel appeared, thus, they moved for the presentation of evidence ex-parte,
which was granted by the Court with the reservation of verifying the return card [to determine] whether the order for
the pre-trial was indeed received by defendants. After such presentation, judgment was rendered ordering the
defendant-respondents to pay the petitioners actual, moral and exemplary damages.
On July 31, 2006, PDB filed by private courier service specifically LBC6 an Omnibus Motion for Reconsideration
and for New Trial, arguing therein that the trial courts Decision was based on speculation and inadmissible and selfserving pieces of evidence; that it was declared in default after its counsel failed to attend the pre-trial conference on
account of the distance involved and difficulty in booking a flight to General Santos City; that it had adequate and
sufficient defenses to the petitioners claims; that petitioners claims are only against its co-defendant, Engr. Edgardo
R. Torcende; that the award of damages and attorneys fees had no basis; and that in the interest of justice, it should
be given the opportunity to cross-examine the petitioners witnesses, and thereafter present its evidence.
Petitioners copy of the Omnibus Motion for Reconsideration and for New Trial was likewise sent on July 31, 2006 by
courier service through LBC, but in their address of record Tupi, South Cotabato there was no LBC service at the
On August 2, 2006, PDB filed with the RTC another copy of the Omnibus Motion for Reconsideration and for New Trial
via registered mail; another copy thereof was simultaneously sent to petitioners by registered mail as well.Meanwhile,
petitioners moved for the execution of the Decision pending appeal.
In an August 30, 2006 Order,the RTC denied the Omnibus Motion for Reconsideration and for New Trial, while it
granted petitioners motion for execution pending appeal, which it treated as a motion for the execution of a final and
executory judgment. PDB received a copy of the above August 30, 2006 Order on September 14, 2006.
On August 31, 2006, a Writ of Executionwas issued. PDB filed an Urgent Motion to Quash Writ of Execution,arguing
that it was prematurely issued as the June 15, 2006 Decision was not yet final and executory; that its counsel has not
received a copy of the writ; and that no entry of judgment has been made with respect to the trial courts Decision.
Later on, it filed a Supplemental Motion to Quash Writ of Execution, claiming that the writ was addressed to its
General Santos branch, which had no authority to accept the writ. The RTC denied the motion to quash the writ of
execution on and issued a second Writ of Execution.
On October 11, 2006, PDB filed with the CA an original Petition for Certiorari, which was later amended, assailing 1)
the trial courts August 30, 2006 Order which denied the omnibus motion for reconsideration of the RTC Decision
and for new trial; 2) its Order which denied the motion to quash the writ of execution; and 3) the writs of execution
issued. CA dismissed PDBs Petition for lack of merit.
PDB filed a Motion for Reconsideration, which, on July 28, 2009, the CA made a complete turnaround and issued the
assailed Amended Decision. This time, it held just the opposite, ruling that PDBs tacit argument that the distances
involved in the case at bench call for a relaxation of the application of Section 5, Rule 15 of the Rules of Court
deserved consideration. Thus, this petition.
Did the CA err inissuing the assailed decision giving due course to the respondent-appellees special civil action for
certiorari even if the Decision dated June 15, 2006 had become final and executory before the special civil action for
Certiorari was filed?

