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The factual and procedural antecedents leading to the instant petition are as follows:

On October 7, 2003, respondents John Velez and Clarissa Velez filed a complaint[3] for ejectment against
petitioner Milagros Salting involving a property covered by Transfer Certificate of Title (TCT) No. 38079. The
case was docketed as Civil Case No. 2524. On March 28, 2006, respondents obtained a favorable
decision[4] when the Metropolitan Trial Court (MeTC), Branch LXXIV, of Taguig City, Metro Manila, ordered
petitioner to vacate the subject parcel of land and to pay attorneys fees and costs of suit. The decision became
final and executory, after which respondents filed a motion for execution which was opposed by petitioner.
Thereafter, petitioner instituted an action before the Regional Trial Court (RTC), Branch 153, for
Annulment of Sale of the Property covered by TCT No. 38079, with prayer for the issuance of a Temporary
Restraining Order (TRO) and/or Writ of Preliminary Injunction against respondents, Hon. Ma. Paz Yson,
Deputy Sheriff Ernesto G. Raymundo, Jr., Teresita Diokno-Villamena, and Heirs of Daniel B. Villamena (Heirs
of Villamena).[5] The case was docketed as Civil Case No. 70859-TG. Petitioner claimed that she purchased
the subject parcel of land from Villamena as evidenced by a notarized document known as Sale of Real Estate.
She further explained that respondents were able to obtain title to the subject property through the fraudulent
acts of the heirs of Villamena. Finally, she averred that the decision in Civil Case No. 2524 had not attained
finality as she was not properly informed of the MeTC decision. Petitioner thus prayed that a TRO be issued,
restraining respondents and all persons acting for and in their behalf from executing the MeTC decision dated
March 28, 2006. She further sought the declaration of nullity of the sale by the heirs of Villamena to
respondents involving the subject parcel of land, and, consequently, the cancellation of the title to the property
in the name of respondents.

Finding that petitioner would suffer grave and irreparable damage if respondents would not be enjoined from
executing the March 28, 2006 MeTC decision while respondents would not suffer any prejudice, the RTC, in an
Order dated October 26, 2006, granted the writ of preliminary injunction applied for. [6] Aggrieved, respondents
filed a special civil action for certiorari under Rule 65 of the Rules of Court before the CA, raising the sole issue
of whether or not the RTC committed grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the writ of preliminary injunction against the execution of a judgment for ejectment.

In a Decision[7] dated November 29, 2007, the CA resolved the issue in the affirmative. The CA noted that the
principal action in Civil Case No. 70859-TG is the annulment of the deed of sale executed between
respondents and the heirs of Villamena, while the subject of the ancillary remedy of preliminary injunction is the
execution of the final judgment in a separate proceeding for ejectment in Civil Case No. 2524. The appellate
court concluded that petitioner had no clear and unmistakable right to possession over the subject parcel of
land in view of the March 28, 2006 MeTC decision. Hence, contrary to the conclusion of the RTC, the CA
opined that petitioner was not entitled to the writ of preliminary injunction. The CA thus set aside the October
26, 2006 Order of the RTC.

Petitioner now comes before this Court in this petition for review on certiorari under Rule 45 of the Rules of
Court, claiming that:
In rendering the assailed Decision and Resolution, the Court of Appeals has decided in a way
probably not in accord with law or with the applicable decisions of the Supreme Court. (Section
6 (a), Rule 45, 1997 Rule[s] of Civil Procedure). The Court of Appeals disregarded the rule that
service of decision to a deceased lawyer is invalid and that the party must be duly served by the
final judgment in order that the final judgment will become final and executory. The Court of
Appeals, likewise, disregarded the existence of a clear and existing right of the petitioner which
should be protected by an injunctive relief and the rule that the pendency of an action assailing
the right of a party to eject will justify the suspension of the proceedings of the ejectment case. [8]

Petitioner claims that she was denied her right to appeal when the March 28, 2006 MeTC decision was
declared final and executory despite the fact that the copy of the decision was served on her deceased
counsel. She further claims that the MeTC decision had not attained finality due to improper service of the
decision. Moreover, petitioner avers that she has a clear and existing right and interest over the subject
property which should be protected by injunction. Finally, petitioner argues that jurisprudence allows the
suspension of proceedings in an ejectment case at whatever stage when warranted by the circumstances of
the case.