The court ruled in the affirmative and overturned the assailed CA ruling emphasizing that the proceedings in the
instant case would have been greatly abbreviated if the court a quo and the CA did not overlook the fact that PDB s
Omnibus Motion for Reconsideration and for New Trial was filed one day too late. The bank received a copy of the trial
courts June 15, 2006 Decision on July 17, 2006; thus, it had 15 days or up to August 1, 2006 within which to file a
notice of appeal, motion for reconsideration, or a motion for new trial, pursuant to the Rules of Court.32 Yet, it filed the
omnibus motion for reconsideration and new trial only on August 2, 2006.
Indeed, the filing or service of a copy thereof to petitioners by courier service cannot be trivialized. Service and filing of
pleadings by courier service is a mode not provided in the Rules. This is not to mention that PDB sent a copy of its
omnibus motion to an address or area which was not covered by LBC courier service at the time. Realizing its
mistake, PDB re-filed and re-sent the omnibus motion by registered mail, which is the proper mode of service under
the circumstances. By then, however, the 15-day period had expired.
Further, PDBs Notice of Appeal, which was filed only on September 7, 2006, was tardy; it had only up to August 1,
2006 within which to file the same. The trial court therefore acted regularly in denying PDBs notice of appeal.
Since PDBs Omnibus Motion for Reconsideration and for New Trial was filed late and the 15-day period within which
to appeal expired without PDB filing the requisite notice of appeal, it follows that its right to appeal has been
foreclosed; it may no longer question the trial courts Decision in any other manner. Settled is the rule that a party is
barred from assailing the correctness of a judgment not appealed from by him.The presumption that a party who did
not interject an appeal is satisfied with the adjudication made by the lower courtapplies to it. There being no appeal
taken by PDB from the adverse judgment of the trial court, its Decision has become final and can no longer be
reviewed, much less reversed, by this Court. Finality of a judgment or order becomes a fact upon the lapse of the
reglementary period to appeal if no appeal is perfected, and is conclusive as to the issues actually determined and to
every matter which the parties might have litigated and have x x x decided as incident to or essentially connected with
the subject matter of the litigation, and every matter coming within the legitimate purview of the original action both in
respect to matters of claim and of defense." And [i]n this jurisdiction, the rule is that when a judgment becomes final
and executory, it is the ministerial duty of the court to issue a writ of execution to enforce the judgment; execution will
issue as a matter of right x x x (a) when the judgment has become final and executory; (b) when the judgment debtor
has renounced or waived his right of appeal; [or] (c) when the period for appeal has lapsed without an appeal having
been filed x x x.

BANK, INC., Respondents.
G.R. No. 182814, July 15, 2015
Petitioners obtained a loan from private respondent Bangko Kabayan (formerly Ibaan Rural Bank) in the amount of
P12,000,000.00, as evidenced by a Promissory Note executed by petitioners.As security for the said obligation,
petitioners executed a Deed of Real Estate Mortgage (REM) over 71 parcels of land registered under their names and
located in Mabini, Batangas. Subsequently, however, petitioners incurred default and therefore the loan obligation
became due and demandable.
On 21 May 1998, private respondent filed a Complaint for Judicial Foreclosureof the REM over the subject properties
before the RTC of Batangas City.
After petitioners admitted the material allegations in the Complaint, the RTC, on 7 March 2002, rendered a
Judgmenton the Pleadings, the court issued judgment in favor of the [private respondent] and against the [petitioners]
ordering the [petitioners] to pay to the court or to [private respondent] within a period of ninety (90) days from the entry
the judgment the amounts representing the sum owed plus interests and attorney's fees, and in default of such
payment, the [properties] shall be sold at the public auction to satisfy this judgment.
Petitioners failed to timely interpose an appeal or a motion for reconsideration, private respondent then filed a Motion
for Execution to enforce the above judgment which was duly opposed by the petitioners on the ground that they were
not duly served with a copy of the RTC Decision. It was argued by the petitioners that it was only on 13 June 2002 that
their counsel was able to receive a copy of the said judgment prompting them to immediately file a Notice of Appeal on
the following day, 14 June 2002.
On 28 May 2003 the RTC issued an Orderdenying due course to petitioners' Notice of Appeal for being filed out of
time. The court a quo declared that petitioners' counsel was negligent in handling her mails and that negligence is