In their Comment,[9] respondents allege that the petition is already moot and academic in view of the
execution of the MeTC decision. They claim that it is not proper to restrain the execution of the MeTC decision
as the case instituted before the RTC was for the annulment of the sale executed between respondents and
the heirs of Villamena, and not an action for annulment of judgment or mandamus to compel the MeTC to
entertain her belated appeal. Respondents add that the finality of the ejectment case is not a bar to the case
instituted for the annulment of the sale and the eventual recovery of ownership of the subject property. The
actions for ejectment and for annulment of sale are two different cases that may proceed independently,
especially when the judgment in the ejectment case had attained finality, as in the instant case. Finally,
respondents fault the petitioner herself for not informing the MeTC of the death of her former counsel the
moment she learned of such death.

We find no merit in the petition.

We first determine the validity of the service of the March 28, 2006 MeTC decision on petitioners
counsel who, as of that date, was already deceased. If a party to a case has appeared by counsel, service of
pleadings and judgments shall be made upon his counsel or one of them, unless service upon the party
himself is ordered by the court.[10]Thus, when the MeTC decision was sent to petitioners counsel, such service
of judgment was valid and binding upon petitioner, notwithstanding the death of her counsel. It is not the duty
of the courts to inquire, during the progress of a case, whether the law firm or partnership continues to exist
lawfully, the partners are still alive, or its associates are still connected with the firm. [11] Litigants, represented
by counsel, cannot simply sit back, relax, and await the outcome of their case. [12] It is the duty of the party-
litigant to be in contact with her counsel from time to time in order to be informed of the progress of her
case.[13] It is likewise the duty of the party to inform the court of the fact of her counsels death. Her failure to do
so means that she is negligent in the protection of her cause, and she cannot pass the blame to the court
which is not tasked to monitor the changes in the circumstances of the parties and their counsels.
It is noteworthy that when petitioner came to know of the death of her counsel and upon obtaining the services
of a new counsel, petitioner instituted another action for the annulment of the deed of sale between her and the
heirs of Villamena, instead of questioning the MeTC decision through an action for annulment of judgment.
Obviously, the annulment case instituted by petitioner is separate and distinct from the ejectment case filed by
respondents. She cannot, therefore, obtain relief through the second case for alleged errors and injustices
committed in the first case.
With the foregoing disquisition, we find that the March 28, 2006 MeTC decision had, indeed, become
final and executory. A final and executory decision can only be annulled by a petition to annul the same on the
ground of extrinsic fraud and lack of jurisdiction, or by a petition for relief from a final order or judgment under
Rule 38 of the Rules of Court. However, no petition to that effect was filed.[14] Well-settled is the rule that once
a judgment becomes final and executory, it can no longer be disturbed, altered, or modified in any respect
except to correct clerical errors or to make nunc pro tunc entries. Nothing further can be done to a final
judgment except to execute it.[15]

In the present case, the finality of the March 28, 2006 decision with respect to possession de facto cannot be
affected by the pendency of the annulment case where the ownership of the property is being contested.[16] We
are inclined to adhere to settled jurisprudence that suits involving ownership may not be successfully pleaded
in abatement of the enforcement of the final decision in an ejectment suit. The rationale of the rule has been
explained in this wise:

This rule is not without good reason. If the rule were otherwise, ejectment cases could easily be
frustrated through the simple expedient of filing an action contesting the ownership over the
property subject of the controversy. This would render nugatory the underlying philosophy of the
summary remedy of ejectment which is to prevent criminal disorder and breaches of the peace
and to discourage those who, believing themselves entitled to the possession of the property,
resort to force rather than to some appropriate action in court to assert their claims. [17]

Unlawful detainer and forcible entry suits under Rule 70 of the Rules of Court are designed to
summarily restore physical possession of a piece of land or building to one who has been illegally or forcibly
deprived thereof, without prejudice to the settlement of the parties opposing claims of juridical possession in
appropriate proceedings.[18]

Finally, as aptly held by the CA, petitioner is not entitled to a writ of preliminary injunction to restrain the
execution of the MeTC decision. Section 3, Rule 58 of the Rules of Court enumerates the grounds for the
issuance of preliminary injunction, viz.:

SEC. 3. Grounds for issuance of preliminary injunction. A preliminary injunction may be

granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such
relief consists in restraining the commission or continuance of the act or acts complained
of, or in requiring the performance of an act or acts, either for a limited period or

(b) That the commission, continuance or non-performance of the act or acts

complained of during the litigation would probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to
do, or is procuring or suffering to be done, some act or acts probably in violation of the
rights of the applicant respecting the subject of the action or proceeding, and tending to
render the judgment ineffectual.

And as clearly explained in Ocampo v. Sison Vda. de Fernandez[19]

To be entitled to the injunctive writ, the applicant must show that there exists a right to
be protected which is directly threatened by an act sought to be enjoined. Furthermore, there
must be a showing that the invasion of the right is material and substantial and that there is an
urgent and paramount necessity for the writ to prevent serious damage. The applicants right
must be clear and unmistakable. In the absence of a clear legal right, the issuance of the writ
constitutes grave abuse of discretion. Where the applicants right or title is doubtful or disputed,
injunction is not proper. The possibility of irreparable damage without proof of an actual existing
right is not a ground for injunction.

A clear and positive right especially calling for judicial protection must be shown.
Injunction is not a remedy to protect or enforce contingent, abstract, or future rights; it will not
issue to protect a right not in esse and which may never arise, or to restrain an act which does
not give rise to a cause of action. There must exist an actual right. There must be a patent
showing by the applicant that there exists a right to be protected and that the acts against which
the writ is to be directed are violative of said right.[20]

In this case, the enforcement of the writ of execution which would evict petitioner from her residence is
manifestly prejudicial to her interest. However, she possesses no legal right that merits the protection of the
courts through the writ of preliminary injunction. Her right to possess the property in question has been
declared inferior or inexistent in relation to respondents in the ejectment case in the MeTC decision which has
become final and executory.[21]

In any event, as manifested by respondents, the March 28, 2006 MeTC decision has already been
executed. Hence, there is nothing more to restrain.

WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Court of Appeals
Decision dated November 29, 2007 and Resolution dated February 27, 2008 in CA-G.R. SP No. 97618





BF Homes, Inc. and Chandumal entered into a contract to sell a parcel of land. BF Homes then sold to PDB all
its rights and interests over the contract. On June 18, 1999, an action for judicial confirmation of notarial
rescission and delivery of possession was filed by PDP against Chandumal.

Consequently, summons was issued. According to the Sheriff's return, Sheriff Galing attempted to personally
serve the summons upon Chandumal on three dates but it was unavailing as she was always out of the house
on said dates. Hence, the sheriff caused substituted service of summons by serving the same through
Chandumal's mother who acknowledged receipt thereof.

For her failure to file within the prescribed period, PDB filed an ex parte motion to declare Chandumal in default
which was granted by the RTC. On February 23, 2001, Chandumal filed an Urgent Motion to Set Aside Order
of Default maintaining that she did not receive the summons and/or was not notified of the same. RTC denied
Chandumal's motion which was reversed by the Court of Appeals due to invalid and ineffective substituted
service of summons.

(1) Whether there was valid substituted service of summons
(2) Whether Chandumal voluntarily submitted to the jurisdiction of the trial court
(3) Whether there was proper rescission by notarial act of the contract to sell

(1) There was no valid substitute service of summons.

The Return of Summons does not specifically show or indicate in detail the actual exertion of efforts or any
positive step taken by the officer or process server in attempting to serve the summons personally to the
defendant. The return merely states the alleged whereabouts of the defendant without indicating that such
information was verified from a person who had knowledge thereof.

(2) Respondent voluntarily submitted to the jurisdiction of the trial court.

Section 20, Rule 14 of the Rules of Court states "The defendant's voluntary appearance in the action shall be
equivalent to service of summons"

(3) There is no valid rescission of the contract to sell by notarial act.

The allegation that Chandumal made herself unavailable for payment is not an excuse as the twin
requirements for a valid and effective cancellation under the law, i.e. notice of cancellation or demand for
rescission by a notarial act and the full payment of the cash surrender value, is mandatory.



On 2000, Celita Miralles filed with RTC Paranaque City a complaint for sum of money against Remelita
Robinson. The sheriff went to effect the summons. However, the security guard, assigned at the gate of the
subdivision where Robinson lived, refuse to let the sheriff go inside the subdivision. The security guard alleged
that he was instructed by Robinson not to let anybody proceed to her house if she is not around. Despite the
sheriff's explanation, the guard still refused admittance. The sheriff returned the second time to serve the
summons. The same thing happened. So, the sheriff served the summons by leaving a copy thereof together
with the copy of the complaint to the security guard by the name of A.H. Geroche, who refused to affix his
signature on the original copy thereof, so he will be the one to give the same to the defendant.