binding upon petitioners. Accordingly, the RTC forthwith directed the issuance of the motion for execution. The
petitioners moved for reconsideration the RTC decision but was likewise denied. On Certiorari, the Court of Appeals
affirmed the assailed RTC Orders after finding that there was a valid service of the notice of judgment to petitioners'
counsel as attested by the postmaster who enjoys the presumption of regularity in the performance of his official duty
and which presumption was not satisfactorily rebutted by the petitioners in the instant case.Similarly ill-fated was
petitioners' Motion for Reconsideration which was denied by the Court of Appeals in a Resolutiondated 28 April 2008.
Hence, the instant petition which argued that the Court of Appeals acted in grave abuse of discretion amounting to
lack or in excess of jurisdiction when it upheld the decision of the RTC which denied due course to the notice of
appeal which it seasonably filed on 14 July 2002 or one day after the actual receipt of the 07 May 2002 judgment.
Whether or not there was a valid service of the 7 March 2002 RTC Judgment to the petitioners.
The court ruled that there was a valid service of judgment and dismissed the petition. It reiterated the rule that where a
party appears by attorney in an action or proceeding in a court of record, all notices or orders required to be given
therein must be given to the attorney of record. Accordingly, notices to counsel should be properly sent to his address
of record, and, unless the counsel files a notice of change of address, his official address remains to be that his
address of record.
There is no question that in this case, petitioners' counsel was able to receive a copy of the judgment, as evidenced
by the Certificationissued by the Postmaster General. As borne by the Certification, the said copy of the judgment was
duly delivered to the address on record of the petitioners' counsel at 2/F LPC Mansion, 122 L.P. Leviste St., Salcedo
Village, Makati City and was received by Daniel Soriano, the security guard on 15 March 2002.
While petitioners impliedly admitted the fact that the security guard in the building where their counsel's office is
located received the copy of the judgment, they argued, however, that such receipt is not valid under the law, a
contention which pulled the rug from under their feet exposing the utter frailty of their position. Not only did petitioners'
counsel fail to device a system for the prompt and efficient receipt of mails intended for her, she also failed to ensure
that she could be notified of the decision as soon as possible. As a practicing lawyer, petitioners' counsel should have
been more circumspect in monitoring official communications intended for her so as to avoid situations like this, where
a mail matter was inexplicably lost after delivery thereby running the risk of losing a client's case on technicality.
Petitioners' counsel cannot hide behind the security guard's negligence to shield her even professional negligence in
an effort to seek reversal of a decision that has long attained finality. It bears stressing that a decision had become
final and executory without any party perfecting an appeal or filing a motion for reconsideration within the
reglementary period. It was only months after its finality that questions assailing the Decision were raised.
Neither can petitioners exempt themselves or their properties from the operation of a final and executory judgment by
harping on their counsel's negligence. Jurisprudence is replete with pronouncements that clients are bound by the
actions of their counsel in the conduct of their case. If it were otherwise, and a lawyer's mistake or negligence was
admitted as a reason for the opening of the case, there would be no end to litigation so long as counsel had not been
sufficiently diligent or experienced or learned. The only exception to the general rule is when the counsel's actuations
are gross or palpable, resulting in serious injustice to client, that courts should accord relief to the party. Indeed, if the
error or negligence of the counsel did not result in the deprivation of due process to the client, nullification of the
decision grounded on grave abuse of discretion is not warranted. The instant case does not fall within the exception
since petitioners were duly given their day in court.
Furthermore, it is a well-settled principle in this jurisdiction that a client is bound by the action of his counsel in the
conduct of the case and cannot be heardto complain that the result might have been different had he proceeded
differently. Every counsel has the implied authority to do all acts which are necessary or, at least, incidental to the
prosecution and management of the suit in behalf of his client. And, any act performed by counsel within the scope of
his general and implied authority is, in the eyes of law, regarded as the act of the client himself and consequently, the
mistake or negligence of the client's counsel may result in the rendition of unfavorable judgment against him. To rule
otherwise would result to a situation that every defeated party, in order to salvage his case, would just have to claim
neglect or mistake on the part of his counsel as a ground for reversing an adverse judgment. There would be no end
to litigation if this were allowed as every shortcoming of counsel could be the subject of challenge of his client through
another counsel who, if he is also found wanting, would likewise be disowned by the same client through another
counsel, and so on ad infinitum. This would render court proceedings indefinite, tentative and subject to reopening at
any time by the mere subterfuge of replacing counsel.

Gentle Supreme Philippines, Inc. vsConsulta

GR No. 183182; September 1, 2010
FACTS: On September 2005 petitioner Gentle Supreme Philippines, Inc. (GSP) filed a collection case with application
for a writ of preliminary attachment against Consar Trading Corporation (CTC), its president, respondent Ricardo
Consulta (Consulta), and its vice-president, Norberto Sarayba (Sarayba) before the Regional Trial Court (RTC) of
Pasig City. GSP alleged that CTC, through Consulta and Sarayba, bought certain merchandise from it but refused to
pay for them.
Before summons could be served, the RTC issued a writ of preliminary attachment against the defendants after GSP
filed the required bond. Afterwards, the RTC issued summons against the defendants.
On October 2005 as the sheriff failed to serve the summons and copies of the complaint on any of CTCs authorized
officers as well as on Consulta and Sarayba, he left copies of such documents with Agnes Canave (Canave) who,
according to the sheriffs return, was Saraybas secretary and an authorized representative of both Sarayba and
None of the defendants filed an answer to the complaint. Thus the RTC declared them in default and proceeded to
hear GSPs evidence ex parte. Meanwhile, the sheriff attached a registered land belonging to Consulta. After trial, the
RTC ruled that having defrauded GSP, defendants CTC, Consulta, and Sarayba were solidarily liable for the value of
the supplied goods plus attorneys fees and costs of the suit. And upon motion, the RTC issued a writ of execution
against the defendants.
Respondent Consulta then filed a petition for annulment of the RTC decision before the Court of Appeals (CA)
1) that he found out about the case against him only on May 19, 2006 when he received a notice of sale on
execution of his house and lot in Marikina City; and
2) that he was not properly served with summons because, although his address stated in the complaint was his
regular place of business, Canave, who received the summons, was not in charge of the matter.
Consultas claim:Canave was only Saraybas secretary. Thus, neither the sheriff nor the RTC had basis for assuming
that Canave would find a way to let Consulta know of the pending case against him. Consulta concluded that the RTC
did not acquire jurisdiction over his person.
GSP answer: summon is valid. Also, assuming that summons was not properly served, Consultas ignorance was
contrived. His knowledge of the case against him may be proved by:
1. CTC faxed GSP a letter proposing a schedule of payment for the adjudged amounts in the RTC decision.
Admittedly, it was only Sarayba who signed the letter. By the rules of evidence, however, the act and declaration
of a joint debtor is binding upon a party.
2. The RTCs sheriff garnished CTCs bank accounts on the day the summons was served. As company president, it
was incredulous that Consulta was unaware of the garnishment and the reason for it;
3. Consulta admitted that CTC was properly served with summons through Canave. By that statement, it can be
deduced that Canave was in charge of the office, Consultas regular place of business, signifying proper service of
the summons on him.
CA s ruling: RTC sheriff did not properly serve summons on all the defendants and ordered to remand of the case to
the trial court, enjoining it to take steps to insure the valid service of summons on them
ISSUE: WON CA correctly ruled that summons had not been properly served on respondent Consulta with the result
that the RTC did not acquire jurisdiction over his person and that the judgment against him was void
HELD: CA erred.
First, only Consulta brought an action for the annulment of the RTC decision. CTC and Sarayba did not.
Consequently, the CA had no business deciding whether or not the latter two were properly served with summons.
The right to due process must be personally invoked and its circumstances specifically alleged by the party claiming to
have been denied such.
Second, there is valid substituted service of summons on Consulta at his place of business with some competent
person in charge thereof. As to Consultas bare allegations, he did not present evidence to rebut the presumption of
regularity on the manner that the sheriff performed his official duty. Nor did Consulta present clear and convincing
evidence that Canave was not competent to receive the summons and the attached documents for him.
Consultas petition for annulment of judgment, Consulta said that CTC had been apprised of the civil action through

Canave. In other words, Canave was a person charged with authority to receive court documents for the company as
well as its officers who held office in that company. Absent contrary evidence, the veracity of the returns content and
its effectiveness stand.
Further, this Court has ruled that it is not necessary that the person in charge of the defendants regular place of
business be specifically authorized to receive the summons. It is enough that he appears to be in charge. In this case,
Canave, a secretary whose job description necessarily includes receiving documents and other correspondence,
would have the semblance of authority to accept the court documents.
WHEREFORE, premises considered, the Court REVERSES the Court of Appeals Decision.