Eventually, Robinson was declared in default and judgment was rendered ordering her to pay US$20,054.00.
A copy of the decision was sent to her by registered mail. On 2003, she filed a petition for relief from
the judgment by default. She claimed that summons was improperly served upon her, thus, the trial court never
acquired jurisdiction over her and that all its proceedings are void. She contends that the service of summons
upon the subdivision security guard is not in compliance with Section 7, Rule 14 since he is not related to her
or staying at her residence. Moreover, he is not duly authorized to receive summons for the residents of the
village. Hence, the substituted service of summons is not valid and that the trial court never
acquired jurisdiction over her person.

On 2004, the trial court issued a Resolution denying the petition for relief. The Motion for Reconsideration was
likewise denied. Hence, the appeal.


Whether or not the summons was properly served.


Yes. We have ruled that the statutory requirements of substituted service must be followed strictly, faithfully,
and fully and any substituted service other than that authorized by the Rules is considered
ineffective. However, we frown upon an overly strict application of the Rules. It is the spirit, rather than the
letter of the procedural rules, that governs.
In his Return, Sheriff Potente declared that he was refused entry by the security guard in Alabang Hills twice.
The latter informed him that petitioner prohibits him from allowing anybody to proceed to her residence
whenever she is out. Obviously, it was impossible for the sheriff to effect personal or substituted service of
summons upon petitioner. We note that she failed to controvert the sheriff’s declaration. Nor did she deny
having received the summons through the security guard. Considering her strict instruction to the security
guard, she must bear its consequences. Thus, we agree with the trial court that summons has been properly
served upon petitioner and that it has acquired jurisdiction over her.


Petitioner Leah Palma filed with the RTC an action for damages against the Philippine Heart Center (PHC), Dr.
Danilo Giron and Dr. Bernadette O. Cruz, alleging that the defendants committed professional fault, negligence
and omission for having removed her right ovary against her will, and losing the same and the tissues
extracted from her during the surgery; and that although the specimens were subsequently found, petitioner
was doubtful and uncertain that the same was hers as the label therein pertained that of somebody else.
Defendants filed their respective Answers. Petitioner subsequently filed a Motion for Leave to Admit Amended
Complaint, praying for the inclusion of additional defendants who were all nurses at the PHC, namely, Karla
Reyes, Myra Mangaser and herein private respondent Agudo. Thus, summons were subsequently issued to

On February 17, 2004, the RTC's process server submitted his return of summons stating that the alias
summons, together with a copy of the amended complaint and its annexes, were served upon private
respondent thru her husband Alfredo Agudo, who received and signed the same as private respondent was out
of the country.

On March 1, 2004, counsel of private respondent filed a Notice of Appearance and a Motion for
Extension of Time to File Answer stating that he was just engaged by private respondent's husband as she
was out of the country and the Answer was already due.

On March 15, 2004, private respondent's counsel filed a Motion for Another Extension of Time to File Answer,
and stating that while the draft answer was already finished, the same would be sent to private respondent for
her clarification/verification before the Philippine Consulate in Ireland; thus, the counsel prayed for another 20
days to file the Answer.

On March 30, 2004, private respondent filed a Motion to Dismiss on the ground that the RTC had notacquired
jurisdiction over her as she was not properly served with summons, since she was temporarily out of the
country; that service of summons on her should conform to Section 16, Rule 14 of the Rules of
Court. Petitioner filed her Opposition to the motion to dismiss, arguing that a substituted service of summons
on private respondent's husband was valid and binding on her; that service of summons under Section 16,
Rule 14 was not exclusive and may be effected by other modes of service, i.e., by personal or substituted

On May 7, 2004, the RTC issued its assailed Order granting private respondent's motion to dismiss. It found
that while the summons was served at private respondent's house and received by respondent's husband,
such service did not qualify as a valid service of summons on her as she was out of the country at the time the
summons was served, thus, she was not personally served a summons; and even granting that she knew that
a complaint was filed against her, nevertheless, the court did not acquire jurisdiction over her person as she
was not validly served with summons; that substituted service could not be resorted to since it was established
that private respondent was out of the country, thus, Section 16, Rule 14 provides for the service of summons
on her by publication.

Whether there was a valid service of summons on private respondent

Yes. In civil cases, the trial court acquires jurisdiction over the person of the defendant either by the service of
summons or by the latters voluntary appearance and submission to the authority of the former. Private
respondent was a Filipino resident who was temporarily out of the Philippines at the time of the service of
summons; thus, service of summons on her is governed by Section 16, Rule 14 of the Rules of Court. We have
held that a dwelling, house or residence refers to the place where the person named in the summons is living
at the time when the service is made, even though he may be temporarily out of the country at the time. It is,
thus, the service of the summons intended for the defendant that must be left with the person of suitable age
and discretion residing in the house of the defendant. Compliance with the rules regarding the service of
summons is as important as the issue of due process as that of jurisdiction.