G.R. No. 182153

April 7, 2014


FACTS: Tung Ho is a foreign corporation organized under the laws of Taiwan, Republic of China.While respondent
Ting Guan Trading Corp. (Ting Guan) is a domestic corporation organized under the laws of the Philippines.In 2002,
Ting Guan obligated itself under a contract of sale to deliver heavy metal scrap iron and steel to Tung Ho.
Subsequently, Tung Ho filed a request for arbitration before the ICC International Court of Arbitration (ICC) in
Singapore after Ting Guan failed to deliver the full quantity of the promised heavy metal scrap iron and steel.The ICC
ruled in favor of Tung Ho and ordered Ting Guan to pay Tung Ho.
On October 24, 2004, Tung Ho filed an action against Ting Guan for the recognition and enforcement of the arbitral
award before the Regional Trial Court (RTC) of Makati, Branch 145. Ting Guan moved to dismiss the case based on
Tung Hos lack of capacity to sue and for prematurity. Ting Guan subsequently filed a supplemental motion to dismiss
based on improper venue. Ting Guan argued that the complaint should have been filed in Cebu where its principal
place of business was located.
PETITIONER: Tung Ho reiterates that the RTC acquired jurisdiction over the person of Ting Guan. It also claims that
the return of service of summons is a prima facie evidence of the recited facts i.e., that Tejero is a corporate secretary
as stated therein and that the sheriff is presumed to have regularly performed his official duties in serving the
summons. In the alternative, Tung Ho argues that Ting Guans successive motions before the RTC are equivalent to
voluntary appearance. Tung Ho also prays for the issuance of alias summons to cure the alleged defective service of
RESPONDENT: Ting Guan submits that the appeal is already barred by res judicata. It also stresses that the Court
has already affirmed with finality the dismissal of the complaint. He also argues that Tung Ho raises a factual issue
that is beyond the scope of a petition for review on certiorari under Rule 45 of the Rules of Court.
ISSUES: 1) Whether the present petition is barred by res judicata; and
2) Whether the trial court acquired jurisdiction over the person of Ting Guan, specifically:
a) Whether Tejero was the proper person to receive the summons; and
b) Whether Ting Guan made a voluntary appearance before the trial court.

HELD: 1.No. For res judicata to apply, the final judgment must be on the merits of the case which means that the
court has unequivocally determined the parties rights and obligations with respect to the causes of action and the
subject matter of the case. Contrary to Ting Guans position, our ruling in G.R. No. 176110 does not operate as res
judicata on Tung Hos appeal; It did not conclusively rule on all issues raised by the parties in this case so that this
Court would now be barred from taking cognizance of Tung Hos petition. Such disposition only dwelt on technical or
collateral aspects of the case, and not on its merits. Specifically, we did not rule on whether Tung Ho may enforce the
foreign arbitral award against Ting Guan in that case.

2. Yes. The courts jurisdiction, once attached, cannot be ousted until it finally disposes of the case. When a court has
already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination
of the case is retained.
A. No.Tejero was not the proper person to receive the summons. There is no reason to disturb the lower courts finding
that Tejero was not a corporate secretary and, therefore, was not the proper person to receive the summons under
Section 11, Rule 14 of the Rules of Court. This Court is not a trier of facts; we cannot re-examine, review or reevaluate the evidence and the factual review made by the lower courts. In the absence of compelling reasons, we will
not deviate from the rule that factual findings of the lower courts are final and binding on this Court.
B. Yes. Ting Guan voluntarily appeared before the trial court in view of the procedural recourse that it took before that
court. Its voluntary appearance is equivalent to service of summons.As a basic principle, courts look with disfavor the
piecemeal arguments in motions filed by the parties. Under the omnibus motion rule, a motion attacking a pleading,
order, judgment, or proceeding shall include all objections then available. The purpose of this rule is to obviate
multiplicity of motions and to discourage dilatory motions and pleadings.
There was blatant disregard of the Rules of Procedure in this case. The Rules of Court only allows the filing of a
motion to dismiss once.Ting Guans filing of successive motions to dismiss, under the guise of "supplemental motion
to dismiss" or "motion for reconsideration", is not only improper but also dilatory. Ting Guans belated reliance on the
improper service of summons was a mere afterthought, if not a bad faith ploy to avoid the foreign arbitral awards
enforcement which is still at its preliminary stage after the lapse of almost a decade since the filing of the
complaint.Ting Guans failure to raise the alleged lack of jurisdiction over its person in the first motion to dismiss is
fatal to its cause. Ting Guan voluntarily appeared before the RTC when it filed a motion to dismiss and a
"supplemental motion to dismiss" without raising the RTCs lack of jurisdiction over its person.
Even assuming that Ting Guan did not voluntarily appear before the RTC, the CA should have ordered the RTC to
issue an alias summons instead. The Court has enunciated the policy that the courts should not dismiss a case simply
because there was an improper service of summons. The lower courts should be cautious in haphazardly dismissing
complaints on this ground alone considering that the trial court can cure this defect and order the issuance of alias
summons on the proper person in the interest of substantial justice and to expedite the proceedings.
Due to the circumstances of the case, the court ordered the case to be remanded to the court of origin.