In this case, the Sheriff's Return stated that private respondent was out of the country; thus, the service of
summons was made at her residence with her husband, Alfredo P. Agudo, acknowledging receipt thereof.
Alfredo was presumably of suitable age and discretion, who was residing in that place and, therefore, was
competent to receive the summons on private respondent's behalf.

Notably, private respondent makes no issue as to the fact that the place where the summons was served was
her residence, though she was temporarily out of the country at that time, and that Alfredo is her husband. In
fact, in the notice of appearance and motion for extension of time to file answer submitted by private
respondent's counsel, he confirmed the Sheriff's Return by stating that private respondent was out of the
country and that his service was engaged by respondent's husband. In his motion for another extension of time
to file answer, private respondent's counsel stated that a draft of the answer had already been prepared, which
would be submitted to private respondent, who was in Ireland for her clarification and/or verification before the
Philippine Consulate there. These statements establish the fact that private respondent had knowledge of the
case filed against her, and that her husband had told her about the case as Alfredo even engaged the services
of her counsel.

G.R. No. 183035


[ G.R. No. 183035, January 09, 2013 ]



Before us is a Rule 45 Petition assailing the Decision[1] and Resolution[2] of the Court of Appeals (CA) in CA-
GR SP No. 99890, which reversed the Decision[3] and Resolution[4] of the Regional Trial Court (RTC), Branch
137, Makati City in Civil Case No. 06-672. The RTC had affirmed in toto the 22 May 2006 Decision[5] of the
Metropolitan Trial Court (MeTC), Branch 64, Makati City in Civil Case No. 90842 evicting respondent Hertz
Phil. Exclusive Cars, Inc. (Hertz) and ordering it to pay back rentals and other arrearages to petitioner Optima
Realty Corporation (Optima).

Optima is engaged in the business of leasing and renting out commercial spaces and buildings to its tenants.
On 12 December 2002, it entered into a Contract of Lease with respondent over a 131-square-meter office unit
and a parking slot in the Optima Building for a period of three years commencing on 1 March 2003 and ending
on 28 February 2006.[6] On 9 March 2004, the parties amended their lease agreement by shortening the lease
period to two years and five months, commencing on 1 October 2003 and ending on 28 February 2006.[7]

Renovations in the Optima Building commenced in January and ended in November 2005. [8] As a result, Hertz
alleged that it experienced a 50% drop in monthly sales and a significant decrease in its personnel's
productivity. It then requested a 50% discount on its rent for the months of May, June, July and August 2005. [9]

On 8 December 2005, Optima granted the request of Hertz.[10] However, the latter still failed to pay its rentals
for the months of August to December of 2005 and January to February 2006,[11] or a total of seven months. In
addition, Hertz likewise failed to pay its utility bills for the months of November and December of 2005 and
January and February of 2006,[12] or a total of four months.

On 8 December 2005, Optima wrote another letter to Hertz,[13] reminding the latter that the Contract of Lease
could be renewed only by a new negotiation between the parties and upon written notice by the lessee to the
lessor at least 90 days prior to the termination of the lease period.[14] As no letter was received from Hertz
regarding its intention to seek negotiation and extension of the lease contract within the 90-day period, Optima
informed it that the lease would expire on 28 February 2006 and would not be renewed.[15]

On 21 December 2005, Hertz wrote a letter belatedly advising Optima of the former's desire to negotiate and
extend the lease.[16]However, as the Contract of Lease provided that the notice to negotiate its renewal must
be given by the lessee at least 90 days prior to the expiration of the contract, petitioner no longer entertained
respondent's notice.

On 30 January 2006, Hertz filed a Complaint for Specific Performance, Injunction and Damages and/or Sum of
Money with prayer for the issuance of a Temporary Restraining Order (TRO) and Writ of Preliminary Injunction
(Complaint for Specific Performance) against Optima. In that Complaint, Hertz prayed for the issuance of a
TRO to enjoin petitioner from committing acts that would tend to disrupt respondent's peaceful use and
possession of the leased premises; for a Writ of Preliminary Injunction ordering petitioner to reconnect its
utilities; for petitioner to be ordered to renegotiate a renewal of the Contract of Lease; and for actual, moral and
exemplary damages, as well as attorney's fees and costs.