Section 1, Rule 16 of the Rules of Court requires the defendant to file a motion to dismiss within the time for, but
before filing the answer to the complaint or pleading asserting a claim. Section 1, Rule 11 of the Rules of Court, on the
other hand, commands the defendant to file his answer within fifteen (15) days after service of summons, unless a
different period is fixed by the trial court. Once the trial court denies the motion, the defendant should file his answer
within the balance of fifteen (15) days to which he was entitled at the time of serving his motion, but the remaining
period cannot be less than five (5) days computed from his receipt of the notice of the denial.
Instead of filing an answer, the defendant may opt to file a motion for reconsideration. Only after the trial court shall
have denied the motion for reconsideration does the defendant become bound to file his answer. If the defendant fails
to file an answer within the reglementary period, the plaintiff may file a motion to declare the defendant in default. This
motion shall be with notice to the defendant and shall be supported by proof of the failure.
A trial courts denial of the motion to dismiss is not a license for the defendant to file a Rule 65 petition before the CA.
An order denying a motion to dismiss cannot be the subject of a petition for certiorari as the defendant still has an
adequate remedy before the trial court i.e., to file an answer and to subsequently appeal the case if he loses the
case. As exceptions, the defendant may avail of a petition for certiorari if the ground raised in the motion to dismiss is
lack of jurisdiction over the person of the defendantor over the subject matter.
In Anunciacion v. Bocanegra,the Court categorically stated that the defendant should raise the affirmative defense of
lack of jurisdiction over his person in the very first motion to dismiss. Failure to raise the issue of improper service of
summons in the first motion to dismiss is a waiver of this defense and cannot be belatedly raised in succeeding
motions and pleadings.

Leah Palma v. Hon. Danilo P. Galvez and Psyche Elena Agudo

GR No. 165273

March 10, 2010

J. Peralta
Petitioner Leah Palma filed with the RTC an action for damages against the Philippine Heart Center (PHC), Dr. Danilo
Giron and Dr. Bernadette Cruz, alleging that the defendants committed professional fault, negligence and omission for
having removed her right ovary against her will. Petitioner subsequently filed a Motion for Leave to Admit Amended
Complaint, praying for the inclusion of additional defendants who were all nurses at the PHC, including private
respondent Psyche Elena Agudo.Since private respondent was out of the country, the alias summons were served
upon her thru her husband Alfredo Agudo who received and signed the same.
Private respondent filed a Motion to Dismiss on the ground that the RTC had not acquired jurisdiction over her as she
was not properly served with summons, since she was temporarily out of the country. Petitioner filed her Opposition
arguing that a substituted service of summons on private respondents husband was valid and binding on her and that
the service of summons under Section 16, Rule 14 was not exclusive.
The RTC granted the respondents motion to dismiss finding that it did not acquire jurisdiction over the person of
respondent Agudo as she was out of the country; thus, was not personally served a summons.
Whether there was a valid service of summons on private respondent.
Yes. Considering that private respondent was temporarily out of the country, the summons and complaint may be
validly served in her through substituted service under Section 7, Rule 14 of the Rules of Court.
In this case, the Sheriff's Return stated that private respondent was out of the country; thus, the service of summons
was made at her residence with her husband Alfredo acknowledging receipt thereof. Alfredo was presumably of
suitable age and discretion, who was residing in that place and, therefore, was competent to receive the summons on
private respondent's behalf.
G.R. No. 175799
November 28, 2011
On August 30, 2005, respondent Lepanto Consolidated Mining Company filed with the Regional Trial Court
(RTC) of Makati City a Complaint against petitioner NM Rothschild & Sons (Australia) Limited praying for a judgment
declaring the loan and hedging contracts between the parties void for being contrary to Article 2018 of the Civil Code
of the Philippines and for damages.Upon respondents (plaintiffs) motion, the trial court authorized respondents
counsel to personally bring the summons and Complaint to the Philippine Consulate General in Sydney, Australia for
the latter office to effect service of summons on petitioner (defendant).
On October 20, 2005, petitioner filed a Special Appearance With Motion to Dismiss praying for the dismissal
of the Complaint on the following grounds: (a) the court has not acquired jurisdiction over the person of petitioner due
to the defective and improper service of summons; (b) the Complaint failed to state a cause of action and respondent
does not have any against petitioner; (c) the action is barred by estoppel; and (d) respondent did not come to court
with clean hands.
On November 29, 2005, petitioner filed two Motions: (1) a Motion for Leave to take the deposition of Mr. Paul
Murray (Director, Risk Management of petitioner) before the Philippine Consul General; and (2) a Motion for Leave to
Serve Interrogatories on respondent.
On December 9, 2005, the trial court issued an Order denying the Motion to Dismiss. According to the trial
court, there was a proper service of summons through the Department of Foreign Affairs (DFA) on account of the fact
that the defendant has neither applied for a license to do business in the Philippines, nor filed with the Securities and
Exchange Commission a Written Power of Attorney designating some person on whom summons and other legal
processes maybe served. The trial court also held that the Complaint sufficiently stated a cause of action. The other
allegations in the Motion to Dismiss were brushed aside as matters of defense which can best be ventilated during the
On March 6, 2006, the trial court issued an Order denying the December 27, 2005 Motion for Reconsideration
and disallowed the twin Motions for Leave to take deposition and serve written interrogatories.
On April 3, 2006, petitioner sought redress via a Petition for Certiorari with the Court of Appeals, alleging that
the trial court committed grave abuse of discretion in denying its Motion to Dismiss. The Petition was docketed as CAG.R. SP No. 94382.

On September 8, 2006, the Court of Appeals rendered the assailed Decision dismissing the Petition for
Certiorari. The Court of Appeals ruled that since the denial of a Motion to Dismiss is an interlocutory order, it cannot be
the subject of a Petition for Certiorari, and may only be reviewed in the ordinary course of law by an appeal from the
judgment after trial. On December 12, 2006, the Court of Appeals rendered the assailed Resolution denying the
petitioners Motion for Reconsideration.
Notwithstanding the foregoing, petitioner filed the present petition assailing the September 8, 2006 Decision
and the December 12, 2006 Resolution of the Court of Appeals. Arguing against the ruling of the appellate court,
petitioner insists that (a) an order denying a motion to dismiss may be the proper subject of a petition for certiorari;
and (b) the trial court committed grave abuse of discretion in not finding that it had not validly acquired jurisdiction over
petitioner and that the plaintiff had no cause of action.
Respondent, on the other hand, posits that: (a) the present Petition should be dismissed for not being filed by
a real party in interest and for lack of a proper verification and certificate of non-forum shopping; (b) the Court of
Appeals correctly ruled that certiorari was not the proper remedy; and (c) the trial court correctly denied petitioners
motion to dismiss.
1) Whether or not petitioner is real party in interest -- irrelevant
Petitioner changed its name to Investec Australia Limited. By filing (the certiorari and signing the
verification and certification against forum shopping) in its capacity as NM Rothschild,
circumstances dictate that it is still the same entity having the same lawyers (short discussion
on real party in interest; person benefitted or injured etc.)
2) Propriety of resort to a Petition for Certiorari with the CA irrelevant
As a general rule, denial of MTD cannot be appealed by certiorari (kasi interlocutory order lang)
which is a remedy designed to correct errors of jurisdiction and not errors of judgment.
However, we have likewise held that when the denial of the Motion to Dismiss is tainted with
grave abuse of discretion, the grant of the extraordinary remedy of Certiorari may be justified. The
resolution of the present Petition therefore entails an inquiry into whether the Court of Appeals
correctly ruled that the trial court did not commit grave abuse of discretion in its denial of
petitioners Motion to Dismiss. A mere error in judgment on the part of the trial court would
undeniably be inadequate for us to reverse the disposition by the Court of Appeals.
3) Issues more properly ventilated during the trial of the case
Defenses of petitioner (failure to state cause of action, barred by estoppel, in pari delicto) can be
best ventilated in the trial. Basta evident yung establishment of a cause of action, okay.
4) Whether or not Jurisdiction over the person of Petitioner was properly acquired. YES.
Petitioner alleges that the RTC has not acquired jurisdiction over its person on account of the improper service
of summons. Summons was served on petitioner through the DFA, with respondents counsel personally bringing the
summons and Complaint to the Philippine Consulate General in Sydney, Australia.
In the pleadings filed by the parties before this Court, the parties entered into a lengthy debate as to whether
or not petitioner is doing business in the Philippines. However, such discussion is completely irrelevant in the case at
bar, for two reasons. Firstly, since the Complaint was filed on August 30, 2005, the provisions of the 1997 Rules of
Civil Procedure govern the service of summons. Section 12, Rule 14 of said rules provides:
Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign private
juridical entitywhich has transacted business in the Philippines, service may be made on its resident agent
designated in accordance with law for that purpose, or, if there be no such agent, on the government official
designated by law to that effect, or on any of its officers or agents within the Philippines.
The coverage of the present rule is thus broader.30 Secondly, the service of summons to petitioner through
the DFA by the conveyance of the summons to the Philippine Consulate General in Sydney, Australia was clearly
made not through the above-quoted Section 12, but pursuant to Section 15 of the same rule which provides:
Sec. 15. Extraterritorial service. When the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is
property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or
in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein,
or the property of the defendant has been attached within the Philippines, service may, by leave of court, be
effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of
general circulation in such places and for such time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered mail to the last known address of the defendant,
or in any other manner the court may deem sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must