On 1 March 2006, Optima, through counsel, wrote Hertz a letter requiring the latter to surrender and vacate the
leased premises in view of the expiration of the Contract of Lease on 28 February 2006.[17] It likewise
demanded payment of the sum of ?420,967.28 in rental arrearages, unpaid utility bills and other
charges.[18] Hertz, however, refused to vacate the leased premises.[19] As a result, Optima was constrained to
file before the MeTC a Complaint for Unlawful Detainer and Damages with Prayer for the Issuance of a TRO
and/or Preliminary Mandatory Injunction (Unlawful Detainer Complaint) against Hertz. [20]

On 14 March 2006, Summons for the Unlawful Detainer Complaint was served on Henry Bobiles, quality
control supervisor of Hertz, who complied with the telephone instruction of manager Rudy Tirador to receive
the Summons.[21]

On 28 March 2006, or 14 days after service of the Summons, Hertz filed a Motion for Leave of Court to file
Answer with Counterclaim and to Admit Answer with Counterclaim (Motion for Leave to File Answer). [22] In that
Motion, Hertz stated that, "in spite of the defective service of summons, [it] opted to file the instant Answer with
Counterclaim with Leave of Court."[23] In the same Motion, it likewise prayed that, in the interest of substantial
justice, the Answer with Counterclaim attached to the Motion for Leave to File Answer should be admitted
regardless of its belated filing, since the service of summons was defective.[24]

On 22 May 2006, the MeTC rendered a Decision,[25] ruling that petitioner Optima had established its right to
evict Hertz from the subject premises due to nonpayment of rentals and the expiration of the period of
lease.[26] The dispositive portion of the Decision reads:

WHEREFORE, premises considered, the Court hereby renders judgment for the plaintiff and against the
defendant, ordering:

1. the defendant corporation and all persons claiming rights from it to immediately vacate the leased
premises and to surrender possession thereof to the plaintiff;

2. the defendant corporation to pay the plaintiff the amount of Four Hundred Twenty Thousand Nine
Hundred Sixty Seven Pesos and 28/100 (P420,967.28) representing its rentals arrearages and utility
charges for the period of August 2005 to February 2006, deducting therefrom defendant's security

3. the defendant corporation to pay the amount of Fifty Four Thousand Two Hundred Pesos (P54,200.00)
as a reasonable monthly compensation for the use and occupancy of the premises starting from March
2006 until possession thereof is restored to the plaintiff; and

4. the defendant corporation to pay the amount of Thirty Thousand Pesos (P30,000.00) as and for
attorney's fees; and

5. the cost of suit.


Hertz appealed the MeTC's Decision to the RTC.[28]

Finding no compelling reason to warrant the reversal of the MeTC's Decision, the RTC affirmed it by
dismissing the appeal in a Decision[29] dated 16 March 2007.

On 18 June 2007, the RTC denied respondent's Motion for Reconsideration of its assailed Decision.[30]

Hertz thereafter filed a verified Rule 42 Petition for Review on Certiorari with the CA. [31]

On appeal, the CA ruled that, due to the improper service of summons, the MeTC failed to acquire jurisdiction
over the person of respondent Hertz. The appellate court thereafter reversed the RTC and remanded the case
to the MeTC to ensure the proper service of summons. Accordingly, the CA issued its 17 March 2008 Decision,
the fallo of which reads:

WHEREFORE, premises considered, the May 22, 2006 Decision of the Metropolitan Trial Court of Makati City,
Branch 64, in Civil Case No. 90842, and both the March 16, 2007 Decision, as well as the June 18, 2007
Resolution, of the Regional Trial Court of Makati City, Branch 137, in Civil Case No. 06-672, are
hereby REVERSED, ANNULLED and SET ASIDE due to lack of jurisdiction over the person of the defendant
corporation HERTZ. This case is hereby REMANDED to the Metropolitan Trial Court of Makati City, Branch 64,
in Civil Case No. 90842, which is DIRECTED to ensure that its Sheriff properly serve summons to only those
persons listed in Sec. 11, Rule 14 of the Rules of Civil Procedure in order that the MTC could acquire
jurisdiction over the person of the defendant corporation HERTZ.