Breaking down Section 15, Rule 14, it is apparent that there are only four instances wherein a defendant who
is a non-resident and is not found in the country may be served with summons by extraterritorial service, to wit: (1)
when the action affects the personal status of the plaintiffs; (2) when the action relates to, or the subject of which is
property, within the Philippines, in which the defendant claims a lien or an interest, actual or contingent; (3) when the
relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property
located in the Philippines; and (4) when the defendant non-resident's property has been attached within the
Philippines. In these instances, service of summons may be effected by (a) personal service out of the country, with
leave of court; (b) publication, also with leave of court; or (c) any other manner the court may deem sufficient.
Undoubtedly, extraterritorial service of summons applies only where the action is in rem or quasi in
rem, but not if an action is in personam.
The Complaint in the case at bar is an action to declare the loan and Hedging Contracts between the
parties void with a prayer for damages. It is a suit in which the plaintiff seeks to be freed from its obligations to the
defendant under a contract and to hold said defendant pecuniarily liable to the plaintiff for entering into such contract.
It is therefore an action in personam, unless and until the plaintiff attaches a property within the Philippines belonging
to the defendant, in which case the action will be converted to one quasi in rem.Since the action involved in the case
at bar is in personam and since the defendant, petitioner Rothschild/Investec, does not reside and is not found in the
Philippines, the Philippine courts cannot try any case against it because of the impossibility of acquiring jurisdiction
over its person unless it voluntarily appears in court.
In this regard, respondent vigorously argues that petitioner should be held to have voluntarily
appeared before the trial court when it prayed for, and was actually afforded, specific reliefs from the trial
court.Respondent points out that while petitioners Motion to Dismiss was still pending, petitioner prayed for and was
able to avail of modes of discovery against respondent, such as written interrogatories, requests for admission,
deposition, and motions for production of documents.
It appears, however, that petitioner misunderstood our ruling in La Naval. A close reading of La Naval reveals
that the Court intended a distinction between the raising of affirmative defenses in an Answer (which would notamount
to acceptance of the jurisdiction of the court) and the prayer for affirmative reliefs (which would be considered
acquiescence to the jurisdiction of the court)
In order to conform to the ruling in La Naval, which was decided by this Court in 1994, the former Section 23,
Rule 1444 concerning voluntary appearance was amended to include a second sentence in its equivalent provision in
the 1997 Rules of Civil Procedure:
SEC. 20. Voluntary appearance. The defendant's voluntary appearance in the action shall be
equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack
of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.
The new second sentence, it can be observed, merely mentions other grounds in a Motion to Dismiss aside
from lack of jurisdiction over the person of the defendant. This clearly refers to affirmative defenses, rather than
affirmative reliefs.Thus, while mindful of our ruling in La Naval and the new Section 20, Rule 20, this Court, in several
cases, ruled that seeking affirmative relief in a court is tantamount to voluntary appearance therein.
In view of the above, we therefore rule that petitioner, by seeking affirmative reliefs from the trial court,
is deemed to have voluntarily submitted to the jurisdiction of said court. A party cannot invoke the
jurisdiction of a court to secure affirmative relief against his opponent and after obtaining or failing to obtain
such relief, repudiate or question that same jurisdiction. Consequently, the trial court cannot be considered to
have committed grave abuse of discretion amounting to lack or excess of jurisdiction in the denial of the Motion to
Dismiss on account of failure to acquire jurisdiction over the person of the defendant.