Petitioner's Motion for Reconsideration of the CA's Decision was denied in a Resolution dated 20 May 2008. [33]

Aggrieved by the ruling of the appellate court, petitioner then filed the instant Rule 45 Petition for Review on
Certiorari with this Court.[34]


As culled from the records, the following issues are submitted for resolution by this Court:

1. Whether the MeTC properly acquired jurisdiction over the person of respondent Hertz;

2. Whether the unlawful detainer case is barred by litis pendentia; and

3. Whether the ejectment of Hertz and the award of damages, attorneys fees and costs are proper.


We grant the Petition and reverse the assailed Decision and Resolution of the appellate court.

The MeTC acquired jurisdiction over the person of
respondent Hertz.

In civil cases, jurisdiction over the person of the defendant may be acquired either by service of summons or
by the defendant's voluntary appearance in court and submission to its authority.[35]

In this case, the MeTC acquired jurisdiction over the person of respondent Hertz by reason of the latter's
voluntary appearance in court.

In Philippine Commercial International Bank v. Spouses Dy,[36] we had occasion to state:

Preliminarily, jurisdiction over the defendant in a civil case is acquired either by the coercive power of legal
processes exerted over his person, or his voluntary appearance in court. As a general proposition, one who
seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. It is by reason of this
rule that we have had occasion to declare that the filing of motions to admit answer, for additional time to
file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration,
is considered voluntary submission to the court's jurisdiction. This, however, is tempered by the concept of
conditional appearance, such that a party who makes a special appearance to challenge, among others, the
court's jurisdiction over his person cannot be considered to have submitted to its authority.

Prescinding from the foregoing, it is thus clear that:

(1) Special appearance operates as an exception to the general rule on voluntary appearance;
Accordingly, objections to the jurisdiction of the court over the person of the defendant must be explicitly
made, i.e., set forth in an unequivocal manner; and
Failure to do so constitutes voluntary submission to the jurisdiction of the court, especially in instances
(3) where a pleading or motion seeking affirmative relief is filed and submitted to the court for resolution.
(Emphases supplied)

In this case, the records show that the following statement appeared in respondent's Motion for Leave to File

[I]n spite of the defective service of summons, the defendant opted to file the instant Answer with
Counterclaim with Leave of Court, upon inquiring from the office of the clerk of court of this Honorable Court
and due to its notice of hearing on March 29, 2005 application for TRO/Preliminary Mandatory Injunction was
received on March 26, 2006. (Emphasis supplied)[37]

Furthermore, the Answer with Counterclaim filed by Hertz never raised the defense of improper service of
summons. The defenses that it pleaded were limited to litis pendentia, pari delicto, performance of its
obligations and lack of cause of action.[38] Finally, it even asserted its own counterclaim against Optima.[39]

Measured against the standards in Philippine Commercial International Bank, these actions lead to no other
conclusion than that Hertz voluntarily appeared before the court a quo.

We therefore rule that, by virtue of the voluntary appearance of respondent Hertz before the MeTC, the trial
court acquired jurisdiction over respondent's.

The instant ejectment case is not barred by litis pendentia.

Hertz contends that the instant case is barred by litis pendentia because of the pendency of its Complaint for
Specific Performance against Optima before the RTC.

We disagree.

Litis pendentia requires the concurrence of the following elements:

(1) Identity of parties, or at least their representation of the same interests in both actions;
(2) Identity of rights asserted and reliefs prayed for, the relief being founded on the same facts; and
Identity with respect to the two preceding particulars in the two cases, such that any judgment that
(3) may be rendered in the pending case, regardless of which party is successful, would amount to res
judicata in the other case.[40]

Here, while there is identity of parties in both cases, we find that the rights asserted and the reliefs prayed for
under the Complaint for Specific Performance and those under the present Unlawful Detainer Complaint are
different. As aptly found by the trial court:

[T]he Complaint for Specific Performance] seeks to compel plaintiff-appellee Optima to: (1) renegotiate the
contract of lease; (2) reconnect the utilities at the leased premises; and (3) pay damages. On the other hand,
the unlawful detainer case sought the ejectment of defendant-appellant Hertz from the leased premises and to
collect arrears in rentals and utility bills.[41]

As the rights asserted and the reliefs sought in the two cases are different, we find that the pendency of the
Complaint for Specific Performance is not a bar to the institution of the present case for ejectment.

WHEREFORE, in view of the foregoing, the instant Rule 45 Petition for Review is GRANTED. The assailed
Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 99890 are hereby REVERSED and SET
ASIDE. The Decision of the Regional Trial Court, Branch 137, Makati City in Civil Case No. 06-672 affirming in
toto the Decision of the Metropolitan Trial Court, Branch 64, Makati City in Civil Case No. 90842 is


G.R. No. 190710, [June 6, 2011]


Petitioner, Jesse Lucas filed a Petition to Establish Filiation with a Motion for the Submission of Parties to DNA
Testing before the Regional Trial Court (RTC). Jesse alleged that he is the son of his mother Elsie who got
acquainted with respondent, Jesus S. Lucas in Manila. He also submitted documents which include (a)
petitioner’s certificate of live birth; (b) petitioner’s baptismal certificate; (c) petitioner’s college diploma, showing
that he graduated from Saint Louis University in Baguio City with a degree in Psychology; (d) his Certificate
of Graduation from the same school; (e) Certificate of Recognition from the University of the Philippines,
College of Music; and (f) clippings of several articles from different newspapers about petitioner, as a musical

Jesus learned of this and he filed a Special Appearance and Comment manifesting that the petition was
adversarial in nature and therefore summons should be served on him. Meanwhile, Jesse filed a Very Urgent
Motion to Try and Hear the Case which the RTC found to be sufficient in form and hence set the case for
hearing. Jesus filed a Motion for Reconsideration arguing that DNA testing cannot be had on the basis of a
mere allegation pointing to him as Jesse’s father.

Acting on Jesus’ Motion for Reconsideration, the RTC dismissed the case and held that Jesse failed to
establish compliance with the four procedural aspects for a paternity action enumerated in the case of Herrera
v. Alba namely, a prima faciecase, affirmative defences, presumption of legitimacy, and physical resemblance
between the putative father and the child.

This prompted Jesse to file a Motion for Reconsideration which the RTC granted. A new hearing was
scheduled where the RTC held that ruling on the grounds relied upon by Jesse for filing the instant petition is
premature considering that a full-blown trial has not yet taken place. Jesus filed a Motion for Reconsideration
which was denied by the RTC. He then filed a petition for certiorari with the Court of Appeals (CA). The CA
ruled in favour of Jesus, it noted that Jesse failed to show that the four significant aspects of a traditional
paternity action had been met and held that DNA testing should not be allowed when the petitioner has failed
to establish a prima facie case.


Whether the court acquired jurisdiction over the person of respondent, whether respondent waived his right to
the service of summons.


Yes, but it is not yet time to discuss the lack ofa prima facie case vis-à-vis the motion for DNA testing since no
evidence has, as yet, been presented by petitioner.


The grounds for dismissal relied upon by respondent were (a) the court’s lack of jurisdiction over his person
due to the absence of summons, and (b) defect in the form and substance of the petition to establish
illegitimate filiation, which is equivalent to failure to state a cause of action.

We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the court
acquired jurisdiction over the person of respondent, or whether respondent waived his right to the service of
summons. We find that the primordial issue here is actually whether it was necessary, in the first place, to
serve summons on respondent for the court to acquire jurisdiction over the case. In other words, was the
service of summons jurisdictional? The answer to this question depends on the nature of petitioner’s action,
that is, whether it is an action in personam, in rem, or quasi in rem.

An action in personam is lodged against a person based on personal liability; an action in rem is directed
against the thing itself instead of the person; while an action quasi in rem names a person as defendant, but its
object is to subject that person's interest in a property to a corresponding lien or obligation. A petition directed
against the "thing" itself or the res, which concerns the status of a person, like a petition for adoption,
annulment of marriage, or correction of entries in the birth certificate, is an action in rem.22

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try
and decide the case. In a proceeding 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 latter has jurisdiction over
the res. Jurisdiction over the res is acquired either (a) by the seizure of the property under legal process,
whereby it is brought into actual custody of the law, or (b) as a result of the institution of legal proceedings, in
which the power of the court is recognized and made effective. 23

The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the petition to
establish illegitimate filiation before the RTC, which undoubtedly had jurisdiction over the subject matter of the
petition, the latter thereby acquired jurisdiction over the case. An in rem proceeding is validated essentially
through publication. Publication is notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort to the right sought to be
established.24 Through publication, all interested parties are deemed notified of the petition.

If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the court
with jurisdiction, but merely for satisfying the due process requirements.25 This is but proper in order to afford
the person concerned the opportunity to protect his interest if he so chooses.26 Hence, failure to serve
summons will not deprive the court of its jurisdiction to try and decide the case. In such a case, the lack of
summons may be excused where it is determined that the adverse party had, in fact, the opportunity to file his
opposition, as in this case. We find that the due process requirement with respect to respondent has been
satisfied, considering that he has participated in the proceedings in this case and he has the opportunity to file
his opposition to the petition to establish filiation.